Monday, September 11, 2017

Floating Home is a Vessel

Courts have always struggled with the definition of what is a "vessel".  The determination of whether an object is a ship or not is important in how it is dealt with.  For example, if an object is a ship it will have insurance requirements that are different if it is not a ship, it may be required to comply with certain safety regulations under the Canada Shipping Act  2001 and its regulations, it will have to file a preliminary act after a collision occurs, and it will be subject to the law of salvage.

Justice Atkinson in Polpen Shipping Co. v. Commercial Union Assurance Company [1943] K.B. 161, at 167. stated that a ship or a vessel is a “hollow structure intended to be used in navigation, that is, to do its real work on the seas or other waters, and capable of free ordered movement thereon from one place to another.” Cases subsequently have considered other “objects” as ships. The starting point in Canada is the definition of vessel in section 2. Vessel is defined as: “a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to method or lack of propulsion, and includes such a vessel that is under construction. It does not include a floating object of a prescribed class.”

Recently the Federal Court of Canada had occasion to consider whether a floating home was a vessel and subject to Canadian maritime law. In Moray Channel Enterprises v. Gordon, 2017 FC 250, Justice Annis had to consider an application for a summary trial for moorage fees owed to a marina relating to a floating home. The float home was a registered as a vessel under the Canada Shipping Act 2001.

In the hearing, the vessel owner raised a constitutional issue that the Court lacked competence in the matter as the pith and substance of the action related to property rights, and in particular, landlord and tenant rights within the jurisdiction of the Province of British Columbia. The boat owner had previously unsuccessfully sought redress before the Residential Tenancy Board of British Columbia. The boat owner sought a stay of the Federal Court proceedings pending the determination of his judicial review application of the Board decision in the Courts of British Columbia.

The vessel had, prior to this summary hearing on the moorage fees, been arrested by the marina, and sold by the Marshall of the Federal Court after an injunction hearing before Justice Phelan. Justice Phelan had ordered the vessel to be removed from the marina, failing which the Marshall was permitted to sell the vessel in accordance with Court procedures. Justice Annis, in the summary proceedings, noted that at the vessel owner had not raised issues of the Court’s jurisdiction in the injunction hearing. The Justice also noted that the boat owner had not raised the constitutional issue in the statement of defence. The Court rejected the vessel owner’s arguments.

The Court awarded the marina $14,990.09 with interest and $3,000.00 in costs and disbursements. The vessel had been sold for $132,172.26. The marina had claimed $17,025.10 in moorage fees, enforcement expenses and expenses for removing the vessel pursuant to the Court order. The marina had also spent $18,142.10 in legal fees on the process.


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