1 August 2007:United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2007] FCAFC 115 SHIPPING – salvage – appeal from award of salvage reward – discretionary nature of award – role of appellate Court – whether primary judge erred in exercising discretion in fixing reward – whether failed to take into account degree of risk of global and of local failure – sufficiency of evidence – whether potential liability to third parties – relevance of costs and actual expenses of salvage – whether judge used actual costs and expenses as benchmark – whether value of services depends critically upon the potential losses that are avoided – whether judge took correct approach to value – encouragement of reward – proof of beneficial ownership
31 May 2007: C V Sheepvaartonderneming Ankergracht v Stemcor (A/sia) Pty Limited [2007] FCAFC 77 SHIPPING AND NAVIGATION – carriage of goods by sea – liability for damage to steel coils by corrosion before or during voyage – effect of amended Hague Rules as defined in s 7 of Carriage of Goods by Sea Act1991 (Cth) – whether vessel unseaworthy for voyage from northern winter to southern hemisphere summer because not fitted with dehumidifiers – seaworthiness – cargoworthiness – whether carriers established exercise of due diligence – whether carrier failed to carry, keep and care for coils properly and carefully – effect of ventilation of non-hygroscopic cargoes during voyage – application of dew point rule – whether packaging of steel coils sufficient – effect of evidence of standard industry practice of wrapping steel coils – whether carriers established inherent defect, quality or vice
29 May 2007:Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) [2007] FCA 815 PROCEDURE – operation of O 35 r 2(2)(c) of the Federal Court Rules – whether declaration should be made on deemed admissions – where declaration sought as to validity of mortgage over ship – where declaration affects priority of other claims against ship – where other claimants have had opportunity to intervene – considerations in exercising discretion to make declaration – declaration made
28 March 2007: Heilbrunn v Lightwood PLC [2007] FCA 433 Admiralty and maritime jurisdiction – practice and procedure – service out of the jurisdiction – damage suffered wholly or partly within Australia for item 5 in table accompanying Order 8 rule 2
19 April 2007: PNSL Berhad v The Owners of the Ship 'Koumala' [2007] QSC 101 COLLISION – towage contract - negligence, breach of duty by servants or agents of defendants - breach of contract - whether tug was seaworthy - whether collision occurred “whilst towing” - meaning of “position” - whether liability limitation in United Kingdom Standard Conditions is void by s68 of Trade Practices Act 1974 (Cth) - whether the warranties implied by s74 of Trade Practices Act 1974 (Cth) apply.
1 February 2007: Topaloglu v P & O Nedlloyd Ltd [2006] QSC 17 PRACTICE & PROCEDURE - summary judgment proceeding - adjournment application - opposition to adjournment - whether any additional evidence overcomes time bar provided by Art 3, r 6 of Amended Hague Rules or discharge of liability clause in Bill of Lading clause.
15 December 2006: Filipowski v Island Maritime Ltd [2006] NSWLEC 750 MARINE POLLUTION - Marine Pollution Act 1987(NSW) – pollution by crude oil - determination of appropriate penalty - quantity of escaped oil – onus of proof where guilty plea occurs – s 10 of Crimes (Sentencing Procedure) act 1999 ( NSW).
15 December 2006:Thompson v Waterways Authority [2006] NSWSC 1395 ADMINISTRATIVE LAW – cancellation of hire and drive licence - whether there was denial of procedural fairness - whether the decision to cancel the licence was based on an error of law.
27 June 2007: Meditteranean Shipping Company SA v Trafigura Beheer BV [2007] EWCA Civ 794 BILLS OF LADING – inability of cargo owner to obtain delivery of goods through acts of fraudster – whether shipowner entitled to limit liability pursuant to Hague Visby Rules for period after cargo discharged from ship.
17 May 2007: AIC Limited v Marine Pilot Limited [2007] EWHC 1182 ARBITRATION - charterparty (voyage) – Asbatankvoy form - appeal from tribunal under s69 of Arbitration Act 1996(UK) - whether charter liable for deadfreight – whether words “1 Safe Port Ventspils” constitutes a warranty by the charterer of the safety of the port.
26 April 2007: Trafigura Beheer BV & Anor v Mediterranean Shipping Company SA [2007] EWHC 944 (Comm) BILLS OF LADING - conspiracy - fraudulent second bills of lading – conversion – whether the Hague Rules or Hague Visby Rules apply to the bill of lading contract - whether the Hague Rules or Hague Visby Rules apply after the cargo is discharged from the ship whilst the cargo is still subject to instructions from the carrier – whether the Hague Rules or Hague Visby Rules limitation of liability can be relied upon – whether the bill of lading limitation of liability clause can be relied upon - measure of damages for conversion.
20 April 2007: ASM Shipping Ltd of India v TTMI Ltd of England [2007] EWHC 927 (Comm) ARBITRATION –charterparty (voyage) - Exxonvoy ’84 form- application to remove arbitrators – whether charter should be debarred from resiting resisting application – whether charters are guilty of contempt of court – whether court has discretion to hear the application.
21 February 2007:West Tankers Inc v RAs Riunione Adriatica di Sicurta SpA & Ors [2007] UKHL 4 PRACTICE & PROCEDURE - anti-suit injunction- whether insurers claiming right by subrogation are bound by an arbitration clause in a charterparty – whether a member state of the European Community can restrain a party from commencing an action in another European Member State on grounds that to do so breaches an arbitration agreement.
1 December 2006:Transfield Shipping Inc v Mercator Shipping Inc, The “Achilleas” [2006] EWHC 3030 (Comm) CHARTERPARTY (Time) - NYPE 1946 form - appeal against arbitration award – amount of damages recoverable for late redelivery – whether loss of earning under subsequent charterparty is recoverable under first limb of Hadley v Baxendale (1854) 9 Exch 341.
26 November 2006: AIC Ltd v ITS Testing Services (UK) Ltd (the “Kriti Palm”) [2006] EWCA Civ 1601 MARITIME – consignment of petroleum tested by independent contractor, results inconclusive - whether reliance by contractor on certificate of quality amounted to deceit – whether contractor had a duty to disclose to shipper the inconclusive results and follow-up tests performed.
New Zealand
(No recent cases)
Singapore
11 September 2006:Marina Offshore Pte Ltd v China Insurance Co (Singapore) Pte Ltd and Another - [2006] SGCA 28 MARINE INSURANCE - appeal from Marina Offshore Pte Ltd v China Insurance Co (Singapore) Pte Ltd and Another [2006] SLR 800 ( 30 December 2005) – appeal allowed – policies were time policy – s39(1) Marine Insurance Act (Cap 387, 1994) – no implied warranty that at the commencement of the voyage the vessel shall be seaworthy for the adventure insured – perils of the sea sole operative cause of the loss in terms of the policies.
29 June 2006:The “Asia Star” [2006] SGHC 115 CARRIAGE OF GOODS – voyage charterparty – Vegoilvoy form – vessel unfit to carry the agreed cargo – cancellation of charterparty – owner of the vessel to pay damages to charterer.
13 July 2007:Carewins Envelopment (China) Limited v Bright Fortune Shipping Ltd BILLS OF LADING – application of “presentation rule” to straight bills of lading – whether terms of bill exempted carriers from liability for delivery of goods without presentation of bill of lading.
6 June 2007:Chan Kwai Ha v Wong Chick Bun [2007] HKEC 1014 ADMIRALTY – sinking of plaintiff’s barge – alleged fault of defendant's tug – Merchant Shipping (Collision damage Liability and Salvage) Ordinance (Cap.508), s.7 – 1910 Collision Convention - two-year time limit for collision claims – extension of time upon "good reason" - "good reason" test
30 April 2007: Izumo Mokko Co Ltd & Another v TS Lines Ltd [2007] HKEC 781 Security for costs – defendant’s application – cargo damage – damage or loss caused by defective packing or perils of the sea – whether the fact that both plaintiffs are foreign corporations is a sufficient reason for the court to order them to provide security for costs – plaintiffs relying on Hong Kong Bill of Rights Ordinance, Cap. 383 – discrimination
9 February 2007: Fong Yau Hei v Gammon Construction Ltd and Others [2007] HKCA 68 NEGLIGENCE - personal injuries claim - limitation of liability - Convention on Limitation of Liability for Maritime Claims 1976, Articles 1, 2(1)(a) and 3(e) - Merchant Shipping (Limitation of Shipowners Liability) Ordinance, Cap. 434.
Canada
15 September 2006: Addo v OT Africa Line 2006 FC 1099 CARRIERS – negligence - damage to cargo in dropped container – whether there is Canadian jurisdiction over a maritime case – held, the court has jurisdiction. Defendant's activity of transferring the container while in transit from Montreal to Ghana is "integrally connected" to maritime matters and to Canada. F oreign location of a cause of action does not exclude the Federal Court from taking jurisdiction.
1 September 2006: Canadian Sub Sea Hydraulics Ltd v "Cormorant" (The) 2006 FC 1051 ADMIRALTY - personal property - arrest of defendant’s ship as security - plaintiff claims defendant failed to pay charges for services rendered - setting of bail for the release of ship - security ordinarily measured by plaintiff’s reasonably arguable best case capped at the value of the vessel - since court will not enquire into the merits of the claim at this stage, the reasonably arguable best case is what the plaintiff asserts – however, the court can assess the reasonableness of the plaintiff's claim - held, bail for the release of the ship set at one half of the amount of the plaintiff's claim plus costs, given allegations by defendant through counterclaim of misconduct on the part of the plaintiff that went unchallenged.
23 August 2006: Magic Sportswear Corp. v. OT Africa Line Ltd 2006 FCA 284 CARRIAGE OF GOODS – loss of cargo - conflict of laws – Hamburg Rules - s 46(1) of the Marine Liability Act (giving Canadian courts jurisdiction to hear claims by Canadian shippers, even where the contract for the carriage of goods provides for the adjudication or arbitration of claims in a place other than Canada) - whether dispute over cargo loss should be resolved in the High Court in London, as the contract provides, or in the Federal Court, which has jurisdiction under subsection 46(1) – held, s 46(1) does not remove the Court's discretion to decline to exercise its jurisdiction on the ground that it is not the more convenient forum. Foreign judgments and contractual foreign exclusive forum clauses must be taken into account in the forum non conveniens analysis. Shipper’s action in Federal Court should be stayed as the Federal Court is a less convenient forum than the High Court in London for this dispute.
26 June 2006: Phoenix Bulk Carriers Ltd v "M/V Swift Fortune" (The) 2006 FCA 240 ADMIRALTY – maritime jurisdiction of the Federal Court – carriage of goods – a party's right to arrest property where the “subject of the action” is a charter-party and personal actions of defendants – whether there is required a nexus or causal relationship between action and ship and cargo arrested - held, leave to appeal to the Supreme Court of Canada granted given divergent views taken by panels of the Court on the issue.
United States
5 March 2007: Sinochem International Co. Ltd. v Malaysia International Shipping Corp 127 S.Ct. 1184 [2007 AMC 609]
PRACTICE & PROCEDURE - compensation for loss due to arrest of ship in China - claim that petition in Chinese court to arrest contained negligent misrepresentations - doctrine of forum non conveniens – whether the United Sates District Court must first conclusively establish jurisdiction before dismissing action.
6 July 2006: APL Co Pte Ltd v UK Aerosols Ltd, et al, 452 FSupp2d 939 (NDCal) [2006 AMC 1680] BILLS OF LADING – parties to a bill of lading – negligence and breach of contract claims - whether one of several defendant merchants alleged to be jointly and severally liable by carrier for damage caused by “leaking, dangerous and hazardous” goods was a party to the bill of lading and thus liable – plaintiff argues the defendant, while not a signatory to the bill of lading, demonstrated an intent to be bound by requesting to inspect and salvage the goods and inquiring into the cost of cleanup – held, 1) these allegations of fact are insufficient and do not suggest the defendant asserted an interest in and control over the goods, such that a court may find implied acceptance of the contract – 2) further, cases cited by plaintiff for the proposition that the defendant is nonetheless liable as a “merchant” within the meaning of the contract still require some form of acceptance of the contract – 3) plaintiff’s negligence claim fails to the extent it rests on contractual duties breached, and facts alleged are too conclusatory to support an independent negligence claim.
27 June 2006: Tern Shipholding Corporation, et al v John Rockhill, et al, Not Reported in FSupp2d (NDFla) [2006 AMC 1708] MAINTENANCE, CURE AND WAGES – maximum cure – personal injury – respondent seaman who contracted cancer while employed seeks court order that ship management company remains responsible for his maintenance and cure after his employment ended – law of maintenance and cure imposes duty on ship owner to provide an injured seaman maintenance and cure up to the point of “maximum cure” – whether point of maximum cure was reached when seaman’s condition developed into extensive small cell cancer, where no cure was expected – held, shipper was not responsible for maintenance and cure beyond the point at which seaman’s condition became incurable – court regards continuing treatment as being able only to reduce symptoms and ease pain - the fact that stopping his treatment may also reduce the seaman’s lifespan, and continuing with it could add a period of time, is acknowledged but court states that maintenance and cure is not the equivalent of long-term disability insurance.
23 May 2006: Offshore Marine Towing, Inc and M/V Wilma’s Idea, et al, Arbitration Decision [2006 AMC 1726] SALVAGE – definition of a peril - salvor responded to mayday call of vessel taking on water and sinking, and provided pumps and plugged an opening from outside the vessel – vessel owner disputes salvor’s contention that there was a peril, and therefore a salvage – held, a vessel taking on water which cannot be controlled without outside assistance and which will ultimately lead to sinking of the vessel is in peril – further, contract clearly printed with word “salvage” and signed by vessel owner, also demonstrates the parties agreed at the time that the services were a salvage.
11 May 2006: Marine Towing and Salvage, Inc – M/V Jersey Devil, et al, Arbitration Decision [2006 AMC 1739] SALVAGE – definition of a peril – fishing vessel with passengers strikes submerged rocks near the beach after a navigational error due to fog – salvor responds to distress call and tows vessel to deep waters and then to repair facilities – vessel owner claims the services were a tow and not a salvage – pivotal issue is whether there was a peril, the first element in a claim for a salvage award – a peril is where there is a reasonable apprehension that the vessel may be lost or destroyed – no need to show imminence or actual danger – held, nature of the distress call, abandonment of vessel by passengers, and inability of other vessels nearby to help all suggest a peril.
28 April 2006: Zarepta Chemical, KS as owners of the M/T Rachel B, et al v Solae, LLC, Slip Copy (SDNY) [2006 AMC 1546] ARBITRATION – agents - bills of lading – current owner of vessel and the managing agent of the former owner of the vessel move for an injunction enjoining arbitration arguing they are not proper parties for arbitration – respondent owner of cargo contaminated during two separate voyages on the vessel operated by the previous owner opposes the motion – whether the parties are required to arbitrate – held, 1) managing agent to previous owner can be compelled to arbitrate because even though the identity of the owner of the vessel was not disclosed at the time of the contract of affreightment, by the time the bill of lading was issued, the principal was fully disclosed - 2) court enjoins arbitration against current vessel owner, in rem, where no arrest was made of the vessel nor an undertaking equivalent to an arrest given.
12 April 2006: America S/A Frutas E. Alimentos, et al v M/V Cap San Rafael, et al, 426 FSupp2d 312 (EDPa) [2006 AMC 1028] BILLS OF LADING – liability for damage to mangoes caused solely by delay in delivery – burden of proving damage occurred during delivery – parties are free to contract away liability, in this case, liability for delay – but if liable, calculation of damages depends here on whether a container constitutes a COGSA “package” or each pallet or each free-shipped carton is the “package” – held, (1) defendant has shown liability for delay was contracted away, but a triable issue of fact remains as to whether defendant was negligent, in which case, liability remains – (2) each pallet and free-shipped carton is a “package” under COGSA.
29 March 2006: Cementos Andinos Dominicanos, SA v East Bulk Shipping SA, (Not reported in FSupp2d) [2006 AMC 1121] BILLS OF LADING – arbitration over damages incurred when vessel ran aground – sub-sub-charterer (plaintiff) seeks to compel vessel owner to arbitrate in New York claiming the charter, whose terms call for arbitration there, controls – vessel owner claims not to be a party to that agreement, formally between a sub-charterer and the plaintiff – whether by signing the bill of lading, master of the vessel bound the vessel owner to the disputed charter - held, (1) the law in the Second Circuit being well settled, vessel’s master, as agent, made the vessel owner a party to the agreement when he signed the bill of lading - (2) arbitration clause was sufficiently broad to cover this dispute.
21 March 2006: Contship Containerlines Ltd v PPG Industries Inc USCA 2 nd Cir [2006 AMC 686] Carrier cannot invoke the strict liability imposed on a shipper of dangerous goods under COGSA § 1304(6) if it knows the cargo poses a danger and requires gingerly handling and stowage yet exposes the cargo to the general condition that triggers the known danger, even if carrier is not aware of the precise characteristics of the cargo. Carrier stowed calcium hypochloride on top of a heated tank knowing that heat could cause a thermal runaway under some conditions
24 February 2006: David E Mullane et al v Adele Chambers et al USCA 1 st Cir [2006 AMC 467] Purchaser of boat who paid off seller's mortgage did not obtain maritime lien for amount paid, overarching goal of principles of advancements and maritime liens is to keep the channels of maritime commerce open by ensuring payment to persons who service vessels, purchaser not such a person, purchaser got ownership but title encumbered by a state court attachment that occurred before he recorded title with Coast Guard
21 February 2006: National Casualty Company v Lockheed Martin Corporation USDC (D Maryland) [2006 AMC 618] Marine insurance policy provision requiring suit against the insurer within one year after judgment against the insured applies only to claims against the insured, does not conflict with another provision incorporating the statute of limitations period in NY (which applies to suit for damage to the insured's own vessel), when insurer brings an action against insured for a declaration of an amount owed under the policy the insured is not entitled to a jury trial on its counter claim
14 February 2006: Stolt Achievement Ltd v Dredge BE Lindholm et al USCA 5 th Cir [2006 AMC 416] Collision, expert testimony – on issue of safety of a vessel's speed and consequent bow wave's effect on the other vessel in narrow channel a witness who was not qualified as an expert in hydro-dynamics and was properly restricted from giving conclusory evidence was properly permitted to testify to conclusions based on his experience as a master mariner, in the face of negligent speed of one vessel the subsequent negligent maneuvering of the other cannot be detached from the context of the encounter and treated as a superseding cause of collision, ratio of 50-50 is still appropriate in some mutual fault cases, collision damages – average adjuster's fees were properly denied for lack of evidence regarding the adjuster's hiring and services, the extent, if any, of contribution and whether the collision qualified to give rise to a general average
7 February 2006: Malaysia International Shipping Corporation v Sinochem International Co Ltd USCA 3 rd Cir [2006 AMC 383] Tort occurs where the tortious act takes effect, although defendant's negligent misrepresentation of plaintiff's acts to a Chinese court occurred ashore the resulting seizure of plaintiff's vessel was on navigable waters and thus met the location test for admiralty tort jurisdiction, forum non conveniens is a non-merits ground for dismissal and presents a non-jurisdictional and non-merits procedural issue, court must determine that it has subject matter and personal jurisdiction before considering forum non conveniens
1 March 2007: United Enterprises Corporation and Another v STX Pan Ocean Company Limited [2007] ZAWCHC 12 ADMIRALTY – Time Charterparty – application to set aside arrest of vessel – alternative counter application for security for claim in arbitration proceedings pending in London- rei iudicatae exception – earlier proceedings before Italian Court – Admiralty Jurisdiction Regulation Act No 105 of 1983, section 3(8)
