FNP Catalano Nominees Pty Ltd v The Ship "FV Comet"
[2000] WASC 76
•31 MARCH 2000
FNP CATALANO NOMINEES PTY LTD & ORS -v- THE SHIP "FV COMET" [2000] WASC 76
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 76 | |
| Case No: | ADM:1/2000 | 14 MARCH 2000 | |
| Coram: | WHEELER J | 31/03/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | FNP CATALANO NOMINEES PTY LTD NICOLA CATALANO MARK ANDERSON THE SHIP "FV COMET" |
Catchwords: | Shipping and Navigation Admiralty Necessaries supplied to Australian vessel Proceedings in rem Application for release of ship from arrest Validity of Admiralty Rules |
Legislation: | Admiralty Act 1988 (Cth) Admiralty Court Act 1861 (UK) Admiralty Rules 1988 Colonial Courts of Admiralty Act 1890 (UK) |
Case References: | C & C J Northcote v The Heinrich Bjorn [1886] XI App Cas 270 Letang v Cooper [1965] 1QB 232 Port of Geelong Authority v The Ship "Bass Reefer" (1992) 109 ALR 505 The River Rima [1988] 1 WLR 758 Owners of the Motor Vessel "Iran Amanat" v KMP Coastal Oil Pte Ltd (1998) 161 ALR 434 Shell Oil Co v The Ship "Lastrigoni" (1974) 131 CLR 1 The "Leoborg" (No 2) [1964] 1 Lloyd's Rep 380 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
NICOLA CATALANO
Second Plaintiff
MARK ANDERSON
Third Plaintiff
AND
THE SHIP "FV COMET"
Defendant
Catchwords:
Shipping and Navigation - Admiralty - Necessaries supplied to Australian vessel - Proceedings in rem - Application for release of ship from arrest - Validity of Admiralty Rules
Legislation:
Admiralty Act 1988 (Cth)
Admiralty Court Act 1861 (UK)
Admiralty Rules 1988
(Page 2)
Colonial Courts of Admiralty Act 1890 (UK)
Result:
Application dismissed
Representation:
Counsel:
First Plaintiff : Mr M D Cuerden
Second Plaintiff : Mr M D Cuerden
Third Plaintiff : Mr M D Cuerden
Defendant : Mr N D C Dillon
Solicitors:
First Plaintiff : Fiocco Hopkins Nash
Second Plaintiff : Fiocco Hopkins Nash
Third Plaintiff : Fiocco Hopkins Nash
Defendant : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
C & C J Northcote v The Heinrich Bjorn [1886] XI App Cas 270
Letang v Cooper [1965] 1QB 232
Port of Geelong Authority v The Ship "Bass Reefer" (1992) 109 ALR 505
The River Rima [1988] 1 WLR 758
Case(s) also cited:
Owners of the Motor Vessel "Iran Amanat" v KMP Coastal Oil Pte Ltd (1998) 161 ALR 434
Shell Oil Co v The Ship "Lastrigoni" (1974) 131 CLR 1
The "Leoborg" (No 2) [1964] 1 Lloyd's Rep 380
(Page 3)
1 WHEELER J: This is an application for release of a ship from arrest. The action in this matter was commenced by writ in January 2000 and an application for arrest made supported by an affidavit of one Stephen Douglas Allen Bird, sworn 7 January 2000. That affidavit deposed to Mr Bird's belief that the plaintiffs have a general maritime claim pursuant to s 4(3)(d), s 4(3)(f), s4 (3)(r) and/or s 4(3)(t) of the Admiralty Act 1988. It set out the relevant facts as follows.
2 The defendant vessel is a fishing vessel the homeport of which is the Port of Adelaide. It is certificated to operate in coastal waters of Western Australia within 200 miles off shore. It is owned by Barontrend Pty Ltd ("Barontrend"), the registered office of which is in Queensland. It is presently moored at Rous Head, North Fremantle.
3 Mr Bird further deposed that an oral agreement was reached between the first plaintiff and/or second plaintiff and a Mr Volkov, a director of Barontrend, on behalf of Barontrend. By that agreement, Mr Bird alleged, Barontrend was to deliver the vessel from Dampier to Fremantle; the first and/or second plaintiff were to provide management and crewing assistance to Barontrend for that voyage; Barontrend warranted certain things, inter alia, that the vessel was seaworthy and would be able to travel from Dampier to Fremantle at normal operational speed, giving a voyage of about five days; Barontrend agreed to pay for and deliver sufficient fuel to the defendant vessel in Dampier for the voyage; Barontrend would appoint the third plaintiff as master of the vessel, and he was to engage a crew; and the first and/or second plaintiff agreed to pay the wages of the master and crew of the vessel for a five-day period for the voyage.
4 It is alleged that Barontrend breached the delivery agreement in that: the vessel was not in good working condition and required repairs; the vessel was not able to steam at normal operational speed; Barontrend failed to supply sufficient fuel for the vessel; and Barontrend failed to pay for expenses and disbursements incurred by the plaintiffs on account of the vessel. The amounts in question are said to amount to approximately $50,000, and there is a schedule showing the relevant expenditure, which includes expenditure on fuel and parts.
5 A number of issues arising in this matter may be disposed of fairly readily.
6 First, the plaintiffs challenged the validity of r 52(3) of the Admiralty Rules which permits the court to order the release from arrest of a ship on
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- such terms as are just. The relevant rule making power is to be found in s 41(1) and s 41(2) of the Admiralty Act 1988. Section 41(1) simply provides that the Governor General may make rules not inconsistent with the Act making provision in relation to the practice and procedure to be followed in courts exercising jurisdiction under the Act and matters incidental to such practice and procedure. Section 41(2) relevantly provides that in particular, the rules may make provision in relation to, inter alia: by par (f) caveats against arrest or release of ships and other property; and by par (g) the arrest, custody and sale of ships and other property.
7 It was argued that by contrasting the language of s 41(2)(f) and that of s 41(2)(g), it would be seen that the legislature had contemplated lodging of caveats against arrest or release, but had otherwise provided only for arrest and custody and not for release of ships (otherwise than release by way of bail which is separately provided for in the rule making power, or release at the termination of a relevant action). Such a reading seems to me to be an unacceptably strained construction.
8 The power to make rules "in relation to" specified matters is a very wide grant of power. The most natural understanding of such a power in relation to arrest would permit the making of rules governing the circumstances in which (consistently with the Act) a vessel may be arrested, the duration of arrest, and the manner in which arrest may be challenged or otherwise brought to an end. A power to release from arrest, particularly in circumstances where, as here, it is argued that there is no statutory basis for the arrest, clearly facilitates the purposes of the Act in ensuring that only those ships which the legislature has determined should be arrested and detained, will continue under arrest if there should for any reason be an arrest made without lawful grounds. In particular, I note that elsewhere in the statute it is assumed that a ship which has been invalidly arrested may thereafter be released (s 20(3)(a)). I am quite satisfied that the court has power to entertain the application.
9 Next, so far as the claim pursuant to s 4(3)(t) is concerned, the defendant points out that the obligation to pay wages was said to be the obligation of the first and second plaintiffs pursuant to the oral agreement and that, further, there is no claim by any crew member in respect of wages in the action and that there is no claim in the action made by the master, the third plaintiff. The plaintiffs did not press any claim in respect of wages, and it seems to me appropriate to disregard that aspect of the claim for the purposes of this application. Nor did the plaintiffs press any
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- claim as arising pursuant to s 4(3)(d). It is appropriate, therefore, to disregard those paragraphs for the purpose of this application.
10 However, the plaintiffs assert that this claim falls within a number of other subparagraphs of s 4(3). It is asserted that it falls within s 4(3)(f) as a claim arising out of an agreement that relates to the use or hire of a ship. That is a paragraph referred to in Mr Bird's affidavit. It is also asserted by the plaintiffs that the facts deposed to by Mr Bird give rise to claims pursuant to a number of other paragraphs of s 4(3) and, in particular, emphasis is placed on s 4(3)(m), which relates to "a claim in respect of goods, materials or services … supplied or to be supplied to a ship for its operation or maintenance". On its face, the claim in respect of fuel and repairs and in respect of certain other matters referred to in the schedule annexed to Mr Bird's affidavit would appear to fall within that paragraph.
11 The defendant meets the submission based on s 4(3)(m) in a number of ways. First, the defendant asserts that it is not open to the plaintiffs, in respect of the continued detention of the ship, to rely upon any of the provisions of the Act to which Mr Bird did not make reference in his affidavit in support of the original application for arrest. It is not clear to me why this should be so.
12 Rule 39(2) of the Admiralty Rules requires that an application for arrest is to be supported by an affidavit of the applicant or of a solicitor or agent of the applicant. An affidavit is generally required to depose to matters of fact rather than matters of law. Indeed, although Mr Bird purported to identify relevant portions of the Admiralty Act in his affidavit, this would appear to be purely a matter of personal opinion unsupported by any relevant expertise, which ought not ordinarily to find its way into an affidavit.
13 The relevant form, Form 14, which is prescribed by the Admiralty Rules, requires that there be set out "short particulars of the claim". Again, this would suggest that "particulars" of the material facts underlying the claim of the applicant, rather than reference to particular statutory provisions. The nearest analogy is perhaps with a "cause of action", which is properly to be understood as a factual situation, the existence of which entitles one person to obtain a remedy against another, rather than the particular form by which the remedy is obtained (Letang v Cooper [1965] 1QB 232 at 242-243 per Diplock LJ). The affidavit of Mr Bird having set out particular facts which are said to justify the arrest, it appears to me that it is for the court in an application such as this to consider whether those facts will, as a matter of law, justify an arrest.
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14 More fundamentally, however, the defendant submits that while the Admiralty Act 1988 defines admiralty jurisdiction, it does not create any new form of claim. Indeed, s 6 expressly provides that:
"The provisions of this Act (other than section 34) do not have effect to create -
(a) a new maritime lien or other charge; or
(b) a cause of action that would not have existed if this Act had not been passed".
15 It is submitted that under the law pre-existing the Act, those who provided necessaries to a ship in an Australian port had no lien upon the ship for recovery of their demands. It is said that since there was no entitlement under Australian law for a lien or charge over a vessel in aid of an action for necessaries supplied to it an Australian port, where the owner was Australian domiciled, there was no entitlement to have the ship arrested to secure such a claim. There are, I think, two elements of this argument which need to be separated.
16 The first is that it seems to be assumed that if there is no lien or charge upon the ship, then there is no ability to bring an action inrem so as to enable a warrant to issue for the arrest of the res. The second is that any such jurisdiction is confined so as not to apply in respect of necessaries supplied to an Australian vessel (that is one owned by an Australian domiciled owner) at an Australian port.
17 As to the first proposition, it was not necessary, prior to the 1988 Act, to have a maritime lien in order to bring an action in rem and secure the arrest of a ship. Certain creditors were able to bring an action in rem if at the time at its institution the res was the property of the debtor; in this respect the right differed from that of a creditor with a "proper maritime lien" who was able (leaving laches aside) to proceed against the res notwithstanding a change of ownership: see, for example, the C & C J Northcote v The Heinrich Bjorn [1886] XI App Cas 270, particularly at 283-4, in which Lord Bramwell clearly rejected the notion that admiralty jurisdiction in rem only existed where there was a maritime lien.
18 Turning to the second proposition, so far as necessaries supplied to a ship were concerned, the position immediately pre-dating the 1988 Act was summarised by the Australian Law Reform Commission in its report No 33, Civil Admiralty Jurisdiction, at par 41. The claim for necessaries might be made in respect of:
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- • foreign ships or sea going vessels, whether supplied within the body of a county or upon the high seas; and
• ships at the time elsewhere than in the port to which they belong unless at the time when the cause of action was instituted an owner or part owner of the ship was domiciled in Australia (Admiralty Court Act 1861 (UK), s 5; Colonial Courts of Admiralty Act 1890 (UK), s 2(3) proviso (a)).
19 The defendant's argument so far as it relies upon this pre-existing jurisdiction is simply that by reason of s 6 of the 1988 Act, no claim may be made in respect of necessaries supplied to it because it is common ground that the owner is Australian domiciled.
20 There are a number of replies to this submission made by the defendant. First, it is said that the "cause of action", which is relevant in this case, is a cause of action in contract, which was always known to the law; that the particular contract falls within s 4(3)(m) and that by reason of that circumstance, s 17 of the Act gives a right to proceed in rem against the defendant. No new cause of action is created, but the remedy of an action in rem rather than in personam is created. Alternatively, it is said that the cause of action is a cause of action for necessaries which, even prior to the Act, would found an action in rem. While the Act has not created a new cause of action for necessaries, certain limitations, which previously existed in respect of the vessels which might be the subject of such an action, have been removed. The removal of these limitations flows from the definition of "general maritime claim" under s 4(3)(m), either alone or in combination with s 5(1) which provides that (subject to the succeeding provisions of the section) the Act applies to and in relation to - "(a) all ships, irrespective of the places of residence or domicile of their owners".
21 It appears to me that the second of the plaintiffs' submissions is correct. The interpretation contended for by the defendant would give to s 6 a controlling effect which, in my view, cannot have been intended. A section of this kind, which is generally inserted merely in order to avoid doubt and because of concerns that the ingenuity of counsel may result in statutory provisions being seen as having wider effect than intended, ought not to be permitted to cut down what would otherwise appear to be the very plain words of s 4(3)(m), s 5(1) and s 17. The construction contended for by the defendant would have the further odd result that, notwithstanding that the Act was intended to provide for the admiralty jurisdiction of Australian courts in a comprehensive and accessible form, it would be necessary to have regard in each case to the somewhat
(Page 8)
- complex and uncertain admiralty law, arising under a number of old imperial statutes and occasionally conflicting decisions, which preceded it.
22 So far as the action for necessaries is concerned, I am fortified in this conclusion, if support were needed, by par 197 of the Law Reform Commission's Report No 33 which discussed the restrictions then existing on proceedings in rem against a ship owned by a local defendant. The Commission concluded that the proposed legislation should confer jurisdiction with respect to local as well as foreign vessels, and the form in which the 1988 Act was passed is identical, so far as the relevant portions of s 4, s 5, s 6 and s 17 are concerned, with the draft bill recommended by the Commission. It follows, in my view, that the facts outlined in Mr Bird's affidavit would justify an action in rem against the defendant and the issue of a warrant for its arrest, subject to one other matter raised by the defendant.
23 The defendant also raised, as a subsidiary submission, the assertion that the items said to have been supplied were not supplied "to the ship". In my view, it is not desirable in an application of this kind finally to determine that question.
24 Section 4(3)(m) appears to contemplate a contract of supply between the claimant and ship owner: The River Rima [1988] 1 WLR 758 at 763 per Lord Brandon. However, the question whether there were services supplied to a ship within the meaning of s 4(3)(m) must be looked at as at the time when the services were supplied and determined as a question of fact at that time: Port of Geelong Authority v The Ship "Bass Reefer" (1992) 109 ALR 505, Foster J. It appears to me that it is arguable that there is a supply to the ship in circumstances where the plaintiffs purchased fuel for the operation of the particular vessel the subject of the contract between the owner and the plaintiffs, where the vessel's operation for that voyage is specifically contemplated by that contract.
25 Finally, the defendant relied upon an affidavit from Mr Volkov, which deposed that Barontrend has, in his view, an opportunity to charter the defendant and will suffer damage if it is not released from arrest and that, further, the plaintiffs owe Barontrend a sum payable by them for the charter of the defendant at the rate of $50,000 per month, in order to submit that the arrest of the defendant is, in the circumstances, disproportionate to the claims made by the plaintiffs and is designed to put "commercial pressure" upon Barontrend in its dispute with the first and second plaintiffs. These are not, in my view, matters appropriate to
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- be determined on the present application. There does not appear to me to be a gross disproportion between the competing claims of Barontrend and the plaintiffs. Further, no explanation is advanced as to why, if the court comes to the view that there was jurisdiction to make the arrest, the procedure provided for by the Admiralty Rules for the bail of the defendant should not be followed.
26 I would therefore dismiss this application.
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