Allison Pty Ltd T/As Pilbara Marine Port Services v Lumley General Insurance Ltd [2006] WASC 104 (8 June 2006) MARINE INSURANCE — Insured vessel lost in cyclone — Mooring line parted during passage of cyclone — Warranty that mooring complied fully with requirements of the local statutory authority — Mooring approved by Harbour Master informally but not in writing as required by regulation — Warranty mooring to be cyclone proof — Alleged breach of warranties — Alleged non-disclosure of facts material to risk — Whether sufficient under keel clearance at mooring site — Whether D shackle in mooring line had sufficient strength — Vessel shifted from usual mooring when cyclone imminent to non-approved mooring site honestly and reasonably believed to be safer — New mooring site not approved — Tied astern of another vessel — Marine Insurance Act (Cth) s 84(4) — Suing and labouring clause — Institute Time Clauses Hulls Port Risks — Justification for moving vessel in the face of approaching cyclone when honestly and reasonably believed this necessary for safety of vessel
Gazeley v. Segers [2006] WASC 76 (8 May 2006) offences of possessing "totally protected fish" and rock lobster tails, imposition of fines together with mandatory additional penalties based on value of fish, sentences not manifestly excessive
2005
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd & Ors [2005] WASCA 106 (10 June 2005) Marine insurance, late amendment to pleadings raising new defence, whether insurer estopped from relying on new defence, whether new defence waived, whether election not to raise new defence, whether new defence amounted to a breach of insurer's duty of utmost good faith, extent of disclosure in litigation required by duty of good faith, whether trial Judge failed to take into account prejudice suffered by other party in allowing amendments to pleadings
Allison Pty Ltd (ACN 056 940 437) t/a Pilbara Marine Port Services -v- Lumley General Insurance Ltd [2004] WASC 98 (21 May 2004) PROCEDURE – APPLICATION TO AMEND STATEMENT OF CLAIM -Plaintiff claimed damages for breach of a contract of marine insurance and a declaration that the contract remained in full force and effect. Alleged that the defendant wrongfully rejected the claim and denied that it failed to make a material disclosure or that it made any false disclosure. Plaintiff sought to add further claim – breach of duty of good faith. Defendant opposed. A breach of the duty of utmost good faith does not give a remedy in damages and, therefore the proposed amendment discloses no reasonable cause of action. Leave to make amendment refused. Marine Insurance Act 1909 (Cth).
Allison Pty Ltd (ACN 056 940 437) t/a Pilbara Marine Port Services -v- Lumley General Insurance Ltd [2004] WASC 99 (21 May 2004) PROCEDURE – APPLICATION TO STRIKE OUT STATEMENT OF CLAIM - Plaintiff again sought leave to amend the writ to add a claim for damages for breach of a duty of utmost good faith. Limitation period - whether continuing obligation - whether claim outside indorsement on writ. Claim for damages for breach of the duty of utmost good faith struck out, but defendant's application dismissed. Plaintiff's application to amend the writ of summons refused.
Ribot-Cabrera v The Queen [2004] WASCA 101 (18 May 2004) Illegal fishing, arrest of five foreign nationals, sought to vary their bail so they could leave Australia, risk of flight, UNCLOS Article 73 – arrested vessels and their crews to be promptly released upon posting of reasonable security
The Queen v Disun (2003) 27 WAR 146 ‘People smuggling’, unlawful arrest, foreign flagged vessel
R v Disun [2003] WASCA 47 Immunity from local criminal jurisdiction of persons on foreign ship within its territory, people smugglers rescued by Norwegian private ship, ship stopping in Australian territorial waters, arrested on board, whether prosecution should be stayed for abuse of criminal process, whether sentence inadequate
2002
Allison Pty Ltd t/a Pilbara Marine Port Services -v- Lumley General Insurance Ltd [2002] WASC 41 (8 March 2002) PLEADINGS - Plaintiff pleaded that defendant marine insurer knew or ought to have known that a ship's master is entitled to take steps which are reasonably necessary to save his vessel, crew, and/or cargo. Defendant applied to strike pleading out. “Acknowledged among mariners" held to mean the same as notorious or well-known to mariners. Pleas held to be adequate, not struck out.
Miller -v- BP (Fremantle) Ltd & Anor [2002] WASCA 201 (1 August 2002) NEGLIGENCE – EMPLOYER/EMPLOYEE - Experience of appellant (18 years as a bunkering attendant) does not absolve the employer from any obligation to give warnings or directions in relation to the danger of walking across the mooring ropes. Contributory neglience. Here, employee was careless for his own safety, awarded 50% of the damages to which he was entitled.
2001
Benson-Brown
v HIH Casualty & General Insurance Ltd & Anor
[2001] WASC 6 (17 January 2001) Marine insurance, representations by broker to insurer, Institute Yacht clauses, value of vessel, survey, arson – standard of proof, material non-disclosure, whether waiver by insurer of right to disclosure of all material facts, whether false or fraudulent representations
Cita v The Queen [2001] WASCA 5 (24 January 2001) Offences of facilitating the bringing to Australia of unauthorised persons, skippers of Indonesian vessels carrying 282 and 180 unlawful non-citizens, sentencing, Migration Act 1958 (Cth) s232A
Ilam v Dando [1999] WASCA 129 (26 July 1999) Assisting illegal migrants – Migration Act 1958 (Cth) s233(i)(a), unseaworthy vessel – Navigation Act 1912 (Cth), whether recognisance release order required
Neumann
v The Ship 'Pelsaert' [1999]
WASC 166 (14 September 1999) Collision, negligence, contributory negligence, failure to keep proper lookout, no anchor watch, assessment of damages – loss of earning capacity, Post Traumatic Stress Disorder, effect of pre-existing physical condition
Andre
Toulemonde Wool Co Pty Ltd & Ors v Knutsen Offshore
(Panama) SA & Anor [1998] WASC
204 (26 June 1998) Owners of cargo brought action to recover general average payments made to ship owners as a prerequisite for the release of the cargo, engine breakdown, unseaworthiness, liability of cargo owners to contribute to general average, whether operators of vessel exercised due diligence to ensure seaworthiness, Sea Carriage of Goods Act 1924 (Cth), Hague Rules Articles III & IV
Gregory Roscoe Gayfer & Ors v Ahmat Bere & Ors [1998] WASCA 163 (24 June 1998) Foreign vessel commercially fishing without licence in Australian Fishing Zone outside Memorandum of Understanding Area, convictions under Fisheries Management Act 1991 (Cth) ss 100(1) & 101(1), whether fishing vessels should have been forfeited, need for personal and general deterrence
