Dalian Deepwater Developer Ltd v The Ship “Hull No. N110”

[2014] FCA 1193

FEDERAL COURT OF AUSTRALIA

Dalian Deepwater Developer Ltd v The Ship “Hull No. N110” [2014] FCA 1193

Citation:	Dalian Deepwater Developer Ltd v The Ship “Hull No. N110” [2014] FCA 1193
Parties:	DALIAN DEEPWATER DEVELOPER LTD v THE SHIP “HULL NO. N110” (IMO NO. 9413145)
File number(s):	NSD 2299 of 2013
Judge(s):	BUCHANAN J
Date of judgment:	6 November 2014
Catchwords:	ADMIRALTY – action  in rem against a ship – general maritime claim against property under s 4(3)(n) of the Admiralty Act 1988 (Cth) – 12 month limitation period for service of a writ under r 20 of the Admiralty Rules 1988 (Cth) – application for an extension of time to serve a writ
Legislation:	Admiralty Act 1988 (Cth), ss 3, 4(3)(n), 17 Admiralty Rules 1988 (Cth), r 20
Cases cited:	Aichhorn & Co KG v The Ship MV “Talabot” (1974) 132 CLR 449 Deiulemar Compagnia Di Navigazione SpA (ID Number 395485) v The Ship “George T” [2008] FCA 577 Pan United Shipyard Pte Ltd v The Ship “Rodolfo Mata” [2004] FCA 117 The Helene Roth [1980] QB 273
Date of hearing:	6 November 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	8
Counsel for the Plaintiff:	Mr J Hogan-Doran
Solicitor for the Plaintiff:	HWL Ebsworth
Counsel for the Defendant:	The application was heard ex parte

IN THE FEDERAL COURT OF AUSTRALIA
IN ADMIRALTY
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2299 of 2013

BETWEEN:	DALIAN DEEPWATER DEVELOPER LTD Plaintiff
AND:	THE SHIP “HULL NO. N110” (IMO NO. 9413145) Defendant

JUDGE:	BUCHANAN J
DATE OF ORDER:	6 NOVEMBER 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The plaintiff has leave to serve the writ on the defendant ship until and including 8 November 2015. 

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

IN THE FEDERAL COURT OF AUSTRALIA
IN ADMIRALTY
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2299 of 2013

BETWEEN:	DALIAN DEEPWATER DEVELOPER LTD Plaintiff
AND:	THE SHIP “HULL NO. N110” (IMO NO. 9413145) Defendant

JUDGE:	BUCHANAN J
DATE:	6 NOVEMBER 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 8 November 2013 the plaintiff filed a writ for an action in rem against a ship then under construction in China. Although, perhaps, not then a “ship” within the definition of s 3 of the Admiralty Act 1988 (Cth) (“the Act”) (a position which is not completely clear) the claim was, at the very least, a general maritime claim against property, a claim which fell within the specific terms of s 4(3)(n) of the Act and therefore a claim properly the subject of an action in rem, pursuant to s 17 of the Act.

2. On the evidence which has been put before the Court on the present application, contained in an affidavit sworn by Mr Jesper Martens, construction and major fit out of the vessel is complete and it now lies at anchor at Dalian in China.  The ship has been tracked and appears not to have left China. 

3. Rule 20 of the Admiralty Rules 1988 (Cth) provides:

   20       Validity of initiating process

   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 the leave of the court.

4. Mr Hogan-Doran has pointed out in his written submissions that the writ must be served in Australia, Aichhorn & Co KG v The Ship MV “Talabot” (1974) 132 CLR 449 at 455. I am satisfied that the plaintiff has been diligent in keeping track of the movements of the ship. The plaintiff has not to this date had an opportunity to serve the writ and the writ expires on 8 November 2014.

5. There remains a possibility that the ship may enter Australia because of its character as an ultra-deepwater drilling vessel. 

6. It is not known whether the ship has been sold, but according to the information to which Mr Martens has deposed, it is listed as being for sale.  The plaintiff is concerned not to lose its rights against any previous or imminent purchaser by being required to file a fresh writ. 

7. I accept that the principles to be applied to the present interlocutory application may be found in the following authorities in particular:  The Helene Roth [1980] QB 273 (Sheen J), Pan United Shipyard Pte Ltd v The Ship “Rodolfo Mata” [2004] FCA 117 (Lee J), and Deiulemar Compagnia Di Navigazione SpA (ID Number 395485) v The Ship “George T” [2008] FCA 577 (Siopis J). I am satisfied that the plaintiff’s application falls comfortably within the principles discussed in those authorities.

8. I therefore make an order in the form of Order 1 in the interlocutory application filed on 6 November 2014. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        10 November 2014