FEDERAL COURT OF AUSTRALIA

Norddeutsche Landesbank Girozentrale v The Ship “Beluga Notification”

[2011] FCA 410

THE COURT ORDERS THAT:

1.    The “Beluga Notification” be permitted whilst under arrest as soon as practicable to forthwith with all dispatch and without deviation sail to the Port of Brisbane to be berthed and thereafter to proceed to an anchorage in the Inner Harbour.

2.    The plaintiff be permitted to place a representative to remain onboard the “Beluga Notification” for the period of the voyage from Townsville to Brisbane and movements of the ship under this order.

3.    The Marshal will, in compliance with order 1, take on board the “Beluga Notification” such persons as he shall, in his discretion, deem appropriate for the purpose of retaining the safe custody, control and preservation of the ship from leaving the anchorage off Townsville until it reaches its berth in Brisbane, a journey expected to take three days.

4.    The Marshal be at liberty to provide any necessary food or water provisions to the ship during the period it is under arrest.

5.    The Marshal be at liberty to provide any urgent bunker oils or diesel fuel to the ship for the safety of the ship whilst it is under arrest.

6.    The Marshal be at liberty at his or her discretion at any time:

(a)    To take measures to preserve the ship “Beluga Notification”, her machinery and equipment;

(b)    To move the ship “Beluga Notification” within the limits of the port where she will be brought either for her safety or to comply with the requirements of the Port Authority;

(c)    To provide reasonable communications to the MV “Beluga Notification” to enable contact with the Marshal, for other business purposes and for the safety of the crew.

7.    The Marshal is to take such steps as may be necessary to arrange for the medical attention for any member of the MV “Beluga Notification” for whom it is requested or who requests it including but not limited to arrangements for bringing such crew member to shore for that purpose.

8.    The plaintiff be responsible for efforts to reactivate the vessel’s email system prior to the departure of the ship “Beluga Notification” and before the 25th April 2011.

9.    That the plaintiff pay all costs associated with the move of the M.V. “Beluga Notification”.

10.    Liberty to apply on three hours’ notice.

11.    Costs of and incidental to the application be reserved.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The application with which this short judgment deals is supported by an affidavit sworn on 21 April 2011 by Stuart William Hetherington, who is the solicitor for the plaintiff. The plaintiff’s claim is related to a mortgage of the ship “Beluga Notification” entered into pursuant to a German loan agreement of 22 November 2010. The mortgage secured a loan to MS Dutch Katja Shipping GmbH & Co KG. An affidavit sworn by Mr Hetherington on 12 April 2011 deposed to the fact that as at 11 April 2011 the sum of Euro 11,562,104.13 was outstanding.

2    On 12 April 2011 Mr Hetherington also filed an application for a warrant for the arrest of the ship which was then arrested in the Port of Townsville.

3    On 13 April 2011 Reeves J directed that the vessel be moved from berth 8 in the Port of Townsville to a safe anchorage outside the port limits.

4    There has been no appearance on behalf of the defendant.

5    The Marshal takes the view that the vessel should not remain indefinitely at anchorage off the Port of Townsville.

6    The vessel took on marine diesel in Townsville but has limited heavy marine fuel. It is estimated that it has at present three to four days steaming capacity.

7    The Master has notified that his contract was completed on 3 April 2011 and that he does not intend to remain in command of the vessel after 29 April 2011. It seems likely that the crew also will wish to leave the vessel.

8    The Marshal has sought an order permitting the vessel to be moved to the Port of Brisbane. The plaintiff supports that application.

9    I am satisfied that the arrangements proposed are suitable and that sufficient reasons have been advanced to make orders in the terms sought. I therefore make orders in the terms handed up this morning, save that paragraph 8 will be amended as discussed and paragraph 12 will be deleted.

Associate:

Dated:    21 April 2011