5 Jul 2010:Seafood Imports Pty Ltd v ANL Singapore Pte Ltd [2010] FCA 702 SHIPPING AND NAVIGATION – Carriage of goods by sea – In refrigerated container supplied by carrier – controller on container becoming stuck in defrost mode due to incompatible software – Whether goods properly and carefully carried, kept, cared for and discharged – Exception of latent defect – Whether malfunctioning of container not discoverable by due diligence – Hague-Visby Rules Arts III rr (1) and (2) and IV rr (1) and (2)(p)
24 Jun 2010:Brisbane Slipways Operations Pty Ltd v Pantaloni [201] FCA 654 ADMIRALTY – consideration of a challenge to the jurisdiction of the Federal Court to hear a proceeding commenced as an action in rem in reliance upon ss 10, 17 and 18 of the Admiralty Act 1988 (Cth) – consideration of the Court’s jurisdiction in an action in personam in reliance upon s 9 of the Admiralty Act 1988 (Cth) – consideration of whether the plaintiff’s proceeding to the extent that it engages an action in rem against the ship Aremiti 4 should be struck out as beyond jurisdiction – consideration of whether monies paid into Court to secure the release of the ship by the first defendant ought to be paid out of Court to that party – consideration of whether a remedial freezing order ought to be made under Order 25A of the Federal Court Rules preventing the removal by the first defendant of monies brought into the jurisdiction to secure release of the ship, from the jurisdiction, in aid of the plaintiff’s action in personam – consideration of whether a New Caledonian corporation should be joined as a party in the proceedings
PRACTICE AND PROCEDURE – consideration of an application for a freezing order under Order 25A of the Federal Court Rules – consideration of Order 6, rule 8 as to joinder of a party
8 Jun 2010:Strong Wise Limited v Esso Australia Resources Pty Ltd (No 2) 2010 FCA 575 HIGH COURT AND FEDERAL COURT – JURISDICTION – STATUTORY INTERPRETATION – whether jurisdiction of Court limited by pleadings in proceedings under s 25 of the Admiralty Act 1988 (Cth), s 9 of the Limitation of Liability for Maritime Claims Act 1989 (Cth) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth) seeking relief under Convention on Limitation of Liability for Maritime Claims 1976 as affected by the 1996 protocol to amend that Convention – shipowner pleaded entitlement to limit liability on only one distinct occasion – defendant pleaded existence of four distinct occasions – Court found existence of two distinct occasions – whether Court has jurisdiction to make orders that shipowner entitled to limit liability for both distinct occasions consistent with its findings.
PRACTICE AND PROCEDURE – PLEADINGS – relief flowing from pleadings – Convention does not deny shipowner the right to limit because number of distinct occasions is misidentified in pleadings – real controversy to be resolved in proceedings is whether shipowner can invoke limitation of liability under Art 10 of the Convention on one or more distinct occasions – Court able to give effect to findings by ordering the constitution of one limitation fund and making a declaration of shipowner’s entitlement to establish a second fund.
PRACTICE AND PROCEDURE – PLEADINGS – orders to prevent multiplicity of proceedings under s 22 of the Federal Court of Australia Act 1976 (Cth) from shipowner’s failure to plead more than one distinct occasion – Court able to grant relief appropriate to dispose of the controversy litigated – multiplicity of proceedings inevitable consequence of not making orders giving effect to reasons due to shipowner’s failure to plead more than one distinct occasion –refusal to grant relief not consistent with interests of justice.
PRACTICE AND PROCEDURE – PLEADINGS – amendment of pleadings – late application to amend after reasons delivered – power of Court to make amendments of its own motion to determine real questions in controversy – no unqualified duty to permit late addition of any new claim – tactical choices significant factor in exercise of discretion to allow amendments.
COSTS – unfettered discretion to award costs under s 43(2) of the Federal Court of Australia Act 1976 – no special practice as to costs in limitation actions under the Convention – substantial issues won and lost by each of the parties – limitation of liability under Convention a right rather than privilege – no general rule that shipowner liable for all costs in limitation proceedings – shipowner liable for costs of establishing uncontested entitlement to limitation: r 61(1) of Admiralty Rules 1988.
Held: jurisdiction of Court not limited by pleading of shipowner – plenary jurisdiction to determine the controversy between the parties – orders made to avoid multiplicity of proceedings – shipowner to pay 50% of defendants’ costs.
18 Mar 2010:Strong Wise Limited v Esso Australia Resources Pty Ltd [2010] FCA 240 ADMIRALTY LIMITATION OF LIABILITY application under s 25 of the Admiralty Act 1988 (Cth) by shipowner to limit liability under Limitation of Liability for Maritime Claims Act 1989 (Cth) and the Convention on Limitation of Liability for Maritime Claims 1976 as affected by the 1996 Protocol to amend that Convention meaning of claims arising on any distinct occasion in Arts 2(1)(a) and 6(1) of the Convention Arts 6(1)(b) and 11 of the Convention permitting shipowner to apply to limit liability for all claims arising on a distinct occasion maritime liens multiple claims alleged to arise from ships anchor fouling submarine gas pipeline, ship then going astern, ship later moving ahead, pipeline then fractured, later ship moving astern and further bending pipeline claims by pipelines owners for repairs, loss of gas and economic loss consumers of gas claiming economic losses longer repair period because of further bending whether the different events causing damage to the pipeline on one or more distinct occasions
ADMIRALTY STATUTORY INTERPRETATION construction of international convention given force of law by an Act of the Parliament construction of Convention on Limitation of Liability for Maritime Claims 1976 as affected by the 1996 Protocol to amend that Convention construction of international conventions application of principles in Vienna Convention on the Law of Treaties of 1969 purpose of limitation Convention to protect shipowner from financial ruin, encourage investment in shipbuilding, international trade and commerce and provide for limited and certain insurable risks unbreakable limitation purpose only to limit the liability of shipowner for each separate act, neglect or default from which claims arise history of limitation of maritime claims laws and conventions use of domestic law precedents
PRACTICE AND PROCEDURE EVIDENCE concurrent evidence direction that experts in each relevant discipline confer together, without the parties or their lawyers to prepare joint report setting out issues on which they agree and disagree, giving brief reasons for their differences
Held: Whether one occasion is distinct from another will depend upon whether the causes of the claims that arise from each act, neglect or default are sufficiently discrete that, as a matter of commonsense, they can be said to be distinct from one another. Claims arose on two distinct occasions.
26 Feb 2010: The Ship “Gem of Safaga” v Euroceanica (UK) Ltd [2010] FCAFC 14 ADMIRALTY – appeal against decision refusing to set aside writ in rem issued against surrogate ship under s 19 of Admiralty Act 1988 (Cth) – where Memorandum of Agreement for purchase of surrogate ship originally included "relevant person" under s 19(a) as sole purchaser, but Addendum to Memorandum of Agreement included relevant person as nine-tenth purchaser and third party as one-tenth purchaser – where purchase price for surrogate ship paid by loan for which both purchasers were jointly and severally liable – whether third party was legal and beneficial owner of one-tenth of surrogate ship – whether definition of "owner" in s 19(b) includes part owner – whether relevant person was "owner" under s 19(b) by reason of law of country in which ship was registered, or by reason of ownership rights conferred on relevant person by Co-ownership Agreement, or by reason of estoppel
Australian
states and territories
20 May 2010:The Elusive [2010] NSWSC 525
SHIPPING AND NAVIGATION - ships - arrest, possession and sale by mortgagee under chattel mortgage - ownership - registration - bill of sale - effect of the Security Interests in Goods Act 2005 (NSW) and Registration of Interests in Goods Act 1986 (NSW) - whether leave for in rem proceedings required pursuant to Corporations Act 2001 (Cth)
11 Dec 2009:Engert v Sydney Ferries Corporation [2009] NSWSC 1400
LIMITATION OF ACTIONS – postponement of the bar – extension of period – personal injury and compensation to relatives claims arising out of ship collision – solicitor’s failure to identify the relevant limitation period – no prejudice to the defendant – consideration of policy underlying limitation period
