FEDERAL COURT OF AUSTRALIA
QUD 478 of 2018
Date of judgment:
Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Cth)
Federal Court Rules 2011 (Cth)
Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters 1965
International Convention on Civil Liability for Bunker Oil Pollution Damage 2001
Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea (17 September 1999)
Ho v Akai Pty Ltd (in liq)  FCAFC 159
National Practice Area:
Admiralty and Maritime
Number of paragraphs:
Solicitor for the Applicant:
Colin Biggers & Paisley
STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION (BERMUDA) LTD
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The Applicant is granted leave to serve the Originating Application dated and filed 12 July 2018, the Statement of Claim dated and filed 12 July 2018, in this matter on the First Respondent by either of the following methods:
(a) in South Korea in accordance with Article 8 of the Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea (Canberra, 17 September 1999) by a request from the Central Authority of Australia to the Central Authority of the Republic of Korea;
(b) in South Korea in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 by a request from the Central Authority of Australia to the Central Authority of the Republic of Korea; or
(c) in Panama by diplomatic channels through the Department of Foreign Affairs and Trade, addressed to Globex Shipping S.A., 53E Street, Urbanizacion Marbella, MMG Tower, Floor 16, Panama, Republic of Panama.
2. The costs of the application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The application before the Court today is for leave pursuant to r 10.43 of the Federal Court Rules 2011 (Cth) (FCR) to serve the Originating Application and Statement of Claim in this matter on the first respondent, Globex Shipping S.A. (Globex Shipping), in a foreign country.
2 It must be kept steadily in mind that any observation about the facts of this matter or the strength of the applicant’s case, is made purely on the evidence advanced by the applicant of which the respondents have not had any opportunity to reply. Such observations as are made on limited information are necessarily tentative and do not suggest any concluded view about any factual matter which might arise in the future.
3 On 12 July 2018 the Australian Maritime Safety Authority (AMSA) commenced proceedings out of this Court against Globex Shipping as the first respondent and Steamship Mutual Underwriting Association (Bermuda) Ltd (Steamship Mutual) as the second respondent. AMSA asserts that Globex Shipping was the registered owner of the vessel “MV Regina” now named “Kamenitza” which is a Maltese registered bulk carrier. Steamship Mutual was at relevant times to AMSA’s claims, the Protection and Indemnity Insurer of the vessel.
4 By the Statement of Claim AMSA seeks relief pursuant to s 11 of the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Bunker Oil Act). That Act incorporates certain articles of the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (Bunker Oil Convention). In brief, the Bunker Oil Act and the Bunker Oil Convention impose liability to pay damages to AMSA on persons responsible for bunker oil pollution in Australian waters. Article 3 of the Bunker Oil Convention imposes liability on a shipowner for pollution damage caused by bunker oil originating from its vessel and Article 7 provides that a claim for compensation for pollution damage may be brought directly against the insurer of the vessel.
5 As appears by the Statement of Claim AMSA’s allegations arise out of an oil spill which occurred around 15 and 16 July 2015 and which was noticed in the shipping channel near Cape Upstart in North Queensland. By paragraph 2 of its Statement of Claim, AMSA alleges that the oil spill occurred as a result of 90 tonnes of bunker oil escaping from the MV Regina around the identified time. AMSA further alleges the oil spill caused substantial oil pollution damage in the central Great Barrier Reef area between Cape Upstart and Hinchinbrook Island. It further claims substantial costs were incurred in combating pollution in the marine environment and subsequently cleaning up the damage caused by that pollution. It quantifies its expended costs at around $1.4 million.
Leave to serve outside Australia pursuant to r 10.43(1)
6 The service of an originating process out of this Court on persons in foreign countries is only effective if that service has complied with r 10.43(1) of the FCR. Pursuant to r 10.43(2) a party may apply to the Court for leave to serve the process on a person in a foreign country in accordance with a convention, The Hague Convention or the law of a foreign country. By r 10.43(4) the Court will only grant that leave if it is satisfied that:
(a) The Court has jurisdiction in the proceedings; and
(b) The proceeding is of a kind mentioned in r 10.42; and
(c) The party has a prima facie case for all or any of the relief claimed in the proceedings.
Federal Court’s jurisdiction
7 The Federal Court of Australia has jurisdiction in relation to certain proceedings pursuant to the provisions of the Admiralty Act 1988 (Cth). Section 9 of that Act confers jurisdiction on the Federal Court in respect of in personam actions on a maritime claim. Section 4(1) defines “maritime claim” as including “a general maritime claim” and, by s 4(3)(ba)(i) a claim under the Bunker Oil Act is a “general maritime claim”.
8 It follows that AMSA’s action in this matter is one within the jurisdiction of this Court, it being an in personam action on a maritime claim founded on the Bunker Oil Act.
Proceedings of a kind mentioned in r 10.42
9 There is no doubt the action brought by AMSA is of a kind mentioned in r 10.42 which includes proceedings seeking any relief or remedy under an Act or proceedings based on a cause of action in Australia. In this case the proceedings seek compensation against both the shipowner and its insurer pursuant to the provisions of the Bunker Oil Act. The conduct alleged as giving rise to that cause of action occurred in Australia. It follows the proceedings are of a kind mentioned in r 10.42.
Does a prima facie case exist
10 Much has been written on the nature of the requirement for a prima facie case in the context of the rules for service out of the jurisdiction. In Ho v Akai Pty Ltd (in liq)  FCAFC 159 at  the Full Court held in this context:
For present purposes it is sufficient to say that a prima facie case for relief is made out if, on the material before the Court, inferences are open which if translated into findings of fact, would support the relief claimed.
11 In reaching that conclusion their Honours relied upon the more prosaic observations of Lee J in Century Insurance (in provisional liquidation) v New Zealand Guardian Trust  FCA 376:
What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court’s processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.
12 AMSA has filed and relied upon an affidavit of Ms Taylor dated 20 September 2018. It is an extensive document outlining the investigations undertaken as to the existence of the oil spill and the identification of the vessel from which the spill originated. It also details AMSA’s expenditure incurred in the remediation processes.
13 Ms Taylor’s affidavit identifies a number of eyewitness statements from persons who witnessed the oil slick which is alleged to have developed from the spill in the period between 15 and 16 July 2015. The evidence of those witnesses identifies the location, nature and extent of the slick, its appearance and its odour. The evidence is from recreational fishermen, an inspector from Maritime Safety Queensland and an aircrew officer from the Queensland Government Air Rescue Service. The location of the slick is identified by reference to a map prepared by the Queensland Parks and Wildlife Service. In this respect there is sufficient evidence on which to reach a prima facie conclusion that an oil spill in the area from Cape Upstart did occur on 15 and 16 July 2015.
14 Ms Taylor’s affidavit further adduces a significant amount of evidence supporting, at least in a prima facie sense, a circumstantial case that the oil spill originated from the MV Regina on 15 or 16 July 2015.
15 Ms Taylor refers to the evidence of an AMSA scientific co-ordinator as to the type of oil which constituted the slick (heavy fuel oil/bunkers) and the identified window of time during which the spill occurred. The time and location of the spill is then compared to surface pictures of the vessels transiting the area in the period between 1800 hours on 15 July 2015 and 0600 hours on 16 July 2015. Those pictures indicated that the MV Regina was one of the vessels, which was in the vicinity of the oil spill. It was also identified as carrying heavy fuel oil. An analysis was undertaken by a marine engineer (Hink Kortekaas) who conducted investigations on the MV Regina when it was in port at Picton in New Zealand on 24 July 2015. That port appears to be the first port of call for the vessel after leaving Australia. Mr Kortekaas’ evidence is that he analysed the log books of the MV Regina and compared that to the amount of oil taken on board the vessel. He has calculated the expected usage of oil for the number of days of transit and considered the quantity of oil which remained in the vessel’s tanks. Based on those calculations he estimated that 90 tonnes of oil was unaccounted for. He also identified the manner in which fuel might escape from the tanks on board the MV Regina and he adduced photographic evidence of oil stains on the side of the vessel on 24 July 2015.
16 Ms Taylor also refers to evidence from an oceanographer, Dr Brian King, who has undertaken a computer simulation of the time and location of the oil spill, the volume of the spill and whether the oil was from the one source. Dr King concluded the spill occurred from a single moving source no earlier than 9.30pm on 15 July 2015 in the shipping channel offshore to Cape Upstart. He also opined the MV Regina had the position, timing and oil type to produce the observed spill. Further, Ms Taylor refers to the evidence of an analytical chemist, Dr John Leader, who has carried out an analysis of two samples of oil taken from the oil spill and compared them with six samples of oil taken from the MV Regina. He concluded the oil spill samples are from the same source and they are a positive match at a 95% confidence level to the fuel oil found in the MV Regina’s starboard number 3 tank.
17 It follows there is sufficient evidence to establish a prima facie case that the oil which was spilled in the Great Barrier Reef was oil which came from the MV Regina.
18 The affidavit of Ms Taylor further provides evidence from the Lloyd’s List of the owner and commercial operator of the MV Regina at the relevant time. That evidence shows, at a prima facie level, that Globex Shipping was the owner of the MV Regina in the relevant period and to at least 22 October 2015. It is also apparent that the entity known as Korean Shipping Company was the commercial operator during that period and the beneficial owner of the vessel was “Samsun Global Corporation”. The evidence annexed to Ms Taylor’s affidavit also discloses that the second respondent was the P&I insurer of the MV Regina from 16 June 2010 to shortly prior to 21 November 2015.
19 The damages which AMSA claim are largely the costs of combating the pollution and cleaning up. A schedule of the costs expended by AMSA has been prepared and, at a prima facie level, establishes the loss and damage which has been sustained.
Conclusion on prima facie case
20 It follows that the affidavit material is sufficient to establish the prima facie case required by r 10.43(4).
The requirements of r 10.43(3)
21 An application for leave to serve a person outside of Australia must be accompanied by an affidavit stating:
(a) The name of the foreign country where the person is or is likely to be;
(b) The proposed method of service; and
(c) That the proposed method is permitted by a convention, The Hague Convention or the law of the foreign country.
22 Ms Taylor deposes that Globex Shipping is likely to be located in the Republic of Korea and the Republic of Panama. The Lloyd’s List Report for the MV Regina identifies that Globex Shipping is a Panamanian company and the Public Registry of Panama also reveals the same information. However, there is also evidence that Globex Shipping is located in Seoul, Korea. Ms Taylor has produced a number of documents which evidence Globex Shipping’s presence in Korea for the purpose of engaging in business including minutes of its board meetings, entries on a website referred to as the “World Shipping Register” showing Globex Shipping has an address in Seoul which is the same address as the commercial operator, Korean Shipping Corporation, as is listed in the Lloyd’s List Report. The Korean Shipping Corporation website suggests that it was formerly named Samsun Logix Corporation. Further, the Lloyd’s List Report records Samsun Global Corporation as being the beneficial owner of the MV Regina and its address is also the same as the Globex Shipping address in Korea.
23 The above indicates that Globex Shipping has an address in Korea which is at the same place as the beneficial owner, Samsun Global Corporation and the commercial operator, Samsun Logix/Korean Shipping Corporation. This enables the Court to be satisfied that Globex Shipping is, or is likely to be, located in Korea and is situated there for the purposes of engaging in business.
24 The documents from the Public Registry of Panama identifying the address for Globex Shipping at an address in Panama is sufficient to satisfy the Court that it is also likely to be located in Panama.
25 The proposed method of service on Globex Shipping in Korea and Panama differ due to Australia’s different treaty arrangements with each country.
26 The proposed method of service in Korea is through a letter of request from the Central Authority of Australia to the Central Authority of the Republic of Korea pursuant to the provisions of the Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea or the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters (The Hague Convention).
27 Given the lack of treaty relationships with Panama, the proposed method of service there is that it be effected through diplomatic channels.
28 The proposed method of service in Korea is permitted both under the treaty and The Hague Convention. Under the treaty the service is effected in a manner prescribed by the law of the requested country, in this case in accordance with Korean law. Under The Hague Convention the service is to be effected through the execution officer of a competent Court serving the documents as prescribed by the Korean Supreme Court Regulations. The material contained in Ms Taylor’s affidavit as to the nature of service in Korea establishes that the proposed method of service being a request from the Central Authority of Australia to the Central Authority of the Republic of Korea is permitted both under the treaty and The Hague Convention and the service will be effected in accordance with the domestic law of the requested country: being Korea.
29 There is no such treaty with Panama and nor is it a party to The Hague Convention. That being so any service must necessarily be effected through diplomatic channels and AMSA proposes that this occur. It appears that what is intended is that the service through diplomatic channels be effected via the laws of regulating service in Panama.
30 It follows that AMSA has satisfied the requirements of r 10.43 in relation to the service of Globex Shipping in the Republic of Korea and in Panama. Accordingly leave is granted pursuant to r 10.43(2) of the Federal Court Rules to serve Globex Shipping S.A. outside of Australia in the manner identified in the affidavit of Ms Taylor of 20 September 2018.