136 EXCHEQUER COURT REPORTS. (VOL XV. BRITISH COLUMBIA ADMIRALTY DISTRICT. 1913 ~-- THE VICTORIA MACHINERY DEPOT Sept. 24. COMPANY, LTD., PLAINTIFF; AGAINST THE STEAMSHIPS CANADA AND TRIUMPH. Shipping—Admiralty Practice—Rules 53, 36, 37 and 39—Affidavit to lead Warrant —Supplementary Affidavits—" An owner domiciled in Canada"—Mortgagees —Necessaries—Statutory Lien— Promissory Notes—Dishonour--Right to sue for original debt. Where an affidavit to lead warrant does not disclose that the Court is seized of jurisdiction, leave may be given to the plaintiff to file supplementary affidavits sheaving that there was jurisdiction to issue the warrants and that the ease is one in which the discretion of the Registrar under Rule 39 could be properly exercised. 2. A company whose head office is in England, although registered and licensed to carry on business in British Columbia, is not "an owner domiciled within Canada" within the meaning of Rule 37. 3. Where necessaries have been supplied in British Columbia to a ship which is away from its home port and has no owner domiciled in the province, a statutory lien for the same arises upon the arrest of the ship, and the lien may be enforced either upon the trial or upon a subsequent motion. 4. Where promissory notes have been accepted for part of the claim for necess- • aries and have been dishonoured the ship may be sued for the original debt. T wo motions were heard by the Honourable Mr. Justice Martin, Local Judge of the British Columbia Admiralty District, at Chambers in Victoria on September 3rd, 1913, in an action in rem for necessaries, on behalf of the receiver and manager of the British Columbia Fisheries, Limited, (owner of the steamships Canada and Triumph) and of the trustees of a debenture mortgage covering said ships, to vacate certain warrants for arrest of the ships.
VOL.. XV..; EXCHEQUER COURV.,11EPORT.. The grounds upon which the . motions were based appear in the reasons for judgment. W. J. Taylor, K.C., in support of the motions. E. V. Bodwell, K.C., and W. MARTIN, L. J., now (September 24th, 1913) deliveréd J judgment. These are two separate motions .on similar material, . heard together for convenience, on behalf of the receiver and manager (appointed on 13th August, 1913, by the High Court of Justice in England) of the British Col-umbia Fisheries, ' Limited, (owners of the steamships Canada and Triumph) and of the trustees of a debenture mortgage covering said * ships, to vacate the warrants issued against the said ships now under arrest of the . Marshal on the grounds that the affidavits to lead to • warrant do not comply with Rules • 35 and 36, it not being stated therein (a) what the "nature of the claim" is but only that :--- "2.. The plaintiff has at the request of the de- " fendants or their agents done work and rendered " services to the Canada, a British vessel belonging " to the port' of Grimsby, England, to the amount of " $3,217.37. and (b), if it can be assuméd that the action is for necessaries, the domicile of the owner within Canada is not deposed to; and (c), if it can be asumed that the action is for building, equipping or repairing, the fact that the ship is under the arrest of the Court, is not deposed to. My recent decision in on the power of the Registrar under Mile 39 to dispense with certain "prescribed particulars" in the affidavit, was relied upon by the plaintiff in answer to these objections, but it was submitted by the defendants in (1) (1912) Ante, 137 11313 THE VICTORIA MACHINERY Dipar Co. THE C. Moresly, contra. STEAMSHIPS CANADA ARE TRIUMPH. R u e d as o m n e s a f t o , r Letson v. Tuladi (1) p. 134.
138 EYCSEQUF.ft COUEtt REPORTS [VOL X V, 1913 reply that though the registrar may so dispense, yet my TAE VICTORIA decision does not go to the length of holding that such MACHINERY DEPar Co. v. dispensation would confer upon this Court a juris-THE diction which it did not in fact possess. This sub- STEAMSHIPS CANADA AND mission is, I think, correct, and according to the facts TRIUMPH. 1leasoae for dis c losed in the affidavits filed before the Registrar, and Judgment. in support of this motion, this court would not have jurisdiction to issue the warrant for arrest. But an application was made by the plaintiff on the return of the motion to file supplemental affidavits to prove such facts as would show that in. reality there was jurisdiction and that the case was one in which the discretion of the Registrar could be and was properly exercised, and I allowed the affidavits to be read for that purpose, and they did establish jurisdiction showing that the claim, or at least a large portion of it, was for necessaries (as defined by, e.g. Webster v. Seekamp (1); The Two Ellens (2); and The Riga (3), approved in Foon Tai v. Buchheister (4), and that "no owner or part owner of the ship [was] domiciled within Canada at the time of the institution of the action", because the owning company having its head office in London, England, has its domicile there within the meaning of the authorities which will be found conveniently collected in Pearlman v. Great West Life Insurance Co. (5), where the question was recently considered. I have not overlooked the fact that this company is licensed and registered to carry on business within this province under sec. 152 of the Companies Act, R.S.B.C., cap. 39, and that it has " the same powers and privileges in this " Province as if incorporated under the provisions of " this Act", but that language does not change or alter (1) (1821) 4 B. & Ald., 352. (3) (1872) L. R. 3 Ad. & Ec., M6. (2) (1871) L. R. 3 Ad. & E., 345; (4) (1908) A. C., 458 at p. 466. L. R. 4 P. C., 161. (5) (1912) 17 B. C. R., 417.
VOL XV.] EXCHEQUER COURT REPORTS. • i ts constitution or domicile, and it is not one of the "privileges" enjoyed by British Columbia companies T that they should have two head offices, one of which DE Co could, e.g., be used as a means to pursue its debtors, and the other to evade its creditors. The distinction_ between the "head office of the company" "home") ~ and the "head office of the company in the Province" is preserved in the form of the license and of certificate given in secs. 154 and 160, sub-secs. (b) and (c). • But it is further contended in support of the motion that since at the time of the arrest the ships were in the possession of the said receiver, under the said debenture mortgage, duly registered in the Port of Grimsby, England, the registered port of the defendant ships, therefore as the lien for necessaries is not a maritime one, and the possessory lien has been lost, there is no Vother lien that can be enforced in the circumstances, and the arrest is of no avail. While it is true that the plaintiff herein has no maritime or possessory lien, yet since he has supplied necessaries herè to a ship, which for the purposes of the argument, (1) through not a foreign one, is yet away from its home port and has no owner domiciled in British Columbia (which under sec. 2a .of the Colonial Courts of Admiralty Act, must be substituted for "England and Wales" in the • Admiralty Court Act, 1861, sec. 5) he has acquired a statutory lien for such necessaries when the ship was arrested under the warrant of this Court. The fact that it may turn out that such lien may be postponed to a prior charge or charges by way of lien or mortgage • or to the claim of a bona fide purchaser of the ship for value does not prevent its enforcement so far as may (1) See The Ocean Queen, (1842) 1 W. Rob., 457. 139 19 13 v lcol~IA MAc$ I N ERY . ti. sfi TAE EA~e~II~ T $ C iu N t D (i.e. its lteàé on a for Jüd . . g ._ ù . i _ e nt. I assume 1890, be
140 EXCHEQUER COURT REPORTS. (v&: 'L. XV. 1913 lawful upon the facts to be hereafter established, either THE VICTORIA MACHINERY upon the trial or upon a subsequent motion furnishing DEPOT CO. _" v. the necessary materials for a judgment", as has been THE STEAMSHIPS done in many cases, e.g., The Scio (1). See also the CANADA AND TRIUMPH. following authorities which justify my view: Abbott on Reasons for Shipping (2) ; McLachlan on Shipping (3) ; Williams Judgment. & Bruce (4) ; The Troubadour (5) ; The Pacific (6) ; The Aneroid (7); The Rio Tinto (8); Foon Tai v. Buchheister, supra, and lastly and chiefly The Cella (9), applying the decisions in The Two Ellens, (10), The Pieve Superiore (11) and the Heinrich Bjorn (12). Thus in The Cella:— " They shew that though there may be no .mari-" time lien, yet the moment that the arrest takes " place, the ship is held by the Court as a security " for whatever may be adjudged by it to be due to " the claimant." (p. 87). And p. 88: "It appears to me that so long as 1842 Dr. Lush-" ington in The Volant explained the principle upon " which the Court proceeds, when he said that "an " arrest offers the greatest security for obtaining " substantial justice, in furnishing a security for " prompt and immediate payment." The arrest " enables the Court to keep the property as security " to answer the judgment, and unaffected by chance " events which may happen between the arrest and " the judgment. That is Dr. Lushington's decision, and I think is a right one." With respect to the objection taken that promisory notes had been accepted for the amount of the claim the answer is, first, that the affidavits show that the notes (1) (1867) L. R. 1 Ad. & E., 353. (7) (1877) 2 P. D., 189. (2) (1901) ed. pp. 49, 183, 1023. (8) (1884) 9 A. C., 356, 362-3. (3) (1911) ed. pp. 115-20. (9) (1888) 13 P. D., 82. (4) Admiralty Practice (1902) ed. p. (10) (1871) L. R. 3 Ad. & Ec., 345, 4 198. P. C., 161. (5) L. R. 1 Ad. & Ec., 302. (11) (1874) L. R. 5 P. C., 482. (6) (1864) Br. & L., 243. (12) (1886) 11 A. C., 270.
VOL. XV.] EXCHEQUER COURT REPORTS. are only for a part thereof, the sum of $2,224.98 not being covered thereby; and, second, since the notes have been dishonoured, • the ship may be sued original debt.—The N.R. Gosfabriek (1). The result is that the motions will be dismissed, with costs to the plaintiff in any event. Orders accordingly. (1) (1858) Swab., 344. 141 1913 THE VlcroRJA MACHINERY . for the DEPOT Co. THE STEAMSHIPS C ANADA AND TRIUMPH. Reasons for Judgment.
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.