FEDERAL COURT OF AUSTRALIA

 

United Salvage Pty Limited v Oltramare Shipping Co SA [2004] FCA 1751


UNITED SALVAGE PTY LTD & ORS v OLTRAMARE SHIPPING CO SA

NSD 246 of 2002

 

UNITED SALVAGE PTY LTD & ORS v LOUIS DREYFUS ARMATEURS SNC & ORS

NSD 430 of 2004

 

ALLSOP J

10 DECEMBER 2004

SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

 

NEW SOUTH WALES DISTRICT REGISTRY

NSD 246 of 2002

 

BETWEEN:

UNITED SALVAGE PTY LTD

FIRST PLAINTIFF

 

GLADSTONE TUG SERVICES PTY LTD

SECOND PLAINTIFF

 

QUEENSLAND TUG & SALVAGE CO PTY LIMITED

THIRD PLAINTIFF

 

AND:

OLTRAMARE SHIPPING CO SA

DEFENDANT

 

 

NSD 430 of 2002

BETWEEN:

UNITED SALVAGE PTY LTD

FIRST PLAINTIFF

 

GLADSTONE TUG SERVICES PTY LTD

SECOND PLAINTIFF

 

QUEENSLAND TUG & SALVAGE CO PTY LIMITED

THIRD PLAINTIFF

 

AND:

LOUIS DREYFUS ARMATEURS SNC

FIRST DEFENDANT

 

LOUIS DREYFUS ARMATEURS SAS

SECOND DEFENDANT

 

SOCIÉTÉ ANONYME LOUIS DREYFUS et COMPAGNIE

THIRD DEFENDANT

 

DATE OF ORDER:

10 DECEMBER 2004

WHERE MADE:

SYDNEY

 

 

THE COURT ORDERS THAT:

 

1.          The plaintiffs file and serve all their evidence by 31 January 2005.

2.          Any further evidence by the plaintiffs be filed with leave, pursuant to a notice of motion supported by affidavit evidence.

3.          The defendants file and serve all its lay and hydrography evidence by 7 March 2005.

4.          The matter be stood over for directions on 11 March 2005 at 9.30 am at which time the parties need to be in a position to explain with precision any factual disputes as to the events and day in question and the defendant will as far as possible need to be in a position to identify the nature of the disputes raised by the naval architect evidence and hydrography evidence.

5.         The plaintiffs inform the defendants by letter who their naval architect expert is, his or her qualifications and experience and the subject matters with which he or she is dealing.

6.         The plaintiffs pay the defendants’ costs of today’s directions hearing.


Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

 

NEW SOUTH WALES DISTRICT REGISTRY

NSD 246 of 2002

 

BETWEEN:

UNITED SALVAGE PTY LTD

FIRST PLAINTIFF

 

GLADSTONE TUG SERVICES PTY LTD

SECOND PLAINTIFF

 

QUEENSLAND TUG & SALVAGE CO PTY LIMITED

THIRD PLAINTIFF

 

AND:

OLTRAMARE SHIPPING CO SA

DEFENDANT

 

 

NSD 430 of 2002

BETWEEN:

UNITED SALVAGE PTY LTD

FIRST PLAINTIFF

 

GLADSTONE TUG SERVICES PTY LTD

SECOND PLAINTIFF

 

QUEENSLAND TUG & SALVAGE CO PTY LIMITED

THIRD PLAINTIFF

 

AND:

LOUIS DREYFUS ARMATEURS SNC

FIRST DEFENDANT

 

LOUIS DREYFUS ARMATEURS SAS

SECOND DEFENDANT

 

SOCIÉTÉ ANONYME LOUIS DREYFUS et COMPAGNIE

THIRD DEFENDANT

 

DATE OF ORDER:

10 DECEMBER 2004

WHERE MADE:

SYDNEY



REASONS FOR JUDGMENT


1                     This matter has been in the list for some time.  There has been a practice and procedure list during the course of this year in which I have permitted the parties, because in significant part, of the experience of the practitioners involved on both sides and at all levels, a degree of latitude in how the matter is prepared, recognising that the events took place in Queensland waters off the port of Gladstone, and that the issues may raise difficult questions of both ship building and ship behaviour.

2                     Without wishing to assume any responsibility for factual findings, from my understanding of the allegations in the pleadings, the ship very lightly went aground outside the entrance to Gladstone Harbour.  The assertion is that she was in need of salvage and the plaintiffs supplied that salvage.  It is said that a number of matters could be seen to substantiate that conclusion.

3                     One of the issues is the question whether without salvage the ship would have swung across the channel and with the receding tide come aground.  The ship was fully laden with coal.  The question as to whether or not the ship may have broken her back in that event is one of the issues that will be dealt with in the case.  That involves evidence from a naval architect. 

4                     There are a number of areas of evidence in this case.  First, there is the evidence of those who manned and attended the tugs on the day in question.  Secondly, there are those on the ship who were involved in those events on the day in question.

5                     There may be factual issues as to what actually happened and what was said, if anything, between officers or crew of the ship and the tugs.  Thirdly, there is hydrography evidence of the channel, which has recently been served.  I should add that, as yet, not all the plaintiffs’ lay evidence has been served, although a large part of it has been served governed by timetables which have been in regular respects not complied with.  It is not clear to me whether the expert evidence as to the channel will be the subject of any debate, one would have assumed not.  The fourth area of evidence is as to the building and characteristics of the ship and its hull and the stresses which may have been placed upon it had the ship swung across the channel and at low tide come to rest on the floor of the channel across it, that is, across the channel.  One can identify difficult questions that may arise in relation to expert opinion as to that hypothetical event with the various stresses involved of a fully laden bulk carrier.  There may be other evidence of which I am not aware at the moment.

6                     This case will come to trial, hopefully, in 2005.  It has taken longer than one would have thought appropriate. However it is not necessarily easy to obtain the attention of working men and women in relation to legal cases.  However, the time for the finalisation of the preparation of this case has come and I have put the plaintiffs on notice of that.  The ship is entitled to have the totality of the material upon which the plaintiffs seek to rely.  In order to consider that evidence and then understand and decide what is to be put in issue.

7                     I should add that there is a highly detailed set of particulars in the originating process.  The coming Christmas break will make it difficult for people to attend to evidence to some degree. However, I think the time has come to say to the plaintiffs that they have until the end of January to file all their evidence.  If evidence is desired to be filed after 31 January, subject to hearing from Mr Cox this morning, that will be done upon motion supported by affidavit.

8                     Mr Cox has indicated that two of the pilots have indicated they will not give statements.  What must be filed and served on or before 31 January is any evidence proposed to be relied upon, lay or expert.This includes serving a statement ofthe evidence that it is anticipated will be given by any person who will not provide the signed statement or sworn affidavit.

9                     The defendants have the benefit of, as I said, a detailed body of particulars.  It should not need very long to understand what issues are in dispute in relation to the physical events of the days in question.  The defendants’ previous consent to directions providing for their lay statements about a month after the lay statements of the plaintiffs would indicate this to be the case.  The defendants are to file and serve any lay statements and any evidence as to the hydrography of the channel on or before Monday, 7 March 2005. 

10                  I stand the matter over for directions 9.30 am on Friday, 11 March 2005. On that day, I will hear from counsel as to what issues arise for contested disposition concerning the events of the day and what actually happened.  The parties can agree on a form of document between 7 March and 11 March.  I would appreciate it and I would expect that to be done, if that is possible.  Also on 11 March, I propose to call on counsel for the defendants to identify from instructions then available the nature of any likely dispute involving the naval architect evidence. This means an identification of any dispute and the character of that likely dispute and the question of whether or not it is a dispute which should be disposed of in the ordinary way with contested expert evidence or whether some other mechanism to assist in the resolution of that dispute should be identified, such as, if necessary, a court appointed expert.  If this is going to be a case about mathematics and sheer forces and the like, I think the parties should consider and the Court should consider precisely how that expert question, if it is in dispute, should be resolved.                                  

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.


Associate:


Dated:              6 January 2005


Counsel for the Plaintiffs:

Mr E G Cox



Solicitor for the Plaintiffs:

Norton White



Counsel for the Defendants:

Mr G J Nell



Solicitor for the Defendants:

Middletons Lawyers as town agents for Thynne & Maccartney



Date of Hearing:

10 December 2004



Date of Judgment:

10 December 2004