Federal Court of Australia

Ocean Network Express Pte Ltd v The Ship ‘Blue Fin’ [2026] FCA 555

ORDERS

THE COURT ORDERS THAT:

1.    The plaintiffs have leave to serve the writ on any of the defendant ships until and including 18 June 2027.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

FEUTRILL J:

1    These proceedings concern a writ issued under the Admiralty Act 1988 (Cth) and the Admiralty Rules 1988 (Cth) by the plaintiffs, who are foreign companies, against three ships. The first, the Blue Fin, the second, the Yellow Fin, the third, the White Fin and the fourth, the Red Fin, are surrogates for the Blue Fin. The writ has not been served on any of the defendant ships as at the date of this decision.

2    On 24 April 2026 the plaintiffs applied, by way of an interlocutory application, for an order that they have leave to serve the writ on any of the defendant ships until and including 18 June 2027. In support of the order sought on the application, the plaintiffs filed affidavits of Mr Khaira, affirmed 23 April 2026 and 28 April 2026 which were read in support of the application.

3    The writ that was issued is a writ in rem against the ships, seeking various declarations concerning a collision or contact between the first defendant ship (although the writ refers to the first plaintiff) and the vessel Tamanrasset at the port of Oran, Algeria, on 21 June 2023, which is alleged was the fault of the first defendant vessel. Damages are sought in a sum to be determined in respect of any liability of the plaintiffs towards the owners of cargo that was allegedly damaged in the collision and interest, amongst other things.

4    Rule 20 of the Admiralty Rules provides that the initiating process in a proceeding commenced as an action in rem is effective for service for a period of 12 months after it is issued and may not be served after that time without leave of the Court. In accordance with the terms of that rule, the Court has the discretion to grant the plaintiffs leave to extend the time within which the writ is effective for service.

5    Although expressed in general terms, like any discretionary power conferred upon the Court, it must be exercised judicially. Further, the exercise of the discretion is guided by general principles of this Court, and other courts, exercising like powers and discretions, to extend time for service of writs or a new writ issued in proceedings in rem in admiralty. These principles indicate that the plaintiffs should demonstrate ‘good reason’ for the grant of leave. Further, the Court may take into account the balance of hardship between the plaintiffs if leave were refused and the defendant ships if leave were granted: Pan United Shipyard Pte Ltd v Rodolfo Mata [2004] FCA 117 at [11] (Lee J); Kleinwort Benson Ltd v Barbrak Ltd (The Myrto No 3) [1987] AC 597 at 615, 616, 619, 622, 623. The balance of hardship is most relevant where a limitation period has expired before the application to extend time for service of the writ is made or will or may expire in the period during which the service of the writ has been extended. Nonetheless, ultimately. the question must be determined by reference to whether the grant of leave is in the interest of the administration of justice.

6    It is also relevant that powers to extend the grant of leave are to be exercised in accordance with the overarching purpose of the civil practice and procedure provisions described in s 37M of the Federal Court of Australia Act 1976 (Cth), namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

7    In this case, there is evidence that the insurers of the cargo have brought claims on behalf of the cargo owners against, amongst others, the second plaintiff, in Algeria, in respect of loss or damage to the cargo. That claim was initially dismissed but is now the subject of an appeal in that jurisdiction. Since the writ was issued, none of the defendant ships has called at an Australian port or been in Australian waters. In accordance with s 22 of the Admiralty Act, the ships cannot be served in an action in rem unless they are in Australian waters. Therefore, there is an appropriate and proper explanation for the plaintiffs not having served the writ in the period between June 2025 and April 2026.

8    There is also evidence that each of the defendant ships has entered Australian or New Zealand waters at various times within the last 12 years, the Blue Fin most recently in June 2021 and the other vessels in November 2015, February 2016 and December 2020. I accept, based on that evidence, there is a more than speculative chance that one or more of the defendant ships will enter Australian waters within the next 12 months. I also accept the plaintiffs have taken reasonable steps to be informed of the whereabouts of the defendant ships and none has been available for service within Australian waters.

9    The plaintiffs submit that pursuant to s 37(1)(b) of the Admiralty Act, claims in rem on a maritime claim may only be brought within three years after the cause of action arose. Where the claim involves a foreign tort, the issue of when a cause of action arises is a substantive question to be determined according to the lex loci delicti, which in this case is likely to be the law of Algeria. Whatever may be the position according to that law, it is at least possible that the cause of action arose at the time of the contact incident on 21 June 2023 and that an action in rem brought in this Court may be time-barred after 20 June 2026.

10    It is, therefore, on that submission, possible, if not likely, that if the time for service of the writ be extended for 12 months, within that 12-month period the applicable limitation period with respect to the plaintiffs' claims against the defendant ships may expire. To that extent, the defendant ships may be deprived of a limitation defence in circumstances where the writ would otherwise be unable to be served, and, in order for the plaintiffs to pursue their claims against the defendants, it would be necessary for them to commence fresh proceedings.

11    On the other hand, there are a number of potential hardships or prejudice to the plaintiffs if required, in effect, to discontinue these proceedings and reissue the writ prior to the expiry of any limitation period. These, of course, are not limited to the costs associated with doing so, which would be thrown away as a consequence. Amongst other things, the plaintiffs would lose the benefit of any priority arising from issuing a writ against the defendant ships in an action in rem. In my view, taking into account additionally the overarching purpose of the civil practice and procedure provisions in s 37M, that would be an undesirable outcome and an unnecessary waste of the plaintiffs' costs, and it would result in delay, increased expense and increased inefficiency contrary to the overarching purpose of s 37M of the Federal Court Act.

12    In these circumstances, I also accept that, as matters stand, there will be minimal hardship to the defendant ships. Further, as this is an application made ex parte, if the defendant ships are served within any extended period and enter an appearance, it will be open to them or their owners to apply to have any order extending the time for service set aside if they are able to show cause for so doing as a consequence of the application being made ex parte.

13    For all the foregoing reasons, there will be an order in terms of the interlocutory application, and the period for service of the writ will be extended until and including 18 June 2027. As the plaintiff applicants have sought there be no order as to costs, that will be the order that will be made on the application.

Associate:

Dated:    5 May 2026