T-744-81
Magnolia Ocean Shipping Corporation (Plaintiff)
v.
The ship Soledad Maria et al. (Defendants)
Trial Division, Dubé J.—Montreal, April 13;
Ottawa, April 16, 1981.
Maritime law — Practice — Arrest of ship — Affidavit to
Lead Warrant sworn by plaintiff's counsel — Motion by
receiver in bankruptcy of owners of defendant vessel to rescind
warrant of arrest against defendant vessel — Whether affida
vit invalid because (1) based on information and belief rather
than personal knowledge; (2) of plaintiff's failure to attach
copy of a memorandum of agreement to said affidavit; and (3)
of affiant's failure or refusal to inform himself — Motion
dismissed — Affidavit complying with Rules 332(1) and 1003
— Federal Court Rules 332(1), 1003.
MOTION.
COUNSEL:
T. H. Bishop for plaintiff.
S. Harrington for defendant Juan M. Ayo
Revilla.
SOLICITORS:
Brisset, Bishop, Davidson & Davis, Montreal,
for plaintiff.
McMaster Meighen, Montreal, for defendant
Juan M. Ayo Revilla.
Gowling & Henderson, Ottawa, for defend
ants.
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for intervenor Cargill Grain Com
pany Ltd.
The following are the reasons for order ren
dered in English by
DUBÉ J.: This is a motion for the rescission of
the warrant of arrest of the defendant vessel on
three separate grounds. Firstly, that it was not
appropriate that the Affidavit to Lead Warrant be
based on information and belief as there was
ample time to prepare an affidavit based on per
sonal knowledge; secondly, that plaintiff failed to
attach a copy of the memorandum of agreement to
the affidavit as an exhibit; and thirdly, that the
affiant failed, or refused to inform himself for the
purposes of answering pertinent questions posed in
cross-examination of the said Affidavit to Lead
Warrant.
The affiant is Trevor H. Bishop, counsel for the
plaintiff. In his Affidavit to Lead Warrant he
states that he has been duly informed by Dimitri
Stylanou, director of the plaintiff, residing at
Nicosia, Cyprus and does verily believe the facts
which, for convenience, I summarize as follows:
The Soledad Maria is the property of Naviera
Letasa S.A. (hereinafter called "Naviera") of
Bilbao, Spain. The plaintiff ("Magnolia") is a
Liberian company. On March 27, 1980 in London,
England, Naviera sold the vessel to Magnolia by
way of a memorandum of agreement. Naviera
failed to deliver the vessel to Magnolia. The Sole-
dad Maria is a Spanish vessel registered in Bilbao,
Spain and presently lying in Baie -Comeau,
Quebec.
Firstly, as to the affidavit being based on per
sonal knowledge. Rule 332(1) provides that affida
vits shall be confined to such facts as the witness is
able of his own knowledge to prove, except on
interlocutory motions on which statements as to
his belief with the grounds thereof may be admit
ted. An application for a warrant under Rule 1003
is an interlocutory motion and may be made by
filing an affidavit as follows:
Rule 1003... .
(2) An application for a warrant under paragraph (1) may
be made by filing an affidavit, entitled "Affidavit to Lead
Warrant", which shall contain a statement showing
(a) the name, address and occupation of the applicant for the
warrant;
(b) the nature of the claim;
(e) that the claim has not been satisfied;
(d) the nature of the property to be arrested, and, if the
property is a ship, the name and national character of the
ship and the port to which she belongs; and
(e) if the action is for possession of a foreign ship or is for
wages against a foreign ship and such foreign ship belongs to
a port of a state having a consulate in the province where the
ship is, that notice required by paragraph (3) has been sent.
(A copy of such notice shall in such a case be an exhibit to
the affidavit).
The instant Affidavit to Lead Warrant contains
all the required information. The very nature of
such an arrest application calls for a speedy proce
dure. Where the party applying resides abroad, his
solicitor in Canada must move with all due dis
patch and prepare the necessary affidavit from
information obtained by phone or wire, as he did
in this case. In his affidavit the affiant revealed the
source of his information as he must under Rule
332(1).'
In answer to the applicant's allegation that the
plaintiff had ample time to prepare an affidavit of
personal knowledge, plaintiffs attorney answered
by way of an affidavit filed at the hearing. In his
affidavit Mr. Bishop says that there was no time in
which to obtain a personal affidavit signed by
Dimitri Stylanou. At 10:40 a.m. March 30, 1981
the attorney received a phone call from London
solicitors acting for the plaintiff advising him that
the Soledad Maria was loading grain at Baie -
Comeau. Mr. Bishop immediately called Baie -
Comeau and was informed that the vessel would
be leaving by Wednesday. The arresting document
had to be forwarded at once to an arresting officer.
Through the London solicitors he requested Styla-
nou to forward a telex outlining the necessary
information, which was received on March 31,
1981. The warrant was obtained on the same day.
Plaintiffs attorney, therefore, cannot be faulted
for acting as he did.
Secondly, as to the failure to attach a copy of
the aforementioned memorandum of agreement to
the affidavit. Counsel for the applicant did not
pursue that allegation at the hearing. In any event,
' In Ste. Nouvelle d'Affrètement et. de Courtage S.A.R.L. v.
M. V. «Browind» [1966] Ex.C.R. 708 the defendant moved to
vacate a warrant on the grounds that the Affidavit to Lead
sworn by plaintiffs solicitor was defective in that the affiant
merely stated that he was "instructed" as to the facts without
identifying his source of information. Anglin D.J.A. held that
the objection was not of substance and dismissed the
application.
I cannot see where the absence of the attachment
would vitiate the Affidavit to Lead Warrant.
Thirdly, as to the affiant's failure, or refusal, to
inform himself so as to answer questions in cross-
examination. The affiant had no difficulty provid
ing the essential information required under Rule
1003(2), i.e., the name, address of the applicant,
the nature of the claim, etc., but he would not
answer other questions dealing with the bankrupt
cy of the defendant.
The applicant in this motion is not one of the
named defendants but "the Defendant Juan M.
Ayo Revilla, in his capacity of Official Receiver in
Bankruptcy of Naviera Letasa, S.A., the Owners
of the ship". Counsel for the Official Receiver is
obviously interested in protecting the vessel on
behalf of creditors and therefore desirous of
rescinding the arrest. But, since the arrest of a
vessel is merely procedural, it merely provides a
remedy and does not create any special legal
vested right in the arresting party which did not
exist before the arrest.
In my view, that purpose cannot be achieved by
attacking the Affidavit to Lead Warrant. As the
affidavit complies with the requirements of Rule
1003, it need not say more.
Subsidiarily, the applicant moves this Court for
an order requiring the affiant to answer questions
which he refused to answer in cross-examination of
his Affidavit to Lead Warrant, or if he is unable to
do so, to make available at his client's expense the
source of his information, namely Dimitri Styla-
nou, and that the examination reconvene before
this Court after the hearing of this motion for that
purpose.
I decided orally from the Bench and repeat now
in these reasons that the affiant has sufficiently
and satisfactorily answered questions pertinent to
the essential information which must be included
in the Affidavit to Lead Warrant. Other questions
as to the insolvency of the owners of the vessel are
not relevant at this stage.
In any event, the applicant who, after all, is the
Official Receiver in Bankruptcy ought to be more
cognizant of these matters than would be the
affiant at this stage. If the applicant felt that
bankruptcy information should have been avail
able at the hearing, he could have caused to be
filed an affidavit providing all the information
allegedly missing from the Affidavit to Lead
Warrant.
The motion therefore is dismissed with costs.
ORDER
The motion is dismissed with costs.
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