Banwell v The Ship “The Sydney Sunset” - [2001] FCA 210

FEDERAL COURT OF AUSTRALIA
Banwell v The Ship “The Sydney Sunset” [2001] FCA 210
MARITIME LAW – application for the release of a vessel from arrest – whether monies owed constituted a “general maritime claim” – where some of the monies were paid by the plaintiff in relation to slippage, renovations and repairs, registration and insurance of the vessel – where some monies paid by the plaintiff were in relation to the purchase of the vessel
MARITIME LAW - application for the release of a vessel from arrest – whether the debtor was the demise charter of the vessel – where the vessel was being hired out for short cruises by the debtor pending its sale.
Admiralty Act 1988 ss 4(3)(m), (n), (o) & (s), s 18
Port of Geelong Authority v The “Bass Reefer” (1992) 37 FCR 374 cited
Opal Maritime Agencies Pty Ltd v The Proceed of Sale of the Vessel M V “Skulptor Konenkov” (2000) 98 FCR 519 applied
Baumvoll Manufactur von Scheibler v Gilchrest & Co [1892] 1 QB 253 cited
Scrutton On Charterparties 20th ed 1996, Art 28
NEVILLE ROSS BANWELL v
THE SHIP “THE SYDNEY SUNSET”
N 98 OF 2001
TAMBERLIN J
SYDNEY
9 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

IN ADMIRALTY
N98 OF 2001

BETWEEN:

NEVILLE ROSS BANWELL
PLAINTIFF/RESPONDENT

AND:

THE SHIP "THE SYDNEY SUNSET"
(formerly “THE LUBS")
DEFENDANT/APPLICANT

JUDGE:

TAMBERLIN J

DATE:

9 MARCH 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This application filed by John Wolf (also known as John Veinalds) seeks release of the “The Sydney Sunset” (“the vessel”) which was arrested on 2 February 2001 on the application of the plaintiff. The plaintiff in his affidavit in support of the arrest says that his claim against the vessel is in respect of moneys advanced for the purchase of goods, materials, or services supplied to the vessel for its operation and maintenance together with a claim in respect of the alteration, repair or equipping of the vessel. A writ filed by the plaintiff on 2 February 2001 claims “damages” in the sum of $182,529.67. That writ also states that the “relevant person” for the purpose of the Admiralty Act 1988 (“the Act”) is Mr Wolf.
The application for release and damages for wrongful arrest was filed on 14 February and it raises two grounds. The first is that the claims made by the plaintiff are not within the description of a “general maritime claim”. Secondly, it is said that the “relevant person” named in the writ, Mr Wolf, is not and never was the owner of the vessel.
On 8 February 2001 Mr Wolf entered an appearance in which his relationship to the vessel is stated to be that of “ex-purchaser and agent of the vessel”. An appearance was also filed by Brian Doran in which he is described as the “owner of the vessel.” In the course of the hearing it was common ground that Mr Doran was the owner of the vessel…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 210
Decision Date: 9 MARCH 2001

CaseChat Overview and Summary

Banwell, the plaintiff, brought a claim against The Ship “The Sydney Sunset” in an Australian court, seeking to establish a maritime lien over the vessel for unpaid debts allegedly owed by Mr Wolf. The defendant argued that Mr Wolf had no ownership or charter rights over the vessel, and thus no maritime lien could attach. The case involved interpreting an agreement to operate the vessel and determining whether Mr Wolf had any rights over the vessel as either an owner or demise charterer.

The primary legal issue was whether Mr Wolf had a sufficient interest in the vessel to support the plaintiff's claim for a maritime lien. This hinged on interpreting the nature of the relationship between Mr Wolf and Mr Doran, the apparent owner of the vessel. The court had to determine whether Mr Wolf was merely a caretaker, an agent, or if he had a more substantive interest such as ownership or charter rights.

The court concluded that Mr Wolf did not possess any ownership or charter rights over the vessel. The notification of repossession by Mr Doran, the terms of the Agreement to Operate, and the reference to Mr Wolf as an agent all pointed to a custodial or caretaker role rather than a charterer or owner. The court found that Mr Wolf was acting as an agent to facilitate the sale of the vessel, earning a commission, and thus had no interest in the vessel that would allow a maritime lien to attach.

The court ordered that the vessel be released from arrest, subject to the payment of the marshal's costs and expenses. This outcome was based on the finding that Mr Wolf did not have the requisite interest in the vessel to support the maritime lien claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TAMBERLIN J

In considering the Agreement to Operate it is important to bear in mind that Mr Doran had formally notified his intention to repossess the vessel only six days earlier as a consequence of non-payment on the part of Mr Wolf. Against this background it is unlikely that Mr Doran intended to enter into a demise charter conferring possession and relinquishing all control of the vessel in favour of Mr Wolf. It may have been possible before the repossession by Mr Doran, and in the absence of the Agreement to Operate and the proposed sale, to have formed a conclusion that there was some form of demise charter, although clearly Mr Wolf considered himself to be the owner of the vessel in that period. However, the subsequent notification of an intention to repossess and the requirement by Mr Doran that the vessel be sold as soon as reasonably possible supports the conclusion that there was no intention on the part of Mr Doran to relinquish control of the vessel entirely or to confer possession, by way of demise charter, on Mr Wolf. Mr Wolf was really acting as a caretaker pending sale with a right to earn some joint income with Mr Doran. Further support for this conclusion can be derived from the Agreement to Operate which refers to Mr Wolf as acting as “agent” for Mr Doran which would mean that the actions and status of Mr Wolf would effectively be of his principal, Mr Doran. The purpose of the arrangement was to earn income rather than leave the vessel idle in the period during which Mr Wolf was to arrange sale. Reference to the word “commission” in relation to Mr Doran is consistent with an agency agreement. The requirements as to keeping the vessel in good order and registered, and of Mr Wolf being responsible while the vessel was in his care, tends to support the view that the arrangement was one of a custodial or care-taking nature rather than a charter in favour of Mr Wolf. Under the Agreement to Operate, as I read it, the charters were to be made for Mr Doran.CONCLUSION While part of the overall claims made by the plaintiff in this proceeding could be described as general maritime claims within s 4(3) of the Act to an amount in the order of $31,402, I do not consider that when the proceedings were commenced the requirements of s 18 of the Act were satisfied Mr Wolf had any interest in the vessel either as owner or demise charterer. Accordingly, subject to payment of the marshal’s costs and expenses the vessel should be released from arrest.

Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

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BETWEEN:	NEVILLE ROSS BANWELL PLAINTIFF/RESPONDENT
AND:	THE SHIP "THE SYDNEY SUNSET" (formerly “THE LUBS") DEFENDANT/APPLICANT

JUDGE:	TAMBERLIN J
DATE:	9 MARCH 2001
PLACE:	SYDNEY