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Daebo Shipping Co Ltd v The Ship Go Star

Daebo Shipping Co Ltd v The Ship Go Star

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FEDERAL COURT OF AUSTRALIA
Daebo Shipping Co Ltd v The Ship Go Star [2011] FCA 1015

Citation: Daebo Shipping Co Ltd v The Ship Go Star [2011] FCA 1015

Parties: DAEBO SHIPPING CO LTD v THE SHIP GO STAR

File number: WAD 21 of 2009

Judge: SIOPIS J

Date of judgment: 31 August 2011

Corrigendum: 13 October 2011

Catchwords:
ADMIRALTY – time charterparty – bunkers – claim for conversion and detinue of the bunkers – whether disponent owner had property in the bunkers

CONFLICT OF LAWS – claim for unlawful interference in contractual relations – double actionability rule – whether the events comprising the tort in substance took place in the People’s Republic of China

Cases cited: Breavington v Godleman (1988) 169 CLR 41
Cebu (No 1) [1983] 1 QB 1005
Cebu (No 2) [1993] QB 1
The Span Terza (No 2) [1983] 1 WLR 632
The Span Terza (No 2) [1984] 1 WLR 27
The Saint Anna [1980] I Lloyd’s Rep 180
Voth v Manildra Flour Mills Proprietary Ltd (1990) 171 CLR 538

Date of hearing: 29-30 March 2011

Date of last submissions: 6 April 2011

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 109

Counsel for the Plaintiff: Mr GR Hancy

Solicitor for the Plaintiff: Sparke Helmore

Counsel for the Defendant: Mr JA Thomson

Solicitor for the Defendant: DLA Piper Australia

FEDERAL COURT OF AUSTRALIA
Daebo Shipping Co Ltd v The Ship Go Star [2011] FCA 1015
CORRIGENDUM
1.In paragraph 106 of the Reasons for Judgment, in the second last line, substitute the word “Nanyuan” with the words “the defendant”.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Siopis.
Associate:
Dated: 13 October 2011

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

IN ADMIRALTY

GENERAL DIVISION

WAD 21 of 2009

BETWEEN:
DAEBO SHIPPING CO LTD
Plaintiff

AND:
THE SHIP GO STAR
Defendant

JUDGE:

SIOPIS J

DATE OF ORDER:

31 AUGUST 2011

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The application is dismissed.
2.The plaintiff is to pay the defendant’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

IN ADMIRALTY

GENERAL DIVISION

WAD 21 of 2009

BETWEEN:
DAEBO SHIPPING CO LTD
Plaintiff

AND:
THE SHIP GO STAR
Defendant

JUDGE:

SIOPIS J

DATE:

31 AUGUST 2011

PLACE:

PERTH

REASONS FOR JUDGMENT

The defendant is a company, Go Star Maritime Co SA. It is the owner of the ship “MV Go Star”, a ship registered in Malta.
In 2007, the defendant entered into a time charterparty of the ship “MV Go Star” with Breakbulk Marine Services Limited (BMS). This was the head charterparty.
BMS then sub-chartered the ship to Bluefield Shipping Co Ltd. In July 2007 the plaintiff, Daebo Shipping Co Ltd, a company incorporated in South Korea, entered into a time sub-charterparty of the ship from Bluefield.
In December…

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: [2011] FCA 1015
Decision Date: 31 August 2011

CaseChat Overview and Summary

Daebo Shipping Co Ltd, as disponent owner, commenced proceedings against The Ship Go Star, seeking the conversion and detinue of bunkers supplied to the ship and damages for unlawful interference in contractual relations. The dispute arose out of a series of time charterparty agreements concerning the ship, including sub-charterparty agreements between Bluefield Shipping Co Ltd and Daebo Shipping Co Ltd. The dispute arose out of the failure of Bluefield Shipping Co Ltd, as charterer, to pay for bunkers supplied to the ship, and the subsequent interference by the disponent owner in Bluefield Shipping Co Ltd’s contractual relations with Nanyuan, the supplier of the bunkers.
The court was required to determine whether Daebo Shipping Co Ltd, as disponent owner, had property in the bunkers supplied to the ship and whether Nanyuan’s claim for conversion and detinue was statute-barred. The court was also required to determine whether the disponent owner had unlawfully interfered in Bluefield Shipping Co Ltd’s contractual relations with Nanyuan. In determining the latter issue, the court was required to apply the double actionability test to determine whether the tort of unlawful interference in contractual relations was recognised in the People’s Republic of China, where the bunkers were supplied.
The court held that the disponent owner did not have property in the bunkers supplied to the ship, and that Nanyuan’s claim for conversion and detinue was statute-barred. The court also held that the disponent owner had not unlawfully interfered in Bluefield Shipping Co Ltd’s contractual relations with Nanyuan, as the tort of unlawful interference in contractual relations was not recognised in the People’s Republic of China. The application was dismissed, and the plaintiff was ordered to pay the defendant’s costs.

Orders

Orders of the court

1. The application is dismissed.

2. The plaintiff is to pay the defendant’s costs.

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

Background

Background to the litigation

Further, Daebo claims that the defendant unlawfully interfered in its contractual relations with Nanyuan, and also claims damages against the defendant on these grounds.BACKGROUND On 21 June 2007, the defendant entered into a time charterparty of the ship with BMS for a period of 36-40 months. The terms of the charterparty were set out in the New York Produce Exchange Form for a time charter which was revised on 12 June 1981 (the ASBATIME NYPE Form), together with a number of rider clauses. Clause 5 of the head charterparty provided:Failing the punctual and regular payment of the hire, or on any breach of this Charter subject to Clause 30, the Owners shall be at liberty to withdraw the vessel from the service of the Charterers without prejudice to any claims they (the Owners) may otherwise have on the Charterers. (Original emphasis.) On 14 July 2007, BMS and Felicia Navigation Ltd, acting as agent for Bluefield Shipping Co Ltd, entered into a time charterparty using the ASBATIME NYPE Form. The parties accepted that this charterparty was between BMS and Bluefield and will be referred to as the Bluefield sub-charterparty. On 27 July 2007, Bluefield and Daebo entered into a sub-charterparty using the ASBATIME NYPE Form, together with a number of rider clauses for a period of not less than 23 months. This will be referred to as the Daebo sub-charterparty. The Daebo sub-charterparty contained the following relevant clauses:Delivery: Vessel shall be placed at the disposal of the Charterers on dropping last outward sea pilot, one safe port, world wide, any time day or night, Sundays and Holidays included. (Owners will revert with exact ranges 30 days before delivery.) (Original emphasis.) …2.The Charterers, while the vessel is on-hire, shall provide and pay for all the fuel except as otherwise agreed……31.Charterers to take over and pay together with first hire payment bunkers upon vessel’s delivery. Reverting with quantities/prices. On redelivery bunkers same quantities and same price both end. On 4 January 2008, Daebo, as disponent owner, entered into a further sub‑charterparty of the ship to Daeyang Shipping Co Ltd. The Daeyang sub-charterparty was also on the ASBATIME NYPE Form, together with a number of rider clauses. The Daeyang sub-charterparty provided that redelivery was to be:on dropping last outward sea pilot one (1) safe port PMO/Japan range including full Indonesia/Malaysia/Vietnam/Thailand/China/Philippine/Taiwan or in Charterer’s option Boston/Bahia Blanca range or in Charterer’s option Skaw/Passero range including full Mediterranean/Black Sea range or in Charterer’s option Casablanca/Durban range or in Charterer’s option Vancouver BC/Buenaventura range port in Charterer’s option, any time day or night, Sunday and holiday included. Unless otherwise mutually agree. The Daeyang sub-charterparty also provided that charterers were required to “take over and pay together with first hire payment bunkers within two (2) banking days after vessel’s delivery”. The vessel was to be redelivered with “bunkers on redelivery to be about same quantities as on delivery”. The charterer was entitled to deduct from the last or penultimate hire an amount for estimated bunkers on redelivery.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Daebo Shipping Co Ltd v The Ship Go Star [2011] FCA 1015
Parties:		DAEBO SHIPPING CO LTD v THE SHIP GO STAR
File number:		WAD 21 of 2009
Judge:		SIOPIS J
Date of judgment:		31 August 2011
Corrigendum:		13 October 2011
Catchwords:		ADMIRALTY – time charterparty – bunkers – claim for conversion and detinue of the bunkers – whether disponent owner had property in the bunkers CONFLICT OF LAWS – claim for unlawful interference in contractual relations – double actionability rule – whether the events comprising the tort in substance took place in the People’s Republic of China
Cases cited:		Breavington v Godleman (1988) 169 CLR 41 Cebu (No 1) [1983] 1 QB 1005 Cebu (No 2) [1993] QB 1 The Span Terza (No 2) [1983] 1 WLR 632 The Span Terza (No 2) [1984] 1 WLR 27 The Saint Anna [1980] I Lloyd’s Rep 180 Voth v Manildra Flour Mills Proprietary Ltd (1990) 171 CLR 538
Date of hearing:	29-30 March 2011
Date of last submissions:	6 April 2011
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	109
Counsel for the Plaintiff:	Mr GR Hancy
Solicitor for the Plaintiff:	Sparke Helmore
Counsel for the Defendant:	Mr JA Thomson
Solicitor for the Defendant:	DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
IN ADMIRALTY
GENERAL DIVISION	WAD 21 of 2009

BETWEEN:	DAEBO SHIPPING CO LTD Plaintiff
AND:	THE SHIP GO STAR Defendant

JUDGE:	SIOPIS J
DATE OF ORDER:	31 AUGUST 2011
WHERE MADE:	PERTH

JUDGE:	SIOPIS J
DATE:	31 AUGUST 2011
PLACE:	PERTH