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
23 Dec 2009:EMAS Offshore Pty Ltd v The Ship “APC Aussie 1” (No 2) [2009] FCA 1583 ADMIRALTY –– arrest –– costs of arrest, custody and release of ship –– payment in compliance with demand by Marshal –– plaintiff pays pursuant to an undertaking given under r 41 of the Admiralty Rules 1988(Cth) –– defendant/relevant person pays money into court as security for the plaintiff's claim, and also pays money demanded by Marshal pursuant to an undertaking given under r 53 in order to obtain release of ship –– ship released after payments and r 53 undertaking by defendant/relevant person –– as a result the amount of the cost of custody of the ship paid twice in compliance with the rr 41 and 53 undertakings –– r 41 undertaking not provide for demand by Marshal for costs of release –– r 53 undertaking not provide for demand by Marshal for costs of arrest –– Admiralty Act 1988 (Cth) s 34 providing limited rights against plaintiff for wrongful arrest.
Held: The costs and expenses of the arrest be paid out of the amount provided to the Marshal by the plaintiff; the defendant’s payment to the Marshal should bear all other costs and expenses of the Marshal, including those in connection with keeping the ship and its release; the equivalent of the amount paid for the costs of the arrest should be added, from money paid to Marshal by defendant/relevant person, to security paid into court
9 Dec 2009:Euroceanica (UK) Ltd v The Ship “Gem of Safaga” [2009] FCA 1467 ADMIRALTY –– ARREST –– meaning of the expression “the owner” in s 19(b) of the Admiralty Act 1988 (Cth) –– 9 of 10 shares in arrested ship registered on Indian Register of Shipping in name of relevant person: 1 share registered in name of company of which director was managing director of relevant person –– whether 1 share held beneficially by registered shareholder or on resulting trust –– purchase initial ship in sole name of relevant person –– before completion relevant person procures amendment to purchase agreement to add nominee as additional purchaser –– evidence nominee given the one share. ADMIRALTY –– ARREST –– jurisdiction –– Admiralty Act 1988 (Cth) s 19(b) –– "the owner" in s 19(b) means sole owner, thus not permitting arrest of sister ships when relevant person consisted of more than one person –– beneficial ownership sufficient to constitute ownership under s 19(b). ADMIRALTY –– ARREST –– challenge to jurisdiction –– Admiralty Act 1988 (Cth) s 19(b) –– plaintiff arrests ship as sister ship for general maritime claim –– relevant person owner of 9 of 10 shares in a ship registered in India –– other registered shareholder was stranger to plaintiff's claim –– whether relevant person was the owner of the ship –– relevant person gave 1 share in ship to other shareholder for no consideration before completion –– relevant person substantial company arranged all finance for purchase and managed ship as part of its business –– other shareholder never received any payment, other than credits in relevant person’s accounts–– no explanation of, or direct evidence of reason for involvement of other shareholder –– relevant person, as sole owner, employed masters. ADMIRALTY –– ARREST –– meaning of “in control of” in s 19(a) of the Admiralty Act 1988 (Cth) –– whether relevant person was “in control of” two other ships at the time plaintiff’s general maritime claim under s 4(3)(f) arose for default in payment of hire by its subsidiary named as charterer in charterparties for those two ships –– whether side letter to charterparties providing that relevant person was ultimately responsible for true fulfilment of charterers’ obligations put it in control of or made it charterer of the two ships under s 19(a) –– relevant person controlling appointment of masters, officers of chartered ships, their commercial operation and giving voyage instructions.
Held: relevant person was the owner of arrested ship; other share held on resulting trust for it, relevant person in control of two chartered ships. Arrest proved to be within jurisdiction.
Words and Phrases: "the owner", "charterer", "in control of"
25 Sep 2009:BHBP Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 3) [2009] FCA 1087 AGENCY – warranty of authority – shipbroker purportedly acting for one party but actually acting for another – measure of damages.
TRADE PRACTICES – misleading conduct – damages recoverable under s 82 – whether possible to avoid operation of s 82(1B) by claiming compensation under s 87.
ADMIRALTY – shipbroking contract – implication of terms – no implied obligation to provide copies of documents relating to charterparty – implication of term requiring broker to exercise reasonable skill and care – whether term breached.
WORDS AND PHRASES – “sponsorship, approval or affiliation” – whether agency relationship constitutes approval or affiliation
18 Sep 2009:Sumitomo Corporation v CV Scheepvaartonderneming Emmagracht [2009] FCA 1127 COSTS –– proper approach to admiralty and commercial litigation –– goods transported under bill of lading incorporating Himalaya clause –– shipper and consignee sued ship owner and stevedore for damage to cargo –– stevedore successful in obtaining consent orders on motion dismissing proceedings against it based on Himalaya clause –– stevedore not furnishing critical evidence or information until after motion filed –– whether stevedore should have its costs –– importance of parties cooperating to identify the real issues in dispute –– duty to resolve uncontentious issues at an early stage of litigation –– stevedore awarded 75% of its costs of the proceedings.
31 Jul 2009:EMAS Offshore Pte Ltd v The Ship "APC Aussie 1" [2009] FCA 872
ADMIRALTY –– proceeding in rem –– procedure –– application to amend writ after arrest –– adding new claim for indemnity –– relevant person –– construction of ‘maritime claim’ and ‘cause of action’ in s 18 Admiralty Act 1988 (Cth) –– whether the plaintiff can amend writ to add new claim for indemnity, in respect of liability arising in foreign proceedings, against demise charterer as relevant person after termination of charterparty. ADMIRALTY –– proceeding in rem –– procedure –– Admiralty Act 1988 (Cth) s 18 –– proceeding in rem commenced against demise charter –– charterparty terminated –– owner offering security for plaintiff’s claim in writ naming demise charterer as relevant person –– purpose of proceedings in admiralty not to put pressure on person not under a liability to the plaintiff. PRACTICE AND PROCEDURE –– amendment of document –– Federal Court Rules O 13 –– interaction of the Rules with the Admiralty Rules 1988 (Cth) –– admiralty writ –– amendment to originating process to add new cause of action –– whether amendment to add claim to admiralty writ where relevant person is no longer demise charter would be appropriate in all the circumstances –– discretion to allow amendment. Held: application refused, plaintiff not permitted to add new claim to writ in rem against demise charterer after the demise charterparty has been terminated
Australian
states and territories
11 Nov 2009:CSL Australia Pty v Formosa [2009] NSWCA 363
FEDERAL JURISDICTION – Federal jurisdiction exercised by State Courts – Admiralty and maritime jurisdiction – matter arising under a law of the Parliament. NEGLIGENCE – duty of care – duty of ship owner and operator to stevedore – duty to exercise care in respect of the safety of stevedores coming on board ship in order to undertake loading and unloading – nature and scope of duty - relationship between obligations under the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) and the common law duty of care – no statutory cause of action – impact on duty of care of delegated legislation imposing conformable obligations on another person – Marine Orders Part 32 under Navigation Act 1912 (Cth) – Marine Orders do not terminate the duty of care. NEGLIGENCE – breach of duty - breach in failing to sweep the iron ore slurry from the deck – breach in failure to direct use of other side of the deck - breach not a failure to warn - evidence before primary judge supported finding of breach.
31 Jul 2009: Inco Ships Pty Ltd v Barber [2009] TASSC 55
CRIMINAL LAW – sentence – sentencing orders – fines – amount – corporation fined under Commonwealth law – increased maximum fine for corporation.
