FEDERAL COURT OF AUSTRALIA

Thor Shipping A/S v The Ship “Al Duhail” (No 2) [2008] FCA 2007

THOR SHIPPING A/S v THE SHIP "AL DUHAIL"

QUD 254 of 2008

DOWSETT J

8 DECEMBER 2008

BRISBANE

IN ADMIRALTY

Upon payment of the Admiralty Marshal’s costs and expenses in connection with the custody of the ship “Al Duhail”: while it was under arrest (including any costs associated with the release from arrest of the ship);

THE COURT ORDERS THAT:

1.                  the warrant for the arrest of the ship “Al Duhail” issued on 20 August 2008 be set aside;

2.                  the Marshal release the ship “Al Duhail” into the custody of the ship’s master;

3.                  the plaintiff pay the defendant’s costs of and incidental to the application, including any reserved costs and any costs and expenses paid by the defendant to the Admiralty Marshal, to be assessed;

4.                  the parties have liberty to apply; and

5.                  upon release of the ship, the action stand dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN ADMIRALTY

REASONS FOR JUDGMENT

1                     The Amir, seeks costs on an indemnity basis.  I am not inclined to make that order for two reasons.  Firstly, the possibility of indemnity costs should not be used to deter legitimate claims.  The applicant’s claim was, at its inception, legitimate.  It experienced considerable difficulty in identifying the true owner of the vessel.  It is understandable that inconsistency in some of the responses given by the Amir’s solicitors, no doubt acting on instructions, caused doubt and clouded judgment.  Secondly, on my findings, the Amir entered into the relevant charterparty through his agent and now escapes liability on it by virtue of his immunity.  I do not suggest that the Amir personally intended to bring about that result, but it has happened.

2                     In those circumstances, it would be inappropriate to order costs on an indemnity basis.  I will not do so.  I order in terms of the amended draft.  Upon payment of the Admiralty Marshal’s costs and expenses in connection with the custody of the vessel “Al Duhail” whilst it has been under arrest, including any costs associated with its release from arrest, I order that the vessel “Al Duhail” be released from the arrest executed under the arrest warrant issued on 20 August 2008.

Associate:

Dated:         22 January 2009