Kent v Ss “Maria Luisa” - [2002] FCA 1207

FEDERAL COURT OF AUSTRALIA
Kent v SS “Maria Luisa” [2002] FCA 1207
ADMIRALTY – jurisdiction – application to set aside principal proceedings for want of jurisdiction – vessel “Maria Luisa” arrested as surrogate for “Monika” and “Boston Bay” – whether “owner” in s19(b) of Admiralty Act 1988 includes demise charterer.
Admiralty Act 1988 (Cth) s 3, s 4, s 19
Owners of the ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 cited
Malaysia Shipyard v “Iron Shortland” (1995) 131 ALR 738 applied
Sandeman v Scurr [1866] 2 QB 86 cited
Swards v The Owners of the Ship “Pyungwha 36” [1996] BC 9605497 not followed
I Congreso del Partido [1978] 1 QB 500 applied
The “Father Thames” [1979] 2 Lloyd’s Rep 364 cited
GREGORY DAVID KENT v THE FISHING VESSEL “MARIA LUISA” AS SURROGATE FOR THE VESSELS “MONIKA” AND “BOSTON BAY”
NO. N 467 OF 2001
BEAUMONT J
13 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 467 OF 2001

BETWEEN:

GREGORY DAVID KENT
PLAINTIFF

AND:

THE FISHING VESSEL “MARIA LUISA” AS SURROGATE FOR THE VESSELS “MONIKA” AND “BOSTON BAY”
DEFENDANT

JUDGE:

BEAUMONT J

DATE OF ORDER:

13 SEPTEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The principal proceedings be dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 467 OF 2001

BETWEEN:

GREGORY DAVID KENT
PLAINTIFF

AND:

THE FISHING VESSEL “MARIA LUISA” AS SURROGATE FOR THE VESSELS “MONIKA” AND “BOSTON BAY”
DEFENDANT

JUDGE:

BEAUMONT J

DATE:

13 SEPTEMBER 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(ON DEFENDANT’S MOTION FOR AN ORDER DISMISSING PRINCIPAL PROCEEDINGS FOR WANT OF JURISDICTION)
BEAUMONT J:
INTRODUCTION

The plaintiff sues for damages in an action in rem brought against the defendant ship pursuant to the provisions of the Admiralty Act 1988 (Cth) (“the Act”).
The plaintiff claims, in the litigious context described below, and, in particular, in the context of s 19 of the Act, that he has a “general maritime claim” within par (c) or par (d) of s 4(3) of the Act, which defines such a claim so as to include (relevantly) claims –
“(c)... for personal injury, sustained in consequence of a defect ... in the apparel or equipment of a ship; or
(d)a claim ... for ... personal injury ... arising out of an act or omission of ... the owner or charterer of a ship [or] a person in possession or control of a ship ... being an act or omission in the navigation or management of the ship ... .”
Specifically, by way of writ in rem filed on 24 April 2001, the plaintiff commenced proceedings against the fishing vessel “Maria Luisa”, the surrogate for the vessels “Monika” and “Boston Bay”.
The relevant person, within the meaning of ss 3 and 19 of the Act (see below), specified (as required by Rule…

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.

Keep reading for free

Create a free CaseChat account to read Kent v Ss “Maria Luisa” and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] FCA 1207
Decision Date: 13 SEPTEMBER 2002

CaseChat Overview and Summary

In the case of Kent v Ss “Maria Luisa”, the plaintiff sought to establish a maritime claim against AFE, the alleged beneficial owner of the vessels "Monika" and "Boston Bay", as well as the "Maria Luisa". The vessels in question were chartered by AFE between May 1993 and April 1994 and the plaintiff argued that AFE was the beneficial owner of "Maria Luisa" on 24 April 2001. The court had to determine whether the plaintiff's claim could be characterised as a "general maritime claim" under sections 4(3)(c) and 4(3)(d) of the relevant maritime legislation. The primary issue before the court was whether AFE was the owner, charterer, or had possession or control of the vessels in question during the specified period, and whether AFE was the beneficial owner of "Maria Luisa" on the date in question.

The court examined the decision in Malaysia Shipyard v “Iron Shortland” (1995) 131 ALR 738, where Sheppard J considered the applicability of a similar statutory provision. Sheppard J held that the term "owner" in the statute includes beneficial owner but found insufficient evidence to establish that the beneficial owner was the true owner of the vessel. The court considered whether AFE could be considered the beneficial owner of the vessels in question, despite Everdene being the registered owner. The court noted the Law Reform Commission's recommendation that the statute should not make special provision with respect to the "corporate veil" and found that the evidence did not establish AFE as the beneficial owner of "Maria Luisa".

The court concluded that the plaintiff had not satisfied the Court that his claim, properly characterised, was a "general maritime claim" within s 4(3)(c) or (d). The court found that AFE was not the beneficial owner of "Maria Luisa" on 24 April 2001 and that the evidence did not support the plaintiff's contention that AFE was the beneficial owner of "Monika" and "Boston Bay" between May 1993 and April 1994.

ORDERS:
1. The principal proceedings be dismissed, with costs.

Orders

Orders of the court

1. The principal proceedings be dismissed, with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BEAUMONT J

Here two questions arise:(a)Has the plaintiff satisfied the Court that his claim, properly characterised, is a “general maritime claim” within s 4(3)(c)?(b)Has the plaintiff satisfied the Court that his claim, properly characterised, is a “general maritime claim" within s 4(3)(d)?CONCLUSIONS ON THE MOTION It will be convenient, at this stage, to consider the first issue. Was AFE the owner, charterer or person in possession or control of “Monika” and “Boston Bay” between May 1993 and April 1994 (s 19(a))? Everdene has now admitted, in answer to interrogatories, that AFE was the charterer of these vessels in this period.Was AFE the owner of “Maria Luisa” on 24 April 2001 s 19(b)? Notwithstanding that Everdene was the registered owner of the vessel at this date, the plaintiff contends that AFE was then its beneficial owner. For its part, Everdene accepts, in principle, that whilst “owner” in s 19 can include “beneficial owner”, in the absence of other evidence, the registered owner will also be taken to be the beneficial owner. Everdene further contends that, although it is a wholly-owned subsidiary of AFE, that, of itself, does not establish that AFE beneficially owns “Maria Luisa”. Central to the respective arguments of the parties was the decision and reasoning of Sheppard J in Malaysia Shipyard v “Iron Shortland” (1995) 131 ALR 738, where his Honour considered the potential operation of s 19 in the circumstances of that case, as follows. The “Iron Shortland”, chartered by BHP Transport Pty Limited (“BHPT”), was arrested on the application of the plaintiff, who claimed that the “Iron Shortland” was a surrogate ship for the “Newcastle Pride”. The registered owners of the two ships were wholly-owned subsidiaries of Capeco Maritime NV. The plaintiff contended that Capeco Maritime NV was the beneficial owner of both vessels and that s 19 permitted an action against the “'Iron Shortland”. Although Sheppard J held (at 749) that in s 19 “owner” includes a beneficial owner, the evidence did not establish to the Court’s satisfaction that Capeco Maritime NV beneficially owned the “Iron Shortland”. Accordingly, s 19 could not apply. In so concluding, Sheppard J noted (at 748) that the Law Reform Commission’s report (Australian Law Reform Commission Civil Admiralty Jurisdiction Report No. 33, 1986) recommended that the Act should not make special provision with respect to the “corporate veil”, or in the definition of “related” or “associated” companies. Sheppard J said (at 758):“I have given due consideration to the totality of the evidence which there is on the question whether Capeco Maritime is the beneficial owner or the true owner of the Iron Shortland. Having reflected on the matter, I have reached the conclusion that the evidence does not establish that it is. In relation to the question whether Capeco Maritime was the beneficial owner of the Newcastle Pride, I put the placing memorandum aside because I considered that the statements in it were ambiguous. They were consistent with the ownership of the vessels being in the various subsidiaries so that the usual situation of there being a holding company and a number of subsidiary companies was the one which was contemplated. On the basis of the authorities earlier referred to, particularly Macaura, there is no warrant for holding that the holding company, ie Capeco Maritime, has, upon the basis of the statements made in the placing memorandum, a beneficial interest in the vessels themselves as distinct from the beneficial interest in the shares in the subsidiary companies. Unlike the position which existed in relation to the Newcastle Pride, there is, in the case of the Iron Shortland, no evidence of any insurance in the name of Capeco [Maritime] or the Capeco group of companies and no technical management agreement describing Capeco Maritime as an owner of the vessel. There is nothing which corresponds with the agreement concerning the repairs done to the Newcastle Pride which again described Capeco Maritime, at least indirectly, as the owner of that vessel.”

Ratio Decidendi

Legal Principle Established

Established by: BEAUMONT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 467 OF 2001

BETWEEN:	GREGORY DAVID KENT PLAINTIFF
AND:	THE FISHING VESSEL “MARIA LUISA” AS SURROGATE FOR THE VESSELS “MONIKA” AND “BOSTON BAY” DEFENDANT
JUDGE:	BEAUMONT J
DATE OF ORDER:	13 SEPTEMBER 2002
WHERE MADE:	SYDNEY

JUDGE:	BEAUMONT J
DATE:	13 SEPTEMBER 2002
PLACE:	SYDNEY