Aozora Bank, Ltd. v. Yosemite Ltd.

Aozora Bank, Ltd. v. Yosemite Ltd.

The Assessment Officer held that the Sheriff’s entire account in the amount of US$955,954.32 was reasonable and allowable as costs of preservation and sale under the Sale Order and Federal Courts Rules, that items such as crew repatriation, P&I, insurance, port and port-clearance related charges were properly included, and that the Assessment Officer could, given the Sale Order and the lack of other creditors, certify the account without further circulation; the certificate will record the total and the advance paid by the Plaintiff.

Citation
2009 FC 1307
Parties
Plaintiff (mortgagee): Aozora Bank, Ltd.; Defendants / in Rem Interests: Yosemite Ltd.; The Owners and All Others Interested in the Ship YOSEMITE; the Ship YOSEMITE
Court
Federal Court
Jurisdiction
Canada
Judgment Date
22 December 2009
Procedural Posture
Admiralty in Rem Mortgage Foreclosure and Sale / Assessment of Sheriff's Costs Following Sale Order and Default Judgment
Outcome
Sheriff's costs assessed and allowed
Legal Topics
Sheriff's Costs, Sale of Arrested Vessel, Priority of Maritime Claims, Assessment Officer Procedure, Federal Courts Rules (sale and Taxation)
Source Language
English
Admiralty/maritime Law Civil Procedure Enforcement of Maritime Mortgages Costs Assessment Sheriff's Costs Sale of Arrested Vessel Priority of Maritime Claims Assessment Officer Procedure +1 more

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Parties

Aozora Bank, Ltd.

Plaintiff (mortgagee)

Yosemite Ltd.; The Owners and All Others Interested in the Ship YOSEMITE; the Ship YOSEMITE

Defendants / in Rem Interests

Procedural Posture

Admiralty in Rem Mortgage Foreclosure and Sale / Assessment of Sheriff's Costs Following Sale Order and Default Judgment

Legal Issues

  1. 1 Whether the Sheriff’s account items constitute reasonable and allowable costs payable from the sale proceeds
  2. 2 Whether the Assessment Officer could waive circulation among creditors under Rule 490(6) and certify the Sheriff’s account without full circulation
  3. 3 Whether specific items (Long Beach port charges, crew repatriation, P&I, brokering services) were legitimately sale-related Sheriff’s costs

Ratio Decidendi

The Assessment Officer held that the Sheriff’s entire account in the amount of US$955,954.32 was reasonable and allowable as costs of preservation and sale under the Sale Order and Federal Courts Rules, that items such as crew repatriation, P&I, insurance, port and port-clearance related charges were properly included, and that the Assessment Officer could, given the Sale Order and the lack of other creditors, certify the account without further circulation; the certificate will record the total and the advance paid by the Plaintiff.

Court Disposition

Sheriff's costs assessed and allowed

Orders

  • Sheriff's costs assessed and allowed in the total amount of US$955,954.32
  • Certificate of Assessment to state the assessed amount of US$955,954.32, which includes US$378,048.09 paid in advance by the Plaintiff