FEDERAL COURT OF AUSTRALIA

 

Comandate Marine Corp v The Ship “Boomerang I” [2006] FCA 859

 


Comandate Marine Corp V The Ship “Boomerang I”

NSD 1223 OF 2006

 

ALLSOP J

24 JUNE 2006

SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

 

NEW SOUTH WALES DISTRICT REGISTRY

 NSD 1223 OF 2006

 

BETWEEN:

Commandate Marine Corp

PLAINTIFF

 

AND:

The Ship “Boomerang I”

DEFENDANT

 

JUDGE:

ALLSOP J

DATE OF ORDER:

24 JUNE 2006

WHERE MADE:

SYDNEY

 

 

THE COURT ORDERS THAT:

 

            1.  The ship Boomerang I under arrest in Freemantle be permitted to:

(a)    load and sail without deviation unless weather, seas or other lawful excuse require otherwise to Port Jackson or Port Botany leaving Sunday 25 June.

(b)   discharge at Port Jackson or Port Botany any cargo due for discharge at such port, and

(c)    take any other steps to load or deal with cargo at that port.


2.      The order in 1 is subject to further order.

3.      The matter stand over to a date and time to be fixed.


THE COURT NOTES the undertaking of Pan Australia Shipping Pty Limited to the Court through its solicitor to pay all Marshal’s fees and expenses up to the time of arrival in Sydney and to maintain the vessel’s hull, machinery and P & I insurance until it arrives in Sydney.


The Court’s intention, if it becomes necessary, is to allocate responsibility between the parties who have given undertakings as to Marshal’s fees and expenses in due course.  Argument can take place between parties as to proper allocation of responsibility.


4.      The permission in 1 for Boomerang I to sail is subject to and conditional upon Pan Australia Shipping Pty Limited or the defendant or persons on their behalf before sailing paying all port and harbour dues as an ordinary operational cost or otherwise securing them or making arrangements for their payment. For the avoidance of doubt, before Boomerang I is permitted to sail, the Marshal is to be satisfied that all port and harbour dues of any kind have been paid by Pan Australia Shipping Pty Limited or the defendant or it or they has or have made arrangements in respect thereof as ordinary operational costs and that the Marshal has no responsibility or liability to the port or harbour authorities therefor.


5.      The Court notes the undertaking of Pan Australia Shipping Pty Limited through its solicitor to take no point in the proceeding that the crew were at any stage employed by the Marshal.

 

 

 

 

 

 

 

 

 

 

 

 

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 1223 OF 2006

 

BETWEEN:

Commandate Marine Corp

PLAINTIFF

 

AND:

The Ship “Boomerang I”

DEFENDANT

 

 

JUDGE:

ALLSOP J

DATE:

24 JUNE 2006

PLACE:

SYDNEY


REASONS FOR JUDGMENT


1                     In the early hours of this morning the ship Boomerang I was arrested in Freemantle by a Marshal of the Court at the instance of Comandate Marine Corp, the plaintiff in a writ in rem filed yesterday afternoon.  There is a typographical error in the writ.  No party has made a point about this and I give leave amend that error, and I amend the original copy of the Writ to change 17 to 19 on the particulars of the claim. 

2                     Boomerang I has been arrested in the capacity of a sister ship or surrogate ship, for security for the plaintiff’s claim for breach of the time charter between the plaintiff and Pan Australia Shipping Pty Limited (‘Pan’) in respect of the ship Comandate, also referred to from time to time in Australia as Boomerang II.  Pan runs an east-west coastal service and Boomerang I is due to sail tomorrow lunchtime for Sydney, either Port Jackson or Port Botany, where she is due to arrive on Thursday or Friday 28 or 29 June 2006.

3                     The defendant has moved the Court urgently by a process which I grant leave to file in court for relief including the setting aside of the arrest, setting aside of the writ and release from arrest of the vessel.

4                     The affidavit in support of the arrest sworn by Mr Wilson of Norton White says in paragraph [16] that Boomerang I is presently the subject of a demise or bareboat charter to Pan.  There is inadequate final evidence before me of the terms of that charter.  Ms Wilmshurst who acts for Pan has sworn on 24 June 2006 in inadmissible form on a final basis that the ship is demise or bareboat chartered.  If both parties are right it probably matters little what the precise terms of that charter are.

5                     Subject to the parties considering the matter more fully it appears that there is one issue as the arrest and its legitimacy and that issue is whether the word “owner” in s 19(b) of the Admiralty Act 1988 encompasses demise charterer or bareboat charterer.  In the 1970s there was a debate in England about this issue in the then existing English legislation which did not have a demise charterer provision such as that which now exists in s 18 of the Admiralty Act.

6                     The various authorities were discussed by Beaumont J at first instance in The ‘Maria Luisa’ 130 FCR 1 at 7 and following. His Honour noted that there was existing Australian authority in Tasmania of Slicer J in The ‘Pyungwha 36’ (unreported, Supreme Court of Tasmania, 22/10/96) to the effect that Brandon J (as he then was) in The ‘Andrea Ursula’ [1973] QB 265 was correct and a demise charterer is a species of owner for the purposes of the Admiralty Act

7                     Beaumont J followed Goff J in I Congreso del Partido [1978] QB 500 and Sheen J in The ‘Father Thames’ [1979] 2 Lloyd’s Rep 364 and refused to follow Slicer J in the ‘Pyunwha 36.’  It should be noted also that there is authority from the Singapore Court of Appeal in The ‘Permina 3001’ [1979] 1 Lloyd’s Rep 327 which expressed a view similar to Sheen J and Goff J, as did Courts in Hong Kong in The ‘Union Darwin’ [1983] HKLR 248, Malaysia in The ‘Loon Chong’ (1982) 1 MLJ 212 and in New Zealand in Colombo Drydocks Ltd v The Ship ‘Om Al-Quora’ [1990] 1 NZLR 608. 

8                     Now is not the time, at 8:10 pm on Saturday night to decide this question. It is an important question that does not, other than Beaumont J’s clear expression of view in The ‘Maria Luisa’, have Full Court authority dealing with it.  In all the circumstances, given that Boomerang I is sailing for Sydney I propose not to make the orders sought in the notice of motion but, upon an undertaking to be given to the court by contacting in the first instance Deputy District Registrar Hedge before 10:00 am tomorrow morning that the vessel is sailing directly for Port Jackson or Port Botany and an undertaking to the Court to pay all Marshal’s expenses, I propose to give permission for the ship to load, sail to Sydney and until further order undertake any discharge or loading of cargo in Sydney. 

9                     In the meantime given that the ship will take some four to five days to reach Sydney I propose to speak to the Chief Justice to ascertain whether his view is that it is practicable to convene a Full Court to deal with the matter.  The Court, though a Full Court, would be exercising original jurisdiction. Nevertheless as a Full Court its view on the matter would carry the weight of three, or two, Judges.

10                  A debate occurred as to whether I should require an undertaking as to damages from the defendant.  The only likely circumstances in which this would be needed were if the ship foundered or sank or was otherwise seriously damaged on the way to Sydney. Ms Wilmshurst has indicated that it is a new vessel and it is unlikely that she has any problems of the kind publicised in the press as the condition of Boomerang II.

11                  The other matter that I take into account is the existence of Beaumont J’s view, whilst subject to argument, as a powerful reason for me to find in favour of the defendant by way of comity.  None of this is said in criticism of any party but is simply taken into account in coming to the view that no undertaking as to damages is necessary.

12                  Therefore I make the following orders:

1.      The ship Boomerang I under arrest in Freemantle be permitted to:

(a)    load and sail without deviation unless weather, seas or other lawful excuse require otherwise to Port Jackson or Port Botany leaving Sunday 25 June.

(b)   discharge at Port Jackson or Port Botany any cargo due for discharge at such port, and

(c)    take any other steps to load or deal with cargo at that port.

2.      The order in 1 is subject to further order.

3.      The matter stand over to a date and time to be fixed.


THE COURT NOTES the undertaking of Pan Australia Shipping Pty Limited to the Court through its solicitor to pay all Marshal’s fees and expenses up to the time of arrival in Sydney and to maintain the vessel’s hull, machinery and P & I insurance until it arrives in Sydney.


The Court’s intention, if it becomes necessary, is to allocate responsibility between the parties who have given undertakings as to Marshal’s fees and expenses in due course.  Argument can take place between parties as to proper allocation of responsibility.


4.      The permission in 1 for Boomerang I to sail is subject to and conditional upon Pan Australia Shipping  Pty Limited or the defendant or persons on their behalf before sailing paying all port and harbour dues as an ordinary operational cost or otherwise securing them or making arrangements for their payment. For the avoidance of doubt, before Boomerang I is permitted to sail, the Marshal is to be satisfied that all port and harbour dues of any kind have been paid by Pan Australia Shipping Pty Limited or the defendant or it or they has or have made arrangements in respect thereof as ordinary operational costs and that the Marshal has no responsibility or liability to the port or harbour authorities therefor.


5.      The Court notes the undertaking of Pan Australia Shipping Pty Limited through its solicitor to take no point in the proceeding that the crew were at any stage employed by the Marshal.


I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.


Associate:


Dated:              11 July 2006



Counsel for the Plaintiff:

Mr A W Street SC



Solicitor for the Plaintiff:

Norton White



Counsel for Pan Australia:

Dr A S Bell



Solicitor for Pan Australia:

Ebsworth & Ebsworth



Date of Hearing:

24 June 2006



Date of Judgment:

24 June 2006