Bergvall and ASP Ship Management Pty Limited
[2005] AATA 305
•8 April 2005
|
DECISION AND REASONS FOR DECISION [2005] AATA 305
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1473
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | GERT BERGVALL | ||
Applicant
| And | ASP SHIP MANAGEMENT PTY LIMITED |
Respondent
DECISION
| Tribunal | Justice Downes, President |
Date8 April 2005
PlaceSydney
| Decision | There is a reviewable decision before the Tribunal relating to this application. |
........[sgd Garry Downes]........
President
CATCHWORDS
Workers’ compensation – Seafarers’ or merchant seamens’ compensation - workplace injury – jurisdiction – finding that decisions are reviewable – employment on prescribed ships – ships operated by Australian companies – so operated in association with other companies - crew outsourcing – limitation of liability legislation - Seafarers Rehabilitation and Compensation Act 1992 (Cth) s 19 - Navigation Act 1912 (Cth) s 10
Words and Phrases – “ship operated by” – “in association with”
Limitation of Liability for Maritime Claims Act 1989 (Cth)
Merchant Shipping Act 1894 (Imp) ss 260, 503
Merchant Shipping (Liability of Shipowners and Others) Act 1958 (UK)
Navigation Act 1912 (Cth) ss 10, 333
Navigation Amendment Act 1979 (Cth) s 65
Navigation Amendment Act 1981 (Cth) s 8
Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 3, 6(4), 19, 79, 88 and 139A
Shipping Registration Act 1981 (Cth) s 14
Adler v Dickson (Himalaya Clause Case) [1955] 1 QB 158
Bird v The Commonwealth (1988) 165 CLR 1
Bist v London and South Western Railway Co [1907] AC 209
Bistricic v Rokov (1976) 135 CLR 552
CMA CGM SA v Classica Shipping Co Ltd [2003] 2 Lloyd’s Rep 50
Frost v Warner (2002) 209 CLR 509
Hewitt v Benale Pty Ltd; WMC Resources Ltd v Koljibabic (2002) 27 WAR 91
McDermid v Nash Dredging & Reclamation Co. Ltd. [1986] QB 965
McDermid v Nash Dredging & Reclamation Co. Ltd. [1987] AC 906
Sanko Steamship Co. Ltd v Sumitomo Australia Ltd (No. 2) 1995 63 FCR 227
Convention for the Unification of Certain Rules relating to the Limitation of Liability of Owners of Seagoing Vessels 1924 Article 10
International Convention relating to the Limitation of the Liability of Owners of Sea-Going Ships 1957
Limitation of Liability for Maritime Claims Convention 1976
Patrick Griggs and Richard Williams, “Limitation of Liability for Maritime Claims”, 3rd ed, (1998)
REASONS FOR DECISION
| Justice Downes, President |
Introduction
Gert Bergvall and Shane Kelk are merchant seamen. They are Australian citizens. In November 1999 Mr Bergvall joined the crew of the MT Flinders, a Mobil oil tanker. He was employed by ASP Ship Management Pty Limited. On about 17 February 2000, while on a voyage to or from the Persian Gulf, Mr Bergvall says he injured his right wrist. In January 2002 Mr Kelk joined the maritime crew of the MV Lorelay, a pipe-laying vessel. He was employed by Mermaid Labour and Management Limited. On 18 January 2002 and again on 30 April 2002, while the MV Lorelay was in Bass Strait laying a gas pipeline between Victoria and Tasmania, Mr Kelk says he injured his left hip. Mr Bergvall and Mr Kelk sought compensation pursuant to the Seafarers Rehabilitation and Compensation Act 1992 (Cth). When their applications were not acceded to Mr Bergvall and Mr Kelk applied to this Tribunal for review of deemed disallowances of reconsiderations of their claims (ss 79 and 88).
The question is whether there are reviewable decisions before the Tribunal. That depends upon whether the injuries sustained by the applicants are compensable under the Act. I have decided that there are reviewable decisions in both cases.
The Seafarers Act “applies to the employment of employees on a prescribed ship that is engaged in trade or commerce … between Australia and places outside Australia; … between 2 places outside Australia; or … among the States” (s 19). The sole issue before me is whether the Flinders and the Lorelay are prescribed ships. A “prescribed ship” is “a ship to which Part II of the Navigation Act applies …” (s 3). Part II of the Navigation Act 1912 (Cth) applies to, among other objects, “a ship … of which the majority of the crew are residents of Australia and which is operated by … a company that is incorporated, or has its principal place of business in Australia” (s 10). The particular question I must decide is whether the Flinders and the Lorelay were ships operated by ASP and Mermaid. The other parts of the definition are agreed to apply. The question is more easily posed than answered.
The Flinders
The Flinders is owned by Mobil Shipping and Transportation Company, a United States Company (Mobil US). At first it was demise chartered to Mobil Oil Australia Ltd (Mobil Australia) which contracted with ASP for its management. The ship was registered in Australia. By the end of 1999 this had changed. The demise charter had been terminated and the vessel was registered in Panama. The ultimate management of the vessel was put in the hands of International Marine Transportation Ltd, a United Kingdom company, which changed its name from Mobil Shipping Co. Ltd (Mobil UK).
At the time of Mr Bergvall’s accident there was in place a ship management agreement between Mobil UK and ASP. It is dated 3 December 1999. It is amended from “the Baltic and International Maritime Council (BIMCO) Standard Ship Management Agreement” bearing Code name “Shipman 98”. It is that document which governs the legal obligations of Mobil UK and ASP at the relevant time. I was taken to predecessor documents between Mobil Australia and ASP and Mobil UK and ASP but I do not think they assist in determining the position in 2000.
After setting out a number of definitions the Shipman agreement establishes the following basis for contract:
“2. Appointment of Managers
With effect from the day and year stated in Box 4 and continuing unless and until terminated as provided herein, the Owners hereby appoint the Managers and the Managers hereby agree to act as the Managers of the Vessel.”
3. Basis of Agreement
Subject to the terms and conditions herein provided, during the period of this Agreement, the Managers shall carry out Management Services in respect of the Vessel as agents for and on behalf of the Owners. The Managers shall have authority to take such actions as they may from time to time in their absolute discretion consider to be necessary to enable them to perform this Agreement in accordance with sound ship management practice”.
Clause 3 is in seven parts. The first is headed “Crew Management” (cl 3.1), the second is headed “Technical Management” (cl 3.2) and the third is headed “Commercial Management” (cl 3.3). The Crew Management section forms part of the agreement as made. The other two sections have been deleted in full apart from the headings. I will set out the clauses as they appear in the executed agreement.
“3.1 Crew Management
(only applicable if agreed according to Box 5)
The Managers shall provide suitably qualified Crew for the Vessel as required by the Owners in accordance with the STCW 95 requirements, provision of which includes but is not limited to the following functions:
(i)selecting and engaging the Vessel’s Crew, (subject to the prior agreement of the Owner for Masters, First Mates, Chief Engineers and First Engineers), including payroll arrangements, pension administration, and insurances for the Crew other than those mentioned in Clause 6;
(ii)ensuring that the applicable requirements of the law of the flag of the Vessel are satisfied in respect of manning levels, rank, qualification and certification of the Crew and employment regulations including Crew’s tax, social insurance, discipline and other requirements;
(iii)ensuring that all members of the Crew have passed a medical examination with a qualified doctor certifying that they are fit for the duties for which they are engaged and are in possession of valid medical certificates issued in accordance with the appropriate flag State requirements. In the absence of applicable flag State requirements the medical certificate shall be dated not more than three months prior to the respective Crew members leaving their country of domicile and maintained for the duration of their service on board the Vessel;
(iv)ensuring that the Crew shall have a command of the English language of a sufficient standard to enable them to perform their duties safely;
(v)arranging transportation of the Crew, including repatriation;
(vi)training of the Crew and supervising their efficiency;
(vii)conducting union negotiations;
(viii)operating the
Managers’Owners drug and alcohol policy unless otherwise agreed.3.2 Technical Management
(only applicable if agreed according to Box 6)
The Managers shall provide technical management which includes, but is not limited to, the following functions:(i)provision of competent personnel to supervise the maintenance and general efficiency of the Vessel;(ii)arrangement and supervision of dry dockings, repairs, alterations and the upkeep of the Vessel to the standards required by the Owners provided that the Managers shall be entitled to incur the necessary expenditure to ensure that the Vessel will comply with the law of the flag of the Vessel and of the places where she trades, and all requirements and recommendations of the classification society;(iii)arrangement of the supply of necessary stores, spares and lubricating oil;(iv)appointment of surveyors and technical consultants as the Managers may consider from time to time to be necessary;(v)development, implementation and maintenance of a Safety Management System (SMS) in accordance with the ISM Code (see sub clauses 4.2 and 5.3).3.3 Commercial Management
(only applicable if agreed according to Box 7)
The Managers shall provide the commercial operation of the Vessel, as required by the Owners, which includes, but is not limited to, the following functions:(i)providing chartering services in accordance with the Owners’ instructions which include, but are not limited to, seeking and negotiating employment for the Vessel and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessel. If such a contract exceeds the period stated in Box 13, consent thereto in writing shall first be obtained from the Owners;(ii)arranging of the proper payment to Owners or their nominees of all hire and/or freight revenues or other moneys of whatsoever nature to which Owners may be entitled arising out of the employment of or otherwise in connection with the Vessel;(iii)providing voyage estimates and accounts and calculating of hire, freights, demurrage and/or despatch moneys due from or due to the characters of the Vessel;(iv)issuing of voyage instructions;(v)appointing agents;(vi)appointing stevedores;(vii)arranging surveys associated with the commercial operation of the Vessel.”The boxes referred to are contained in a cover page where “yes” or “no” is to be inserted against various parts of the agreement. The boxes for cll 3.1 to 3.3 have been completed consistently with the body of the agreement.
Clauses 3.4 to 3.8 have been completed as follows (also consistently with the boxes):
“3.4 Insurance Arrangements
(only applicable if agreed according to Box 8)
The Managers shall arrange insurances in accordance with Clause 6.1 (iv), on such terms and conditions as the Owners shall have instructed or agreed, in particular regarding conditions, insured values, deductibles and franchises.
3.5 Accounting Services
(only applicable if agreed according to Box 9)
The Managers shall:
(i)establish an accounting system which meets the requirements of the Owners and provide regular accounting services, supply regular reports and records;
(ii)maintain the records of all costs and expenditure incurred as well as data necessary or proper for the settlement of accounts between the parties.
3.6 Sale or Purchase of Vessel
(Only applicable if agreed according to Box 10)
The Managers shall, in accordance with the Owners’ instructions, supervise the sale or purchase of the Vessel, including the performance of any sale or purchase agreement, but not negotiation of the same.3.7 Provisions (only applicable if agreed according to Box 11)
The Managers shall arrange for the supply of provisions.3.8 Bunkering (only applicable if agreed according to Box 12)
The Managers shall arrange for the provision of bunker fuel of the quality specified by the Owners as required for the Vessel’s trade.”There are other clauses which I must set out:
“Owner’s Obligations
5.1 The Owners shall pay all sums due to the Managers punctually in accordance with the terms of this Agreement.
5.2Where the Managers are providing Technical Management in accordance with sub clause 3.2, the Owners shall:(i)procure that all officers and ratings supplied by them or on their behalf comply with the requirements of STCW 95;(ii)instruct such officers and ratings to obey all reasonable orders of the Managers in connection with the operation of the Managers’ safety management system.5.3 Where the Managers are not providing Technical Management in accordance with sub-clause 3.2, the Owners shall procure that the requirements of the law of the flag of the Vessel are satisfied and that they, or such other entity as may be appointed by them and identified to the Managers, shall be deemed to be the “Company” as defined by the ISM Code assuming the responsibility for the operation of the Vessel and taking over the duties and responsibilities imposed by the ISM Code when applicable.
6. Insurance Policies
The Owners shall procure,
whether by instructing the Managers under sub clause 3.4 or otherwise, that throughout the period of this Agreement;6.1 at the Owners’ expense, the Vessel is
insured for not less than her sound market value orentered for her full gross tonnage,as the case may befor:(i)
usual hull and machinery marine risks (including crew negligence) and excess liabilities;(ii)protection and indemnity risks (including pollution risks and Crew Insurances); and
(iii)
war risks (including protection and indemnity and crew risks) in accordance with the best practice of prudent owners of vessels of a similar type to the Vessel, with first class insurance companies, underwriters or associations (“the Owners’ Insurances”);The Managers shall arrange at the expense of the Owners for crew risks to be covered by a commercial insurer in accordance with the requirements prevailing at the time of any relevant legislation of the State of Victoria, Australia.
…
15. Inspection of Vessel
The Owners shall have the right at any time
after giving reasonable notice to the Managersto inspect the Vessel for any reason they consider necessary.16. Compliance with Laws and Regulations
The Managers will not do or permit to be done anything which might cause breach or infringement of the laws and regulations of the Vessel’s flag, or of the places where she trades.”
Clause 8 provides for a management fee and contains the following provision relating to termination which does not appear to be part of the standard agreement:
“However any Crew who immediately upon termination of this agreement transfer to another Mobil ship under the management of the Manager, will transfer these liabilities attached to the other ship and the costs detailed in 8.4(i) and (ii) will not be charged against this Agreement.”
Clause 9.1 requires “The Managers” annually to present the owners with a budget. Following agreement on the budget the Manager must prepare an estimate of the working capital requirement of the vessel (cl 9.3). The Manager must request funds each month.
The evidence of the witnesses confirms that the ship’s activities during the relevant time were regulated in accordance with this agreement. ASP played no role in deciding what work the vessel should undertake. Mobil UK directed where it should go and what cargoes it should carry. However, the crew, including the master, were employed by ASP. Necessarily, it was the crew which directed the ship in its day to day activities. The vessel was required to be managed in accordance with Mobil operations manuals. On board audits were carried out by Mobil nominees. The ship was required to comply with Mobil’s drug and alcohol policy. Also, necessarily, it was the crew who saw to this and made whatever changes were required by the audit. The master had the reserve right to determine the actual route of the vessel, consistently with complying with directions both as to the destination port and the route to be followed (eg. whether through a canal or not). The master always had full discretion when safety was involved.
The Lorelay
The Lorelay is owned by Societé d’Exploitation du Lorelay SA, a Swiss company. The ship is registered in Panama. The ultimate management of the vessel is in the hands of Allseas Marine Contractors SA, also a Swiss company.
At the time of Mr Kelk’s accident there was in place a labour and catering agreement between Allseas Construction Contractors SA and Mermaid. Allseas Construction is a company associated with Allseas Marine. Allseas Construction was the contractor engaged to lay the Bass Strait pipeline.
The agreement contained the following recitals:
“A.The Company has a contract with the operator of the Pipelay Vessel (DPPLV) “Lorelay” (hereinafter referred to as Vessel”), which vessel is specifically constructed and equipped to carry out offshore pipeline construction operations.
B.The Company desires the Contractor to provide competent skilled Australian Labour Personnel (hereinafter called “the Personnel”) and Catering and Accommodation Services (hereinafter called “the Services”) for its offshore operations with the Vessel, for work to be carried out for any client in Australian waters.”
Other significant provisions in this agreement are as follows:
“ARTICLE 1
PRIMARY OBLIGATIONS AND TERMINATION
(a)The Company hereby appoints the Contractor subject to the terms and conditions hereinafter set out, to administer the provision, payment and on-going employment of workers and provision of Services to the Vessel and such appointment shall have effect from the date first above indicated and shall be in force during the Company’s operations in Australian waters including any extensions thereof plus applicable mobilisation and demobilisation.
…
(e)The Contractor shall maintain a representative in Hobart, Tasmania during the period of this Agreement to provide a local support to the Contractor’s services and liaison with the Company.
ARTICLE 2
OPERATIONS BY THE CONTRACTOR
(a)The Contractor shall be responsible on behalf of the Company and with prior approval solely as agents for providing workers for the Vessel in accordance with (b) hereunder.
(b)The Contractor shall procure, engage, on behalf of the Company, and employ the necessary complement of workers on behalf of the Company in accordance with Australian regulations. …
…
(f)The Contractor shall provide all catering and accommodation services to support pipelay and associated services on the Vessel, from start of mobilisation, at a location advised by the Company, through to completion of demobilisation at a location advised by the Company.
…
“ARTICLE 3
STANDARD HOURS AND LEVEL OF SERVICES
…
“The Services shall be provided to the accepted Offshore Industry Standard, to suit the 2 shift, 24 hours continuous nature of the operation. These Services will include the provision of Catering, Janitorial and Laundry operations. Contractor will provide all materials necessary for the Services, which will be delivered in good order and condition, properly packed in refrigerated and dry containers to the Company Supply Base on a weekly basis.
…
“ARTICLE 9
DESIGNATED REPRESENTATIVES
9.1 On Board the Vessel
The Company’s designated representative on board the Vessel shall be the Permanent Master of the Vessel (Person in Charge). The Contractor’s designated representative on board the Vessel shall be the Australian Master.
9.2 On Shore
The Company’s designated representative, in respect to contact administration, shall be the Company’s Project Director. The Contractor’s designated representative on shore shall be the General Manager.
…
“ARTICLE 12
INDEPENDENT CONTRACTOR
The Contractor is an independent contractor for all purposes under this Agreement, and at all times shall act as one. The Contractor shall at all times control the manner and means of the performance of service to be provided under this Agreement, provided it complies strictly with provisions of this Agreement. Neither Contractor nor personnel supplied by Contractor under this Agreement (including the Personnel), or the employees, agents, representatives, suppliers or subcontractors engaged in any of the services under this Agreement for or on behalf of the Contractor or otherwise shall be deemed to be employees, agents or borrowed servants of the Company. Nothing in this Agreement shall create the relationship of principal and agent, master and servant, joint venture, partnership, or other association between the Company or the Contractor.
…
“ARTICLE 17
MAIN CONTRACT PROVISIONS
17.1 The relevant provisions of the contract (“main contract”) between the Company and the Company’s client (Duke) are attached hereto as Section 3 and incorporated herein. The Contractor shall observe and abide by all such provisions attached insofar as relating to the duties, responsibilities and obligations assumed by the Company (defined in the main contract as “CONTRACTOR”) to the extent in any way related to the performance of the services contemplated in this Agreement by the Contractor (defined in the main contract as “Subcontractor”). In case of conflict or ambiguity between the provisions of Section 3 and provisions of Section 1 or Section 2 of this Agreement, then the provisions contained in Section 3 shall prevail.”
The agreement included a section titled “Scope of Services” which contained the following:
““The Contractor shall provide all maritime personnel services to support pipeline construction activities from start of mobilisation through to demobilisation in Bell Bay, Tasmania.
…
“The Contractor shall provide all catering and accommodation services to support pipelay activities from start of mobilisation through to demobilisation in Bell Bay, Tasmania.”
Allseas Construction executed a separate Memorandum of Undertaking with the Maritime Unions. Mermaid was not a party but the Memorandum was incorporated in the labour and catering agreement. The Memorandum contained provisions relating to the proposed operations of the Lorelay. The purpose of the Memorandum was described as follows:
“5. PURPOSE OF MEMORANDUM OF UNDERSTANDING
The purpose of this memorandum of understanding is to:-
a.establish a framework which will provide a mutually beneficial ongoing industrial relationship between Allseas and the Maritime Unions and their members, and further, the intent of this memorandum will preserve the spirit of understanding herein as the basis of industrial understandings with all marine contractors employing maritime personnel on the project, and
b.to record the intention of the parties for crewing by members of the Maritime Unions of the pipelay vessel “Lorelay”, whilst the vessel is operating on the Offshore Pipeline Installation and including the mobilization /demobilization of the “Lorelay” into the out of [sic] Australian waters, and
c.to record the agreement between Allseas and the Maritime Unions concerning the employment of members of the Unions on the self propelled vessels, and Marine Order 47 Voyages, used, operated or chartered by Allseas, in the offshore pipelay phase of the project.”
“6. MOB/DEMOB and IDLE PHASE OF THE “LORELAY”
a.The Offshore pipelay vessel, “Lorelay” will mobilize from its last foreign port of call, which is expected to be either Noumea or New Zealand to Bell Bay, Tasmania, Australia with a riding crew of permanent and Australian Maritime personnel as identified in the attached Schedule 1.
b.Upon its arrival at Bell Bay, the additional Australian Maritime operational crew will supplement the riding crew. The manning will be in accordance with Schedule 2.
…
f.After completion of any incidental or additional work in Australian waters, and upon demobilisation of the vessel from Australia, the vessel will be manned by permanent and Australian Maritime personnel in accordance with Schedule 1 of this memorandum of agreement, to its foreign port of call, which may be Noumea, New Zealand or Bali.
g.A marine contractor shall employ members of the Australian Maritime Unions on the mobilisation/demobilisation of the “Lorelay” into and out of Australian waters and also during its operations in Australia.”
Other relevant clauses in the Memorandum include the following:
“7. THE PROJECT – “LORELAY” OPERATIONS
a.Allseas will contract with a recognised marine contractor for the employment of members of the Maritime Unions on the pipelay vessel “Lorelay” during the operation of the vessel on the Offshore Pipeline installation phase of the project and the crewing classifications and numbers shall be in accordance with the above manning schedule/s of this memorandum of understanding.
b.The members of the Maritime Unions shall be employed in the following areas of responsibility whilst the “Lorelay” is engaged on the Tasmania Natural Gas Pipeline Installation Project (inclusive of any incidental or additional works):
i)Operation of the bridge including ballast control, dynamically positioning and vessel administration
ii)Deck operations
iii)Operation and maintenance of in-built machinery and equipment
iv)Galley and catering personnel;
Employment is subject to each member possessing the necessary skills to perform adequately and safely the jobs and tasks required.
The parties agree that the Maritime Job descriptions contained in the relevant attachments identified as Attachment’s ‘A’ through to ‘M’ shall be those duties performed but not limited to by the respective maritime members appointed to such positions.
8. PERMANENT MANNING
It is recognized by the parties that due to the uniqueness of the vessel “Lorelay” and the short term nature of the Project that the Company shall provide permanent manning in addition to the Australian manning, who are familiar with the operation of the “Lorelay” and it is agreed that the Company shall mobilise, operate and demobilise the “Lorelay” with permanent personnel, identified in Schedule 3 to this memorandum of understanding:
a.It is agreed that Allseas shall provide a permanent Master for the duration of the project. The Master shall be the ‘Person in Command’ and shall have responsibility for the management and supervision of the vessels [sic] operations and safety.
b.It is agreed that in addition to the permanent Master, an Australian Master shall be employed as “deputy” to the permanent Master, whom shall have responsibility for the management and safety of the vessel in his role as Deputy.
c.It is agreed that Allseas shall provide a permanent Chief Engineer and a Chief Electrician respectively. Their duties and responsibilities shall be maintained throughout the duration of the project. In addition to their below deck responsibilities, they are normally responsible for the supervision and maintenance of above deck or construction type equipment. In the circumstances, the Company shall employed [sic] Australian personnel having equal duties, supervision and responsibilities for the below deck maintenance and all parties shall act and work in a co-operative manner.
d.The permanent manning shall be employed in a hands on advisory role and it is agreed that all parties shall act and work in a co-operative manner to the benefit of the vessels [sic] safety, safety of all personnel onboard and to the successful completion of the project.
e.The Company shall review the permanent manning arrangements with representatives of the Maritime Unions with a view to decreasing the permanent manning as the project progresses and the Australian Maritime members become familiar with the operation of the vessel during the scope of work being performed on the pipeline installation.”
The Marine Job descriptions contained in the attachments do not cover the Master or Chief Officer/Deputy Master. The job description for the Chief Officer/DP Operator is as follows:
“JOB CLASSIFICATION: CHIEF OFFICER/DP OPERATOR
REPORTING FUNCTION: MASTER
QUALIFICATION/EXPERIENCE:
Must have relevant Navigation and Marine Issuing Authority Marine Certificates of Competency, Marine Master Class 1 Certificate with a proven work record on similar type vessel and experienced as DP (Dynamically Positioning) Operator.
Job Objectives:
Execute marine operations and construction support operations.
Authority/Responsibilities:
1. maintain safe working practices
2.maintain Allseas Corporate Quality Management and Vessels Documentation system and Operations Manual
Job Function:
The duties of the Chief Officer shall include the following but not be limited to:
1.control the vessel in all waters in workable conditions without the Master’s presence on the bridge
2.control the ballast system as directed by the Master and be aware of the vessel’s stability
3.ensure the Master is informed immediately of any condition or incident that arises as per standing instructions
4.ensure that no major action will be undertaken or executed without informing the Master, or where applicable, the Superintendent
5.Co-ordinate vessels/barges alongside
6.ensure that personnel in the shift receive appropriate familiarisation and instructions
7.ensure specific knowledge and experience is communicated to all personnel in the department
8.ensure the relevant checks are performed and documented
9.ensure the watertight integrity of the vessel is maintained
10.ensure weather information is received and up to date, monitor weather continuously
11.monitor survey department during project activities
12.operate GMDSS equipment and ensure mandatory provisions relating to its operations, as laid down in the radio regulations, are adhered to
13.maintain communications with relevant departments”
An Addendum to the Memorandum added the following:
“In respect to clause 8(a) of the Memorandum of Understanding Allseas and the Union agree that the Australian Master of the Pipelay Vessel “Lorelay” shall be the Person in Charge (PIC) of the vessel during the Mobilisation and Demobilisation voyages.”
Allseas Construction also made a “Construction Labour Agreement” with Mermaid. The agreement contained the following recitals:
“A.The Company has a contract with the operator of the Pipelay Vessel (DPPLV) “Lorelay” (hereinafter referred to as Vessel”), which vessel is specifically constructed and equipped to carry out offshore pipeline construction operations.
B.The Company desires the Contractor to provide competent skilled Australian Labour Personnel (hereinafter called “the Personnel”) for its offshore operations with the Vessel, for work to be carried out for any client in Australian waters.”
The agreement contained an identical clause 1(a) to the clause in the Labour and Catering Agreement. The agreement is otherwise very similar. The parallel clause in Article 3 is as follows:
“The Services shall be provided to the accepted Offshore Industry Standard, to suit the 2 shift, 24 hours continuous nature of the operation. These Services will include the provision of trained and qualified supervisors and labour to efficiently and effectively operate the supply to and the operation of the pipelay equipment. Company will provide all permanent materials and consumables necessary for the Services, which will be delivered in good order and condition.”
Allseas Construction, Mermaid and the Maritime Unions also made a Tasmania Natural Gas Pipeline Installation Project Agreement 2001 to define the wages and conditions of employment for employees such as welders, electricians, mechanics, spacers, line-up operators, buffer/grinders, rigger/scaffolders, welder helpers and oiler/greasers (clause 4).
The evidence of the witnesses confirms that the ship’s activities during the relevant time were regulated in accordance with this agreement. The master, who was not employed by Mermaid, was in overall control. No doubt the Australian master was in control from time to time. There is no actual evidence of when this was. However, when he was in control it was in his capacity as deputy for the master. The exception was apparently during mobilization and demobilization voyages although no evidence was lead about this. There were about 11 other senior crew members who were permanent crew members and who were not employed by Mermaid. They mostly had parallel crew members who were employed by Mermaid. The actual navigation of the ship in a practical sense was carried out by the Australian crew employed by Mermaid. So was the pipe-laying. However, the master was in ultimate control of all operations, both navigation and pipe-laying.
The Problem
The issues before me would not have arisen previously. They flow from what is called outsourcing: in this case the provision of crews for ships by contractors who remain the employers of the crews. There is nothing new about ship owners employing third parties to procure crew members. The language is full of colourful expressions such as “press-ganged” and “shanghaied”, which go back centuries, to describe the practice. More recently, agents have been contracted to recruit the masters, officers and crews of vessels, but on the basis that they became the employees of the ship owner. An example is described by Sheppard J in Sanko Steamship Co. Ltd v Sumitomo Australia Ltd (No. 2) 1995 63 FCR 227 at 234.
There is something artificial about a ship being directed by one corporation while manned by a crew employed by another unrelated corporation. Directing employees as to their work is an ordinary incident of the relation of employer and employee. It is by virtue of this aspect of the relationship that employees’ compensation schemes have been developed in Australia and overseas. A third party could only acquire the right to direct the master, officers and crew of a ship from a contract, express or implied, between the employer and the third party.
Turning to the position in the present cases Mobil UK could only have had a right to direct the master, officers and crew of the Flinders if that right had been conferred on it by contract, express or implied, with ASP. Allseas could only have had a right to direct the crew of the Lorelay if that right had been conferred on it by contract, express or implied with Mermaid. It may be that the position is different for the Lorelay because the master and some of the officers were employed by Allseas and it may have been able to direct the crew by virtue of the common law concerning master and crew. I will consider this aspect in due course. However, the point is clear with respect to the Flinders.
It may not be easy, as a matter of obligation, for an employer to confer the right to direct its servants on a third party without the express or implied consent of the servants. In practice, in cases such as the present, problems are unlikely to arise. The crew’s boarding of a ship apparently under the directions of a third party may be sufficient. In any event these matters are likely to be dealt with in agreements between ASP and Mermaid with unions and individual employees. However, the fact that practical problems are unlikely to arise, or can be overcome, does not alter the underlying proposition that arrangements of the kind present here are relatively new and somewhat artificial.
These matters may have been of less relevance if this was a case about sea carriage or a charter party. But it is a case about the consequences of employment, namely, whether that relationship attracts the Seafarers Rehabilitation and Compensation Scheme established by legislation of the Commonwealth of Australia. This fact, at the least, invites inquiry as to whether a relationship of employer and employee which has the unusual characteristic that the employees are entirely under the direction of a third party can, for that reason, lead to, or contribute to, a conclusion that the employees are not covered by the employees’ compensation legislation which might otherwise apply.
Such an inquiry must recognise that employees’ compensation legislation is remedial in its character and, like all such Acts, should be construed beneficially (Bist v London and South Western Railway Co [1907] AC 209 at p 211; Bird v The Commonwealth (1988) 165 CLR 1 at p 9 per Deane and Gaudron JJ. See also Hewitt v Benale Pty Ltd; WMC Resources Ltd v Koljibabic (2002) 27 WAR 91). This recognition must, however, be tempered by the fact that it would seem that state workers compensation would apply in both cases if s 139A of the Seafarers Act does not operate to apply the Commonwealth Scheme. It may also need to be tempered by the fact that the primary question for me is not concerned with construing the Seafarers Act but with construing parts of the Navigation Act which have application outside the sphere of workers’ compensation.
The Legislation
The ultimate question is whether the work of the applicants is correctly described as “the employment of employees on a prescribed ship” (subs 19(1) of the Seafarers Act). ‘Prescribed ship’ means a ship to which Part II of the Navigation Act applies. I note that whether or not Part II applies could not change depending upon whether or not the inquiry was being made under s 19 of the Seafarers Act. Section 10 in Part II of the Navigation Act regulates the application of the Part. I have not previously set out s 10 in full:
“10 Application of Part
Except so far as the contrary intention appears, this Part applies only to:
(a) a ship registered in Australia;
(b)a ship (other than a ship registered in Australia) engaged in the coasting trade; or
(c)a ship (other than a ship registered in Australia or engaged in the coasting trade) of which the majority of the crew are residents of Australia and which is operated by any of the following (whether or not in association with any other person, firm or company, being a person, firm or company of any description), namely:
(i)a person who is a resident of, or has his or her principal place of business in, Australia;
(ii)a firm that has its principal place of business in Australia; or
(iii)a company that is incorporated, or has its principal place of business, in Australia;
and to the owner, master and crew of such a ship.”
I observe that the section is attracted by a ship which is “operated by [a company] … in association with any other person, firm or company … of any description.”
The object of the Navigation Act is to regulate navigation and associated activities. Although it is not concerned with employees’ rehabilitation and compensation it is broadly remedial in character and concerned with issues such as safety. Part IV, for example, on the subject of “Ships and Shipping”, deals with surveys of ships (Div 2), safety certificates (Div 2B and 2C), unseaworthy and substandard ships (Div 3), life saving appliances and fire protection (Div 4), load lines (Div 5) and signals of distress (Div 6) among other things.
Part II of the Navigation Act deals with “Masters and Seamen”. It is substantially concerned with the health and safety of seamen and with protection of their rights as employees. The headings of the Divisions of the Part make this clear:
“Part II – Masters and seamen
Division 1 – General
Division 2 – Superintendents
Division 2A – The manning of ships
Division 3 – Qualifications of masters, officers and seamen
Division 4 – Supplying seamen
Division 7 – Crew work in port
Division 8 – Engagement of seamen
Division 9 – Discharge of seamen
Division 10 – Seamen’s wages
Division 12 – Discipline
Division 13 – Provisions
Division 14 – Health
Division 15 – Accommodation
Division 16 – Protection of seamen
Division 17 – Property of deceased seamen
Division 18 – Relief to seamen’s families
Division 19 – Relief and maintenance of distressed seamen
Division 20 – The master
Division 21 – The log”
It is in this context that s 10 must be construed, quite apart from any question of whether it is to be beneficially construed because of its relationship to employees’ compensation legislation. Many Australian seamen will only be entitled to the benefit of the protections of the Navigation Act if their ship is “operated by” their employer.
In terms of policy it is easy to see that the legislature intended that the protection of the Navigation Act should arise only when more than half of the crew were Australian residents. It is not easy to understand a policy, when more than half of the crew are Australian residents, that that protection will depend upon the precise role of the company which employs the crew. If the crew is employed by a foreign corporation and the ship is neither registered in Australia (subs 10(a)) nor engaged in the coasting trade (subs 10(b)) the nexus with Australia is slight. It is much closer when the crew is employed by an Australian company (subs 10(c)) whatever is the source of the ultimate direction of the activities of the ship.
The respondents point out that s 6(4) of the Navigation Act provides that “unless the contrary intention appears, a reference in this Act (except in Division 3 or 4 of Part VII) to the owner of a ship shall, in the case of a ship that is operated by a person other than the owner, be read as including a reference to the operator”. They list a number of sections of the Navigation Act which apply to the owner and which would be difficult, if not impossible, for the respondents to comply with.
This submission deserves some weight. However, not all the provisions would be impossible for the respondents to comply with. The respondents would ordinarily have an implied obligation to the crew, as part of providing proper conditions of employment, to see they were complied with. Where they could neither take complying action themselves nor procure compliance from others the case for finding a contrary intention would be strong. The drafters of the Navigation Act are unlikely to have had in mind that the employer of the crew would be different from the operator of a ship. It is also to be noted that s 6(4) does not excuse an associate operator under s 10 from compliance with those obligations of an owner which are part of the other associate’s functions. The fact that s 6(4) creates potential construction difficulties for s 10 must be taken into account but it will not alone determine how the section should be construed, even if difficulties and anomalies are not avoided by the construction settled upon.
“A ship … which is operated by … a company”
The primary question of fact for me to determine in each case is whether the ship was “operated by” the respondent. That depends on what is required for a ship to be “operated by” someone. That is not necessarily the same as determining who is the operator of a ship, although the two ideas are closely related.
The Oxford English Dictionary Online gives 11 meanings for the verb “operate”. The general definitions for both transitive and intransitive forms of the verb refer to the “exercise” or “exertion” of “force or influence”. The seventh and eighth definitions, both having origins in the United States of America, are as follows:
“7. trans. orig. U.S. To cause or direct the functioning of; to control the working of (a machine, boat, etc.).
8. trans. orig. U.S. To manage, to direct the operation of (a business, enterprise, etc.); to carry out or through, apply (a principle, a tradition, etc.).”
These alternatives serve to highlight the competing possible meanings in the present case. Does the phrase refer to the physical operation of the ship or does it refer to the operation of the enterprise in which the ship is engaged?
A machine in a factory will be operated by a worker or workers and not by the manager of the business. A factory will usually be operated by the manager of the business of the factory. Is a ship operated by those who control its navigation or is it operated by those who manage its activities? Two factors in the above definitions suggest that the answer may be the former. First, the most relevant definition refers to controlling the working of a boat. Secondly, a ship may be seen as more analogous with a machine than a factory, albeit a very large machine. The function of a ship is usually to transport goods or passengers, which is one task, rather than to perform the many tasks which will be performed in a factory even if only one product is made in the factory.
It will be helpful to look at the way the verb “operate” and the noun “operator” have been used in maritime contexts.
A useful area for enquiry is the legislation relating to limitation of liability for maritime claims. The right to limit liability was originally conferred by s 503 of the Merchant Shipping Act 1894 (Imp). The right applied only to a “registered” or “beneficial” owner of a ship.
The Convention for the Unification of Certain Rules relating to the Limitation of Liability of Owners of Seagoing Vessels 1924 contains the first use of the description “operates”:
“Article 10. Where the person who operates the vessel without owning it or the principal charterer is liable under one of the heads enumerated in article 1, the provisions of this convention are applicable to him”.
The 1924 convention never operated in Australia or in the United Kingdom.
Successive conventions and legislation dealing with the right have further extended the definition of owner. These extensions have generally been in response to attempts by claimants to avoid limitations of liability by suing persons other than the owner, such as the master (see Adler v Dickson (Himalaya Clause Case) [1955] 1 QB 158).
The International Convention relating to the Limitation of the Liability of Owners of Sea-Going Ships 1957 extended the class of persons entitled to limit their liability to “the charterer, manager and operator of the ship, and to the master, members of the crew and other servants of the owner, charterer, manager or operator … in the same way as they apply to an owner himself”.
In the United Kingdom the 1957 Convention was given effect to by the Merchant Shipping (Liability of Shipowners and Others) Act 1958 (UK) which extended protection to “any charterer and any person interested in or in possession of the ship, and, in particular, any manager or operator of the ship”. This definition appears to contemplate that a “manager or operator” may merely be “in possession of the ship”.
Patrick Griggs and Richard Williams in Limitation of Liability for Maritime Claims 3rd ed, (1998) at p 8 say this:
“As to the types of “managers” who could limit under the Act it may well be that the Act was restricted in its application to managers who were actually operating the vessel – the point was never tested in court. The words “manager” and “operator” appear together and may simply be particular examples of “any person interested in or in possession of the ship”. If this interpretation is wrong and the expression “person interested in … the ship” is to be given a liberal interpretation it could extend the class of persons entitled to limit to any person who has or has had dealings with the vessel. The authors have never favoured this liberal interpretation.”
The 1958 Act was considered in McDermid v Nash Dredging & Reclamation Co. Ltd. [1986] QB 965 where the Court of Appeal (Fox, Parker and Neill LLJ) relevantly paraphrased the categories in s 3 for the purpose of that case (at 981) as comprising:
1. The owners of the [ship]
2. The charterers of the [ship]
3. A person interested in the [ship]
4. A person in possession of the [ship]
5. The manager or operator of the [ship]
An appeal to the House of Lords was dismissed ([1987] AC 906). In his speech Lord Brandon endorsed Neill LJ’s summary of the categories.
The history of the limitation in England is set out by David Steel J in CMA CGM SA v Classica Shipping Co Ltd [2003] 2 Lloyd’s Rep 50 at 52-54. His analysis confirms that the word “operates” was first included in the 1924 Convention.
The Navigation Amendment Act 1979 (Cth) enacted, for Australia, the 1957 Convention. Section 65 of the Act inserted a new Part VIII into the Navigation Act including s 333 which provided that the 1957 Convention had the force of law in Australia. Accordingly, it is the words of the Convention themselves which were applicable in Australia.
At that time s 10 of the Navigation Act did not contain any reference to persons by whom a ship is operated. Section 10 of the Navigation Act as originally enacted in 1912 provided that Part II applied “only to British ships and to their owners, masters and crews”. Part II, at the time, covered very similar grounds to the ground it presently covers. The reference to British ships has been replaced by the inclusion of ships registered in Australia (subs 10(a)). Subsection 10(b) and the detailed requirements of subs 10(c) were added. The definition has always concluded with an extension to owners, masters and crew.
A marginal note against s 10 in its original form referred to “Application. M.S.A. 1894 s. 260.” That was a reference to the Merchant Shipping Act 1894 (Imp) which operated in the colonies of Australia and continued to operate after federation (Bistricic v Rokov (1976) 135 CLR 552 at 555 (per Mason J). Section 260 was as follows:
“260 This part of the Act shall, unless the context or subject-matter requires a different application, apply to all sea-going ships registered in the United Kingdom, and to the owners, masters, and crews of such ships subject as herein-after provided with respect to –
(a) ships belonging to any of the three general lighthouse authorities;
(b) pleasure yachts; and
(c) fishing boats.”
The amendment to s 10 of the Navigation Act inserting the phrase “operated by” was made in 1981 (Navigation Amendment Act 1981 (Cth) s 8). In the second reading speech the then Minister for Transport said that “the principal purpose of the [Bill was] to amend the Navigation Act so as to accord with the proposed Shipping Registration Act … [References] to British ships are being replaced with references to ships registered in Australia under the Shipping Registration Act or otherwise having a close connection with Australia” (House of Representatives Hansard 26 February 1981, p 253). Section 14 of the Shipping Registration Act 1981 (Cth) provides that where an application is made as provided by the Act, the following ships shall be registered:
“(a) Australian-owned ships referred to in section 13;
(b) small craft wholly owned by residents of Australia or by residents of Australia and Australian nationals;
(c) small craft operated solely by residents of Australia or Australian nationals or both;
(d) ships on demise charter to Australian-based operators.”
The right to limit liability in Australia is presently conferred by the Limitation of Liability for Maritime Claims Act 1989 (Cth) which enacts the Limitation of Liability for Maritime Claims Convention 1976. That defines “shipowner” to “mean the owner, charterer, manager and operator of a seagoing ship.”
Examining the use of the word “operate” in legislation concerned with the activities of ships in a different context in a different act is of limited assistance to construing the word in s 10 of the Navigation Act. Indeed the nexus is so slight that it may provide no assistance at all. Nevertheless, the use of the word “operator” in the definition of “owner” in connection with limitation of liability did appear in the Navigation Act before the phrase “operated by” was inserted in s 10. The limitation of liability provision is an illustration of the use of the word in legislation in a way which is more consistent with the seventh than the eighth meaning in the Oxford English Dictionary. It is difficult to avoid the conclusion that the four or five categories in the limitation of liability legislation proceed in descending order from the ultimate title of owner. An operator is the lowest level in the hierarchy.
The role of the master of a ship as the ultimate decision-maker relating to the navigation of a ship, particularly when safety is involved, has been established for centuries. There is generally no room for democratic decision-making in the navigation of a ship, nor for direction from afar when safety is involved. This common law position was recently stated by Gleeson CJ, Gummow and Callinan JJ in Frost v Warner (2002) 209 CLR 509 at 519 [29] as follows:
“29It is to the master that the government, care, safety and security of the vessel, her crew, passengers and cargo are committed (Kennerson v Jane R, Inc (1967) 274 F Supp 28 at 30; Whistler International Ltd v Kawasaki Kisen Kaisha Ltd [2001] 1 AC 638 at 646, 657-658; noted Baughen, “Navigation or Employment?”, [2001] Lloyd’s Maritime and Commercial Law Quarterly 177, at p 177). As was said by the United States Supreme Court in Southern Steamship Co v National Labor Relations Board (1942) 316 US 31 at 38:
‘The lives of passengers and crew, as well as the safety of ship and cargo, are entrusted to the master’s care. Every one and every thing depend upon him.’”
Conclusions
The master of the Flinders was employed by the respondent ASP. His employment contract was with ASP. Any right that Mobil UK had to direct him must have come from a direction by ASP that the master should accept Mobil UK’s instructions.
In a very real sense the source of the authority for any instructions to the master of the Flinders was ASP even though the actual instructions were given by Mobil UK. The master was not himself the operator of the vessel but when he acted he was acting in his employment by ASP. The whole of the crew were in at least the same position. Indeed, when they acted they were acting on the directions for which the master as employee of ASP was responsible, rather than on any direction from Mobil UK.
The position is undoubtedly artificial. But that does not relieve me from determining who operated the Flinders. There were undoubtedly commercial reasons which lead Mobil UK to contract to ASP the role of supplying the master and crew. An arrangement under which the crew became the employer of Mobil UK may have much more logically reflected the lines of control which Mobil UK wanted to achieve but that they did not do this cannot be ignored.
Who a ship is “operated by” will vary with the facts of each case. However, it does seem to me that a company closely involved with the actual navigation of a ship and its daily activities will frequently answer the description. A company which directs the voyages of a ship but has no involvement in its actual navigation or day to day activities may not answer the description.
This view seems to me to be consistent with the definitions of operate to which I have referred, to the use of the word in other legislation and to my own understanding of its meaning. It seems to me also to be supported by the contractual provisions governing the relations of the parties in the present case. The role of manager must be closely associated with the role of operator although I do not doubt that there can be a manager who is not an operator and vice versa. My inclination is to think that the role of manager will usually be less associated with the day to day activities of operation.
The Flinders
The ship management agreement between ASP and Mobil UK appears to recognise three categories of management: Crew Management, Technical Management and Commercial Management. The first, but not the second and third, type of management was carried out by ASP. Of the three, Crew Management seems the most closely associated with the day to day activities of the vessel.
It seems to me to follow that ASP was at least partly involved in the management of the Flinders. That is what the Ship Management agreement provides. As such it seems to me that it was involved in that part of management, namely providing the master and crew, which is most closely associated with being the operator of the vessel.
There is evidence before me which shows a close relationship between ASP and the master of the Flinders. It is true that he took directions from Mobil UK, that the ship operated under Mobil’s operation manuals and that audits were conducted on behalf of Mobil UK by its nominees. Nevertheless, the masters, for masters were alternated as was all the crew, were constantly in contact with ASP discussing operational activities.
When I take into account the facts that ASP employed the master of the Flinders and all of its crew, that it was contracted to do so pursuant to an agreement which proceeded on the basis that its role was a management role, and particularly crew management, and that the day to day navigation and activities of the ship were effectively under its control through the crew it employed, I come to the conclusion that ASP is at least an operator of the Flinders. The fact that the activities of the ship were directed by Mobil UK or Mobil US is an important factor. However, it is not enough to displace the finding to which I have come. The finding is a finding of fact. However, I accept that the finding is assisted by my sense that “operated by” is to be understood more in the seventh than in the eighth sense in the Oxford English Dictionary and by the presence of the phrase in legislation which has, as a primary role, the protection of the health, safety and employment conditions of seafarers.
Although the noun “association” usually denotes a close connection, the use of the word in the phrase “in association with” does not necessarily have the same sense. One person can act in association with another person without the two comprising an association or being associates. A contractual arrangement under which one party engages another to carry out activities which are connected with activities retained by the first party will usually amount to the doing of the whole by the two in association. This will particularly be so when there is inevitable contact between the two.
To my mind ASP acted in association with Mobil UK when it carried out that part of the management of the Flinders which it contracted to undertake.
The group of activities undertaken by ASP and Mobil UK, if undertaken by one company, would undoubtedly constitute the company as the operator of the Flinders. I find that the work of ASP was part of the activities of an operator of a ship. It follows that I find that ASP at least operated the Flinders in association with Mobil UK and possibly Mobil US as well.
In case there is an appeal in this matter it occurred to me that it might be appropriate for me to make a finding of fact as to whether ASP operated the Flinders alone. Such a finding would not seem to me to accord with the facts. The reality is that the totality of the activities of ASP and Mobil are the acts which describe an operator. However, if ASP was not alone the operator of the Flinders, neither was Mobil UK or Mobil US or anyone else. If one entity is to be found which carried out all the activities of an operator there is none. This matter strengthens the conclusion that the ship was operated by ASP in association with Mobil UK or Mobil US. Once the totality of the acts of an operator are found to be carried out by more than one entity it will be a rare case in which each entity does not operate the ship in association with the other or others.
I conclude that the Flinders was operated by ASP in association with Mobil UK, Mobil US or both and there is a reviewable decision before the Tribunal relating to the application by Gert Bergvall.
The Lorelay
The position of the Lorelay is not so clear. The ultimate master of the Lorelay was an employee of Allseas Construction, not Mermaid. The agreement between Allseas Construction and Mermaid was not a management agreement but a Labour and Catering Agreement supplemented by a Construction Labour Agreement. However, the actual role of Mermaid was not materially different to that of ASP. It employed all the Australian crew. During the mobilization and demobilization voyages it was agreed that the Australian master should be the person in charge. I do not know whether this in fact happened. However, that does not matter. What matters is that that was the contractual arrangement between the parties. It follows that the permanent master was not always in charge. Indeed, for two significant voyages the parties agreed that he was not in charge. Whether or not Mermaid was operator could not change from the end of the mobilization voyage during the pipe- laying period and then resume during the demobilization voyage. The parties treated the whole period as one.
I do not doubt that the involvement of Mermaid could be said to be at a lower level than those of ASP. However, I do not think that it is so low that it does not include activities which are among those appropriate to an operator. In day to day terms on the ship they must have been little different.
Although the role of the master is critical and a different decision might have been reached if there had been no time when the Australian master was in charge it remains true that there was an Australian master at all times who would in fact have been in charge of the ship and all the crew for substantial periods.
I conclude that the Lorelay was operated by Mermaid in association with Allseas Construction, Allseas Marine or both and that there is a reviewable decision before the Tribunal relating to the application by Shane Kelk.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President
Signed: ........[sgd Peter Pikis]........
Associate
Date of Hearing 8, 9, 10 February 2005
Date of Decision 8 April 2005Counsel for the Applicant Mr W P Kearns SC
Solicitor for the Applicant W. G. McNally & Co.Counsel for the Respondent Mr G J Nell
Solicitor for the Respondent Middletons
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