T-500-82
Walter Kuhr, and Walter Kuhr, Charles R. Hart,
Robert Allen and Walter Kuhr Jr., carrying on
business as Dona Genoveva Partnership, and the
said Dona Genoveva Partnership (Plaintiffs)
v.
The Ship Friedrich Busse and Hochseefischerei
Nordstern A.G. (Defendants)
Trial Division, Addy J.—Vancouver, February 8
and 17, 1982.
Maritime law — Jurisdiction — Plaintiffs contracted to
supply fish at sea to defendant vessel which was obliged to
remain within specified fishing areas and to receive delivery of
and pay for fish — Plaintiffs allege breach of contract —
Defendants seek to set aside statement of claim and to dismiss
action for lack of jurisdiction or because Canadian court is
forum non conveniens — Defendants argue no action in rem
against ship because there is no allegation against shipowner
in statement of claim and therefore no action in personam —
Whether Trial Division has jurisdiction under s. 22(2) of
Federal Court Act over claims arising out of contract to supply
fish — Whether general substance of matter falls within
jurisdiction of Trial Division over Canadian maritime law
pursuant to s. 22(1) of Federal Court Act — Whether Federal
Court constitutes forum conveniens Motion dismissed —
Supply of fish is essential to operation of vessel — Matter is
predominantly maritime in character — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 22(I),(2)(i).(m).
The owners of the defendant ship, a fish processing vessel,
apply for an order to strike out the statement of claim and to
dismiss the action. The plaintiffs allege that the defendants are
in breach of a contract whereby the plaintiffs were to supply
fish at sea to the defendant vessel which was obliged to remain
within the specified fishing areas and receive delivery of and
pay for the fish. The defendant owners submit that the Court
has no jurisdiction to entertain the action for three reasons: (1)
there is no action in rem against the ship because there is no
allegation against the shipowner as owner in the statement of
claim, and therefore no action in personam (2) the supplying of
fish under a contract does not fall within paragraph 22(2)(i) of
the Federal Court Act which gives the Trial Division jurisdic
tion over claims arising out of agreements relating to the use of
a ship, nor within paragraph 22(2)(m) which gives the Trial
Division jurisdiction over matters relating to the supply of
goods to a ship for her operation, and (3) the substance of the
matter does not fall within the general jurisdiction in admiralty
matters granted to the Federal Court by section 22 of the
Federal Court Act. The defendants further argue that a
Canadian court constitutes a forum non conveniens.
Held, the motion is dismissed. The statement of claim con
tains allegations against the defendant company for amounts
due and for damages. This claim would be maintainable against
the owners since they signed the contract and would be reaping
the benefits of the contract. When the owner undertakes that
his ship will be in a certain place at a certain time and will
perform certain tasks, in this case take delivery of and pay for
the fish caught by the plaintiffs, the owner is responsible at law
for the performance of that contract. The supplying of fish to a
vessel cannot be construed as an agreement relating to the use
of a ship as contemplated by paragraph 22(2)(i). The use
referred to is use of the ship by a party other than the owner.
Paragraph 22(2)(m) must necessarily include, but is not limited
to, the supplying of necessaries. In other words, the supplying
of goods need not be necessary for the operation of the vessel
but may be ancillary or complementary thereto as long as they
are used or intended for use in the operation of the ship. In this
case, the obtaining of fish is essential to the vessel being
operated for the purpose for which it exists, the business of
fishing. As to the third argument, the contract deals with the
actual transfer and delivery of possession of goods on the high
seas between two ships. The goods are to come from an agreed
area of the sea and the contracting parties have mutually
agreed that their vessels are to operate there and carry out the
provisions of the contract in that specified area. It is difficult to
conceive of a situation or of an undertaking which is more
maritime in nature. The Admiralty Court of England from
which the Federal Court derives its jurisdiction in admiralty
matters would necessarily have assumed jurisdiction. Applying
the test formulated in Sumitomo Shoji Canada Ltd. v. The
Ship `fuzan Maru" [1974] 2 F.C. 488 of the true essence of
the contract in all the circumstances and facts of the case, and
the test formulated in Underwater Gas Developers Ltd. v.
Ontario Labour Relations Board [1960] O.R. 416, of dominant
features and objects, it is clear that the matter is predominantly
maritime in character, and falls within the subject-matter of
Canadian maritime law as provided for in subsection 22(1). As
to the argument of forum non conveniens, the ship was arrested
in Vancouver whilst undergoing repairs which had nothing to
do with the performance of the contract. The plaintiffs are
American, the defendant company is German, the ship is
registered in Germany, the contract was made there and was to
be performed out of this jurisdiction and payment was tendered
and accepted in United States currency. However, as indicated
in Antares Shipping Corporation v. The Ship "Capricorn"
[1977] 2 S.C.R. 422, the overriding consideration must be the
existence of another forum more appropriate for securing the
ends of justice and therefore other factors have a direct bearing
on the issue. An inspection revealed that the ship was probably
underlogging fish and misrepresenting the contents of blocks of
fish. The ship allegedly left American fishing waters to dispose
of the catch and to avoid prosecution. The plaintiffs allege that
in doing so the defendants were in breach of contract. In light
of the alleged fraudulent conduct of the defendants and the fear
that the release of the ship without proper security would result
in their losing any chance of recovery, this Court is the forum
most suitable for the ends of justice.
Western Nova Scotia Bait Freezers Limited v. The Ship
"Shamrock" [1939] Ex.C.R. 53, followed. Sumitomo
Shoji Canada Ltd. v. The Ship "Juzan Maru" [1974] 2
F.C. 488, applied. Underwater Gas Developers Ltd. v.
Ontario Labour Relations Board [1960] O.R. 416,
applied. Antares Shipping Corporation v. The Ship
"Capricorn" [1977] 2 S.C.R. 422, applied. Westcan
Stevedoring Ltd. v. The Ship "Armar" [1973] F.C. 1232,
distinguished. Elesguro Inc. v. Ssangyong Shipping Co.
Ltd. [1981] 2 F.C. 326, distinguished. Marazura Navega-
cion S.A. v. Oceanus Mutual Underwriting Association
(Bermuda) Ltd. [1977] 1 Lloyd's Rep. 283 (Q.B. (Com.
Ct.)), distinguished.
MOTION.
COUNSEL:
John R. Cunningham for plaintiffs.
D. G. Rae for defendants.
SOLICITORS:
Macrae, Montgomery & Cunningham, Van-
couver, for plaintiffs.
Russell & DuMoulin, Vancouver, for defend
ants.
The following are the reasons for order ren
dered in English by
ADDY J.: The defendant ship was arrested in
Vancouver at the request of the plaintiffs at the
time of the issuing of the statement of claim in this
action. Following the granting of leave to enter a
conditional appearance, the present application
was made on behalf of the owners of the defendant
ship for an order to strike out the statement of
claim herein and to dismiss the action on the
ground of lack of jurisdiction or, alternatively, on
the ground that a Canadian court constitutes a
forum non conveniens.
The Friedrich Busse, which is registered in Ger-
many, is a fish processing vessel and the plaintiffs,
owners of the Dona Genoveva, who were fishing
off the coast of Alaska and the Aleutian Islands,
were delivering fish to the Friedrich Busse for
processing at sea pursuant to a contract made and
signed in Germany between the defendant com
pany and a representative of the plaintiffs. In that
contract (para. 2) the defendant company
described itself as the owner of the Friedrich
Busse. It now turns out, according to the affidavit
evidence of the applicant, that the ship was and is,
in fact, the property of a wholly owned subsidiary
company of the defendant, namely Reederei Frie-
drich Busse Hochseefischerei Nordstern A.G. &
Co. Kommanditgesellschaft.
In view of the similarity of names, the fact that
the actual owners are a subsidiary of the defendant
company and that the latter held itself out to be
the owner, I attach no importance whatsoever to
the fact that the contract was not in the name of
the actual owner. I am assuming at this stage and
for the purpose of the present motion and in the
absence of any evidence to the contrary, that the
contract was executed on behalf of the actual
owners and with their full knowledge and consent.
The first ground alleged, namely that this Court
has no jurisdiction to entertain the action, is based
on three arguments.
The first one is that there is no action in rem
against the ship because there exists no action in
personam against the shipowner. Counsel for the
applicant argues in support of this proposition that
the statement of claim contains no allegation
against the shipowner as owner, nor could any
claim against the owner be maintained at law even
if such an allegation existed. The applicant relies
on this in the case of Westcan Stevedoring Ltd. v.
The Ship "Armar" [1973] F.C. 1232. I fully agree
with the principle approved and adopted by my
brother Collier J. in that case, to the effect that a
right in rem against a vessel is dependent upon the
existence of a liability on the part of its owner
apart from statute and that Parliament did not, in
granting admiralty jurisdiction to the Federal
Court, intend to alter that principle. In the last-
mentioned case, however, it is very important to
remember that, unlike the case at bar, it is undis
puted that there existed no liability on the part of
the owners. This is brought out quite clearly by
Mr. Justice Collier at page 1234 of the above-men
tioned report:
Mr. Lutz candidly admitted he never at any time dealt with
the owners of the vessel or the master of the vessel in respect of
the supplying of these stevedoring services. He said his com
pany was not looking to the credit of the vessel or her owners,
but was supplying the services on the credit of the charterers or
their subagents. [Emphasis added.]
In the present case the statement of claim in
issue contains allegations against the defendant
company for amounts due for fish supplied the
ship and for damages for failure of the ship to
remain in the fishing waters in the Bering Sea,
Aleutian Islands and Gulf of Alaska fishing areas.
This claim would be maintainable against the
owners as such, since they signed the contract (or
for the reasons previously stated are, for the pur
pose of this motion, to be considered as having
signed it) and would be reaping the benefits of the
contract. When the owner undertakes that his ship
will be in a certain area at a certain time and will
perform certain tasks, in this case take delivery of
and pay for the fish caught by the plaintiffs, the
owner is obviously responsible at law for the
performance of that contract. The first argument
of the applicant therefore cannot be sustained.
The second argument is to the effect that no
action is maintainable against the ship in any
event because the supplying of fish under a con
tract does not fall within any of the paragraphs of
subsection 22(2) of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, or, more particularly,
within paragraphs (i) and (m), on which the plain
tiffs rely. This argument is also related to the third
one to the effect that, in addition, the substance of
the matter does not, in any event, fall within the
general jurisdiction in admiralty matters granted
to this Court by subsection 22(1). I shall deal with
both these arguments at the same time.
The relevant portions of section 22 read as
follows:
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:
(i) any claim arising out of any agreement relating to the
carriage of goods in or on a ship or to the use or hire of a ship
whether by charter party or otherwise;
(ni) any claim in respect of goods, materials or services
wherever supplied to a ship for her operation or maintenance
including, without restricting the generality of the foregoing,
claims in respect of stevedoring and lighterage;
I agree that a contract for the supplying of fish
to a vessel, merely by reason of the fact that the
vessel is processing the fish and is thus using the
fish supplied, cannot fairly be construed as an
"agreement relating to ... the use ... of a ship" as
contemplated by paragraph (i). When the word
"use" is considered in that context it seems clear
that the use referred to is use of the ship by a party
other than the owner: an agreement for use and an
ordinary contract for hiring would be ejusdem
generis.
However, the question as to whether paragraph
(m) applies is not nearly so clear. It might well be
that the word "operation" in that paragraph does
not refer only to the actual navigation of a ship
over the water but to its operation generally where
it has another function such as receiving delivery
of fish on the high seas and processing same, even
though the actual processing might well be the
same as the operation carried on by a fish process
ing factory situated ashore.
Nowhere in the specifically enumerated matters
in subsection (2) of section 22 is there any mention
of contracts for the supplying of necèssaries for a
ship. This has long been recognized as a claim
falling within the ambit of Canadian maritime law
and also the jurisdiction of the former Exchequer
Court of Canada and thus the Federal Court of
Canada.
A decision of the Exchequer Court in point is
that of Western Nova Scotia Bait Freezers Lim
ited v. The Ship `Shamrock" [1939] Ex.C.R. 53.
That vessel was also engaged in the fishing busi
ness. The contract was for the supply of bait and
ice to the ship to enable it to carry on with fishing.
It was held therein that the bait and ice were
necessaries having regard to the nature of the
business of the ship. The learned Judge states at
pages 54 and 55 of the above-mentioned report:
There are two defences set up to the action, the first that the
goods supplied were not "necessaries" within the meaning of
that word as interpreted by Courts of Admiralty, and in any
event there is no proof that the bait and ice were necessary at
the time of delivery. This vessel was engaged in the fishing
business and it is shown by the evidence that ice and bait are
essential for the prosecution of that industry as carried on by
the Shamrock. I think, too, that without any evidence of the
situation here one having knowledge of the business in which
this vessel was engaged is bound to reach the conclusion that
bait and ice were necessary for the proper prosecution of that
business because "necessaries" has been judicially interpreted
as "whatever is fit and proper for the service in which the vessel
is engaged; whatever the owner of that vessel as a prudent man
would order if present at the time": Abbott C.J., in Webster v.
Seekamp ((1821) 4 B. & E. Ald. 352; 106 E.R. 966).
It seems to me that the business of fishing can
no more be considered navigation and shipping or
the operation of a ship qua ship in a restricted
sense, than the obtaining of delivery of fish on the
high seas by purchase and the processing of same.
In the case at bar the vessel was designed for and
engaged in that business and nothing else. The
obtaining of fish is absolutely essential to the
vessel being operated for the purpose for which it
exists. No distinction can reasonably be made on
the facts between the two cases. I therefore feel
that, failing an obvious error in law in the above-
mentioned decision or a subsequent change in the
law since then, I am required to follow the deci
sion. There is, in my view, no error in law and the
only change in law is the enactment of section 22
of the Federal Court Act.
The expression "supplying of necessaries" is not
to be found among the specifically enumerated
matters in subsection 22(2) of the Federal Court
Act. In essence, however, it would be contained
within the wording of paragraph (m) above and, if
one were attempting to establish a distinction in
meaning between the two concepts, one could only
find that the wording of paragraph (m) must
necessarily include, but is not limited to, the sup
plying of necessaries; in other words, that the
supplying of the goods, material or services need
no longer be necessary for the operation but may
be ancillary or complementary thereto, as long as
they are used or intended for use in the operation
of the ship. Altogether apart from the apparent
extension given to the concept of ship's necessaries
by paragraph 22(2)(m) of the Federal Court Act,
we find that the rather restrictive interpretation
originally applied to that term has been consider
ably widened. In Roscoe's Admiralty Jurisdiction
and Practice of the High Court of Justice (5th
Edition) we find the following at page 203:
.., though primarily meaning indispensable repairs, anchors,
cables, sails, and provisions, the term has now, it is clear, a
wider signification, and has been and is being gradually ampli-
fied by modern requirements, as is instanced by the case of The
Mecca, where canal dues were pronounced to be within the
scope of the word. No distinction can be drawn between
necessaries for the ship and necessaries for the voyage, and all
things reasonably requisite for the particular adventure on
which the ship is bound are comprised in this category.
What is of equal importance, however, is the
question of whether a contract between the owners
of two ships, one of which is to supply the fish on
the high seas to the other which is obliged to
remain within the specified fishing areas and
receive delivery of and pay for the fish, would fall
within the meaning of the words "Canadian mari
time law or any other law of Canada relating to
any matter coming within the class of subject of
navigation and shipping" contained in subsection
22(1).
It is well established that the Federal Court of
Canada, as was its predecessor the Exchequer
Court of Canada, in addition to any other statu
tory jurisdiction it might possess in admiralty mat
ters or otherwise, is vested with the jurisdiction
formerly exercised by the Admiralty Courts of
England at the time that jurisdiction in admiralty
matters was acquired by the Exchequer Court of
Canada. It is obvious that fish processing ships did
not and could not exist at that time and, therefore,
there was no factual situation on which the Admi
ralty Courts of England could have exercised their
jurisdiction. The question one must ask, therefore,
is not whether they did in fact exercise their
jurisdiction in such cases but whether they would
have been justified in law in doing so at the time,
had the question arisen.
The contract is not merely one covering the
transfer of property in goods but also more essen
tially one which deals with the actual transfer and
delivery of possession of those goods on the high
seas between two ships. The goods themselves are
to come from an agreed area of the sea and the
contracting parties have mutually agreed that their
vessels are to operate there and carry out the
provisions of the contract in that specified area. It
is difficult to conceive of a situation or of an
undertaking which is more maritime in nature
than the subject-matter covered by the contract in
issue and I feel confident that had any Admiralty
Court in England been faced with that factual
situation, it would necessarily have assumed juris
diction and legally disposed of the issue between
parties.
The applicant also relied on another decision of
Mr. Justice Collier in support of his argument,
namely the case Sumitomo Shoji Canada Ltd. v.
The Ship "Juzan Maru" [1974] 2 F.C. 488; 49
D.L.R. (3d) 277. In that case the Court declined
jurisdiction, but it was clearly on the basis that, on
examining the true essence of the contract in the
light of all the circumstances and the particular
facts of the case, it appeared that the maritime or
shipping aspects of the business arrangement be
tween the parties were miniscule or incidental,
(ref. p. 284 of the above-mentioned report)
[[1974] 2 F.C. at pp. 496-497], and that the
essence of the arrangement was not maritime. I
fully agree with that principle and with the test of
dominant features and objects applied in the case
of Underwater Gas Developers Ltd. v. Ontario
Labour Relations Board (1960) 24 D.L.R. (2d)
673; [1960] O.R. 416. Those are precisely the tests
which, when applied to the facts of the present
case, convince me that the matter is predominantly
maritime in character.
I therefore find that, altogether apart from the
question of whether the contract covers the supply
ing of necessaries or whether it falls within para
graph 22(2)(m), it would in any event fall within
the subject-matter of Canadian maritime law as
provided for in subsection 22(1).
I now turn to the argument of forum non
conveniens.
The ship was arrested in Vancouver whilst
undergoing repairs and therefore this Court has
jurisdiction in rem over the vessel. The question of
forum conveniens is, of course, a completely differ
ent question from that of jurisdiction and does not
arise unless the Court has jurisdiction.
The plaintiffs are American, the defendant com
pany is German, the ship is registered in Germany,
the contract was made there and was to be per
formed out of our jurisdiction, payment was ten
dered and accepted in United States currency and
the repair and maintenance of the ship which led
to its being in a Canadian port and to its arrest has
nothing to do with the performance of the contract
which led to the present action. It would seem at
first glance in the light of these facts that a
Canadian court would not constitute a forum con-
veniens to try the present issue between these
parties.
There are, however, other factors which have a
direct bearing on the issue. Although operations of
the defendant ship were carried out to a very large
extent within the U.S. 200-mile fishing limits, it is
not subject to arrest there in admiralty matters,
unless it also be within the 3-mile territorial waters
portion of same, the remaining 197 miles being
among other things a zone for management of
fisheries but not subject to the general territorial
jurisdiction of the United States.
During the performance of this contract and
following reports that the defendant ship was in
breach of its U.S. fishing authorization or licence
to operate in U.S. Fishing Management waters,
the vessel was boarded by inspectors of the U.S.
Department of Commerce, National Oceanic and
Atmospheric Administration. According to the
report prepared by counsel for the U.S. Govern
ment, who recommends prosecution of the vessel,
the inspection revealed that it had in all probabili
ty underlogged between 750 and 1,400 metric tons
of cod and that, of the 100 samples of fish taken
from blocks labelled as pollock, 94 samples were,
in fact, cod. Conviction on the proposed charges
would lead to very substantial penalties, that is,
$2,500 per day for the period 13 January 1981 to
the date of boarding, that is, 13 April 1981, and to
the possibility of seizure of the vessel. The ship left
American fishing waters on the day following the
boarding and apparently went to Mexico, allegedly
for repairs but, according to the plaintiffs, in order
to escape action and to get rid of the catch. Part of
the plaintiffs' claim is based on the allegation that,
in leaving the fishing area, the defendants were in
breach of contract.
The vessel did touch in at Dutch Harbour,
Alaska, approximately five times since the dispute
arose but apparently only for very short periods.
The plaintiffs were unable to determine in advance
when it would touch in at that port and evidence
was tendered that Dutch Harbour is extremely
remote from the United States Federal Court in
Alaska and that it is most difficult to send a
marshal in time to seize a ship there when it
merely touches port for the purpose of taking on
supplies or fuel. There is no evidence that the ship
will be entering United States territorial waters
again although there is evidence that it intends to
return to the fishing areas off the coast of Alaska
in order to continue its usual operations following
the repairs presently being carried on here.
There is no evidence of any hardship on the
defendants should there be any requirement on
their part to provide bail for the release of the ship,
such as existed in the case of Marazura Navega-
cion S.A. v. Oceanus Mutual Underwriting Asso
ciation (Bermuda) Ltd. [1977] 1 Lloyd's Rep. 283
(Q.B. (Com.Ct.)).
Furthermore, as the ship will not be returning to
Germany but will be remaining off the west coast
of North America, that is, relatively close to this
jurisdiction, I can foresee no particular difficulty
for the defendants or prejudice to them from an
evidentiary standpoint. In addition, the agent for
the defendants in the United States is but a few
miles away, in Seattle, in the State of Washington.
The cases of Sumitomo Shoji Canada Ltd. v.
The Ship "Juzan Maru" [supra] and Elesguro
Inc. v. Ssangyong Shipping Co. Ltd. [1981] 2 F.C.
326; 117 D.L.R. (3d) 105, referred to by the
defendants are of little help and are readily distin
guishable. In neither one of these do the causes of
action pertain to the ship which was arrested.
The most recent leading case governing factors
to be considered by a trial judge in exercising his
discretion on the issue of forum conveniens is the
decision of the Supreme Court of Canada in
Antares Shipping Corporation v. The Ship
"Capricorn" [1977] 2 S.C.R. 422. In that case
Mr. Justice Ritchie in delivering judgment on
behalf of the majority of the Court stated at page
448:
The factors affecting the application of this doctrine have been
differently described in various cases, to some of which refer
ence will hereafter be made, and they include the balance of
convenience to all the parties concerned, including the plaintiff,
the undesirability of trespassing on the jurisdiction of a foreign
state, the impropriety and inconvenience of trying a case in one
country when the cause of action arose in another where the
laws are different, and the cost of assembling foreign witnesses.
In my view the overriding consideration which must guide
the Court in exercising its discretion by refusing to grant such
an application as this must, however, be the existence of some
other forum more convenient and appropriate for the pursuit of
the action and for securing the ends of justice. Each such case
must of necessity turn upon its own particular facts ....
At page 451 of the same report the learned Justice
also quoted with approval the statement of Megar-
ry J. in G.A.F. Corporation v. Amchem Products
Inc. [1975] 1 Lloyd's Rep. 601 (C.A.), where the
latter stated:
When I consider the forum conveniens, I bear in mind that it
has been said that the term means not the `convenient' Court,
but the `appropriate' Court or the court 'more suitable for the
ends of justice': See The Atlantic Star, 1973 2 All E.R. 175.
At page 453, Mr. Justice Ritchie also quoted with
approval the following pronouncement of Lord
Sumner in La Société du Gaz de Paris v. La
Société Anonyme de Navigation Les Armateurs
Francais [1926] S.C. (H.L.) 13:
The real proposition is, I think, that the Court has to consider
how best the ends of justice in the case in question and on the
facts before it, so far as they can be measured in advance, can
be respectively ascertained and served ... The object, under the
words 'forum non conveniens' is to find that forum which is the
more suitable for the ends of justice, and is preferable because
pursuit of the litigation in that forum is more likely to secure
those ends.
He also approved the following statement of Lord
Simon in The Atlantic Star [1973] 2 All E.R. 175
at 197-198:
Ships are elusive. The power to arrest in any port and found
thereon an action in rem is increasingly required with the
custom of ships being owned singly and sailing under flags of
convenience. A large tanker may by negligent navigation cause
extensive damage to beaches or to other shipping: she will take
very good care to keep out of the ports of the `convenient'
forum. If the aggrieved party manages to arrest her elsewhere,
it will be said forcibly (as the appellants say here): 'the
defendant has no sort of connection with the forum except that
she was arrested within its jurisdiction.' But that will frequently
be the only way of securing justice.
Had the ship been arrested in U.S. waters or
had security been furnished a U.S. Court, trial in
that jurisdiction would certainly have been prefer
able. But such is not the case and, in the light of
the alleged fraudulent conduct of the defendants
which is supported to some degree by evidence and
the fear of the plaintiffs that the release of the ship
without proper security being furnished would in
all probability result in their losing any chance of
recovery, the fact that the ship is arrested within
this jurisdiction assumes added importance.
As has been stated in The Atlantic Star case
and many other admiralty decisions, a ship,
because of its very mobility is an elusive asset
which can easily be disposed of in some distant
place and the proceeds of the sale can easily be put
beyond the reach of a legitimate claimant.
Having regard to the circumstances as they exist
at the present time, I feel that this Court is the
forum most suitable for the ends of justice and, in
fact, it appears to be the only place where justice
could be secured.
The defendants' motion will therefore be dis
missed with costs.
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.