Admiralty & Maritime Cases - Western Australia
Listing by year
A selection of cases (with links to full text where available)
2007 - 2009
Allison Pty Ltd T/As Pilbara Marine Port Services v Lumley General Insurance Ltd  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  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
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd & Ors  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
Yennett Pty Ltd and Department of Fisheries (WA)  WASAT 31 (21 March 2005)
Fisheries - Interim management plan - Variation of permit - Scope for variation under plan - Whether interim plan provides exhaustive criteria for variation of permit.
Allison Pty Ltd (ACN 056 940 437) t/a Pilbara Marine Port Services -v- Lumley General Insurance Ltd  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  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  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
Lijo & Ors v The Commonwealth Director of Public Prosecutions  WASCA 4 (16 December 2002)
Illegal fishing, Spanish nationals, bail conditional on providing cash deposit, whether cash deposit excessive, effect of events since order
The Queen v Disun (2003) 27 WAR 146
‘People smuggling’, unlawful arrest, foreign flagged vessel
R v Disun  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
Allison Pty Ltd t/a Pilbara Marine Port Services -v- Lumley General Insurance Ltd  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  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 negligence. Here, employee was careless for his own safety, awarded 50% of the damages to which he was entitled.
Benson-Brown v HIH Casualty & General Insurance Ltd & Anor  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  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
Culley & Russell Pty Ltd v Goyder  WASCA 27 (15 February 2001)
Claim for losses incurred from shipping contract.
Mercantile Mutual Insurance (Australia) Ltd v Gibbs & Anor  WASCA 271 (30 August 2001)
Insurance against third party liability only, whether a policy of marine insurance, meaning of ‘sea’ – whether includes estuary affected by tidal movements of the ocean, paraflying behind power boat, accident due to negligent driving of boat
Bredero Price (Malaysia) SDN BHD v Scheepvaartonderneming Leidsegracht CV & Anor  WASC 263 (27 October 2000)
Shipper sues carrier for damage to cargo, application to amend defence, relevance of sea-freighting contract and charterparty
FNP Catalano Nominees Pty Ltd & Ors v The Ship 'FV Comet'  WASC 76 (31 March 2000)
Proceedings in rem, necessaries supplied to Australian vessel, application for release of ship from arrest, validity of Admiralty Rules 1988
Elliott v Minister for Transport for the State of Western Australia  WASCA 134 (19 August 1999)
Whether cause of action against Port Authority in case where master drowned when vessel moored outside and part capsized.
Garrett v Nicholson  WASCA 32 (26 May 1999)
Prosecution for failure to maintain a proper look out related to collision on sea at night and whether lights could be seen.
Ilam v Dando  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'  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
Onetech Pty Ltd v Shaw  WASCA 289 (21 December 1999)
Liability for worker slipping on cabin floor of vessel.
Stirling Marine Services Pty Ltd v Austral Piling and Constructions Pty Ltd & Anor  WASCA 6 (6 May 1999)
Collision, uniform time charterparty –‘Supplytime 89’, damage caused to navigational beacon by dumb barge towed by a tug owned by appellant and time chartered by first respondent, whether owner or charterer liable for damage, interpretation of indemnity clause in ‘Supplytime 89’, charterer to indemnify owner
Union International (WA) Pty Ltd v Mazurak & Anor  WASCA 272 (6 December 1999)
Liability for personal injury of seafarer.
Andre Toulemonde Wool Co Pty Ltd & Ors v Knutsen Offshore (Panama) SA & Anor  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
Antclizo Shipping Corporation & Ors v The Food Corporation of India & Anor  WASC 342 (6 November 1998)
Enforcement of foreign arbitration award for dispute between charter party and owner of a vessel.
Christopher Ralph Mitchell & Ors v Abas & Ors  WASCA 88 (9 April 1998)
Foreign fishing vessels fishing without proper licences, , deliberate offences, forfeiture of vessels, considerations relevant to whether forfeiture should be ordered
Gregory Roscoe Gayfer & Ors v Ahmat Bere & Ors  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
Paul Nicholson & Ors v Stuart Arthur Gerrett & Anor  WASCA 317 (23 November 1998)
Appeal and consideration of evidentiary issues in case of failure to maintain a proper lookout so as to make a full appraisal of the risk of collision.
Stephen Paul Smith & Ors v Australian National Line Ltd & Anor  WASCA 316 (18 November 1998)
Negligence; injury of shipworker.
Stirling Marine Services Pty Ltd & Ors v Austral Piling & Construction Pty Ltd & Ors  WASC 81 (26 March 1998)
Whether charterer liable to indemnify owner.