Avina v. The Ship Sea Senor

In Admiralty Practice, In Rem Actions and Arrest on (Updated )

Précis: The B.C. Supreme Court refused to set aside an arrest but also refused to order the sale of a vessel under arrest pendente lite.

Facts: The plaintiff and defendant purchased a vessel together through a company incorporated by the defendant and of which the defendant was the sole director. Differences arose between the parties leading to the plaintiff’s commencement of this action and the arrest of the vessel. The plaintiff brought this application to sell the vessel pendente lite. The defendant opposed and brought its own application to set aside the arrest.

Decision: Both motions are dismissed.

Held: With respect to the plaintiff’s motion to sell the vessel pendente lite, the plaintiff argues that the vessel is deteriorating and a sale is necessary to halt the deterioration in value. However, the defendant’s evidence is that the vessel is not seriously deteriorating and this evidence is more convincing. Further, the value of the plaintiff’s claim is modest relative to the value of the vessel and it appears the defendant has an arguable defence. In the circumstances, an order for sale is not necessary or expedient.

The defendant argues that the arrest of the vessel should be set aside on the grounds that the dispute between the parties is a shareholder’s dispute and that there is no basis for the exercise of the court’s maritime law jurisdiction. However, Rule 21-2 of the Supreme Court Civil Rules provides that an action in rem may be brought whenever permitted in the Federal Court of Canada. The claim is “with respect to title, possession or ownership of a ship or any part interest therein” within the meaning of s.22(2)(a) of the Federal Courts Act . The claim could have been brought in rem in the Federal Court and is a claim for relief under or by virtue of Canadian maritime law. This is sufficient to dismiss the defendant’s application.