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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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GENERAL DIVISION |
) No. NG 311 of 1997 |
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IN ADMIRALTY |
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BETWEEN: |
LLOYD WERFT BREMERHAVEN GmbH Plaintiff
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AND: |
THE OWNERS OF THE SHIP "ZOYA KOSMODEMYANSKAYA" AS SURROGATE FOR THE SHIPS “TARAS SHEVCHENKO”, “DELPHIN” (PREVIOUSLY “KAZAKHSTAN II” PREVIOUSLY “BYELORUSSIYA”) AND “KAZAKHSTAN” Defendant
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CORAM: |
TAMBERLIN J |
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PLACE: |
SYDNEY |
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DATED: |
16 MAY 1997 |
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MINUTE OF ORDERS
The Court ordered:
1.The vessel be released subject to satisfactory arrangements being made with the Admiralty Marshal (“the Marshal”) for the payment of all the fees and expenses of the Marshal.
2.The
Marshal is entitled to a cash payment sufficient to secure the fees and
expenses incurred and those which the Marshal reasonably anticipates are likely
to be incurred.
3.No
order be made as to the costs of the adjournment application.
4.The plaintiff pay the costs of Tor Shipping Limited of the application for release of the vessel.
5.The writ for arrest be set aside.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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IN ADMIRALTY |
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TAMBERLIN J:
In this matter I have found that the vessel, the "Zoya Kosmodemyanskaya", was arrested without jurisdiction. Tor Shipping Limited ("Tor"), the demise charterer, filed an application on 30 April 1997 seeking release of the vessel. This application was made without giving the undertaking required by the Admiralty Rules.
Rule 52(1) provides:
"A party to a proceeding may apply to the court in accordance with Form 19 for the release of a ship or other property that is under arrest in the proceeding."
Form 19 includes the following undertaking:
"I undertake to pay the fees and expenses of the Marshal in connection with the custody of the ship/property while under arrest."
This undertaking was not included in the application for release.
The Admiralty Marshal ("the Marshal") has appeared before me in these proceedings. The Marshal has stated that he is not satisfied with the arrangements that have been made for the payment of the fees and expenses of the Marshal which have been, and he anticipates are likely to be, incurred in relation to the custody of the vessel while under arrest. Rule 53 of the Admiralty Rules provides that the Marshal may refuse to release a vessel from arrest unless satisfactory arrangements have been made for the payment of the fees and expenses of the Marshal.
In my view, the appropriate order to make in this case is that the vessel be released but subject to satisfactory arrangements being made with the Marshal for the payment of all the fees and expenses of the Marshal as required by r 53. I think the Marshal is entitled to seek a cash payment sufficient to cover the fees and expenses which have been incurred and those which he reasonably anticipates are likely to be incurred as a result of the vessel having been in custody while under arrest. That is the order I propose to make.
The vessel shall be released subject to satisfactory arrangements being made with the Marshal for the payment of the fees and expenses of the Marshal. It seems to me, having heard the debate and discussion between the parties, that the only satisfactory arrangement which can be made in the present circumstances is for a payment in cash to be made to secure the Marshal’s fees and expenses.
In relation to the question of costs I shall deal with the adjournment application first. The adjournment application was sought by the plaintiff in order to collate further evidence. In view of the urgency with which the matter came on and the circumstances as to the imperfect state of the evidence, to which I have referred in the principal judgment, I think it was quite a reasonable application to make. On the other hand, there is the consideration that before the proceedings were instituted there should have been, in my view, a more thorough and careful search of the Lloyd’s Register than was done in the present case. Accordingly, so far as the adjournment application is concerned, I make no order as to costs.
In relation to the release application it has been suggested by the plaintiff that there should be no award as to costs because the case sought to be made out by Tor was changed. The plaintiff claims that Tor initially alleged that the Ukrainian Shipping Company was the owner of the vessel and then subsequently changed the case, so it is said, to the State of Ukraine or the Ukrainian Shipping Company being the owner. However, in my view, on the authorities the primary burden of proving jurisdiction lies with the plaintiff. The plaintiff in the present case failed to satisfy that burden. Proceedings were instituted without any jurisdiction. Accordingly, I think Tor ought to receive its costs.
In addition, the plaintiff relies on the fact that the issue of non-disclosure was resolved favourably to the plaintiff. It is submitted that I should either not make any award as to the costs of the release application as a whole or make an award in relation to the non-disclosure issue in favour of the plaintiff and off-set that in some way against the principal award.
I do not think it is appropriate to sever the issues in this case. The non‑disclosure issue did take a small amount of time but it was by far the secondary issue in the proceedings. Further, the error by the plaintiff, so far as the record and the currency of the Lloyd’s Register entry was concerned, is an important factor to take into consideration in relation to the non-disclosure issue. Accordingly, I do not think there is any substance in the submission that this issue should determine the situation as to the costs of the release application.
Tor submits that there should be an award of indemnity costs in its favour. In my view there is no justification for an award of indemnity costs in this case, although, as it turned out, the case presented on behalf of the plaintiff was, in my view, far from strong from an evidentiary point of view.
Those are the orders that I make in relation to costs.
Finally, Tor submits that the writ for arrest should be set aside. It seems to me that the writ was taken out without there being any jurisdiction under the Admiralty Act 1988 (Cth) for this to be done. Accordingly it is appropriate in the interests of completely adjudicating on the issues between the parties, for the reasons which I have given in the principal judgment, that the writ be set aside. Accordingly, I set aside the writ taken out for the arrest of the vessel.
I certify that this and the
preceding four (4) pages are
a true copy of the Reasons for
Judgment herein of his Honour
Justice Tamberlin.
Associate:
Date: 26 May 1997
Counsel for Plaintiff: Mr A W Street SC
Mr B W Larkin
Solicitor for Plaintiff: Phillips Fox
Counsel for Defendant: Dr A S Bell
Solicitor for Defendant: Norton Smith & Co
Date of Hearing: 15-16 May 1997
Date Judgment Delivered: 16 May 1997
Date of Publication of Reasons: 23 May 1997
