[2013] 4 F.C.R. D-6
Maritime Law
Liens and Mortgages
Appeal from Prothonotary’s decision refusing to allow sale of four marine diesel generators, lifting device located in Hamburg, Germany, under Federal Courts Rules, SOR/98-106, r. 379 for lack of jurisdiction—Davie Yards Inc. (Davie 1) instructing plaintiff to arrange for pick-up, storage of generators in Hamburg—Davie 3, successor to Davie 1, ceasing to pay monthly storage fees—Meanwhile, Export Development Canada (EDC) entering into loan agreement with mises-en-cause, Ocean Hotels I Limited, Ocean Hotels II Limited, for construction by Davies of Hulls 721, 722—Loan agreement granting EDC first priority mortgage on Hulls 721, 722, all appurtenances pertaining thereto, including generators at issue herein—Two separate moveable hypothecs, shipbuilder’s mortgage agreements also entered into between EDC, mises-en-cause—EDC registering first priority shipbuilder’s mortgages, first priority hypothecs on each hull, appurtenances relating thereto—Generators, lifting device purchased, paid for on behalf of mises-en-cause, appurtenances to be installed on Hulls 721, 722—Mises-en-cause defaulting on loan agreement, EDC claiming to be in position to sell Hulls 721, 722 pursuant to Canada Shipping Act, 2001, S.C. 2001, c. 26, s. 69—Plaintiff pursuing action in personam against EDC—Issue whether Federal Court having jurisdiction in present case—While Federal Court having in personam jurisdiction, statutory provision required granting Court power to force sale of cargoes having never been in Canada—Sole provision Canada Shipping Act, 2001, s. 69 empowering mortgagee, i.e. EDC, to seek order for sale of mortgaged property not in Canada—As to Federal Courts Rules, r. 379, that rule not applicable as generators never in Canada, no evidence generators likely to deteriorate—Appeal dismissed.
SDV Logistiques (Canada) Inc. v. The Dieselgenset Type 8M 25, Engine No. 45085 EX the Barge “Andrea” (T-2145-12, 2013 FC 671, Scott J., reasons for order dated June 18, 2013, 14 pp.)