Date: 20021217
Docket: A-617-01
Neutral citation: 2002 FCA 502
CORAM: STRAYER J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
(Intervenor in the Trial Division)
and
MARIO NEVES and CARLOS NEVES
Respondents
(Plaintiffs in the Trial Division)
and
THE SHIP "KRISTINA LOGOS", ULYBEL
ENTERPRISES LIMITED, JOSE PRATAS and
THE OWNERS, CHARTERERS AND OTHERS
INTERESTED IN THE SHIP "KRISTINA LOGOS"
Respondents
(Plaintiffs in the Trial Division)
and
CLEARWATER FINE FOODS INCORPORATED
Respondent
Heard at Halifax, Nova Scotia, on December 16, 2002.
Judgment delivered from the Bench at Halifax, Nova Scotia, on December 16, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20021217
Docket: A-617-01
Neutral citation: 2002 FCA 502
CORAM: STRAYER J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
(Intervenor in the Trial Division)
and
MARIO NEVES and CARLOS NEVES
Respondents
(Plaintiffs in the Trial Division)
and
THE SHIP "KRISTINA LOGOS", ULYBEL
ENTERPRISES LIMITED, JOSE PRATAS and
THE OWNERS, CHARTERERS AND OTHERS
INTERESTED IN THE SHIP "KRISTINA LOGOS"
Respondents
(Plaintiffs in the Trial Division)
and
CLEARWATER FINE FOODS INCORPORATED
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Halifax, Nova Scotia on
December 16, 2002)
SEXTON JA
Introduction
[1] We are not persuaded that the Motion Judge erred in setting the priories of payment of the claims resulting from the sale of the defendant ship, except insofar as the claim for forfeiture in the amount of $50,000.00. We are of the view that this claim constitutes an in rem claim against the ship pursuant to Section 72 (1) of the Fisheries Act. Section 75 of the Fisheries Act permits any person who claims to be innocent of any complicity in the offence to apply for an order declaring that his interest is not affected by the forfeiture. This would seem to indicate that a claim for forfeiture will take priority over other claims unless there is a successful application under Section 75. No successful application was made in the present case. Consequently the $50.000.00 claim, being the forfeited amount, should be ranked in priority to all other claims.
[2] As to the appeal of the Crown with respect to the claim for costs incurred for maintenance, we are in agreement with the reasons of the Motions Judge. We would say in addition, in response to the argument of the Crown that it had no alternative but to maintain possession of the ship and to expend monies therefor, we do not agree. The Crown could have moved pursuant to rule 483, to have a Marshall appointed to take possession or alternatively obtained on such application an order authorizing the Crown to expend monies for maintenance of the ship. In the further alternative the Crown could have moved pursuant to the Rule 1007 for sale of the ship, alleging that there was deterioration of the ship by reason of the immediate need for expenditure to maintain it, which if not paid would create claims resulting in devaluation of the ship.
[3] On the appeal, council for the NEVES Brothers and for PRATAS agreed that the debt owing to the Mortgagee is properly for the sole account of PRATAS. This should be taken into account in allocating the proceeds as between them.
[4] As to the $3000 costs ordered by MacKay J payable to Clearwater Fine Foods Inc., these should be paid out of the share of the fund payable to PRATAS.
[5] The appeal of the Crown is allowed only with respect to the priority of the forfeiture claim, which shall be placed first in priority. The appeal is dismissed in all other respects.
Having regard to the fact that forfeiture aspect of the appeal was not opposed, and that the
principal submissions of the Crown were rejected, costs should be payable by the Crown on the appeal.
[6] The cross-appeal is dismissed with costs.
"J. Edgar Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-617-01
APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED SEPTEMBER 20, 2001, TRIAL DIVISION FILE NO. T-1041-95
STYLE OF CAUSE: Her Majesty the Queen v. Mario Neves et al
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: December 16, 2002
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
DATED: December 17, 2002
APPEARANCES:
DANIELE DION FOR APPELLANT
RICHARD SOUTHCOTT FOR RESPONDENT
(PLAINTIFFS IN THE TRIAL DIVISION)
MARIO NEVES and CARLOS NEVES
JOHN SINNOTT, Q.C. FOR RESPONDENTS
SHIP "KRISTINA LOGOS" ULYBEL
ENTERPRISES LTD., JOSE PRATAS
THOMAS HART FOR RESPONDENT
CLEARWATER FINE FOODS INC.
SOLICITORS OF RECORD:
BRISSET BISHOP
MONTREAL, QE FOR APPELLANT
STEWART MCKELVEY STIRLING
AND SCALES, HALIFAX, NS FOR RESPONDENT
(PLAINTIFFS IN THE TRIAL DIVISION)
MARIO NEVES and CARLOS NEVES
LEWIS SINNOTT SHORTALL HURLEY
ST. JOHN'S, NF FOR RESPONDENTS
SHIP "KRISTINA LOGOS, ULYBEL
ENTERPRISES LTD., JOSE PRATAS
MCINNES COOPER
HALIFAX, NS FOR RESPONDENT
CLEARWATER FINE FOODS INC.