PART 13Admiralty Actions (continued)
Actions In Rem and In Personam (continued)
Marginal note:Service of statement of claim
(a) in respect of a ship or cargo or other property on board a ship, by attaching a certified copy of the statement of claim to some conspicuous part of the ship;
(b) in respect of cargo or other property that is not on board a ship, by attaching a certified copy of the statement of claim to the cargo or property;
(c) in respect of freight,
(i) if the cargo in respect of which the freight is owing is on board a ship, by attaching a certified copy of the statement of claim to a conspicuous part of the ship,
(ii) if the cargo in respect of which the freight is owing is not on board a ship, by attaching a certified copy of the statement of claim to the cargo, or
(iii) if monies payable for the freight are in the possession of a person, by personal service of the statement of claim on that person; and
(d) in respect of any proceeds paid into court in another proceeding, by filing a certified copy of the statement of claim in that proceeding.
Marginal note:Alternate service of statement of claim
(2) If access cannot be obtained to property in respect of which a statement of claim is to be served under subsection (1), the statement of claim may be served personally on a person who appears to be in charge of the property.
Marginal note:Defence of action in rem
480 (1) An action in rem against a ship or other thing named as a defendant in the action may be defended only by a person who claims to be the owner of the ship or thing or to be otherwise interested therein.
Marginal note:Interest to be pleaded
(2) A defence filed by a person referred to in subsection (1) shall disclose the interest that the person claims in the ship or thing.
Arrest of Property
Marginal note:Warrant for the arrest of property
(2) A party seeking a warrant under subsection (1) shall file an affidavit, entitled “Affidavit to Lead Warrant”, stating
(a) the name, address and occupation of the party;
(b) the nature of the claim and the basis for invoking the in rem jurisdiction of the Court;
(c) that the claim has not been satisfied;
(d) the nature of the property to be arrested and, where the property is a ship, the name and nationality of the ship and the port to which it belongs; and
(e) where, pursuant to subsection 43(8) of the Act, the warrant is sought against a ship that is not the subject of the action, that the deponent has reasonable grounds to believe that the ship against which the warrant is sought is beneficially owned by the person who is the owner of the ship that is the subject of the action.
482 (1) A warrant issued under subsection 481(1), the Affidavit to Lead Warrant and the statement of claim in the action shall be served together by a sheriff in the manner set out in rule 479, whereupon the property subject to the warrant is deemed to be arrested.
Marginal note:Proof of service
(2) Proof of service of the documents referred to in subsection (1) shall be filed forthwith after the documents are served.
Marginal note:Possession and responsibility
483 (1) Subject to subsection (2), possession of, and responsibility for, property arrested under subsection 482(1) does not vest in the sheriff but continues in the person in possession of the property immediately before the arrest.
Marginal note:Order for possession of arrested property
(2) The Court may order a sheriff to take possession of arrested property on condition that a party assume responsibility for any costs or fees incurred or payable in carrying out the order and give security satisfactory to the Court for the payment thereof.
Marginal note:Prohibition against moving arrested property
484 No property arrested under a warrant shall be moved without leave of the Court or the consent of all parties and caveators.
Marginal note:Release of arrested property
485 On motion, the Court may fix the amount of bail to be given for the release of arrested property.
Marginal note:Form of bail
Marginal note:Notice of bail
(2) A party who intends to give bail in the form of a bond referred to in paragraph (1)(b) or (c) shall serve and file a notice of bail, in Form 486B, at least 24 hours before filing the bond.
Marginal note:Notice of objection to bail
(3) An adverse party or caveator who is not satisfied with the sufficiency of a bond set out in a notice of bail shall serve and file a notice of objection in Form 486C.
Marginal note:Sufficiency of bail bond
(4) Any question as to the form of bail or the sufficiency of a surety may be determined by a designated officer or referred by that officer to the Court.
Release from Arrest
Marginal note:Release of arrested property
(a) on payment into court of
(b) if bail has been given in an amount fixed under rule 485 and in accordance with subsections 486(1) and (2) and no objection under subsection 486(3) is outstanding;
(c) on the consent in writing of the party at whose instance the property was arrested; or
(d) on the discontinuance or dismissal of the action in respect of which the property was arrested.
Marginal note:Referral to judge or prothonotary
(2) Where a release is sought under subsection (1), a designated officer may refer the matter to a judge or prothonotary.
Marginal note:Release at any time
Marginal note:Release of ship
(2) Where, pursuant to subsection 43(8) of the Act, a ship that is not the subject of an action has been arrested, any owner or other person interested in the ship may bring a motion to the Court for the release of the ship, and if it is found that the ship is not beneficially owned by the person who is the owner of the ship that is the subject of the action, the Court shall order its release without the taking of bail.
Marginal note:Release of ship without bail
(3) Where on a motion under subsection (2) the Court is satisfied that the action in which the ship has been arrested is for a claim referred to in any of paragraphs 22(2)(a) to (c) of the Act, the Court may order the release of the ship without the taking of bail.
Marginal note:Release from arrest
489 Property shall be released from arrest on service of a release on the sheriff and payment of all fees and costs of the sheriff in respect of the arrest or custody of the property.
Sale of Arrested Property
Marginal note:Disposition of arrested property
(a) the property be appraised and sold, or sold without appraisal, by public auction or private contract;
(b) the property be advertised for sale in accordance with such directions as may be set out in the order, which may include a direction that
(i) offers to purchase be under seal and addressed to the sheriff,
(ii) offers to purchase all be opened at the same time in open court, that the parties be notified of that time and that the sale be made pursuant to an order of the Court made at that time or after the parties have had an opportunity to be heard,
(iii) the sale not necessarily be to the highest or any other bidder, or
(iv) after the opening of the offers and after hearing from the parties, if it is doubtful that a fair price has been offered, the amount of the highest offer be communicated to the other persons who made offers or to some other class of persons or that other steps be taken to obtain a higher offer;
(c) the property be sold without advertisement;
(d) an agent be employed to sell the property, subject to such conditions as are stipulated in the order or subject to subsequent approval by the Court, on such terms as to compensation of the agent as may be stipulated in the order;
(e) any steps be taken for the safety and preservation of the property;
(f) where the property is deteriorating in value, it be sold forthwith;
(g) where the property is on board a ship, it be removed or discharged;
(h) where the property is perishable, it be disposed of on such terms as the Court may order; or
(i) the property be inspected in accordance with rule 249.
(2) The appraisal or sale of property under arrest shall be effected under the authority of a commission addressed to the sheriff in Form 490.
Marginal note:Sale free from liens
(3) Property sold under subsection (1) is free of any liens under Canadian maritime law.
Marginal note:Execution of commission
(4) As soon as possible after the execution of a commission referred to in subsection (2), the sheriff shall
Marginal note:Sheriff’s accounts
(5) An assessment officer shall assess the sheriff’s accounts and report the amount that the assessment officer considers should be allowed.
(6) Any party or caveator who is interested in the proceeds of sale referred to in subsection (4) may be heard on an assessment under subsection (5).
Marginal note:Review of assessment
(7) On motion, the Court may review an assessment done under subsection (5).
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