T-1174-87
Banco do Brasil S.A. (Plaintiff)
v.
The Owner and All Others interested in the Ship
Alexandros G. Tsavliris and the Ship Alexandros
G. Tsavliris (Defendants)
and
Nikolas Hiotis, on his own behalf and on behalf of
the Crew of the Ship Alexandros G. Tsavliris
(Intervenors)
and
Pan American Steamship Lines Inc. and Euro-
pean-Overseas Steamship Lines N.V. (Second
Intervenors)
and
Astrapi Maritime Limited (Third Intervenor)
and
Zodiac Maritime Agencies Ltd. (Fourth Interven-
or)
T-1381-87
Pan American Steamship Lines Inc. and Europe-
Overseas Steamship Lines N.V. (Plaintiffs)
v.
The Ship Alexandros G. Tsavliris, Panalex Ship
ping Company Limited and all Others interested
in the Vessel Alexandros G. Tsavliris and Banco
do Brasil S.A. (Defendants)
INDEXED AS: BANCO DO BRASIL S.A. V. ALEXANDROS G.
TSAVLIRIS (THE) (T.D.)
Trial Division, Strayer J.—Ottawa, August 15,
1990.
Practice — Judgments and orders — Reversal or variation
— Before formal judgment entered, one of defendants moved
for reconsideration of reasons for judgment — Within Court's
power under R. 303(1) — Motion allowed in part — Passage
of reasons objected to obiter — Passage deleted — However,
as defendant sought to reopen issues already dealt with at trial
and as deletion of obiter dictum without effect on case, costs
awarded to other side.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 303(1),(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Yost v. Administrator under the Anti-Inflation Act,
[1980] 2 F.C. 720 (C.A.); Shairp v. M.N.R., [1989] 1
F.C. 562; [1988] 2 C.T.C. 344; (1988), 88 DTC 6484; 93
N.R. 396 (C.A.).
Motion dealt with without personal appearance.
SOLICITORS:
Campney & Murphy, Vancouver, for Banco
do Brasil.
Bull, Housser & Tupper, Vancouver, for Pan
American Steamship Lines Inc., et al.
The following are the reasons for order ren
dered in English by
STRAYER J.: On April 27, 1990 I issued reasons
for judgment in these actions [supra, at page 260],
finding in favour of the charterers (intervenors and
counter-claimants in T-1174-87, plaintiffs in
T-1381-87) against the Banco do Brasil S.A. ("the
Bank") (plaintiff, and defendant by counter-claim
in T-1174-87 and 'defendant in T-1381-87). I
requested counsel to prepare a formal judgment
for my approval. Before this was done, counsel for
the Bank filed a notice of motion requesting recon
sideration of the reasons for judgment. In particu
lar the Bank took note of the following passage in
my reasons for judgment.
There was no cogent argument on behalf of the Bank as to any
other country being the locus of the alleged tort. There was
some suggestion that the legality of the Bank's actions should
be tested by the law of Panama but no evidence was provided to
me as to the law of Panama in this respect. I would be obliged
to assume, in the absence of evidence to the contrary, that in
this respect the law of Panama would be the same as that of the
lex fori, i.e. Canada.
In essence, the Bank contends that I thereby made
a finding that the law of Panama was the same as
the law of Canada but, having done that, I failed
to consider the implications of such a finding. In
essence, the Bank contends that if the law of
Panama is the same as that of Canada with respect
to the liability in tort of a mortgagee who arrests a
mortgaged ship under charter, then the threatened
arrest at Panama would have been remediable and
the charterers cannot claim damages for the cost
of circumnavigating South America in order to
avoid arrest of their chartered ship in Panama.
The charterers argue essentially that the law of
Panama concerning the liability for mortgagees for
interference with the performance of a charter by
a mortgaged ship is irrelevant to the present case
and that the reasons for judgment did not purport
to make a finding on that subject.
The charterers also objected to this application
on procedural grounds, arguing that such a
remedy was not available under the Rules of the
Federal Court [Federal Court Rules, C.R.C., c.
663]. While this point has given me some difficul
ty I believe that it is open to the Bank to make
such an application. It is probably justified under
Rule 303(1) which allows the Court "at any stage
of a proceeding" to "order any document in the
matter to be amended". Rule 303(2) provides that
this procedure does not apply to a judgment or
order. What is in question here is not a judgment
or order but my reasons, and no judgment having
been entered yet to give effect to those reasons I
believe I can amend them. This appears to be
consistent with certain jurisprudence of the Feder
al Court of Appeal.'
It is clear that the passage quoted above to
which the Bank takes exception was an obiter
dictum. After making a finding that the tort had
occurred in England I was simply reinforcing that
conclusion by pointing out that there was no
coherent evidence in support of any other locus.
While in argument the Bank stressed that the
arrest by the Bank in Panama would have been
legal by Panamanian law, in the context of the
passage quoted above I was simply making the
See e.g. Yost v. Administrator under the Anti-Inflation
Act, [1980] 2 F.C. 720 (C.A.); Shairp v. M.N.R., [1989] 1
F.C. 562 (C.A.).
observation that there was no evidence before me
as to what the law in Panama would be with
respect to the liability of the mortgagee in such
circumstances to the charterers. That is, I was
referring to the question of whether there is in
Panamanian law a tort of unjustified interference
by a mortgagee with the performance of a charter-
party by a mortgaged ship. If the tort had been
committed in Panama, I would have had to come
to a conclusion on that point in order to determine
whether such an act was "unjustified" by the law
of Panama to enable me to decide whether the
charterers could succeed in their action in a
Canadian court.
It is clear throughout my reasons for judgment
that I found the tort to have been committed in
England and as it was being sued on in a Canadian
court it would have to be actionable in tort in
Canada and not justified in England. The only
relevance that Panamanian law had was in estab
lishing the reality of the threat to arrest in
Panama. I agree with counsel that it was assumed
throughout the case that such a threat was mean
ingful. For this reason my comments as quoted
above were unnecessary to any of the essential
findings in the case, dealing only with a hypotheti
cal situation by pointing out that if it were to be
seriously contended that Panama was the locus of
the alleged tort I would then either have to have
more evidence as to its actionability as between the
Bank and the charterers or in the absence of such
evidence would have to assume that, as in Canada,
such intervention would as between the mortgagee
and third parties to the mortgage (the charterers)
not be "justifiable". The passage is unnecessary
and therefore in response to the request of the
Bank I am striking that paragraph from my
reasons.
Much of what the Bank has submitted in its
written argument on this motion is really, it seems
to me, supplementing its arguments at trial that a
mere threat to arrest without actual arrest is not a
tort and that damages are not available for wrong
ful interference by a mortgagee in the performance
of a charter by a mortgaged ship. Further, it is a
repetition of the Bank's position which, in my
view, confuses the rights of the mortgagee as
against the mortgagor with its rights as against
innocent third parties who have chartered the
mortgaged ship. Again, this is in part a reopening
of issues already dealt with at trial and in my
reasons and I do not propose to deal with them
further. I have made it clear I find against the
Bank on these issues. No doubt my findings as to
Canadian law on this subject will be reviewed in
time by higher authority. That is sufficient.
Although the Bank has partly succeeded on this
motion, I fail to see how the removal of what is
obviously an obiter dictum has advanced its case in
any material respect. The costs of this motion will
therefore become part of the costs in the cause
which I have awarded to the charterers.
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.