Admiralty & Maritime Federal Court Judgments
10 Feb 2000: Bollen v Condor of Bermuda (No 2) [2000] FCA 143
Lindgren J
17 Dec 1999: Lloyd Werft Bremerhaven GMBH v Owners of the Vessel "Zoya Kosmodemyanskaya" [1999] FCA 1765
Tamberlin J
17 Dec 1999: Jetopay Pty Ltd v The Ocean Marine Mutual Insurance Association (Europe) OV [1999] FCA 1773
Tamberlin J (95 FCR 570;)
MARINE INSURANCE - whether underwriter bound to indemnify assured under policy in respect of damages to the vessel and the cost of its repair - question of the terms of the policy and its relationship to a lineslip arrangement between the underwriter and a broker - whether underwriter could cancel the policy for non-receipt of premiums - whether broker is liable for failing to ensure that the policy covered all the items of loss sustained - whether assured relied on the…
15 Dec 1999: Papua New Guinea Banking Corp v "Spartan" [1999] FCA 1829
Tamberlin J
PRACTICE AND PROCEDURE - application for transfer of proceedings to Queensland District Registry of the Federal Court - balance of convenience - ends of justice - efficient administration of the Court - location of vessel in Queensland - related issues in another action brought in the Queensland Registry
19 Nov 1999: Patrick Stevedores No 2 Pty Ltd v The Ship "Turakina" [1999] FCA 1615
Tamberlin J (95 FCR 52;)
ADMIRALTY - whether plaintiff's legal costs form part of its costs of arrest - where costs of arrest and preservation rank in priority over all substantive claims other than the Admiralty Marshal's fees and expenses - plaintiff's opposition to owners' application for release of vessel from arrest - application for sale of vessel and making orders for payment of costs - opposing application of solicitor to be released from undertaking given to Marshal on application for…
3 Nov 1999: Caravelle Investments Ltd v Martaban Ltd [1999] FCA 1505
Finkelstein J (95 FCR 85; )
ADMIRALTY - jurisdiction - negotiations for the sale of a ship - allegation that no contract for sale was made - action in restitution for recovery of money paid - whether claim "relating to" ownership of a ship PRACTICE AND PROCEDURE - interlocutory injunction - undertaking in damages by foreign plaintiff - whether security should be provided to support undertaking
28 Oct 1999: Patrick Stevedores No 2 Pty Ltd v The Ship "Turakina" [1999] FCA 1463
Tamberlin J (167 ALR 143; )
ADMIRALTY - application for payment out of fund from sale of ship - payment out prior to determination of priorities - retention of funds for taxation of Marshal's costs and expenses - distinction between legal and non-legal costs WORDS AND PHRASES - "bill of costs"
18 Oct 1999: CMC (Australia) v The Ship [1999] FCA 1419
Moore J (95 FCR 403;)
ADMIRALTY - application to strike out proceedings for want of jurisdiction - whether a person nominated as a "relevant person" in relation to a maritime claim was such a person so as to found a right to proceed in the Court in rem under s 18 Admiralty Act 1988 (Cth) - issue of whether a nominated person was a demise charterer at the date proceedings were commenced in the Court - question of whether relevant demise charterparty agreement had been terminated prior to that date …
3 Sep 1999: Howard Smith Industries Pty Ltd v Richards [1999] FCA 1144
Goldberg J (95 FCR 268; )
WORKERS' COMPENSATION - Seafarer - industrial hearing loss and tinnitus - no permanent impairment - hearing loss due to exposure to noise - exposure occurred during period of operation of Seamen's Compensation Act 1911 (Cth) and after commencement of Seafarers Rehabilitation and Compensation Act 1992 (Cth) - hearing loss prior to commencement of Seafarers Rehabilitation and Compensation Act 1992 (Cth) did not disable seafarer from earning full wages - whether injury or…
9 Jul 1999: Sun Lucky Marine Co Ltd v Mu Gung Wha [1999] FCA 919
Tamberlin J
14 Apr 1999: Westpac Banking Corp v "Stone Gemini" [1999] FCA 434
Tamberlin J
BANKING – letter of credit – incorporation of Uniform Customs and Practice for Documentary Credits 500 (UCP) – effect of incorporation of UCP into letter of credit – discrepant documents – time for acceptance or rejection CONVERSION – bill of lading as a title document – bearer bill of lading – right to delivery – discharge of cargo against letter of indemnity – bills of lading not presented – whether bills in possession of bearer where sent to issuing bank for acceptance…
24 Mar 1999: Eastern Basin Pty Ltd v Maritime Union of Australia [1999] FCA 294
Hely J
19 Mar 1999: Bremer Landesbank Kreditanstalt Oldenburg v "Turakina" The Ship [1999] FCA 261
Beaumont, Moore & Merkel JJ (161 ALR 587)
ADMIRALTY - appeal against costs order made by primary judge - costs order made in proceedings where the Master and crew of two arrested ships sought payment of wages since arrest and costs of repatriation as part of the Marshal's costs of arrest - proceedings were successful in part only - whether primary judge erred in holding that the Master and crew were entitled to recover the whole of the costs of their application payable from the fund created by the sale of the ships …
12 Mar 1999: Sun Lucky Co Ltd v "Mu Gung Wha" [1999] FCA 220
Tamberlin J
ADMIRALTY - arrest of vessel - release - application to strike out proceeding and for release or reduction of security - voyage charterparty - issue of bills of lading for discharge at additional port - whether approved - waiver and estoppel - security - causation PRACTICE AND PROCEDURE - strike out application - writ based on breach of charterparty and implied indemnity - principles relating to strike out of proceedings and release of security - implied terms in…
5 Mar 1999: Chapman Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 178
Emmett J
CONTRACT - contract for carriage of goods by sea - bill of lading to which the Carriage of Goods by Sea Act 1936 (US) applies - obligation properly and carefully to load, handle, stow, carry, keep, care for and discharge the goods - limitation provision -Carriage of Goods by Sea Act 1936 (US) s4(5) - whether package limitation applies - whether a cruiser is a "package" or "customary freight unit" - Himalaya clause - whether stevedore can rely on limitation provisions in bill …
29 Jan 1999: Sovremenniy Kommercheskiy Flot v "Socofl Stream" [1999] FCA 42
Kiefel J
17 Dec 1998: Bergensbanken ASA v The Ship "Aliza Glacial" & Ors [1998] FCA 1642
Ryan J
3 Dec 1998: Hi-Fert Pty Ltd v United Shipping Adriatic Inc & Ors [1998] FCA 1622
Emmett J (165 ALR 265; 89 FCR 166; )
26 Nov 1998: Hi-Fert Pty Ltd v United Shipping Adriatic Inc & Ors [1998] FCA 1672
Emmett J
24 Nov 1998: Hi-Fert Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor [1998] FCA 1485
Beaumont, Branson & Emmett JJ (159 ALR 142; 90 FCR 1; )
CONSTITUTIONAL LAW - whether s 7(2) of the International Arbitration Act constitutes an intrusion upon the judicial power vested in the Federal Court by Chapter III of the Constitution - whether s 7 confers on an arbitrator the judicial power of the Commonwealth. CONTRACT - meaning of the term "charter" in the Charter Party and the Time Charter - meaning of the phrase "arising from" in the Charter Contract - whether claims for breach of duty and negligence "arise from" the…
26 Oct 1998: Hi-Fert Pty Ltd v United Shipping Adriatic Inc & Ors [1998] FCA 1671
Emmett J
19 Oct 1998: Bergensbanken ASA v The Ship "Aliza Glacial" [1998] FCA 1322
Ryan J
15 Oct 1998: Opal Maritime Agencies Pty Ltd v Baltic Shipping Co & Ors [1998] FCA 1343
Tamberlin J (158 ALR 416; )
ADMIRALTY - maritime agency agreement - set-off - right to freight collected after termination of agency agreement - running account - continuance after termination - contractual set-off - equitable set-off - non deduction from freight
18 Sep 1998: Readhead, Phillip & Ors v Admiralty Marshall, Western Australia District Registry & Ors [1998] FCA 1173
Ryan J (157 ALR 660)
ADMIRALTY - whether a sale by the Marshal pursuant to an order of a Court of Admiralty made within jurisdiction in an action in rem confers title free of all defects including statutory rights of detention - rights of detention and possible detention under Fisheries Management Act 1991 - whether power of Court of Admiralty to order sale thereby suspended or deferred - effect of order in action in rem - distinction between power to detain a ship in relation to a civil claim…
17 Aug 1998: Patrick Stevedoring No 2 Pty Ltd v The Ship "Turakina" Waitemata Stevedoring Services Ltd v The Ship MV "Rangitata" & Anor [1998] FCA 1011
Tamberlin J
ADMIRALTY - costs in respect of application by Master and crew for wages and repatriation - Master and crew partially unsuccessful on application - order for sale of vessel - whether Master and crew should repay to fund costs attributable to unsuccessful application - whether all costs of all parties should be taken from fund
17 Aug 1998: Patrick Stevedoring No 2 Pty Ltd v The Ship "Turakina" Waitemata Stevedoring Services Ltd v The Ship MV "Rangitata" & Anor [1998] FCA 1013
Tamberlin J
ADMIRALTY - application for declaration of title to personal property items on vessel at time of arrest - evidence not sufficient - application dismissed - application for declaration of title to bunkers and lubricants - ownership -whether evidence as to payment - whether "ship" includes all property aboard the ship other than property not owned by shipowner - onus of proving ownership
15 Jul 1998: Patrick Stevedores No 2 Pty Ltd v The Ship "Turakina" [1998] FCA 886
Tamberlin J
ADMIRALTY - application for order releasing owner's solicitor from undertaking - undertaking given in respect of application for release of vessel from arrest - application for release unsuccessful - competing considerations - whether application for release prolonged period during which vessel was in custody - whether Marshal should have benefit of undertaking required by r 52 of Admiralty Rules ("the Rules") and Form 19 notwithstanding application for release was…
15 Jul 1998: Waitemata Stevedoring Services Ltd v The Ship "Rangitata" & Anor [1998] FCA 885
Tamberlin J
ADMIRALTY - Admiralty Rules rr 52 and 53 - application for release of vessel from arrest - whether at commencement of arrest proceedings Federal Court had jurisdiction to arrest vessel - whether South Pacific Shipping ("South Pacific") was demise charterer - whether demise sub-charterer was terminated by letter prior to time when proceedings for arrest were instituted - cancellation of charterparty by withdrawal of ship - repudiation of the charterparty by non-payment of…
16 Jun 1998: Glen King Marine & Trading Services v Owners of the Ship "Armada Ternak" & Quality Livestock Australia Pty Ltd v Owners of the Ship "Armada Ternak" [1998] FCA 747
Spender J
CONTRACT - agency agreement - whether expenses relating to repair of vessel properly incurred by agent of ship owners - whether agent entitled to be paid on a quantum meruit for preparation of livestock capacity plan - where payment for preparation of plan not provided for in agency agreement; CONTRACT - construction - construction of agreement in relation to 10 per cent loading entitlement - meaning of "disbursements" - whether agent entitled to recover moneys from…
19 May 1998: Rolfe, James Geoffrey v Transworld Marine Agency Co NV [1998] FCA 532
Tamberlin J (28 ACSR 117; 83 FCR 323; )
ADMIRALTY - sale of vessel arrested by Court - successful claim against the proceeds of sale - whether commission is payable to applicant - whether agreement exists as to amount of commission CONTRACT - whether any binding contract made - examination of correspondence - whether an equitable charge or lien over proceeds of sale arises in respect of commission - agreement to pay from proceeds of sale - whether any equitable assignment BANKRUPTCY - Letter of Request from…
15 May 1998: Thasos Shipping Agency Co Ltd v The Owners of the Ship [1998] FCA 520
Tamberlin J
COSTS - Admiralty - application for security for costs in respect of challenge to jurisdiction - effect of a conditional appearance - whether unconditional appearance is a necessary prerequisite for seeking security for costs - distinction between offensive and defensive procedural steps - substance verses form of application - whether application for security for costs by a party is a waiver of conditional appearance - whether there had been a submission to court's…
11 May 1998: Pacific Composites Pty Ltd & Anor v Transpac Container System Ltd (carrying on business as Blue Anchor Line) & Ors [1998] FCA 496
Tamberlin J
ADMIRALTY - claim for damage to cargo - FOB sale - payment under irrevocable letter of credit - whether breach of contract of carriage - non-refrigeration of consignment - whether contract and carriage required a refrigeration clean negotiable Bill of Lading - construction of Bill of Lading - effect of attachment station goods are refrigerated for shipment - whether respondent was the "carrier" - whether plaintiff had title to bring proceedings - passing of property and risk …
11 May 1998: Patrick Stevedores No 2 Pty Ltd v MV "Turakina" [1998] FCA 495
Tamberlin J (154 ALR 666; )
ADMIRALTY - application for release of vessel from arrest - whether at commencement of arrest proceeding Federal Court had jurisdiction to arrest vessel - whether plaintiff was demise charterer - whether demise sub-charter was effectively terminated by a letter prior to the time when proceedings for arrest were instituted - effect of withdrawal of vessel from service under a demise charter - meaning of "re-delivery" in the demise charter agreement - whether there was a…
5 May 1998: Patrick Stevedoring No 2 Pty Ltd v Turakina Waitemata Stevedoring Services Ltd v Rangitata & Ors [1998] FCA 457
Tamberlin J (154 ALR 514; 84 FCR 493; )
ADMIRALTY - arrested vessel - responsibility of Marshal to Master and crew - whether Marshal should direct arresting party or its solicitor to pay post arrest wages of Master and crew - whether wages claimed by Master and crew, if paid by Marshal, are an expense of the Marshal in relation to the arrest - no assumption by Marshal of employer's responsibility for wages of Master and crew - functions and responsibilities of the office of the Admiralty Marshal in relation to…
22 Apr 1998: Waitemata Stevedoring Services Pty Ltd v The Ship "Rangitata" & Anor [1998] FCA 441
Lindgren J
ADMIRALTY - Application for leave to appeal against trial Judge's direction that Admiralty Marshal be paid $20,000 to enable him to engage two engineers to service each of two ships under arrest - power of Admiralty Marshal under Admiralty Rule 78 (b) to require payment of sum on account of fees and expenses yet to be incurred by him - futility of appeal - absence of substantial injustice in refusing leave to appeal even if decision at first instance wrong
7 Apr 1998: Waitemata Stevedoring Services Pty Ltd v The Ship "Rangitata" & Anor [1998] FCA 386
Lindgren J (82 FCR 462; 163 ALR 59; )
ADMIRALTY - proceeding in rem against ship - application by shipowner for release of ship from arrest - whether owner must first file an appearance where owner not served with initiating process but wishes to challenge validity of arrest on ground of lack of jurisdiction
16 Mar 1998: Waitemata Stevedoring Services Pty Ltd v The Ship "Rangitata" & Anor [1998] FCA 304
Lindgren J
16 Mar 1998: Morris, Danny & Anor The Ship "Kiama" ("Mubum") [1998] FCA 256
Carr J
ADMIRALTY LAW - CORPORATIONS LAW - proceedings commenced in rem against ship - ship arrested - order for sale of ship - ship sold and proceeds of sale paid into Court by Marshal before administrators appointed to corporate owner of ship - one plaintiff suing to recover loan of moneys - repayment secured by equitable unregistered charge of ship - both plaintiffs also suing to recover wages earned as crew members - whether leave required to enforce charge - whether leave to…
13 Mar 1998: Patrick Stevedoring No 2 Pty Ltd v The Ship "Turakina" Waitemata Stevedoring Services Ltd v The Ship MV "Rangitata" & Anor [1998] FCA 244
Tamberlin J
20 Feb 1998: Patrick Stevedores No 2 Pty Ltd & Ors v The Proceeds of the Sale of the Vessel MV "Skulptor Konenkov" [1998] FCA 100
Tamberlin J (79 FCR 560; 160 ALR 132; )
ADMIRALTY - claim for recovery of money from proceeds of sale of the vessel - whether an in rem claim - whether the advance of moneys by an agent to meet charges for stevedoring services gives rise to an in rem claim - whether an additional characterisation of a claim as one for unjust enrichment prevents a claim in respect of the provision of stevedoring services or disbursement by an agent being described as in rem - whether purpose of payment defines character of that…
20 Feb 1998: Patrick Stevedores No 2 Pty Ltd & Anor v The Proceeds of the Sale of the Vessel MV "Skulptor Konenkov" [1998] FCA 99
Tamberlin J (81 FCR 16; 161 ALR 131; )
ADMIRALTY - sale of ship pursuant to order for appraisement and sale - claim in rem against fund representing the proceeds of sale - running offset account pursuant to agency agreement between plaintiff and shipowner - whether claim is in rem - whether a party can appropriate all credits so as to maximise its in rem claims - whether Court can or should segregate claims to make up the balance of a running account
12 Dec 1997: Patrick Stevedores No 2 Pty Ltd (Formerly Known as Strang Patrick Stevedoring Pty Ltd) & Ors v The Proceeds of the Sale of the Vessel MV ""Skulptor Konenkov"" [1997] FCA 1424
Tamberlin J (150 ALR 651)
ADMIRALTY - sale of vessel pursuant to order for appraisement and sale - claim in rem against the fund representing the proceeds of sale - running account between plaintiff and shipowner - whether Court can go behind balance of running account to determine whether claims are in personam or in rem - whether claim for agency commission is a claim in rem - whether agency commission is a "disbursement" on account of the ship - whether agency commission is in respect of goods and …
21 Nov 1997: Koryar, Philip & Ors v Perry, Donald N & Anor (No. 2) [1997] FCA 1468
Beaumont J
Admiralty - action in rem seeking warrant for arrest of a ship - joint venture to fund a commercial fishing operation - defendants withdrew ship from the joint venture - whether contractual right to do so - construction of the contract Words and Phrases - meaning of *jointly* and *satisfied* - whether *satisfactory* to the defendants or to all the joint venturers Equity - joint ventures - whether relationship fiduciary
14 Nov 1997: Loucas G Matsas Salvage & Towage Maritime Co v The Fund in Respect of the Proceeds of the Sale of the Ship 1997 FCA 1242
Ryan J (149 ALR 653; 79 FCR 351)
SHIPPING AND NAVIGATION - Arrest and sale of ship - Salvage claim for services pre-dating arrest - limitation of actions - whether limitation period expires on anniversary of date when services rendered at place where they were rendered or of corresponding date in forum - whether action in rem available to enforce maritime lien against fund in court - Lloyd*s Open Form 1990 of salvage agreement - whether acceptance of security extinguishes maritime lien - supervening…
31 Oct 1997: Lloyd Werft Bremerhaven Gmbh V The Owners Of The Ship Zoya Kosmodemyanskaya As Surrogate For The Ships Taras Shevchenko, Delphin And Kazakhstan And Tor Shipping Company [1997] FCA 1162
Beaumont, Burchett & Lindgren JJ
Admiralty practice & procedure - jurisdiction of the Federal Court - action in rem - allegation of failure to pay under repair contracts - application by demise charterer of a ship for release of that ship from arrest - whether the arrest was made without jurisdiction - meaning of "owner" in s 19 of the Admiralty Act - onus of proving jurisdiction - whether demise charterer had submitted to the jurisdiction of the Court - no appearance filed on behalf of the ship's putative…
26 Sep 1997: Morlines Maritime Agency Limited v The Ship [1997] FCA 1004
Tamberlin J
ADMIRALTY - sale of vessel pursuant to order for appraisement and sale - claims in rem against fund representing the proceeds of sale - previously determined that payments received in return for release of surrogate vessels from arrest and from the proceeds of sale of surrogate vessels could only be allocated to reduction of the plaintiff's in rem claim - whether legal costs incurred by plaintiff in recovering those payments could be recovered against the fund.
26 Sep 1997: The Owners Of The Ship "Carina" v The Owners Or Demise Charterers Of The Ship "Msc Samia" [1997] FCA 1001
Tamberlin J
ADMIRALTY - arrest of vessel - application for release of vessel - where defendants proffered undertaking as security for release of vessel - whether application for release should be granted - dispute as to form and terms of undertaking - consideration of principles governing court's power to order the release of a vessel under arrest where there is a dispute as to security - whether abuse of process - whether plaintiff acted oppressively in refusing to accept undertaking…
5 Sep 1997: Morlines Maritime Agency Ltd v Skulptor Vuchetich [1997] FCA 1003
Tamberlin J
29 Aug 1997: Morlines Maritime Agency Ltd v Skulptor Vuchetich [1997] FCA 858
Tamberlin J
ADMIRALTY - sale of vessel pursuant to order for appraisement and sale - claims in rem against the fund representing the proceeds of sale - previously determined that a claim for agency commission was not an in rem claim - whether failure by plaintiff ("Morlines") to properly credit moneys received against in rem claims - where Morlines received payments in return for the release from arrest of surrogate vessels and from the proceeds of sale of surrogate vessels - whether…
20 Aug 1997: United States Trust Co of New York v Master & Crew of the Ship "Ionian Mariner" Kharitonov, Andrey & Ors v United States Trust Co of New York [1997] FCA 909
Black CJ, Lockhart & Burchett JJ (149 ALR 200; 77 FCR 563)
SHIPPING & NAVIGATION / ADMIRALTY JURISDICTION - claim by master and crew under the Admiralty Act 1988 (the Act) asserting maritime lien for unpaid wages - whether lien for wages arose by reason of agreement between shipowner and maritime unions to which the master and crew were not parties - whether promise made by the shipowner to the unions was the subject of a trust in favour of the crew - whether crew had a right to proceed in rem under s 17 of the Act notwithstanding…
5 Jun 1997: KMP Coastal Oil Pte Ltd v The owners of Motor Vessel "Iran Amanat" and the 84 other vessels set out in the application [1997] FCA 483
Wilcox, Burchett & Emmett JJ (144 ALR 720; 75 FCR 78)
SHIPPING AND NAVIGATION - Admiralty jurisdiction, law and practice - In respect of what matters action will lie - Action in rem - Whether jurisdiction should be determined before liability - Did the owner have the relevant nexus as required by section 19(a) of the Admiralty Act 1988 (Cth) to entertain jurisdiction - Admiralty Act 1988 (Cth) ss 3, 4, 5, 10, 17, 19 STATUTORY INTERPRETATION - Admiralty Act 1988 (Cth) ss 3, 17, 19 WORDS AND PHRASES - "Person who would be liable" …
16 May 1997: Lloyd Werft Bremerhaven GmbH v Ship "Zoya Kosmodemyanskaya" [1997] FCA 419
Tamberlin J
15 May 1997: Bayside Air Conditioning Pty Ltd v The Owners of the Ship 'Cape Don' [1997] FCA 690
Cooper J
Admiralty - Sale pendente lite - principles - Marshal*s costs and expenses - enforcement of undertaking.
15 May 1997: Lloyd Werft Bremerhaven Gmbh v The Owners Of The Ship "Zoya Kosmodemyanskaya" As Surrogate For The Ships "Taras Shevchenko", "Delphin" (Previously "Kazakhstan Ii" Previously "Byelorussiya") and "Kazakhstan" [1997] FCA 379
Tamberlin J
ADMIRALTY - application for release of vessel from arrest - whether Black Sea Shipping Co ("BLASCO") beneficial owner of vessel - "hand-over" of vessel by Ukrainian government to Ukrainian Shipping Co - whether ownership transferred - vessel lawfully transferred - BLASCO no longer beneficial owner of vessel - whether adverse inferences should be drawn - no appearance by Ukrainian Shipping Co - no evidence of consideration for transfer - no documents evidencing transfer -…
15 May 1997: Morlines Maritime Agency Ltd & Ors v Ship "Skulptor Vuchetich" [1997] FCA 432
Sheppard J
SHIPPING AND NAVIGATION - Admiralty - sale of vessel pursuant to order for appraisement and sale - claims in rem by creditors against the fund - determination of order of priorities - whether one claim based on maritime lien created by agreement in United States was to be afforded priority as a maritime lien in Australia - whether claims otherwise general maritime claims - whether recovery of moneys pursuant to distribution of proceeds of sale of a vessel under same…
14 May 1997: Patrick Stevedores No 2 Pty Ltd & Ors v Ship
Sheppard J
SHIPPING AND NAVIGATION - Admiralty - sale of vessel pursuant to order for appraisement and sale - claims in rem by creditors against the fund - whether general maritime claims - determination of order of priorities - whether recovery of moneys pursuant to distribution of proceeds of sale of a vessel under same ownership in another jurisdiction in respect of the same causes of action precludes a claimant proceeding against the fund in this jurisdiction - construction of s.20 …
1 May 1997: Lloyd Werft Bremerhaven GmbH v Ship "Zoya Kosmodemyanskaya" & Ors [1997] FCA 342
Tamberlin J
20 Dec 1996: KMP Coastal Oil PTE LTD v The Owner of Motor Vessel "Iran Amanat" & Ors [1996] FCA 1122
Tamberlin J
ADMIRALTY - application to vary or set aside a judgment and orders of the court - O 35 r 7(1) of the Federal Court Rules - proceedings relate to release from arrest of a vessel on basis of a finding that the defendant/owner was not a "relevant person" within the meaning of s 3 of the Admiralty Act 1988 (Cth) - grant of application to review prior decision is "exceptional" and only granted where court has good reason to consider it has proceeded under a misapprehension as to…
9 Dec 1996: Marine Trade Consulting GmbH v Globus [1996] FCA 1071
Black CJ, Hill & Whitlam JJ
ADMIRALTY - appeal from orders for release of a vessel from arrest and an order setting aside the warrant for the arrest of the vessel pursuant to the Admiralty Rules - whether it has been established that the Black Sea Shipping Company of Odessa ("BLASCO") is the "owner" of the vessel when the cause of action arose - whether BLASCO was the beneficial owner or demise charterer - whether the contract for sale of the vessel was a sham. APPEAL AND NEW TRIAL - admission of fresh …
4 Dec 1996: Hi-Fert Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor [1996] FCA 1059
Tamberlin J ((1997) ATPR 46-165; 71 FCR 172; 150 ALR 54)
ADMIRALTY - two applications - application that proceedings be stayed permanently on the basis of an arbitration clause in the charter party - whether Australian proceedings are vexatious or oppressive - whether Australia is an "inappropriate forum" for resolution of the disputes - proceedings relate to contamination of fertiliser - statutory interpretation - meaning of the term "arising from" - whether all disputes should be referred to the elected arbitrator - 'one-stop…
23 Oct 1996: KMP Coastal Oil Pte Ltd v The Owners Of Motor Vessel "Iran Amanat" & the 84 other vessels set out in the Application [1996] FCA 664
Tamberlin J
ADMIRALTY - application for release of arrested vessel - whether debts on which arrest is based were incurred by the "owner" - whether owner is a "relevant person" - no authority on charterer to make owner liable on contracts for supply of fuel - burden of proof of the facts on which jurisdiction depends to be on balance of probabilities - vessel released due to lack of jurisdiction.
11 Oct 1996: Mowie Fisheries Pty Ltd v Switzerland Insurance Australia Ltd [1996] FCA 888
Tamberlin J (140 ALR 57)
INSURANCE - marine insurance - application for damages - vessel lost in travelling from Eden in New South Wales to Portland in Victoria - which version of the Uniform Shipping Laws Code is applicable - whether there was a breach of warranty - whether vessel "in survey" at time of sinking - whether vessel correctly manned at time of sinking - consideration of the meaning of "propulsion power" within Section 3 of the Uniform Shipping Laws Code - extensive expert evidence in…
5 Sep 1996: Marine Trade Consulting GmbH v The Owners of the Ship "Kareliya" as named and also as Surrogate for the Ships "Azerbaydzhan", "Lev Tolstoi" and "Odessa" [1996] FCA 794
Tamberlin J
ADMIRALTY - Application for release of a vessel from arrest pursuant to r 52 of the Admiralty Rules - whether it has been established that the Black Sea Shipping Company of Odessa ("BLASCO") is the "owner" of the vessel at commencement of proceeding - whether "owner" in the sense of s 17 of the Admiralty Act 1988 (Cth) - insufficient evidence to show BLASCO as beneficial owner or demise charterer of the vessel - evidence circumstantial.
25 Jun 1996: Yellow Wood Holdings Pty Ltd v The Owners of the Ship MV "Cape Don" [1996] FCA 531
Cooper J
ADMIRALTY - Action for declaration that plaintiff entitled to a ten per cent interest in ship or to ten per cent of proceeds of sale - bank guarantee provided as security to prevent arrest - recovery sought against bank guarantee as representing the res PRACTICE AND PROCEDURE - Application pursuant to O 32 r 2(d) of the Federal Court Rules
17 Jun 1996: Marinis Ship Suppliers (Pty) Ltd v The Ship "Ionian Mariner" [1996] FCA 563
Ryan J
SHIPPING AND NAVIGATION - ADMIRALTY JURISDICTION, LAW AND PRACTICE - Ships - action in rem - claim by master and crew for unpaid wages - lien over proceeds of sale of ship - whether quantified by reference to collective agreement concluded between union affiliate of International Transport Federation and ship owner or operator or to individual employment agreements - whether a claim invoking a collective agreement is for wages or an amount that a person as employer is under…
9 May 1996: Empire Shipping Co Inc v Navix Line Inc [1996] FCA 333
Tamberlin J
ADMIRALTY - proceedings for damages arising from breach of joint venture agreement - application to amend defence and cross-claim PRACTICE and PROCEDURE - application to amend defence and cross-claim - whether evidence of actual prejudice - whether delay - whether amendments raise a real issue for determination - in the interests of justice to allow proper ventilation of issues at hearing - s 22 Federal Court Act 1976 - court as far as possible to completely and finally…
24 Apr 1996: BHP Trading Asia Ltd & Ors v Oceaname Shipping Ltd & Anor [1996] FCA 271
Hill J (67 FCR 211)
ADMIRALTY - rust damage to cargo - ship chartered on time charter and subsequent voyage charter - whether time charterer liable for damage to cargo - whether bill of lading signed by captain made time charterer a party liable on the bill ADMIRALTY - NEGLIGENCE - whether charterer owes a duty of care to the owner of goods shipped to provide a cargoworthy vessel - content of that duty discussed - whether want of due diligence will breach that duty - content of due diligence…
22 Apr 1996: Sandford Pty Ltd v NZI Insurance Ltd [1996] FCA 279
Drummond J (136 ALR 675; 65 FCR 266 (1996) 9 ANZ Insurance Cases 61-313)
SHIPPING AND NAVIGATION - admiralty jurisdiction - "claim for damage done to a ship" - whether that expression is wide enough to encompass claims on policies of insurance that indemnify ship owners against damage to their ship
26 Mar 1996: Yellow Wood Holdings Pty Ltd v The Owners of the Ship MV "Cape Don" [1996] FCA 32
Cooper J
ADMIRALTY - Bank guarantee provided to avoid arrest of vessel - acceptance of guarantee by plaintiff in lieu of benefit of arrest - vessel left jurisdiction and traded - estoppel - no alternative security offered
6 Mar 1996: Den Norske Bank (Luxembourg) S.A. v The Ship "Martha II" [1996] FCA 136
Sheppard J
SHIPPING AND NAVIGATION - Admiralty practice and procedure - ship loaded with mixed cargo under arrest in Port Jackson - cargo consisting of containers of rice and other cargo, liquid plastic in vessel's deep tanks and bulk cargo of mineral sands - more satisfactory facilities for unloading containers and liquid cargo in Port Botany and mineral sands in Port of Newcastle - balancing of considerations relating to the necessity to keep the vessel under arrest secure against…
23 Feb 1996: Patrick Stevedores No 2 Pty Ltd & Anor v MV "Skulptor Konenkov" Morlines Maritime Agency Ltd v The Ship "Skulptor Vuchetich" and her Owners [1996] FCA 81
Sheppard J (136 ALR 211; 64 FCR 223)
SHIPPING AND NAVIGATION- Admiralty - practice and procedure - separate proceedings in rem brought against two vessels in the same ownership - plaintiffs in each case claim to have general maritime claims - vessels arrested and sold by marshall - large number of caveators also claiming to have general maritime claims against one or both vessels - likelihood of substantial deficiency - application supported by majority of claimants for direction that the two funds from the…
9 Feb 1996: Morlines Maritime Agency Ltd v The Ship "Skulptor Vuchetich" and her owners & Anor [1996] FCA 41
Sheppard J (136 ALR 206; 62 FCR 602)
SHIPPING AND NAVIGATION - Admiralty law and practice - vessel under arrest sold by Marshal - equipment on vessel included fork lift trucks and other associated equipment used to move cargo about the vessel - whether such equipment properly to be regarded as part of the ship - whether a Mareva injunction obtained by creditor not having a maritime claim affected Marshal's power to dispose of such equipment as part of ship
12 Jan 1996: Ahrenkiel Pacific Services Inc v Fuel & Diesel Oil on board the vessel "Nand Nidhi" [1996] FCA 14
Lindgren J
29 Nov 1995: The Sanko Steamship Co. Ltd & Anor v Sumitomo Australia Ltd & Ors [1995] FCA 962
Sheppard J (63 FCR 227)
SHIPPING AND NAVIGATION - cargo of phosphate consigned from Tampa, Florida to Esperance WA lost when ship carrying it sank before completion of voyage - cargo shipped pursuant to voyage charterparty entered into by first plaintiff, Sanko, and defendant - vessel provided by second plaintiff, Grandslam, pursuant to time charter entered into between plaintiffs - Grandslam bareboat charterer of vessel - construction of charterparty - whether United States Carriage of Goods by…
18 Oct 1995: Patrick Stevedores No. 2 Pty Ltd & Anor v MV "Skulptor Konenkov" [1995] FCA 864
Sheppard J
SHIPPING AND NAVIGATION - sale of vessel by Marshal - application by owners of vessel to exclude from subject matter of sale one forklift truck - forklift truck allegedly the subject of a lease from a Swiss company - no application made by that company - application made after tenders for sale of vessel had been called and after last day for lodgment of tenders had passed - insufficient evidence to support the application - application for adjournment in order to obtain…
17 Oct 1995: Barde, A S v ABB Power Systems & Ors [1995] FCA 828
Sheppard J (132 ALR 358; 69 FCR 277)
SHIPPING AND NAVIGATION - limitation of liability - effect of constitution of limitation fund - whether claimant wishing to establish matters disentitling shipowner from limiting liability is entitled to have that question determined prior to the constitution of a limitation fund.
25 Sep 1995: Ling v The owners of the ship "Longevity" [1995] FCA 797
Sheppard J (55 FCR 297)
SHIPPING AND NAVIGATION - application for extension of time in which to sue - collission between plaintiff's yacht and defendant's ship - collission occurred in open sea off Queensland coast - plaintiff's solicitor mistakenly considered limitation period to be three years - limitation period in fact two years - action bought one year out of time - considerations relevant to exercise of Court's discretion - significance of Solicitors negligence - defendant Solicitor advised…
25 Sep 1995: Malaysia Shipyard & Anor v "Iron Shortland" as the surrogate for the ship "Newcastle Pride" [1995] FCA 768
Sheppard J (131 ALR 738; 59 FCR 535)
SHIPPING & NAVIGATION - application to set aside arrest warrant - vessel "Iron Shortland" arrested as surrogate for "Newcastle Pride" itself under arrest in Singapore - whether s 19 of Admiralty Act 1988 applies to beneficial, as distinct from registered, ownership - analysis of complex evidence concerning ownership of vessels - whether the same company was a "relevent person" for the purposes of s 19, the owner and/or in possession or control of the Newcastle Pride, and the …
4 Sep 1995: Marinis Ship Suppliers Pty Ltd v The Ship "Ionian Mariner" [1995] FCA 711
Ryan J (59 FCR 245)
SHIPPING & NAVIGATION - ADMIRALTY JURISDICTION - LAW & PRACTICE - ships - action in rem - application for an order of valuation and sale of ship pendente lite - claim for payment for goods, materials or services supplied to the ship - evidence in deterioration of ship - whether order for valuation and sale of ship should be made where owner defends the action and has not abandoned the ship - substantial port charges and associated expenses being incurred by Marshal during…
6 Oct 1994: Translink Pacific Shipping Ltd v Baltic Shipping Co & Ors [1994] FCA 1095
Lee J
SHIPPING AND NAVIGATION - Admiralty - proceedings in rem brought against vessel as a surrogate ship under s 19 of the Admiralty Act 1988 - application for release of vessel on the ground that arrest was unjustifiable and wrongful - ownership of vessel in issue - commencement of consecutive separate proceedings against defendant and arrest of second vessel - whether an oppressive step
16 Sep 1994: Freshpac Machinery Pty Ltd & Anor The Ship Joana Bonita [1994] FCA 661
Sheppard J (125 ALR 683)
SHIPPING AND NAVIGATION - admiralty jurisdiction law and practice - release from arrest (of a ship) - provision of security by way of P&I Club letter of undertaking - consideration of relevant principles.
23 Aug 1994: Ssangyoung Australia Pty Ltd v Spliethoffs Bevrachtingskantoor B.V. & Ors [1994] FCA 610
Lindgren J
22 Jul 1994: George Fethers & Company Trading P/L & Anor v. Yangming Marine Transport Corporation [1994] FCA 468
Sheppard J.
SHIPPING AND NAVIGATION - damage to cargo of sheet glass consigned from Hong Kong to Sydney and Adelaide - glass packed in eight containers - four containers damaged, four undamaged - whether glass properly and sufficiently packed - whether in good order and condition when delivered to defendants agent in Hong Kong - whether damage caused by perils of the sea - whether vessel seaworthy in sense of being fit and safe for carriage of cargo - whether GM (metacentric height) of…
6 Dec 1993: Kawasaki Steel Corporation & Ors v. The Owners & Others Interested in the Ship Daeyang Honey & Ors [1993] FCA 888
Gummow J. (120 ALR 109)
PRACTICE AND PROCEDURE - stay of proceedings - forum non conveniens - test to be applied - whether selected forum clearly inappropriate - proceedings on foot in another country seeking a negative declaration. ADMIRALTY - writs in rem - whether an action in rem may be commenced by one writ against both the primary ship and a surrogate ship. INJUNCTIONS - distinction between injunction to stay foreign proceeding and stay of local proceeding as brought in clearly inappropriate…
29 Sep 1993: The Sanko Steamship Co. Ltd & Anor v. Sumitomo Australia Ltd [1993] FCA 678
Lockhart, Gummow & Cooper Jj.
SHIPPING AND NAVIGATION - limitation of liability - whether Limitation of Liability for Maritime Claims Act 1989 may be invoked in respect of occurrence before commencement of the Act. PUBLIC INTERNATIONAL LAW - Convention on Limitation of Liability for Maritime Claims, 1976 - effect of legislative declaration that provisions of Convention have he force of law in Australia - relevance to interpretation of Australian statute of Vienna Convention on the Law of Treaties, 1969.
29 Sep 1993: Victrawl P/L v. A.O.T.C. Limited & Ors [1993] FCA 677
Lockhart, Gummow & Cooper Jj. (117 ALR 347)
SHIPPING AND NAVIGATION - limitation of liability - whether limitation of liability provisions of the Limitation of Liability for Maritime Claims Act 1989 may be invoked after the commencement of that Act in respect of a prior occurrence. PUBLIC INTERNATIONAL LAW - Convention on Limitation of Liability for Maritime Claims, 1976 - effect of legislative declaration that provisions of Convention have he force of law in Australia - relevance to interpretation of Australian…
7 Jun 1993: Sea Containers Ltd v Owners of Vessel "Seacat 031" [1993] FCA 1080
Lockhart J
5 May 1993: Visscher v Associated Steamships Pty Ltd [1993] FCA 1074
Cooper J
31 Mar 1993: Hunter Grain P/L v Hyundai Merchant Marine Co. Ltd & Anor. [1993] FCA 276
Sheppard J. (117 ALR 507)
SHIPPING AND NAVIGATION - carriage of goods by sea - cargo of soyabean meal shipped from Portland, Oregon to Brisbane - vessel subject to time charter by first defendant and voyage charter by seller of cargo - bill of lading indorsed to plaintiff as purchaser - whether time charterer carrier under bill of lading - cargo contaminated by soda ash - soda ash left in loading equipment not properly cleaned by stevedore - soyabean meal contaminated with soda ash on start up of…
18 Mar 1993: Comalco Aluminium Ltd & Ors. v. Mogal Freight Services P/L & Ors. [1993] FCA 180
Sheppard J. (113 ALR 677)
TRADE PRACTICES - consumer protection - representations as to competence and skill - representations as to exercising reasonable care - whether representations as to future conduct - whether misleading or deceptive conduct - whether reliance placed upon representations. TRADE PRACTICES - consumer protection - implied statutory warranties - transportation of goods - packing services rendered as part of contract to transport goods from Sydney to Auckland - whether packing…
23 Oct 1992: Strang Patrick Stevedoring P/L v The Owners of the Motor Vessel Sletter (formerly the Hibiscus Trader) [1992] FCA 852
Cooper J (38 FCR 501)
ADMIRALTY - time charter - contractual arrangements - provision of stevedoring services - default under the charter party - labour ordered. UNJUST ENRICHMENT - whether received benefit - whether unjustly enriched by the attendance of the labour gangs - special conditions in the charterparty - effect of clauses - duties and obligations imposed - power to appoint agents - whether total failure of consideration. TRADE PRACTICES - representations - whether misleading or…
23 Sep 1992: The Owners of the Ship Shin Kobe Maru v Empire Shipping Company Inc. [1992] FCA 698
Davies, Lockhart & French JJ (110 ALR 463; 38 FCR 227)
CONSTITUTIONAL LAW - Admiralty and maritime jurisdiction - scope of power of the Parliament to make laws conferring original jurisdiction on the High Court in matters of Admiralty and Maritime jurisdiction under the Constitution s. 76(iii) - interpretation of s. 76(iii). SHIPPING AND NAVIGATION - Action in rem - when proprietary maritime claim will elate to possession or title to or ownership in a ship - claim between co-owners - sufficiency of equitable interest to found a…
6 Aug 1992: Port of Geelong Authority v The Ship Bass Reefer [1992] FCA 554
Foster J. (37 FCR 374; 109 ALR 505)
SHIPPING AND NAVIGATION - Admiralty Jurisdiction, Law and Practice - Admiralty Act 1988 (Cth) - ship arrested pursuant to writ in rem - whether claim for rent owing under a lease agreement relating to land used for handling cargo for the ship a maritime claim under the Act - whether licence fees under a licence agreement for priority berthing of the ship a maritime claim under the Act - which party bears onus to establish that there is a strong argument for the opinion that…
5 Jun 1992: Alstergren, I.M. v The Owners of the ship Territory Pearl [1992] FCA 367
Heerey J. (112 ALR 133; 36 FCR 186)
28 May 1992: Survival & Industrial Equipment (Newcastle) Pty Ltd (Trading as S.I.E. Liferaft Servicing) v The owners of the vessel Alley Cat [1992] FCA 319
Sheppard J. (36 FCR 129)
11 Mar 1992: Victrawl Pty Ltd v OTC Ltd & Ors [1992] FCA 322
Sheppard J.
9 Jan 1992: Alexander Watt & Co Pty Ltd v The Ship Oceania Trader and Its Charterers Oceania Shipping Corporation Ltd [1992] FCA 8
Drummond J.
28 Oct 1991: Empire Shipping Company Inc. v. The owners of the ship Shin Kobe Maru [1991] FCA 641
Gummow J. (104 ALR 489; 32 FCR 78)
19 Sep 1991: BHP Trading Asia Ltd & Ors v. Oceaname Shipping Ltd & Anor [1991] FCA 568
Morling J.
6 Aug 1991: Sunshine Fisheries v Lambert-Bain Pty Ltd & Anor [1991] FCA 498
Davies, Spender & Lee Jj. ((1991) 6 ANZ Insurance Cases 61-069)