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T-1174-87
Banco do Brasil S.A. (Plaintiff) v.
The Owner and All Others interested in the Ship Alexandros G. Tsavliris and the Ship Alexandros G. Tsavliris (Defendants)
and
Nikolas Hiotis, on his own behalf and on behalf of the Crew of the Ship Alexandros G. Tsavliris (Intervenors)
and
Pan American Steamship Lines Inc. and Euro- pean-Overseas Steamship Lines N.V. (Second Intervenors)
and
Astrapi Maritime Limited (Third Intervenor) and
Zodiac Maritime Agencies Ltd. (Fourth Interven- or)
T-1381-87
Pan American Steamship Lines Inc. and Europe- Overseas Steamship Lines N.V. (Plaintiffs)
v.
The Ship Alexandros G. Tsavliris, Panalex Ship ping Company Limited and all Others interested in the Vessel Alexandros G. Tsavliris and Banco do Brasil S.A. (Defendants)
INDEXED AS: BANCO DO BRASIL S.A. V. ALEXANDROS G. TSAVLIRIS (THE) (T.D.)
Trial Division, Strayer J.—Ottawa, August 15, 1990.
Practice — Judgments and orders — Reversal or variation — Before formal judgment entered, one of defendants moved for reconsideration of reasons for judgment — Within Court's power under R. 303(1) — Motion allowed in part — Passage of reasons objected to obiter — Passage deleted — However, as defendant sought to reopen issues already dealt with at trial and as deletion of obiter dictum without effect on case, costs awarded to other side.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 303(1),(2). CASES JUDICIALLY CONSIDERED
APPLIED:
Yost v. Administrator under the Anti-Inflation Act, [1980] 2 F.C. 720 (C.A.); Shairp v. M.N.R., [1989] 1 F.C. 562; [1988] 2 C.T.C. 344; (1988), 88 DTC 6484; 93 N.R. 396 (C.A.).
Motion dealt with without personal appearance. SOLICITORS:
Campney & Murphy, Vancouver, for Banco do Brasil.
Bull, Housser & Tupper, Vancouver, for Pan American Steamship Lines Inc., et al.
The following are the reasons for order ren dered in English by
STRAYER J.: On April 27, 1990 I issued reasons for judgment in these actions [supra, at page 260], finding in favour of the charterers (intervenors and counter-claimants in T-1174-87, plaintiffs in T-1381-87) against the Banco do Brasil S.A. ("the Bank") (plaintiff, and defendant by counter-claim in T-1174-87 and 'defendant in T-1381-87). I requested counsel to prepare a formal judgment for my approval. Before this was done, counsel for the Bank filed a notice of motion requesting recon sideration of the reasons for judgment. In particu lar the Bank took note of the following passage in my reasons for judgment.
There was no cogent argument on behalf of the Bank as to any other country being the locus of the alleged tort. There was some suggestion that the legality of the Bank's actions should be tested by the law of Panama but no evidence was provided to me as to the law of Panama in this respect. I would be obliged to assume, in the absence of evidence to the contrary, that in this respect the law of Panama would be the same as that of the lex fori, i.e. Canada.
In essence, the Bank contends that I thereby made a finding that the law of Panama was the same as the law of Canada but, having done that, I failed to consider the implications of such a finding. In
essence, the Bank contends that if the law of Panama is the same as that of Canada with respect to the liability in tort of a mortgagee who arrests a mortgaged ship under charter, then the threatened arrest at Panama would have been remediable and the charterers cannot claim damages for the cost of circumnavigating South America in order to avoid arrest of their chartered ship in Panama. The charterers argue essentially that the law of Panama concerning the liability for mortgagees for interference with the performance of a charter by a mortgaged ship is irrelevant to the present case and that the reasons for judgment did not purport to make a finding on that subject.
The charterers also objected to this application on procedural grounds, arguing that such a remedy was not available under the Rules of the Federal Court [Federal Court Rules, C.R.C., c. 663]. While this point has given me some difficul ty I believe that it is open to the Bank to make such an application. It is probably justified under Rule 303(1) which allows the Court "at any stage of a proceeding" to "order any document in the matter to be amended". Rule 303(2) provides that this procedure does not apply to a judgment or order. What is in question here is not a judgment or order but my reasons, and no judgment having been entered yet to give effect to those reasons I believe I can amend them. This appears to be consistent with certain jurisprudence of the Feder al Court of Appeal.'
It is clear that the passage quoted above to which the Bank takes exception was an obiter dictum. After making a finding that the tort had occurred in England I was simply reinforcing that conclusion by pointing out that there was no coherent evidence in support of any other locus. While in argument the Bank stressed that the arrest by the Bank in Panama would have been legal by Panamanian law, in the context of the passage quoted above I was simply making the
See e.g. Yost v. Administrator under the Anti-Inflation Act, [1980] 2 F.C. 720 (C.A.); Shairp v. M.N.R., [1989] 1 F.C. 562 (C.A.).
observation that there was no evidence before me as to what the law in Panama would be with respect to the liability of the mortgagee in such circumstances to the charterers. That is, I was referring to the question of whether there is in Panamanian law a tort of unjustified interference by a mortgagee with the performance of a charter- party by a mortgaged ship. If the tort had been committed in Panama, I would have had to come to a conclusion on that point in order to determine whether such an act was "unjustified" by the law of Panama to enable me to decide whether the charterers could succeed in their action in a Canadian court.
It is clear throughout my reasons for judgment that I found the tort to have been committed in England and as it was being sued on in a Canadian court it would have to be actionable in tort in Canada and not justified in England. The only relevance that Panamanian law had was in estab lishing the reality of the threat to arrest in Panama. I agree with counsel that it was assumed throughout the case that such a threat was mean ingful. For this reason my comments as quoted above were unnecessary to any of the essential findings in the case, dealing only with a hypotheti cal situation by pointing out that if it were to be seriously contended that Panama was the locus of the alleged tort I would then either have to have more evidence as to its actionability as between the Bank and the charterers or in the absence of such evidence would have to assume that, as in Canada, such intervention would as between the mortgagee and third parties to the mortgage (the charterers) not be "justifiable". The passage is unnecessary and therefore in response to the request of the Bank I am striking that paragraph from my reasons.
Much of what the Bank has submitted in its written argument on this motion is really, it seems to me, supplementing its arguments at trial that a mere threat to arrest without actual arrest is not a tort and that damages are not available for wrong ful interference by a mortgagee in the performance of a charter by a mortgaged ship. Further, it is a
repetition of the Bank's position which, in my view, confuses the rights of the mortgagee as against the mortgagor with its rights as against innocent third parties who have chartered the mortgaged ship. Again, this is in part a reopening of issues already dealt with at trial and in my reasons and I do not propose to deal with them further. I have made it clear I find against the Bank on these issues. No doubt my findings as to Canadian law on this subject will be reviewed in time by higher authority. That is sufficient.
Although the Bank has partly succeeded on this motion, I fail to see how the removal of what is obviously an obiter dictum has advanced its case in any material respect. The costs of this motion will therefore become part of the costs in the cause which I have awarded to the charterers.
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