T-2460-83
Adrian Balodis et al. (Plaintiffs)
v.
The Ship Prince George, Canadian Cruise Lines
Ltd., Canadian Cruise Lines 1982 Ltd. and
Canadian Cruise Holdings Ltd. (Defendants)
and
Continental Bank of Canada (Intervenor)
Trial Division, Collier J.—Vancouver, July 17 and
25, 1984.
Jurisdiction — Federal Court — Trial Division — Admi
ralty — Vessel under arrest — Claimants engaged as watch-
keepers during layup and arrest — Claim for seamen's wages
— Whether claimants "members of crew" within s. 22(2)(o) of
Federal Court Act — Whether section to be given restricted
interpretation as in U.K. — S. 22(2)(o) illustrative of broad
admiralty jurisdiction of Court — Specific jurisdictional
claims in s. 22(2) not excluding general jurisdiction conferred
by s. 22(1) and definition of "seaman" in Canada Shipping Act
— Claim for seamen's wages properly asserted, independently
from any categorization as "members of crew" — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 22(1),(2)(o) —
Canada Shipping Act, R.S.C. 1970, c. S-9, s. 2 — Adminis
tration of Justice Act, 1956, 4 & 5 Eliz. 2, c. 46.
Maritime law — Priorities — Claimants engaged as watch-
keepers during layup and arrest of vessel — Claim for sea-
men's wages — Whether "members of crew" within meaning of
s. 22(2)(o) of Act — Seamen "crew" even absent master,
officers and other complement — Arrest not resulting in
disbandment of "crew" — American cases distinguished —
Claim for seamen's wages having priority over other claims —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
22(1),(2)(o).
The Prince George, a cruise vessel, was arrested on Septem-
ber 3, 1983. The present claimants were, prior to the arrest,
seamen and members of the vessel's crew. On the date of the
arrest, they were engaged as watchkeepers. Besides security
watch, they performed other services related to the general
upkeep of the vessel during her layup and arrest. The Continen
tal Bank of Canada, the intervenor, took over the management
of the vessel on January 13, 1984. The intervenor argues that
the claimants are not "members of the crew" within the
meaning of paragraph 22(2)(o) of the Federal Court Act and
therefore not entitled to assert a claim for seamen's wages in
this Court. This argument is based on an author's statement
that the English Administration of Justice Act, 1956, in defin
ing admiralty jurisdiction, did not perpetuate the expression
"seaman" but introduced a new formulation giving the court
jurisdiction to determine a claim for wages instituted by "a
member of the crew", and that therefore the phrase "member
of the crew" is more confined in its ambit than the term
"seaman". The intervenor contends that paragraph 22(2)(o),
which contains the words "member of the crew", should also be
given a restricted interpretation.
Held, the claimants are each entitled to be paid out of the
funds in Court the amount of $9,000, plus interest at the agreed
rate, for the period September 3, 1983 to January 13, 1984, in
priority to the other claimants.
The intervenor's contention cannot succeed.
Two seamen can, even absent master, officers and other
complement, in circumstances such as the present ones, consti
tute a crew. Mere arrest does not result in an automatic
disbandment of "crew". The American decisions to which the
intervenor referred must be distinguished. They are based on
particular wordings, founded in a compensation statute, exclud
ing particularly defined persons.
Paragraph 22(2)(o) is a mere illustration of the wide admi
ralty jurisdiction of this Court. It cannot be seen as possible
restriction, as now appears to be the case in the United
Kingdom. As specifically stated in the opening words of subsec
tion 22(2), the enumeration of illustrative jurisdictional claims
does not exclude, or inhibit, the general jurisdiction given by
subsection 22(1) and the definition of "seaman" in section 2 of
the Canada Shipping Act. On the basis of those provisions, the
claimants here can, under existing Canadian maritime law,
assert a claim for seamen's wages, and that, quite apart from
any categorization as "members of the crew".
CASES JUDICIALLY CONSIDERED •
APPLIED:
Jorgensen v. The Chasina (1925), 37 B.C.R. 24 (Adm.).
CONSIDERED:
Jane and Matilda Chandler (1823), 1 Hag. Adm. 187
(H.C. of Adm.); Reg. v. City of London Court (Judge of)
and Owners of S.S. Michigan (1890), 25 Q.B.D. 339;
Connor v. The "Flora" (1898), 6 Ex.C.R. 131; Tropwood
A.G. et al. v. Sivaco Wire & Nail Co. et al., [1979] 2
S.C.R. 157.
REFERRED TO:
Demetries Karamanlis v. The Norsland, [1971] F.C. 487
(T.D.); Antares Shipping Corporation v. The Ship
"Capricorn" et al., [1980] 1 S.C.R. 553.
COUNSEL:
Sandra Banister for claimant O'Dwyer.
Lorraine Shore for claimant Josefsson.
S. R. Ross for intervenor.
L. M. Cohen for Canada Ports, Revenue
Canada and Transport Canada.
M. J. Edwards for Al Malaikah Temple.
SOLICITORS:
Laxton, Pidgeon & Company, Vancouver, for
claimant O'Dwyer.
McTaggart, Ellis & Company, Vancouver,
for claimant Josefsson.
Swinton & Company, Vancouver, for inter-
venor.
Deputy Attorney General of Canada for
Canada Ports, Revenue Canada and Trans
port Canada.
Edwards & Michalski, New Westminster,
British Columbia, for Al Malaikah Temple
(K. Boucher).
The following are the reasons for judgment
rendered in English by
COLLIER J.: The Prince George is a cruise
vessel. In 1981, 1982 and 1983 she sailed from
Vancouver into Alaskan waters. On August 20,
1983 she returned to Vancouver from a cruise
voyage to Alaska. Her next sailing was scheduled
for September 3. On that day she was arrested by
several, of many, claimants. On February 24,
1984, this Court directed she be sold. An offer to
purchase, of $1,000,000 was approved on April 30,
1984. The purchase monies were paid into Court.
The Prince George was never, at any material
time, released from arrest.
The present claimants, on the two motions
before me, are Robin Josefsson and Jack O'Dwyer.
They were, prior to September 3, 1983, seamen,
and members of the Prince George's crew.
Josefsson signed articles on July 9, 1983. He
served as an oiler. He made six return trips. He
signed off his articles on August 20, 1983. It was
agreed he would rejoin the vessel, for its next
voyage, on September 3, 1983. He came to Van-
couver that day to find the vessel arrested. But he
signed on again on that date.
O'Dwyer was employed on the Prince George
during the 1981, 1982 and 1983 cruise seasons. In
1983 he worked as Housekeeper and Assistant
Purser. His 1983 articles commenced May 7,
1983. He has never signed off, or surrendered,
those articles.
Josefsson and O'Dwyer were, on September 3,
1983, engaged as watchkeepers on the vessel. They
were paid $500 per week. The arrangement was
made through Frederick Wright, the president and
general executive officer of the owners and opera
tors of the vessel. They are still employed in that
capacity. Besides security watch, they performed
various other services in respect of the general
welfare and upkeep of the vessel during her layup
and arrest.
The two claimants have never been paid by the
owners and operators.
Effective January 13, 1984, the Continental
Bank of Canada, the intervenor, took over man
agement of the vessel. O'Dwyer and Josefsson
were kept on. They performed the identical duties
previously carried out for the vessel's owners and
operators. There is some dispute as to the rate of
pay in the initial few weeks of the new arrange
ment. The claimants say they were to be paid at
the former rate of $500 per week. The intervenor
maintains the original arrangement was for $250
per week.
On the hearing of these motions, I said I would
only deal with the two claims up to the date of the
new engagement with the intervenor. The amount
there involved for each claimant is $9,000 plus
interest.
As to the remaining amount claimed by the
claimants, $1,250 or, possibly, $750 each, I direct
ed an application could be made for directions as
to the trial of an issue, failing resolution, among
the parties, of the dispute.
Counsel for the Bank agreed the services, per
formed by the two claimants between September
3, 1983 and January 13, 1984, including the
watchkeeping services, were services falling into
the category of those rendered by "seamen".
Undoubtedly, the claimants would, under
United Kingdom law prior to 1956, and Canadian
law prior to 1971, be entitled to enforce their claim
as one for seamen's wages; they would be entitled
to a maritime lien giving them priority, in this
case, over many other claims, including that of the
intervenor mortgagee. "Seaman" is defined in the
Canada Shipping Act, R.S.C. 1970, c. S-9, as
follows:
2....
"seaman" includes
(a) every person (except masters, pilots and apprentices duly
indentured and registered) employed or engaged in any
capacity on board any ship, and
That expression, in English and Canadian law, has
been given a broad meaning. There are many
cases. I need only refer to some.
The Jane and Matilda Chandler (1823), 1 Hag.
Adm. 187 (H.C. of Adm.): the claimant, a female,
claimed seaman's wages as a cook and steward on
board the vessel while at sea. She advanced a
further claim for wages as a shipkeeper during
long periods of time when the vessel was in dock or
harbour. Lord Stowell allowed her claim, in both
capacities, as seamen's wages.
Reg. v. City of London Court (Judge of) and
Owners of S.S. Michigan (1890), 25 Q.B.D. 339:
the Michigan arrived in the port of London. Her
crew, including the mate, were paid off. The mate,
without signing fresh articles, remained on board
to superintend the discharge of inward cargo and
the loading of fresh cargo for the next voyage. The
ship was also taken in for repairs. The mate
remained on board to supervise that work. The
Court held the services were maritime services
rendered by a seaman; the mate was entitled to
claim a maritime lien.
Connor v. The "Flora" (1898), 6 Ex.C.R. 131:
the plaintiff was employed to look after the confec
tionery stand on board a passenger vessel. She was
held to be a seaman, entitled to claim a maritime
lien for her wages.
Mr. Ross, for the intervenor, does not dispute
the correctness of these decisions. He contends the
claimants here were not "members of the crew";
they cannot assert a claim for wages in this Court;
nor are they entitled to a maritime lien giving
priority over other claims. Subsection 22(1) and
paragraph 22(2)(o) of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10 are relied on:
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) 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:
(o) any claim by a master, officer or member of the crew
of a ship for wages, money, property or other remuneration
or benefits arising out of his employment;
The intervenor relies, as well, on United States
decisions where the phrase "a master or member
of a crew of any vessel" was considered. Those
words came from a compensation Act forbidding
payment in respect of disability or death of some
one falling within that terminology. The cited
American cases concluded a person performing
watchman services, while a vessel was in layup,
was not a member of a crew.
The United States decisions are, in my view,
distinguishable. They are based on particular
wordings, founded in a compensation statute,
excluding particularly defined persons.
The comments of D. R. Thomas, the author of
Maritime Liens, (1980, Vol. 14, British Shipping
Laws), at paragraph 327 were referred to. He
points out the Administration of Justice Act,
1956, [4 & 5 Eliz. 2, c. 46] in England, in defining
admiralty jurisdiction,
... does not perpetuate the expression "seaman" adopted in
earlier statutes but introduces a new formulation by which the
court is given jurisdiction to determine a claim for wages
instituted by a "member of the crew."
The author goes on to speculate that the phrase
"member of the crew" is more confined in its
ambit than the term "seaman".
Counsel for the intervenor contended paragraph
22(2)(o) of the Federal Court Act should, accord
ingly, be given a restricted interpretation; the
claimants here were not members of any crew;
they were merely two persons hired as watchkeep-
ers; there was, on the facts here, no semblance of a
crew.
The intervenor's contention cannot, to my mind,
for two reasons, succeed.
First, and least weighty, I think Josefsson and
O'Dwyer can be classed as members of the crew of
a ship. I see no reason why two seamen cannot,
even absent master, officers and other comple
ment, in circumstances such as these, be a crew.
The Prince George was on layup between voyages.
She happened to be arrested. Mere arrest does not
mean there is an automatic disbandment of
"crew". See Demetries Karamanlis v. The Nors-
land, [1971] F.C. 487 (T.D.), at pages 489-491. In
Jorgensen v. The Chasina (1925), 37 B.C.R. 24
(Adm.), Martin Lo. J.A. said, at page 25, in
commenting on the City of London Court (Judge
of) case:
1 note that there is an error in the judgment of Wills, J. in
The Queen v. Judge of City of London Court and Owners of
S.S. Michigan (1890), 25 Q.B.D. 339 at p. 342, wherein he
says that the claimant in the Jane case "acted as caretaker"
only, instead of in the conjoint capacities which are carefully
set out by Lord Stowell and hereinbefore indicated, and this
oversight has unfortunately created some misunderstanding,
because it is clear from the whole case that the claimant was at
all times upon the ship's articles, or if not at least a member of
the crew, however small. [My underlining.]
If it were necessary so to hold, I would find
Josefsson and O'Dwyer were each "a member of
the crew".
More importantly, paragraph 22(2)(o) is, to my
mind, a mere illustration, or example, of the wide
admiralty jurisdiction of this Court. Not a possible
restriction, as now appears to be the case in the
United Kingdom. The drafter of the Federal Court
Act, in paragraph 22(2)(o), seems to have bor
rowed the key words from the English legislation.
But, as specifically stated in the opening words of
subsection 22(2), the enumeration of illustrative
jurisdictional claims does not exclude, or inhibit,
the general jurisdiction given by subsection 22(1)
and the definition in section 2. Under that canopy,
the claimants here can, under existing Canadian
maritime law, assert a claim for seamen's wages.
That, quite apart from any categorization as "a
member of the crew".
In Tropwood A.G. et al. v. Sivaco Wire & Nail
Co. et al., [1979] 2 S.C.R. 157, the Supreme
Court of Canada expressed the view that there was
a broader spectrum of applicable and existing
maritime law under subsection 22(1), rather than
under the specific jurisdictional heads set out in
subsection 22(2).'
In summary then, I am of the view the claim
ants are each entitled to be paid out of the funds in
Court, $9,000 plus interest at the agreed rate, in
priority to the other present claimants. I presume
counsel can agree on the amount of interest on
$9,000 from September 3, 1983 to January 13,
1984. That done, and the figure communicated to
the Registry, I shall then issue a formal
pronouncement.
\ The claimants are entitled to their costs, after
taxation, out of the monies in Court.
I am aware of a body of opinion that there is conflict
between Tropwood and the later Supreme Court of Canada
decision, Antares Shipping Corporation v. The Ship
"Capricorn" et al., [1980] 1 S.C.R. 553. See, for example, W.
Wylie Spicer, Canadian Maritime Law and the Offshore: A
Primer (Working Paper 6, Canadian Continental Shelf Law 3,
March 1984), pp. 4-6 (The Canadian Institute of Resources
Law, Faculty of Law, University of Calgary).
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.