FEDERAL COURT OF AUSTRALIA
EMAS Offshore Pte Ltd v The Ship “APC Aussie 1”
[2009] FCA 872
ADMIRALTY –– proceeding in rem –– procedure –– Admiralty Act 1988 (Cth) s 18 –– proceeding in rem commenced against demise charter –– charterparty terminated –– owner offering security for plaintiff’s claim in writ naming demise charterer as relevant person –– purpose of proceedings in admiralty not to put pressure on person not under a liability to the plaintiff
PRACTICE AND PROCEDURE –– amendment of document –– Federal Court Rules O 13 –– interaction of the Rules with the Admiralty Rules 1988 (Cth) –– admiralty writ –– amendment to originating process to add new cause of action –– whether amendment to add claim to admiralty writ where relevant person is no longer demise charter would be appropriate in all the circumstances –– discretion to allow amendment
Admiralty Act 1988 (Cth) ss 3(2), s 4(3)(j), 4(3)(m), 18
Admiralty Rules 1988 rr 15, 17, 36
Federal Court Rules O 13 rr 2, 3A
Port of Geelong Authority v The “Bass Reefer” (1992) 37 FCR 374 followed
Tisand Pty Limited v The Owners of the Ship MV “Cape Moreton” (Ex Freya) (2005) 143 FCR 43 discussed
Shell Oil Company v The Ship “Lastrigoni” (1974) 131 CLR 1 followed
Owners of MV “Iron Amanat” v KMP Coastal Oil Pte Ltd (1999) 196 CLR 130 cited
Australian Law Reform Commission: Admiralty Jurisdiction (ALRC 33)
EMAS OFFSHORE PTE LTD v THE SHIP "APC AUSSIE 1"
NSD 625 of 2009
RARES J
31 JULY 2009
SYDNEY
|
IN THE FEDERAL COURT OF AUSTRALIA in admiralty |
|
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
|
general division |
NSD 625 of 2009 |
|
EMAS OFFSHORE PTE LTD Applicant
|
|
|
AND: |
THE SHIP "APC AUSSIE 1" Defendant
|
|
JUDGE: |
|
|
DATE OF ORDER: |
31 JULY 2009 |
|
WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The plaintiff’s motion be dismissed.
2. The plaintiff pay the defendant’s costs in relation to the motion to amend the writ made today.
3. The sum of $1,439,601.05 paid by APC Marine Pty Limited into court be placed in a bank account by the registrar and that such account be an interest bearing account if possible.
4. Leave be granted to the defendant to file in court an application for release of ship or other property dated 31 July 2009 in the form initialled by me and dated today.
5. The Ship “APC Aussie 1” be released from arrest in the proceedings.
6. The proceedings stand over to 28 August 2009 at 9:30am for directions.
7. Either party have liberty to apply on two days’ notice.
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 THE FEDERAL COURT OF AUSTRALIA in admiralty |
|
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
|
general division |
NSD 625 of 2009 |
|
BETWEEN: |
EMAS OFFSHORE PTE LTD Applicant
|
|
AND: |
THE SHIP "APC AUSSIE 1" Defendant
|
|
JUDGE: |
RARES J |
|
DATE: |
31 JULY 2009 |
|
PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
1 EMAS Offshore Pte Limited, the plaintiff, is the owner of the tug, “Lewek Kea”. It is a Singaporean corporation. On 23 June 2008 EMAS entered into a supply time 2005 time charter for offshore service, under a BIMCO time charter form to provide towage services in respect of a substantial pipe-laying barge, known as the ship “APC Aussie 1”.
The “APC Aussie 1” is Arrested
2 The barge was towed by the tug to Bass Strait and did work there before commencing a return voyage in May 2009 under tow by the tug to Singapore. The “APC Aussie 1” had been demise chartered by its owners, APC Marine Pty Limited, to T-D Joint Venture Pty Limited. There is a substantial dispute between T-D and APC Marine. While the tug was being towed back to Singapore on about 22 May 2009 the tow rope came away off the New South Wales coast. Ultimately the “APC Aussie 1” was retrieved and taken to Newcastle.
3 There, EMAS had her arrested under a writ issued on 27 June 2009. That writ of arrest was served on the barge on 28 June 2009. The writ named T-D as the relevant person and the particulars of claim alleged breach of a charterparty between EMAS, as owners, and T-D, as charterers, for the supply of towing and other operational services to the “APC Aussie 1” for its operation. It claimed that T-D was indebted to EMAS in the amounts of USD84,670 and AUD788,600 under the charterparty. The particulars also identified T-D as the demise charterer and invoked the Court’s jurisdiction under ss 18 and 4(3)(m) of the Admiralty Act 1988 (Cth). On 3 July 2009, EMAS amended the writ by varying the amounts claimed, adding a small sum to the claim in US dollars, and about AUD1,000,000. It also added a reference to a claim under s 4(3)(j) of the Act, as another basis of its claims. There are related proceedings brought between APC Marine and T-D in this Court.
4 Importantly, it is common ground that on 21 July 2009, APC Marine terminated the demise charter of its barge to T-D and re-took possession of her, subject to her remaining in the continuing custody of the Marshal. APC Marine has appeared and is now a defendant in the present proceedings. Last night it sought to pay into court AUD1,439,601.05 to secure the release of its barge from arrest. That sum is made up of what are now EMAS’ monetary claims for outstanding hire and the cost of bunkers, and includes provisions for the cost of arrest and release, anticipated costs of these proceedings, and interest for 12 months at 9%. In addition, APC Marine paid into court over $92,000 in respect of the marshal’s costs and expenses. I have been informed that EMAS has also paid the marshal about $65,000 in respect of his costs and expenses.
EMAS’ Application to Amend the Writ
5 When APC Marine sought an order for the release of the barge this morning, EMAS applied orally for leave to be granted to file a further amended writ. APC Marine opposed that leave being granted. The proposed further amended writ continues to name only T-D as the relevant person. It makes reductions in respect of its monetary claims, so as to reflect credits for the value of bunkers on the tug’s return to Singapore and some charter hire payments that had been made by T-D, the value of which is covered by the proposed payment into court of APC Marine. EMAS also sought to amend the particulars of its claim in the writ by adding the words:
“and the Plaintiff has a right of indemnity against T-D Joint Venture Pty Ltd in the amount of AUD14 million.”
The Context of the Amendment Application
6 The matter is urgent because if the amendment is not one which ought to be granted, then APC Marine is entitled to have the barge released from arrest immediately. The circumstances in which EMAS made the application to amend are as follows. Under the time charter between EMAS and T-D, cl 14(b)(ii) provided for the charterer, T-D, to give an indemnity to the owner, EMAS. The indemnity included a promise that:
“… the Charterers shall Indemnify, protect, defend and hold harmless the Owners from any and against all claims, costs, expenses, actions, proceedings, suits, demands and liabilities whatsoever arising out of or in connection with such loss, damage, liability, personal injury or death.”
7 On 30 June 2009, APC Marine filed proceedings in rem in the High Court of the Republic of Singapore against the owners, demise charterers, or other persons interested in the tug “Lewek Kea”. That writ claimed damages for loss, damage and/or expenses suffered or incurred by APC Marine arising out of damage suffered by the barge that occurred on 22 and 23 May 2009 when it had separated from the tug under tow, as well as loss and expense suffered or incurred by APC Marine in connection with or arising from that event caused by the negligence of the defendants in their allegedly negligent navigation or operation of the tug whilst it was towing the barge. Secondly, the writ claimed a declaration that APC Marine was entitled to be fully indemnified by the defendants in respect of any damages or expenses suffered by APC Marine in connection with the towage incident that I have described.
8 Earlier, on 12 June 2009, T-D’s solicitors had written to APC Marine’s solicitors claiming that T-D had incurred losses totalling $14 million as a result of APC Marine’s alleged breaches of the charterparty between them for the hire of the barge. Those losses were alleged to be as follows:
· $4 million as costs of the salvage operation in May 2009;
· $1.5 million for standby and related costs of the barge during the off-hire period;
· $1 million for standby and related costs of the tow vessel during that off-hire period;
· $750,000 for standby and related costs of the crew and personnel;
· $250,000 for port-related costs during the off-hire period;
· $500,000 for equipment, tools, consumables and third-party service costs for the manned tow; and
· a claim in the vicinity of $6 million for pre-existing defects of the barge that T-D claimed it had suffered or incurred before the commencement of the tow back to Singapore.
That letter of 12 June is the source EMAS’ application to amend the writ in these proceedings to seek indemnity from T-D or the res, the barge, in respect of $14 million.
9 Counsel for the parties agreed that the Singaporean writ was not served on EMAS or notified to it, nor did it know of its existence until 14 July 2009.
10 Next, on 21 July 2009, APC Marine terminated the charterparty for the barge, so that any interest that T-D may have had in that vessel as demise charterer ceased. Earlier, T-D had also purported to terminate that charterparty. The issues in relation to when, on, or before, 21 July 2009, that charter came to an end are the subject of proceedings that APC Marine and T-D have referred to arbitration. It suffices for present purposes to note that there is no dispute that since 21 July 2009 T-D has not had any possession or control or other relevant right to operate the “APC Aussie 1”. APC Marine retook possession of the barge on 21 July 2009, but she has remained under arrest in the custody of the marshal at Newcastle.
11 Thus, the context in which the present application to amend is made is that the only person who now has an interest in the barge is APC Marine. The application raises a number of substantive and procedural niceties. It would have been desirable for me to be able to take time to reserve my judgment and deliberate upon the issues, had that been practicable.
The Relevant Legislation
12 In s 18, the Act provides:
“18 Right to proceed in rem on demise charterer’s liabilities
Where, in relation to a maritime claim concerning a ship, a relevant person:
(a) was, when the cause of action arose, the owner or charterer, or in possession or control, of the ship; and
(b) is, when the proceeding is commenced, a demise charterer of the ship;
a proceeding on the claim may be commenced as an action in rem against the ship.”
13 Under s 3(2) of the Act, a reference to the time when a proceeding is commenced is a reference to the time when the initiating process in relation to the proceeding is filed in or issued by a court. A reference in the Act to a general maritime claim is defined by s 4(3) as being a reference to, relevantly:
“(j) a claim in respect of towage of a ship …
(m) a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance …”
14 An initiating process in a proceeding commenced as an action in rem must specify a relevant person as a defendant in relation to the maritime claim concerned: r 15(1) of the Admiralty Rules 1988. The Admiralty Rules also provide in r 17(1) that the powers of a court in relation to amendment of process and joinder of parties extend to making orders, on such terms as are just, that allow another person to be substituted for a defendant previously identified as a relevant person under r 15(2), and another ship to be substituted for a ship. And, r 36 makes provision for the service of an amended process:
“If initiating process in a proceeding commenced an action in rem has been amended, the amended process must, unless the court otherwise orders, be served on each person on whom, and on each ship or on the property on which, the initiating process was served.”
15 The form of a writ in rem is contained in form 6 to the Admiralty Rules. That form requires particulars of a claim to be given, and provides, in the footnote in respect of the particulars of claim, “give enough short particulars of the claim to identify the cause of action”.
16 The rules as to amendment in O 13 of the Federal Court Rules commence with a general liberty to parties to amend documents so as, in effect, to allow the whole of the issues between them to be litigated in the one proceeding. The writ is a “document”, not a pleading, for the purposes of the Federal Court Rules by reason of the definition of “pleading” in O 1 r 4. That provides that a pleading includes a statement of claim and cross-claim but not an application. I am satisfied that a writ is an application or in the nature of an application, for the purposes of the Federal Court Rules, and that it should be treated as such. The relevant rules of the Court in O 13 to which the parties directed attention for the purposes of this argument are, namely:
(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.
...
(7) An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law:
(a) arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; or
(b) subject to subrule (9), arises, in whole or in part, out of facts or matters that have occurred or arisen since the commencement of the proceeding.
(8) Subject to subrule (9), an amendment of a pleading may be made even if the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.
(9) Paragraph (7) (b) and subrule (8) do not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.
....
3A Date when amendment takes effect
Unless the Court otherwise orders, an amendment of a document that is made under rule 2 or 3 takes effect:
(a) if the amendment is made under paragraph 2 (7) (b), subrule 2 (8) or subrule 3 (3) — on the date when the amendment is made; and
(b) in any other case — on the date when the document was first filed.” (emphasis added)
The Parties’ Submissions
17 The application to amend is resisted by APC Marine. It claims that under s 18 of the Act the writ cannot now be amended to make a new claim that had not previously been made while T-D was, or was arguably, the demise charterer. It also argued that under O 13 rr 2 and 3A of the Federal Court Rules, if any amendment were permitted to be made to the writ, as a matter of law, or, alternatively, as a matter of discretion, it would not be allowed to date from the time the original writ was issued by the Court.
18 EMAS argued that it should be entitled to amend the writ relying principally upon O 13 r 2(1) of the rules. EMAS argued that because in the amended writ it claimed that the Court had jurisdiction under ss 18 and 4(3)(j) and (m) of the Act, it had satisfied the requirements of s 18 so as to entitle it to make the proposed amendments. This was, it asserted, because it had commenced the proceedings as an action in rem based on those maritime claims. EMAS argued that the addition of its claim for indemnity under cl 14 of the charterparty between it and T-D, was simply a particular and should be treated as such rather than as a substantively new cause of action. EMAS claimed that the amendment was, in effect, a technical elucidation of an already existing maritime claim based on its charterparty with T-D. It argued that a beneficent construction of the Federal Court Rules should be afforded it so as to enable it to expand the ambit of the security for which the arrested res, the barge, should stand available.
19 Thus, the competing arguments in the present case are whether an amendment should be made dating from the time that the writ was filed or issued on 27 June 2009, when T-D was undoubtedly the demise charterer and a relevant person, or from today, when T-D is not such a person.
The Discretion to grant leave to further amend the Writ
20 The Australian Law Reform Commission indicated that it intended that the rights of parties to proceedings to amend writs, under what became the Act, should be capable of exercise in accordance with the general powers of amendment available to Courts exercising jurisdiction in Admiralty: see Admiralty Jurisdiction ALRC 33 at [215]. This result appears to have been accepted in the Admiralty Rules to which I have referred. In particular, r 17(1) implicitly accepts that the powers of any court exercising jurisdiction under the Act in respect of amendment will be available to it, constrained, or affected only by the specific provisions within the Admiralty Rules themselves dealing with certain forms of amendment, of which the present is not one.
21 However, the general liberty to amend in the Federal Court Rules O 13 r 2(1) is made expressly subject to the succeeding provisions of that rule. Thus, O13 r 2(2) provides that all necessary amendments are to be made for the purpose of determining the real questions raised, in effect, by the proceeding. Both parties relied on O 13 r 2(7) as supporting their respective contentions that the real issues here either did, or did not, include the subject matter of the amendment.
22 EMAS argued that its cause of action was simply on a general maritime claim for towage or necessaries under ss 4(3)(j) or (m) of the Act and that its specification in its amended writ of those two heads of general maritime claim was sufficient to comprehend the proposed amendment. It argued that notwithstanding it was not aware of the Singaporean proceedings in rem until after it had amended the writ in these proceedings on 3 July, any claims that might arise under its charterparty with T-D were already comprehended in the proceedings that it had brought under the amended writ in this Court.
23 I reject that argument. I am of opinion that under O 13 r 2(7)(b) EMAS’ proposed amendment arises, in part, out of the fact that the Singaporean writ was served or notified to it subsequently to its previous amendment in these proceedings, but before the termination of its charterparty with T-D on 21 July. The proposed amendment seeks indemnity from T-D, as a relevant person based on its status as demise charterer of the barge at the time at which it is claimed T-D’s claim against APC Marine arose. That claim was the subject of T-D’s solicitor’s letter of 12 June seeking $14 million from APC Marine.
24 Where a demise charter had been terminated before the plaintiff applied to amend to an existing writ, Foster J said in Port of Geelong Authority v The “Bass Reefer” (1992) 37 FCR 374 at 389 that, as a matter of discretion, he would not allow an amendment where some items covered by the requested amendment might arguably be maritime claims but others not. He adverted to difficulties that obviously might arise if the writ were to be amended at that time after the charterer had ceased to be a relevant person. Like his Honour, I have difficulty in seeing that the grant of the requested amendment would be just or appropriate in all the circumstances: see too r 17(1) of the Admiralty Rules.
25 I am of opinion that, as a matter of my discretion, I should not allow this amendment, so as to permit this claim to be made in this way at this time. The claim is, in effect, against the property of the owner of the vessel, APC Marine, when the owner will not be able to have recourse, in the circumstances, to its current demise charterer because T-D has ceased to have any connection with the vessel.
26 In addition, although I do not express these views for the purposes of my decision, it is desirable to say that in my view s 18 of the Act does not appear to me, at the moment, to support the present claim. That section contemplates that when an action in rem is commenced the, or a, maritime claim will be connected temporally by the coincidence of possession of a demise charterer who is liable and the cause of action asserted as a, or part of a, maritime claim. I will assume for the moment that EMAS’ claim for indemnity, is a maritime claim under s 4(3)(j) or (m) in respect of towage of the barge or a claim in respect of goods, materials or services supplied to it for its operation or maintenance (i.e. necessaries). However, each of those categories is a matter about which there is a considerable amount of learning and which may or may not be correct in respect of the present proceedings.
27 It appears that s 18 requires the cause of action to which the maritime claim, the subject of the writ, relates to be itself the subject of the writ. Form 6 of the Admiralty Rules requires that particulars of the cause of action be identified in the writ. One sensible reason for that requirement may be so that the relevant person may know or be able to assess the amount of security it must provide to obtain the release of an arrested vessel. Importantly, here, EMAS’ cause of action for indemnity against T-D is likely to have arisen on about 22 May, at the time of the separation of the barge from the tug when she was being towed. Thus, if the writ had raised a general maritime claim in respect of that cause of action, s 18(a) would be satisfied because T-D, as demise charterer, was then in possession of the barge. But, the question is whether the proceeding in the writ or amended writ was on such a general maritime claim commenced in respect of that cause of action.
28 EMAS argued that s 18 does not require the contemporaneous nomination of every possible cause of action that falls within a maritime claim nominated in a writ as being the cause of action referred to throughout the section. It argued that the section used different expressions for different purposes, namely a maritime claim and a cause of action, in specifying the conditions on which a proceeding may be commenced against a vessel that is currently subject to a demise charter.
29 The two expressions are distinct. It may be that, contrary to my present very considerable reservations, s 18 only requires that the demise charterer be a relevant person when the proceeding in relation to a maritime claim was commenced, as EMAS contended in the present proceedings. However, the definitions of a general maritime claim in s 4(3)(j) and (m) commence with the words “a claim”. That signifies that what is alleged should amount to an assertion of some particular right in respect of the subject matter (towage or, loosely, necessaries). “Claim” is an ordinary English word. The Oxford Dictionary defines “claim” as including:
“a demand for something as due; an assertion of a right to something.”
30 Therefore, the assertion of a general maritime claim ordinarily will involve the plaintiff identifying, first, the relevant head of claim under s 4(3) and, secondly, the demand or right, in respect of that head, which the plaintiff asserts in the proceedings. This understanding is reinforced in the note requiring the particulars in a writ to identify the cause of action in the form of writ prescribed in form 6 under the Admiralty Rules.
31 The effect of the proposed amendment is to commence an unforeshadowed action in rem in relation to a maritime claim based on a charterparty between EMAS and T-D in which there was a contractual right to indemnity under cl 14. The time at which EMAS will be found to have commenced that claim for indemnity depends on whether, under the rules, the amendment should take effect today or relate back to the filing of the writ.
32 EMAS seeks to achieve a result in the present application that in my view, in substance, if not in form, would add a wholly new maritime claim concerning the barge at a time when T-D is no longer the demise charterer. That consequence would appear to be outside the jurisdictional requirement of s 18(b).
33 There are substantial policy reasons why the Admiralty Act provides in s 18 only limited circumstances jurisdiction to arrest vessels under a demise charter so as to hold the demise charterer liable as a relevant person. That jurisdiction should be exercised carefully, especially where the arresting party seeks to expand it after a vessel has been arrested and the identity of the relevant person or persons may have changed. The Court should be cautious to allow an amendment if there has been a change in the vessel’s ownership or the person in possession, subsequent to the arrest and the proposed amendment seeks to add to the writ, against the previous owner or previous demise charterer (as a relevant person), a substantial new and substantively different cause of action that could not be made in fresh proceedings if brought at the time of the amendment application.
34 In Tisand Pty Limited v The Owners of the Ship MV “Cape Moreton” (Ex Freya) (2005) 143 FCR 43 Ryan and Allsop JJ, particularly at 68-74 [100]-[122] engaged in a substantial and learned discussion of the importance of identifying persons with a proprietary interest as owner or demise charterer in arrest proceedings, albeit that they concentrated on the question of ownership. They said that in ss 17, 18 and 19 of the Act, the phrase “the owner” was used in a proprietary sense, reflecting the clear purpose of the Act to require that the property proposed to be arrested belong to the relevant person: The “Cape Moreton” 143 FCR at 73 [118]. Here, that approach must be adapted to the special provisions of s 18 in relation to a demise charterer being the relevant person.
35 At the time of the arrest of the “APC Aussie 1”, T-D was the relevant person, as the existing demise charterer. T-D was the contracting party with EMAS under the charter for her towage. But, at the present time T-D is not capable of being a relevant person in respect of the barge because the demise charter has been terminated and APC Marine, as owner, has retaken possession. T-D now has no proprietary interest in the barge, yet EMAS is seeking to extend the ambit of the security for which the arrest was obtained to a cause of action not previously contemplated in either the writ or the amended writ. If granted, the amendment would have the effect of greatly expanding the amount of security that EMAS could require for release of the “APC Aussie 1” before its owner would be able to exercise its proprietary rights, even though the new claim involves no direct relationship between EMAS and APC Marine. There may be occasions (that were not suggested during the hearing) in which it is possible to argue that such an amendment could be appropriate. It is for that reason that I do not wish to express a final view on this question and instead have exercised my discretion to refuse the application to amend.
36 The reality is that EMAS seeks to utilise the earlier arrest of the barge, to bring pressure on APC Marine well after EMAS became aware of the existence of APC Marine’s Singaporean writ and in circumstances in which EMAS has delayed making the application to amend until after the intervening event of APC Marine’s termination of its charterparty with T-D.
37 Proceedings in Admiralty are intended to facilitate the enforcement of liabilities and not to allow pressure to be put on a person who is himself under no liability in respect of the liabilities of others: Shell Oil Company v The Ship “Lastrigoni” (1974) 131 CLR 1 at 6 per Menzies J; cp Owners of MV “Iron Amanat” v KMP Coastal Oil Pte Ltd (1999) 196 CLR 130 at 139 [22] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ. In my opinion, it would not be right, or just, in the present circumstances to allow the amendment to be made so as to permit APC Marine’s property to stand as security for EMAS’ claim to be entitled to indemnity from T-D under cl 14 of their charterparty for any claim T-D makes against EMAS based on a liability T-D may have to APC Marine.
38 In the event that my construction of s 18, and the other provisions in the Admiralty Act and Admiralty Rules and O13 r 2(7), of the Federal Court Rules is not correct, EMAS argued that the general power to amend under O 13 r 2(1) should be exercised in its favour. It contended that I should allow the amendment to be made so as to take effect by being backdated under O 13 r 3A(b) to when the writ was first filed.
39 The amendment is not necessary for the purpose of determining any real issue in the proceedings between EMAS and APC Marine, though, had it been sought before the demise charter’s termination there would have been a real issue with T-D as a relevant person. I would not have granted such an amendment. And, even if EMAS’ argument were correct, I would exercise my power under O 13 r 3A to order otherwise, so as to require the amendment to take effect today. If that occurred, then the amendment would be futile since T-D, as the relevant person, would not be in possession of the barge and APC Marine has no liability to EMAS giving it any right to arrest the barge.
40 For all these reasons, I am not satisfied that it is just or appropriate to exercise any power or discretion I have to grant EMAS an amendment to take effect from any day other than today, when it has first been sought. And, today an amendment would be futile since it would raise a claim not justiciable against APC Marine as the only presently relevant person and the only person who has appeared. The barge, “APC Aussie 1”, is no longer in the possession of T-D. The amendment could not be brought as a new proceeding today because it would fail against APC Marine for want of jurisdiction.
41 I reject EMAS’ application to amend. That has the consequence that, because the amount that APC Marine seeks to pay into Court is sufficient to provide security for the sums properly claimable by EMAS under its existing amended writ, the barge should now be released from arrest. I will make appropriate orders for that to occur.
|
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. |
Associate: Dated: 14 August 2009
|
Counsel for the Applicant: |
B Nolan |
|
Solicitor for the Applicant: |
HWL Ebsworth |
|
|
|
|
Counsel for the Defendant: |
G J Nell SC, M N C Harvey |
|
Solicitor for the Defendant: |
Minter Ellison |
|
Date of Hearing: |
31 July 2009 |
|
Date of Judgment: |
31 July 2009 |
