Gardner Smith Pty Limited v The Ship Tomoe 8

Gardner Smith Pty Limited, the plaintiff, commenced proceedings in rem against the ship *Tomoe 8* while it was within Australian waters. A guarantee was provided in lieu of arresting the vessel, which was given in respect of the liability of the bareboat charterer. The plaintiff sought clarification regarding the capacity in which the appearance was entered by the respondent, as the appearance was only for the owner of the vessel and not the bareboat charterer, Tomoe Shipping. The proceedings were before the High Court of Australia.

The primary legal issue before the court was to clarify the parties who had entered an appearance and the capacity in which they did so. Specifically, the plaintiff sought to understand whether an appearance had been entered on behalf of both the owner and the bareboat charterer, or solely on behalf of the owner. This clarification was sought to ensure that the plaintiff could proceed with its summons for remitter, and to address potential questions concerning the circumstances under which the guarantee was given and the basis upon which the proceedings for arrest were abandoned. A secondary issue raised by the respondent was a potential jurisdictional objection concerning the court's Admiralty jurisdiction in respect of claims arising under charter-parties.

The court was required to determine the status of the appearance entered by the respondent. The respondent indicated that an appearance had been entered on behalf of Sietamar, the owner of the vessel, but not on behalf of the demised charterer, Tomoe Shipping. The respondent sought to intervene by virtue of Order 11 rule 22 and, if necessary, sought leave to enter a conditional appearance under Order 11 rule 4 to avoid waiving a jurisdictional objection. The jurisdictional objection concerned the court's Admiralty jurisdiction under section 6 of the Admiralty Court Act 1861 (UK) in relation to claims arising under charter-parties. The court noted that the owner had entered an appearance, but the bareboat charterer had not yet entered a conditional appearance.