A-169-73
The Ship Capricorn (alias the Ship Alliance)
(Appellant)
v.
Antares Shipping Corporation (Respondent)
Court of Appeal, Ryan and Le Dain JJ. and Hyde
D.J.—Montreal, November 1 and 2, 1977;
Ottawa, February 24, 1978.
Jurisdiction — Maritime law — Appeal from order of Trial
Division made on motion to strike statement of claim —
Action for specific performance of contract for sale of ship —
Allegation that ship sold by Delmar to Antares, that contract
not performed, and that simulated sale subsequently made to
Portland — Trial Division finding Federal Court's jurisdiction
based on federal "Navigation and Shipping" power — Also
decision that relief not available in action in rem — Whether
or not the Court has jurisdiction to entertain this action —
Whether or not action in rem for such relief discloses valid
cause of action — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 2, 22, 42.
This is an appeal from an order of the Trial Division on a
motion to strike out the statement of claim whereby the Trial
Division affirmed the jurisdiction of the Federal Court to
entertain an action to enforce an agreement for the sale of the
appellant ship. Respondent Antares brought an action in rem
against the Capricorn alleging that Delmar entered into an
agreement for the sale of the Capricorn to Antares, that
Delmar refused to perform its obligations under the agreement,
and that Delmar subsequently made a simulated sale of the
Capricorn to Portland with intent to defraud Antares. The
Trial Division held that the Court had jurisdiction on the
ground that the subject matter of the action fell within Parlia
ment's legislative competence under "Navigation and Ship
ping". The Court also held that relief could not be obtained in
an action in rem. It ordered Delmar and Portland to be added
as defendants, and failing service, the statement of claim struck
and the arrest of the ship set aside. Service was effected. The
issues are whether the Court has jurisdiction to entertain an
action which contains these conclusions and whether an action
in rem for such relief discloses a valid cause of action that can
be made effective by the joinder of Delmar and Portland as
defendants.
Held, the appeal is allowed. The action viewed as a whole is
not a claim for ownership or title, but an action to enforce the
agreement between Delmar and Antares. The Court is unaware
of and has not been referred to any case in which an action for
specific performance of a contract of sale of a ship was
recognized, even by implication, as falling within admiralty
jurisdiction. Although the Federal Court has the power to order
specific performance and to enforce equitable interests, it does
not follow merely from the existence of this power in appropri-
ate cases that an action for specific performance of an agree
ment to sell, in which there is a clear intention that the property
is to pass by subsequent bill of sale, should be considered to be
a claim as to ownership within the meaning of section 22(2)(a)
of the Federal Court Act. The claim for specific performance of
the contract of sale, the related and dependent claim to have
the sale from Delmar to Portland set aside and Delmar
declared owner, and the claim for damages do not come within
the Federal Court's jurisdiction under section 22(2)(a). Fur
ther, the action should not be held to be a maritime matter so
as to fall within the general grant of jurisdiction in section
22(1). Section 22(2), if it were to include claims for breach of
contract for the sale of a ship, would have had express provision
for that case as was done with other kinds of contract.
APPEAL.
COUNSEL:
G. de Billy, Q.C., for appellant.
G. Vaillancourt for respondent.
SOLICITORS:
Gagnon, de Billy, Cantin, Dionne, Martin,
Beaudoin & Lesage, Quebec, for appellant.
Langlois, Drouin, Roy, Fréchette & Gau-
dreau, Quebec, for respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from an order of
the Trial Division of October 1, 1973 [[1973] F.C.
955] on a motion to strike out the statement of
claim whereby the Trial Division affirmed the
jurisdiction of the Federal Court to entertain an
action to enforce an agreement for the sale of the
appellant ship and ordered the joinder as defend
ants of Delmar Shipping Co. Ltd. (hereinafter
referred to as "Delmar") and Portland Shipping
Company Inc. (hereinafter referred to as "Port-
land").
The respondent, to whom it is convenient to
refer hereinafter as "Antares", has brought an
action in rem against the Capricorn in which it
alleges that Delmar entered into an agreement for
the sale of the Capricorn to Antares, that Delmar
refused to perform its obligations under the agree
ment, and that Delmar subsequently made a simu
lated sale of the Capricorn to Portland with intent
to defraud Antares. The action concludes as
follows:
WHEREFORE THE PLAINTIFF PRAYS THE COURT FOR AN
ORDER:
DECLARING THAT the sale of the DEFENDANT SHIP to PORT-
LAND SHIPPING COMPANY INC. registered on June 5, 1973
with the Liberian Registrar of Shipping in New York is null
and void, and THAT said DEFENDANT SHIP belongs to DELMAR
SHIPPING CO. LTD.;
DECLARING THAT the sale of the DEFENDANT SHIP to the
PLAINTIFF has been concluded under the NORWEGIAN SALE-
FORM (revised 1966) issued at London on May 3rd, 1973 as
amended, between DELMAR SHIPPING CO. LTD. as SELLERS
and SEBASTIANO RUSSOTTI for the account of PLAINTIFF as
Buyers;
DECLARING that the PLAINTIFF has made good and sufficient
payment of the 10% deposit of the purchase price or MAKING
such other Order regarding payment as the Court may deem
just in the circumstances.
— ORDERING THAT the owners of the DEFENDANT SHIP Messrs
DELMAR SHIPPING CO. LTD. deliver the duplicate copy of the
memorandum of agreement as amended and duly signed,
deliver the DEFENDANT SHIP to the PLAINTIFF within eight
(8) days of the Order and, in exchange of the payment of the
purchase money by the PLAINTIFF, furnish the PLAINTIFF
with legal Bill of Sale of the LIBERIAN MOTOR TANKER
CAPRICORN, registered in Monrovia, REPUBLIC OF LIBERIA,
together with a certificate of deletion from the Ship's regis
ter, failing which the judgment to intervene is to take the
place of a deed of sale in favour of the PLAINTIFF of the said
DEFENDANT SHIP, free and clear of all encumbrances upon
payment being made into Court by PLAINTIFF of the pur
chase money less any amount required to discharge the
registered encumbrances.
— CONDEMNING THE DEFENDANT to pay the PLAINTIFF the
sum of UNITED STATES DOLLARS $40,000.00 per month or
part thereof from June 30th, 1973 to the date of the delivery
and transfer of ownership of the DEFENDANT SHIP plus
UNITED STATES DOLLARS $1,000,000.00 being the damages
payable to charterers as presently estimated with interest,
but reserving the PLAINTIFF'S right to claim for additional
damages and relief, if necessary;
— AND, if the DEFENDANT SHIP is not delivered and the
ownership not transferred as aforesaid within thirty (30)
days of the Order for any cause beyond PLAINTIFF'S control
and notwithstanding that the judgment takes the place of a
deed of sale, CANCELLING the sale and CONDEMNING THE
DEFENDANT to pay the PLAINTIFF the sum of UNITED
STATES DOLLARS $3,494,156.10 with interest;
— AND FOR COSTS
The defendant ship and Portland moved to have
the statement of claim struck out and the arrest of
the ship set aside on the ground that the Court
lacked jurisdiction to entertain an action for relief
of this kind.
The Trial Division held that the Court had
jurisdiction on the ground that the subject matter
of the action fell within the legislative jurisdiction
of the Parliament of Canada with respect to
"Navigation and Shipping" under section 91(10)
of The British North America Act, 1867. The
Court further held, however, that the relief sought
could not be obtained in an action in rem. It
ordered that Delmar and Portland be added as
defendants, and, that, failing service upon them
within sixty days of the order, the statement of
claim be struck out and the arrest of the ship be
set aside.
Following this order Antares applied to the Trial
Division for leave to serve Delmar and Portland
out of the jurisdiction but leave was refused. This
order was confirmed by the Court of Appeal. On
appeal to the Supreme Court of Canada the judg
ments of the Trial Division and Court of Appeal
were set aside, and it was directed that an order
for service ex juris be issued. An order was issued
by the Trial Division, and Delmar and Portland
were served. They have appeared and have taken
part in what is now an action in personam as well
as in rem.
The issues on appeal are whether the Court has
jurisdiction to entertain an action which contains
the conclusions set out above, and whether an
action in rem for such relief discloses a valid cause
of action that can be made effective by the joinder
of Delmar and Portland as defendants.
It was contended by the respondent that the
judgment of the Supreme Court of Canada on the
question of service ex juris' had necessarily deter
mined the issues in this appeal. In my respectful
opinion that is not the case. The majority and
minority opinions in the Supreme Court of Canada
indicate that the Court proceeded on the basis that
the judgment of the Trial Division from which the
present appeal is brought was to be taken, for
purposes of the question of service ex juris, as
having determined the issues of jurisdiction and
the joinder of in personam claims for relief.
' Antares Shipping Corporation v. The "Capricorn" [1977]
2 S.C.R. 422.
The reasoning of the learned Trial Judge on the
question of jurisdiction is contained in the follow
ing passages from his reasons for judgment [at
page 958]:
Assuming that the plaintiffs claim would, as submitted by
counsel, neither fall within one of the categories mentioned in
section 22(2) nor be a claim made under "Canadian maritime
law", I am nevertheless of the opinion that this Court has
jurisdiction in this case since, in my view, the plaintiff seeks a
remedy under a law of Canada relating to shipping.
In my view, a claim which relates to "navigation and ship
ping", a subject-matter which is within the exclusive legislative
jurisdiction of Parliament under section 91(10) of the British
North America Act, 1867, is a claim made under a law of
Canada relating to navigation and shipping. In other words, the
jurisdiction of this Court in maritime matters under section
22(1) is co-extensive with the legislative power of Parliament
over "navigation and shipping"; it is not limited to the matters
coming within that subject on which Parliament has actually
legislated.
As a result of the judgments of the Supreme
Court of Canada in the Quebec North Shore
Paper Company 2 and McNamara Construction;
cases, the conclusion of the Trial Division on the
question of jurisdiction can no longer be supported
on the ground that was relied on by the learned
Trial Judge, namely, that the subject matter of the
action falls within the legislative competence of the
Parliament of Canada. The Supreme Court has
held in these cases that in order for the Federal
Court to have jurisdiction a case must involve the
application of some "existing federal law, whether
statute or regulation or common law".
In the exercise of its admiralty jurisdiction
under section 22 of the Federal Court Act the
Federal Court administers "Canadian maritime
law" as defined by section 2 of the Act and
affirmed as continuing substantive law by section
42 thereof.
Section 22(1) of the Act reads as follows:
22. (1) The Trial Division has concurrent original jurisdic
tion as well between subject and subject as otherwise, in all
cases in which a claim for relief is made or a remedy is sought
under or by virtue of Canadian maritime law or any other law
of Canada relating to any matter coming within the class of
subject of navigation and shipping, except to the extent that
jurisdiction has been otherwise specially assigned.
2 Quebec North Shore Paper Co. v. Canadian Pacific Ltd.
[1977] 2 S.C.R. 1054.
3 McNamara Construction (Western) Limited v. The Queen
[1977] 2 S.C.R. 654.
Section 2 defines "Canadian maritime law" as
follows:
2....
"Canadian maritime law" means the law that was administered
by the Exchequer Court of Canada on its Admiralty side by
virtue of the Admiralty Act or any other statute, or that
would have been so administered if that Court had had, on
its Admiralty side, unlimited jurisdiction in relation to mari
time and admiralty matters, as that law has been altered by
this or any other Act of the Parliament of Canada;
Section 42 provides:
42. Canadian maritime law as it was immediately before the
1st day of June 1971 continues subject to such changes therein
as may be made by this or any other Act.
By these provisions Canadian maritime law is
recognized as existing federal law applicable in the
exercise of the Court's admiralty jurisdiction. It is
unnecessary here to go over the historical ground
that has been covered in recent decisions which
have considered the nature of Canadian maritime
law and when it may be considered to have first
become part of the law of Canada 4 . The question
in the present case is whether this body of law
recognizes the kinds of claim that are asserted by
Antares' action. We have not been referred to
"any other law of Canada relating to any matter
coming within the class of subject of navigation
and shipping" as providing the foundation for
claims of this kind.
Section 22(2) of the Federal Court Act is
declaratory of claims that fall within the jurisdic
tion of the Court by virtue of section 22(1) and
that by implication are recognized by Canadian
maritime law. The definition of Canadian mari
time law in section 2 specifies a body of law
consisting of two parts: (a) the law that was
administered by the Exchequer Court on its admi
ralty side; and (b) the law that would have been
administered by the Court had it had unlimited
jurisdiction in maritime and admiralty matters.
The purpose of the definition, as determining the
scope of section 22(1), is, as I read it, to confer on
the Federal Court jurisdiction to consider any
maritime or admiralty matter, and the effect of
the definition, when read with section 42, is that
° See Associated Metals & Minerals Corporation v. The
"Evie W" [1978] 2 F.C. 710 and the decisions of the Trial
Division referred to therein.
the law which the Court must administer in the
exercise of such jurisdiction is to be deemed to be
part of Canadian maritime law.
The specific head of jurisdiction that is invoked
in the present case is section 22(2)(a), which reads
as follows:
22....
(2) Without limiting the generality of subsection (1), it is
hereby declared for greater certainty that the Trial Division has
jurisdiction with respect to any claim or question arising out of
one or more of the following:
(a) any claim as to title, possession or ownership of a ship or
any part interest therein or with respect to the proceeds of
sale of a ship or any part interest therein;
As may be seen from the conclusions of the
action set out above Antares asserts the following
claims for relief:
(a) a declaration that the sale from Delmar to
Portland is null and void and that Delmar is the
owner of the ship;
(b) a declaration that a contract of sale has
been concluded between Antares and Delmar
and that Antares has performed its obligation in
respect of the necessary deposit;
(c) specific performance of the contract of sale
between Delmar and Antares by the delivery of
the ship to Antares and the transfer of legal title
to it by the execution of a bill of sale;
(d) damages for breach of the contract to the
date of delivery and transfer of ownership of the
ship;
(e) damages in lieu of specific performance.
As the conclusions of the action indicate, the
contract of sale in the Norwegian saleform is not
intended to transfer the property in the ship. It is
not a sale but an agreement to sells. Antares seeks
to establish the ownership of Delmar so that it
may obtain a legal title from the latter by a bill of
sale.
The question of jurisdiction is whether these
claims or any of them may be said to be "claim as
to title, possession or ownership". What Antares
seeks, broadly speaking, by its claim for specific
5 See British Shipping Laws, vol. 13, pages 52-53 and 58-59.
performance is to obtain the ownership and posses
sion of the ship. As such, it may appear to be
asserting a claim as to ownership and possession
within the meaning of section 22(2)(a). The issue,
as I see it, is whether section 22(2)(a) should be
construed as contemplating only petitory and
possessory actions, strictly speaking, or whether it
should be construed as including an action for the
specific performance of a contract of sale.
The American courts of admiralty have long
held that they have jurisdiction with respect to
petitory and possessory actions, which were
defined by Story J. in The "Tilton" 6 , as follows
[at page 1278]:
Suits in the admiralty, touching property in ships, are of two
kinds: one called "petitory" suits, in which the mere title to the
property is litigated, and sought to be enforced, independently
of any possession, which has previously accompanied or sanc
tioned that title; the other called "possessory" suits, which seek
to restore to the owner the possession, of which he had been
unjustly deprived, when that possession has followed a legal
title, or as it is sometimes phrased, when there has been a
possession under a claim of title with a constat of property.
At the same time it is well established that the
American courts of admiralty do not have power
to order specific performance of a contract or to
enforce equitable interests'. It has been further
held that a contract for the sale of a ship is not a
maritime matter within the jurisdiction of
admiralty', and this doctrine has been applied to
decline admiralty jurisdiction in actions for dam
ages for breach of contract 9 . The doctrine would
appear to rest at least in part on the analogy of a
contract for the sale of a ship to a contract for the
building of a ship and the notion that neither is
"nearly enough related to any rights and duties
6 (1830) 5 Mason 465, (1830) 23 Fed. Cas. 1277, No. 14,054
(C.C. Me 1855).
' The "Eclipse" 135 U.S. 599; The "Guayaquil", The
"Buenaventura" 29 F. Supp. 578.
8 By Art. III, sec. 2 of the Constitution of the United States
the judicial power of the United States extends to "all Cases of
admiralty and maritime Jurisdiction". Section 9 of the Judici
ary Act of September 24, 1789, which implements this grant of
power, provides that the district courts shall have "exclusive
original cognizance of all civil causes of admiralty and mari
time jurisdiction".
9 The "Ada" 250 Fed. 194; Grand Banks Fishing Co., Inc. v.
Styron 114 F. Supp. 1.
pertaining to commerce and navigation" '°. The
doctrine has been the subject of some criticism"
but as far as I am able to ascertain it is still
affirmed as the law ' 2 . The result of this jurispru
dence is that petitory and possessory actions in
admiralty have been defined in the United States
as excluding an action for the specific performance
of a contract of sale or the enforcement of other
equitable interests, as appears from the following
passage [at page 191] in Silver v. The `Silver
Cloud" 13 :
A petitory suit is defined as one seeking to try title to a vessel
independently of possession. 1 Benedict, Admiralty §73, at 153
(6th ed. 1940). It requires plaintiff to assert a legal title to the
vessel; mere assertion of an equitable interest is insufficient.
The Amelia, 23 F. 406 (C.C.S.D.N.Y.1877); Stathos v. The
Maro, 134 F. Supp. 330, 332 (E.D.Va.1955). It must be noted
that plaintiff on this motion makes no claim to legal title in his
moving papers, seeking only possession pending the outcome of
his action, so this would seem to eliminate a petitory action.
A possessory action is one where a party entitled to posses
sion of a vessel seeks to recover that vessel. It is brought to
reinstate an owner of a vessel who alleges wrongful deprivation
of property. 1 Benedict, supra §73, at 154. This statement
indicates that the action is one to recover possession rather than
to obtain original possession. Stathos v. The Maro, supra at
332; see The Guayaquil, 29 F.Supp. 578 (E.D.N.Y. 1939).
Plaintiff cites The Tietjen & Lang No. 2, 53 F.Supp. 459
(D.N.J.1944) as authority for the proposition that an owner
may recover possession of a vessel under the maritime jurisdic
tion of the Court. This is correct, but the Tietjen decision is
distinguishable from the case at bar. There, libelant had posses
sion at one time which he sought to recover. Here, there is no
showing that plaintiff was ever in possession. The additional
cases cited by plaintiff are no authority for the proposition that
one never in possession may bring a possessory action.
10 Compare The "Eclipse", supra, at p. 608 and Thames
Towboat Co. v. The "Francis McDonald" 254 U.S. 242 at 244,
where it was also said of contracts to construct entirely new
ships "that in no proper sense can they be regarded as directly
and immediately connected with navigation or commerce by
water".
" "Admiralty Jurisdiction and Ship-Sale Contracts," (1954)
6 Stanford Law Review 540; Flota Maritime Browning de
Cuba, Sociadad Anonima v. The "Ciudad de la Habana" 181
F. Supp. 301.
12 Gilmore & Black, The Law of Admiralty, 2nd ed., p. 26.
13 259 F. Supp. 187, 1967 A.M.C. 737 (S.D.N.Y. 1966). See
also Benedict on Admiralty, 7th ed. (Revised), vol. 1, p. 202.
The question, as I see it, is whether there is
anything in the history and content of Canadian
maritime law and in the language and statutory
context of section 22(2)(a) that require us to give
a broader meaning to the claims specified in that
head of jurisdiction so as to include the claim for
specific performance in the present case.
Actions of possession were within the inherent
jurisdiction of the Court of Admiralty and had as
one of their purposes to restore the possession of a
ship to one who had been wrongfully deprived of
it 14 . The power of the Court to determine ques
tions of ownership or title in actions of possession,
which had been challenged by the common law
courts, was affirmed by section 4 of the Admiralty
Court Act, 1840 (3 & 4 Vict., c. 65). The Court
was given jurisdiction "to decide all Questions as
to the Title to or Ownership of any Ship or Vessel,
or the Proceeds thereof remaining in the Registry,
arising in any Cause of Possession, Salvage,
Damage, Wages, or Bottomry". This head of juris
diction was replaced and expressed in somewhat
different language, but without any apparently
significant change, by section 22(1)(a)(î) of the
Supreme Court of Judicature (Consolidation) Act,
1925, 15 & 16 Geo. 5, c. 49, as follows:
22. (1) The High Court shall, in relation to admiralty mat
ters, have the following jurisdiction (in this Act referred to as
"admiralty jurisdiction") that is to say—
(a) Jurisdiction to hear and determine any of the following
questions or claims:—
(i) Any question as to the title to or ownership of a ship,
or the proceeds of sale of a ship remaining in the admiralty
registry, arising in an action of possession, salvage,
damage, necessaries, wages or bottomry;
This was the jurisdiction that was exercised by
the Exchequer Court of Canada under The Admi
ralty Act, 1934 (S.C. 1934, c. 31, s. 18(2) and
Schedule A). In effect, the jurisdiction with
respect to actions of possession was still derived
from the inherent jurisdiction of the Court of
14 Roscoe's Admiralty Practice, 5th ed. 1931, pp. 37 et seq;
Mayers, Admiralty Law and Practice in Canada, 1st ed. 1916,
p. 67; Halsbury's Laws of England, 4th ed., vol. 1, para. 313,
pp. 219-220.
Admiralty, with specific statutory authority to
determine questions of title or ownership arising in
such actions.
By section 1(1) (a) of the Administration of
Justice Act, 1956, 4 & 5 Eliz. 2, c. 46, (U.K.) this
particular head of admiralty jurisdiction of the
High Court in England was changed to cover "any
claim to the possession or ownership of a ship or to
the ownership of any share therein". It is likely
that section 22(2)(a) was inspired by this change.
The effect of the change reflected in these provi
sions is to make it clear, I think, that a claim to
ownership or title may now be brought independ
ently of and separately from a claim to possession.
Apart from that, I do not take the words "any
claim as to title, possession or ownership of a ship"
in section 22(2)(a) as intended to enlarge the
jurisdiction in admiralty that was formerly pos
sessed in respect of questions of ownership and
possession.
Generally speaking, the cases involving actions
for possession to which we were referred by coun
sel as illustrating the exercise of this jurisdiction,
such as The 'Empress" 15 , The `Margaret
Mitchell" 16 , The "Victor" and Robillard v. The
"St. Roch" 18 , appear to have been cases in which
plaintiffs who had been in possession at one time
as owners sought to recover possession from
defendants who asserted a conflicting claim to
ownership or title. In any event they were cases in
which the right to possession was based on an
alleged ownership or title. The `Rose" 19 , which
was particularly emphasized by counsel for
Antares, was a case in which a purchaser of a ship
from mortgagees was refused registration of his
bill of sale and brought an action in rem in which
the following prayer for relief [at page 8] was
granted: "... to pronounce the said William Win-
ship to be the lawful owner of sixty-four sixty-
fourth shares of and in the said ship Rose, and to
decree that possession of the said ship, her tackle,
apparel, and furniture, be given to the said Wil-
liam Winship as such lawful owner, and that all
15 (1856) Swab. 160.
16 (1858) Swab. 382.
" (1866) E.R.A. 3095; 167 E.R. 38.
15 (1921) 21 Ex.C.R. 132.
19 (1873) L.R. 4 A.&E. 6.
things may be done to complete his title to the said
ship, and that otherwise right and justice may be
administered in the premises". It is to be noted
that the action was based on a bill of sale, sought a
declaration of ownership and was supported partly
by the jurisdiction with respect to mortgages.
Robillard v. The "St. Roch", supra, which was
particularly relied on by counsel for Antares, was
an action in rem claiming ownership and posses
sion of the defendant vessel and praying that the
transfer of it on the registry to the intervenant be
set aside. The plaintiff claimed as the beneficial
owner of the vessel under a title held by others for
him as prête-nom and under which he had been in
possession of the vessel, and the intervenant
claimed title under a registered bill of sale. The
Exchequer Court held the bill of sale to the
intervenant to be null and void as having failed to
comply with the requirements of the Merchant
Shipping Act, 1894, 57 & 58 Vict., c. 60 (Imp.),
declared the plaintiff to be the owner of the vessel
and entitled to registration as such, and ordered
that possession be delivered to him. It is to be
noted that in The `Rose" and Robillard the plain
tiffs sought a declaration that they were the
owners of the ship and a decree of possession in
consequence. I recognize that Antares may be
considered to be asserting an equitable right to the
ship arising from the agreement to sell, but in view
of the clear intention that the property is to pass
by bill of sale, it would not be entitled to a
declaration of ownership. What it seeks is an order
that the ship be delivered to it and that ownership
be transferred to it by a bill of sale, and that,
failing compliance with such an order, the judg
ment avail as a deed of sale. In my opinion a claim
as to ownership or title is a claim to have one's
ownership or title confirmed or recognized by the
Court. In the present case the claim that Delmar
be declared to be owner is such a claim but it is
not the foundation of the action; it can only exist
by virtue of the rights arising from the agreement
between Delmar and Antares. The action viewed
as a whole is an action to enforce that agreement.
We were not referred to any cases, nor have I
been able to find any, in which an action for the
specific performance of a contract for the sale of a
ship was recognized, even by implication, as falling
within admiralty jurisdiction. In Behnke v. Bede
Shipping Company, Limited 20 , the King's Bench
Division, after observing [at page 660], "It is
curious how little guidance there is on the question
whether specific performance should be granted of
a contract for the sale of a ship", exercised the
power to grant specific performance conferred by
section 52 of the Sale of Goods Act, 1893, 56 & 57
Vict., c. 71, but it was not an exercise of admiralty
jurisdiction with respect to petitory or possessory
actions. The Court noted the decision in Hart v.
Herwig 21 , in which in a suit in Chancery for the
specific performance of a contract for the sale of a
foreign ship the Court granted an injunction to
restrain the defendants from removing the ship
pending the outcome of the suit. In that case the
Court referred to itself as the "only Court which
can compel the actual specific performance of the
contract". In Roscoe's Admiralty Practice, 5th
ed., 1931, p. 37, note (b) the opinion is expressed
that an injunction of this kind could be granted by
admiralty in a possessory action. The Admiralty
Court in England and the Federal Court 22 have, of
course, the power to order specific performance
and to enforce equitable interests, and this may
appear sufficient to distinguish the American law
in respect of the issues in this appeal, but it does
not follow merely from the existence of this power
in appropriate cases that an action for the specific
performance of an agreement to sell, in which
there is a clear intention that the property is to
pass by subsequent bill of sale, should be con
sidered to be a claim as to ownership within the
meaning of section 22(2)(a) 23 .
20 [1927] 1 K.B. 649.
21 (1873) 8 Ch. App. 860 at p. 866.
22 Federal Court Act, s. 44.
23 It is to be observed that the case of Hart v. Herwig is
apparently one that was not affected by the requirements of
shipping laws as to transfer and registration. Compare Fry,
Specific Performance, 6th ed. para. 1557, p. 705, and Batthy-
any v. Bouch (1881) 50 L.J.—Q.B. 421.
In the result I have come to the conclusion that
the claim for specific performance of the contract
of sale, the related and dependent claim to have
the sale from Delmar to Portland set aside and
Delmar declared owner, and the claim for dam
ages do not come within the jurisdiction of the
Federal Court under section 22(2)(a). Nor do I
feel that the action, which viewed as a whole is one
for breach of contract, should be held to be a
maritime matter so as to fall within the general
grant of jurisdiction in section 22(1). Section
22(2) makes express provision for claims arising
out of a number of specified contracts, including
"any claim arising out of a contract relating to the
construction, repair or equipping of a ship". Had it
been intended to include claims for breach of a
contract for the sale of a ship it would have been
the obvious thing to make express provision for the
case as was done for other kinds of contract. It is
perhaps significant to note the limited reference to
sale in section 22(2)(a) in the words "or with
respect to the proceeds of sale of a ship". Despite
the criticism of the American doctrine that a
contract for the sale of a ship is not a maritime
matter I am not persuaded that there are compel
ling reasons for adopting a contrary view. It is one
thing to have a jurisdiction to determine questions
of title, ownership and possession, including ques
tions arising under the shipping laws respecting
registration and transfer; it is another thing to
have a jurisdiction for breach of contract.
In coming to this conclusion I have been mindful
that in the majority and minority opinions in the
Supreme Court of Canada on the question of
service ex juris there were references to the action
as one for possession. I have proceeded, however,
with the greatest respect, on the assumption that
since the issues in this appeal were not before the
Court it was not intended to express a concluded
opinion as to the nature of the action.
In view of the conclusion to which I have come
on the question of jurisdiction it is not necessary
for me to express an opinion on the second ground
of appeal, but in view of the importance of the
matter I feel that I should do so. That ground of
appeal, as I understand it, is that the conclusions
sought by the respondent could not be obtained in
an action in rem, that there was therefore no cause
of action against the ship, and that the joinder of
Delmar and Portland as defendants under Rule
1716 could not supply this deficiency in the origi
nal proceeding under which the ship was arrested.
If I were of the opinion that this was a claim as to
ownership or possession within the meaning of
section 22(2)(a) I would conclude that the second
ground of appeal is without merit. The cases
involving actions for possession to which reference
has already been made show that an action in rem
is a proper proceeding by which to assert claims to
possession and ownership. See also Halsbury's
Laws of England, 4th ed., vol. 1, para. 310, note 3.
It has been held that a conclusion for specific
performance may be brought in an action in rem,
although whether the court will order specific
performance if the person against whom it is
sought has not appeared has been left open: The
"Conoco Britannia" 24 . Assuming then that the
action in rem asserted a claim as to ownership or
possession within the meaning of section 22(2)(a),
I would conclude from these authorities that it
disclosed a good cause of action against the ship,
and that the joinder of Delmar and Portland as
defendants was a proper one to make the relief
sought enforceable against them.
On the ground that the Federal Court is without
jurisdiction to entertain the respondent's action, I
would allow the appeal, set aside the order of the
Trial Division of October 1, 1973, and strike out
the statement of claim, the whole with costs in this
Court and in the Trial Division.
* * *
RYAN J.: I concur.
* * *
HYDE D.J.: I agree.
24 [1972 ] 2 All E.R. 238.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.