CANADA Law and Practice Contributed by: Rui Fernandes, Andrea Fernandes and Conal Calvert, Gardiner Roberts LLP
5.3 Liability in Personam for Owners or Demise Charterers The maritime liens recognised in Canadian law are against the vessel itself and do not require that the ship’s owners also be liable in personam. In circum - stances where no lien arises, it may be necessary for the claimant to demonstrate that a charterer was act - ing as the owner’s agent in order for a debt to arise against the vessel making it liable for arrest. A vessel can be arrested for maritime liens arising as a result of a bare-boat or time charterparty but the lien claimant may have to prove that the charterer was act - ing as the owner’s agent in incurring the debt. 5.4 Unpaid Bunkers A bunker supplier can arrest a vessel in connection with unpaid bunkers if a Canadian bunker supplier has supplied a foreign-owned vessel in Canada or if the enforcement of a valid lien for unpaid bunkers from a foreign jurisdiction is sought in Canada. A maritime lien for necessaries is against the vessel itself and will generally not depend on whether the bunkers were ordered by the charterer rather than the owner. As with any claim for necessaries, the lien claimant must show it provided the bunkers in ques - tion in order to obtain the lien. The lien cannot be for any bunkers carried by the vessel. 5.5 Arresting a Vessel The procedures for arresting a vessel are set out in the Federal Courts Rules. The party seeking to arrest the vessel must first file a Statement of Claim and an Affidavit to Lead Warrant upon receipt of which the Court will issue a Warrant. The Statement of Claim, Affidavit to Lead Warrant and Warrant must be served on the vessel. The Warrant is national in scope and once served the vessel cannot be moved without the permission of the Court or consent of the par - ties. There is no requirement that the arresting party provide security. The arresting party does not need to file copies of documents supporting the claim or the grounds for arrest in order to obtain the Warrant. However, such documents will be needed later in the litigation and may be filed with the Federal Court in either English
they can likely also be brought as a claim in personam against the owners of the vessel. No maritime lien arises for the provision of necessar - ies to a Canadian vessel, but Canada’s MLA provides that a statutory lien arises for necessaries supplied to a foreign vessel by persons carrying on business in Canada as well as for repairs, stevedoring and light - erage. A maritime lien arising in another jurisdiction will be recognised in Canadian law even where the basis for that lien does not exist in Canadian law. The validity of such a lien will be assessed by the Canadian court in accordance with the law of the jurisdiction in which it arises. Canadian law recognises four kinds of maritime liens: • for damages to or by a vessel; • salvage liens; • Master’s disbursements and Master’s and sea - men’s wages; and • bottomry and respondentia. Canadian law does not recognise a maritime lien for injuries to the crew. Maritime liens arise without notice, do not require registration and are enforceable by an action in rem against the vessel, which may be arrested to satisfy the lien. A maritime lien will rank in priority above other claims against the vessel regardless of when they arose, including a ship’s mortgage. The statute of limitations of the province in which the lien arises will govern, which is generally two years in Canada. Maritime liens will ordinarily be extinguished by the payment of the lien, the posting of security into court to secure the ship’s release, or the loss of the vessel but will not expire upon the sale of the vessel, except by court order, or the bankruptcy of the owner. Maritime liens may arise as a result of a bare-boat or time charter but the lien claimant may have to prove that the charterer was acting as the owner’s agent in incurring the debt depending on the particular cir - cumstances.
123 CHAMBERS.COM
Powered by FlippingBook