Fraser Shipyard and Industrial Centre Ltd. v. Expedient Maritime Co.
T-111-98
Rouleau J.
28/7/99
12 pp.
Appeal from Prothonotary's order denying Mega Marine Services Ltd.'s maritime lien for price of two engine cylinder heads against sale proceeds of Atlantis Two, vessel sold by Court order-Prothonotary holding American law requiring necessaries be furnished to ship, no evidence cylinder heads furnished to Atlantis Two-As to standard of review, discretionary decisions of prothonotaries ought not to be disturbed on appeal unless clearly wrong, in sense exercise of discretion by prothonotary based upon wrong principle or upon misapprehension of facts-U.S. Commercial Instruments and Maritime Liens Act, §§ 31301-31343 providing person "providing necessaries" to vessel having maritime lien-Only issue herein interpretation of "providing necessaries", "furnishing"-In Foss Launch & Tug Co. v. Char Ching Shipping U.S.A. Ltd., [1987] A.M.C. 913, United States Court of Appeals, Ninth Circuit, adopting narrow construction of "furnishing", requiring designation of goods to named vessel-Prothonotary relying upon Piedmont & Georges Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1 (1920), wherein found coal delivered to bins on shore owned by owner of several ships not "necessaries"-Piedmont Coal distinguishable in that cylinder heads not as interchangeable as coal; coal not specifically delivered to particular ship-No expert opinion as to meaning of "providing necessaries", "furnishing directly to vessel"-In absence of evidence of foreign law, Court may presume law same as law of forum-Since foreign law not precisely proven, Prothonotary may have based decision upon misapprehension of essential fact-Prothonotary holding no evidence to support contention cylinder heads delivered to vessel-Since may be some doubt as to facts as well as foreign law, Canadian law for shipping of goods to Master of specifically named vessel may be sufficient to establish maritime lien-In River Rima, The, [1988] 2 Lloyd's Rep. 193 (H.L.), analysing legislation similar to Federal Court Act, s. 22(2)(m), Court concluding essential identity of ship to which containers to be assigned had to be specified to establish claim to maritime lien-Prothonotary not addressing issue of shipping of goods by Mega Marine to vessel at off-shore port as stated on invoice, although confirming goods supplied by Canadian agent, notwithstanding delivered to non-U.S. port, not giving rise to U.S. maritime lien-Shipping invoice clearly indicated cylinders to be shipped to Australia, Canada and to specifically identified vessel-As no U.S. expert opinion before Court, in light of River Rima as well as obiter in Foss Launch & Tug, facts and law supporting conclusion Mega Marine entitled to maritime lien-Federal Court Act, R.S.C., 1985, c. F-7, s. 22(2)(m)-Commercial Instruments and Maritime Liens Act, 46 U.S.C. §§ 31301-31343 (1994).