A-192-73
The Hamilton Harbour Commissioners (Appel-
lant)
v.
The ship A.M. German and the owner thereof
(Respondents)
Court of Appeal, Thurlow and Ryan JJ.,
Mackay D.J.—Toronto, September 10, 11,
1974.
Maritime law—Hamilton Harbour Commissioners—Statu-
tory powers—Claim against three ships for dock charges—
Counterclaim for illegal seizure of ships—Three actions con
sidered on appeal—Variation in amount awarded—Hamil-
ton Harbour Commissioners Act, S.C. 1912, c. 98.
The appellant corporation instituted three actions in rem
against the tugboats A.M. German, Frank Dixon and Strath-
more and their common owner, to recover one third, in each
case, of the sum of $1,475, as dock charges for use of the
appellant's pier. At trial ([1973] F.C. 1254) the appellant
was denied recovery of dock charges, for failure to have
passed a by-law in accordance with section 20 of its Act, but
was awarded the total sum of $345 for the use of harbour
facilities. The owner was allowed $1 in each case, on a
counterclaim for illegal seizure of the ships. On appeal, the
appellant sought the full amount of its claim.
Held, whether or not there was a by-law, the owner of the
vessels was liable to pay a reasonable amount for the use of
the pier; leave was granted to amend the statement of claim
to plead this specifically. The appellant's total entitlement
was computed at $900 and judgment was to be entered for
this amount in any one of the actions the appellant elected
to amend. This amount excluded a claim for moving the
vessels, as the item was not supportable under section 14 of
the appellant's by-law 84, passed under section 20 of its
Act. Judgment on the counterclaim should be entered in the
same action, for the total sum of $3.
APPEAL.
COUNSEL:
A. J. Stone, Q.C., for appellant.
Andrew Stabins for respondents.
SOLICITORS:
MacKinnon, McTaggart, Toronto, for
appellant.
Andrew Stabins, Streetsville, for respond
ents.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW J.: The appellant is the corporation
established by The Hamilton Harbour Commis
sioners' Act, S.C. 1912, c. 98. On November 7,
1972 the corporation commenced three actions
in rem, one against the tugboat, A.M. German,
another against the tugboat, Frank Dixon, and
the third against the tugboat, Strathmore, and in
each case against the owner as well which in the
case of all three vessels was at all material
times, Trans Continental Steel and Salvage In
corporated. In each case the claim was to recov
er a one-third part of an amount of $1,475.80
allegedly due for dock charges for all three
vessels for use of the appellant's Pier 23 and
adjacent areas from July 10, 1972 to November
3, 1972, and an amount of $90.00 for moving
the vessel from Pier 23 on November 6, 1972
together with "all additional unpaid amounts
accruing after the 3rd day of November, 1972,
and interest thereon in respect of dock charges
and other charges." In the case of the Frank
Dixon the claim included an additional amount
of $40.00 allegedly due for securing the vessel
when she broke away from her mooring at the
pier. Warrants were issued in each case and the
vessels were arrested on November 9, 1972.
In each case several defences were pleaded
including an allegation that the dock charges
were excessive and a denial of liability for the
charge for moving the vessel. The claim for
$40.00 in the case of the Frank Dixon was also
disputed and in each case there was a counter
claim for damages for the unlawful seizure by
the appellant of the three tugs on November 6,
1972.
At the trial the principal issue was that of the
quantum of the dock charges and in respect to
this the learned Trial Judge held [[1973] F.C.
1254] that the appellant was not entitled to the
amount claimed because it constituted "rates"
within the meaning of section 20 of the Act and
there had been no by-law passed to establish
them under that section. However, on the basis
of willingness expressed by counsel for the
defendants to pay at what was referred to as the
dead ship rate of 1 cent per foot of the vessel's
length per day and an agreed calculation of this
by counsel at $290.00 he divided that amount
among the three vessels according to their
respective lengths and after adding $25.00 in
each case for pilotage on the moving of the
vessel from Pier 23 on November 6, 1972 he
gave judgment against the defendants in the
German case for $124.00, in the Dixon case for
$125.00 and in the Strathmore case for $116.00,
in each case without costs. The learned Trial
Judge also held the appellant liable for unlawful
seizure of the vessels on November 6, 1972 but
that no damages had been proved and he there
upon gave judgment for $1.00 damages without
costs on each of the three counterclaims.
Both the appellant and the owner gave notice
of appeal in each case from the judgment both
on the claim and on the counterclaim. The
appellant seeks judgment for the full amount of
its claims (excepting the claim for $40.00
against the Frank Dixon which was abandoned
during the course of the argument of the appeal)
with costs and the dismissal of the counter
claims with costs. By its memorandum of argu
ment the owner on its part sought the dismissal
of the appellant's appeals and asked that it be
allowed its costs on the counterclaims. How
ever, no reason was put forward for disturbing
the learned Trial Judge's disposition of the costs
of the counterclaims.
It was not disputed, and we do not think it
was open to serious dispute that the owner of
the vessels was liable, irrespective of whether
there was a by-law, to pay a reasonable amount
for his use of the appellant's pier and in order to
élarify that this was indeed the basis of the
appellant's claim, on the application of counsel
for the appellant and upon being satisfied that
this basis of claim had been before the learned
Trial Judge, we permitted an amendment to the
statements of claim so as to plead it specifically.
We agree with the learned Trial Judge that on
the evidence the rates on which the appellant's
claim has been calculated, that is to say $12.00
per linear foot per year for bulkhead or pier
frontage and 6 cents per square foot per year
for wharf surface have met the test of the
marketplace and are reasonable. In our view,
however, the evidence does not support a con
clusion that the length of bulkhead used was
250 feet and in this respect we find that the
footage used was about 180 feet. We are also
unsatisfied that the use by the owner of the
surface area to a depth of 100 feet was estab
lished and on the evidence we think that 50 feet
is the figure that should be used in the calcula
tion. On the basis of these figures and a use by
the owner for about one-third of the year we
assess the appellant's entitlement at $900.00.
The claim in each of the three actions for the
expense of moving the vessel from Pier 23 on
November 6, 1972 was based on section 14 of
by-law 84 of the appellant passed under section
20 of the Act. That section reads as follows:
14. Whenever the owner or person in charge of any
vessel in the harbour is not available or refuses or neglects
to obey an order by the harbour master to move the vessel,
the harbour master in his discretion and at the risk and
expense of the owner of the vessel may
(a) take possession of and move the vessel;
(b) use any reasonable means and force for such purpose;
(c) place a pilot in charge of the vessel;
(d) order tugs to remove the vessel; or
(e) moor and anchor the vessel at any place satisfactory
to the harbour master.
In our view the claim for the expense is not
supportable under this by-law because the evi
dence does not show either that the owner was
not available at the material time or that the
owner was given an explicit order as contem
plated by the by-law to move the vessels from
Pier 23 which the owner refused or failed to
obey. Even apart from this the detention by the
appellant of the tugs from their owner the fol
lowing day and until they were arrested appears
to us to be unjustifiable. For the like reasons the
appellant's charges for alleged expenses of
mooring and maintaining the tugs at its Pier 10
after their removal from Pier 23 are not recov
erable as expenses under the by-law and we
know of no other basis upon which they are
recoverable as part of the appellant's claims in
the actions. We are also of the opinion that the
allowance by the learned Trial Judge of $25.00
in each case for pilotage under the by-law is not
sustainable as there was no claim for such an
amount and no evidence that any pilotage
expense was incurred.
With respect to the counterclaims we are of
the opinion that the seizure of the vessels by the
appellant on November 6, 1972 and the with
holding of them from the owner's possession
from that time was illegal and that the learned
Trial Judge's assessment of a total of $3.00 as
damages should not be disturbed.
In the result, therefore, the appellant is en
titled to recover only for the use by the owner
of Pier 23 in the amount of $900.00 already
referred to but a further problem arises as to
what judgment or judgments should be pro
nounced and in which action or actions. There
was only one cause of action alleged in respect
of this claim and it was alleged in the same
terms in each of the statements of claim. More
over the evidence in our view shows it to have
been a single liability of the owner rather than
an aggregation of separate liabilities in respect
of the three vessels. While the rules permit the
joinder of two or more causes of action in a
single proceeding we know of no basis upon
which the appellant could justify bringing three
actions for the same cause of action and claim
ing a portion of the amount to which it was
entitled in each of them. As there is no provi
sion in the rules for consolidating the proceed-.
ings into one and pronouncing a single judgment
in the consolidated proceeding we are of the
view that the appellant must elect in which of
the three proceedings he will take judgment for
the $900.00 and that upon his so electing the
statement of claim in that action should be
amended so as to claim that amount and the
appellant should have judgment for it. The other
two actions should then be dismissed. For the
same reasons there is in our view no justifica
tion for three counterclaims arising out of a
single tort and we think judgment should be
entered for the total amount of the owner's
damages as assessed, that is to say $3.00, on the
owner's counterclaim in the action selected by
the appellant.
In our opinion the denial by the learned Trial
Judge of costs on both the claims and counter
claims should not be disturbed and having
regard both to the fact that the cause of action
in respect of which the appellant succeeds was
properly pleaded only upon the making of the
amendments which were permitted on applica
tion by the appellant during the hearing of the
appeal and to the extraordinary features of the
procedure adopted by the parties in dividing
their claims and bringing a multiplicity of pro
ceedings we do not think there should be costs
awarded to either party on any of the appeals.
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.