A vessel strikes a marine terminal trestle while in port in
Vancouver, causing damage in excess of $60 million dollars. The
vessel's worth pales in comparison to the damages caused,
though there are a number of sister ships also docked at the port.
The terminal owner is rightfully concerned that the vessels will
simply leave Canadian waters, sailing out of the jurisdiction and
taking the opportunity for any realistic recovery along with them.
How can the terminal owners guarantee a future judgment will be
satisfied when no one ship can satisfy the damages? This was the
case before the courts in Westshore Terminals Limited
Partnership v. Leo Ocean, S.A.1
Every plaintiff involved in a situation where a vessel causes
damage should be concerned about satisfying the eventual judgment.
This issue can be powerfully addressed by "arresting" the
vessel – preventing it from leaving port – and
therefore at least guaranteeing some recovery.
The Federal Court takes jurisdiction over the vessel by its mere
presence in Canadian water,2 regardless of the flag it
flies. This power is contained in subsection 43(2) of the
Federal Courts Act, RSC 1985, c F-7:
43(2) Subject to subsection (3), the jurisdiction conferred on
the Federal Court by section 22 may be exercised in
rem against the ship, aircraft or other property that is
the subject of the action, or against any proceeds from its sale
that have been paid into court.
Arresting a vessel may seem dramatic, which makes it surprising
that it is so easy to do. It requires only the filing of a
Statement of Claim, along with an Affidavit to Lead Warrant, and a
Warrant for Arrest. It is a quick and inexpensive process that,
when done correctly, can often be effected in less than a day.
There is no doubt many nuances to exercising this power, as well
as to effecting a release from arrest.3 Entire textbooks
have been written on this issue, and how far it goes. This brings
us to Westshore. At issue in Westshore was the
scope of subsection 43(8), which allows for the arrest of a
"sister ship". In the event that the ship that caused the
damage itself sailed off before the warrant was granted, or the
ship is so damaged to be worthless, this subsection allows a
plaintiff to arrest a different ship with the same owner. However,
does subsection 43(8) allow for the arrest of a sister ship in
addition to the offending ship? After all, the damages were
$60 million, and the ships individually came nowhere close to that
amount. There had been conflicting commentary by maritime experts
and professors on this point, and there had been little guidance in
The proceeding was before Justice Heneghan of the Federal Court.
After consulting both the English and French versions of the
Federal Courts Act, as well as drawing parallels between
its provisions and the unratified 1952 International Convention
for the Unification of Certain Rules Relating to the Arrest of
Sea-Going Ships, Justice Heneghan ruled that there was no
evidence that Parliament intended to extend the scope of the
right of arrest to multiple ships.
Considering the hefty damages at issue, it is not surprising
that the terminal owners appealed. On appeal, the Federal Court of
Appeal unanimously upheld the decision, and has thus clarified the
I believe that had Parliament intended to break rank with the
international maritime community in regard to the right of arrest,
which as I have already said, would constitute a dramatic departure
from the accepted practice, section 43 would no doubt have been
worded very differently so as to make it clear that in Canada
claimants were not restricted to one vessel to secure their
The ruling leaves little ambiguity: a plaintiff cannot arrest
multiple ships even as a means of guaranteeing security even if the
value of any one ship would be grossly inadequate. This makes the
decision of which ship to arrest even more important, and therefore
makes consulting your counsel one of the first things that should
be done in cases like these.
1 2014 FC 136, upheld at 2014 FCA 231.
2 Note that in B.C. the application is made to the Supreme Court of
3 The leading case on arrest is Mount Royal/Walsh Inc. v. Jensen
Star (The),  1 F.C. 199 (Fed. Ct. App.).
4 Supra note 1, at para. 86.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).