Lloyd Werft Bremerhaven GmbH v Ship "Zoya Kosmodemyanskaya"
[1997] FCA 342
•1 May 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. 311 of 1997
GENERAL DIVISION )
IN ADMIRALTY
BETWEEN: LLOYD WERFT BREMERHAVEN
GmbH
Plaintiff
AND: THE OWNERS OF THE SHIP
"ZOYA KOSMODEMYANSKAYA"
AND OTHERS.
Defendant
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 1 MAY 1997
MINUTE OF ORDERS
The Court ordered:
The hearing of the Application for Release be adjourned to 7 May 1997 at 10.15 am.
The question of costs be reserved.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. 311 of 1997 GENERAL DIVISION )
IN ADMIRALTY
BETWEEN: LLOYD WERFT BREMERHAVEN
GmbH
Plaintiff
AND: THE OWNERS OF THE SHIP
"ZOYA KOSMODEMYANSKAYA"
AND OTHERS.
Defendant
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 1 MAY 1997
REASONS FOR JUDGMENT
TAMBERLIN J:
On 1 May 1997, the day after the Application for Release of the vessel was made, the plaintiff sought an adjournment of the hearing for approximately five days to enable it to collect evidence to meet the allegations and evidence of the defendant as to ownership of the arrested vessel.
After considering the submissions and hearing evidence I granted an adjournment for four working days and gave directions so the matter could be ready for hearing.
The defendant resisted the application for adjournment. This was, in substance, on the basis that the plaintiff had failed to carry out an up-to-date search as to ownership of the vessel before instituting the arrest proceedings on 24 April 1997.
The only evidence relied on to establish ownership at the time proceedings were commenced on 24 April was an examination of the LLoyd's Register. Unfortunately the extract relied on from that Register was out of date as at 24 April 1997. At that time, and for some months previously, the owner was shown as an entity other than the defendant.
The defendant stated that the arrest in the present case entails grave consequences. There is no protection afforded in the form of an undertaking as to damages in the event that the arrest is wrongly made. Accordingly, when steps are taken to arrest a vessel the plaintiff should have taken all reasonable steps to ensure that the Court has jurisdiction. That was not done in the present case. It is said that no adjournment should be granted to enable the plaintiff to gather evidence which should have been obtained prior to the arrest.
In support of this submission the defendant refers to News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 at 261 where Giles CJ observed that a party asserting jurisdiction has a "primary burden" to substantiate that claim. His Honour declined in that case to order a US resident media corporation to comply with a Notice to Produce which would assist the plaintiff to discharge the primary burden of establishing jurisdiction.
I am satisfied on the evidence that an up-to-date search of the LLoyd's Register of Ships would have indicated that as at 24 April 1997 and for some time previously the owner was not the defendant. However, that is not determinative of the application for an adjournment.
The application for release was not made until six days after arrest. The plaintiff has not had an opportunity to adduce further evidence to meet the evidence foreshadowed by the defendant although it has had an opportunity over the past week to update the ownership position.
The evidence as to detriment to the defendant, in the event there is a brief delay in hearing the question of jurisdiction, is vague and indeterminate. I am not persuaded that it is of any great weight.
As a practical matter, applications for arrest are usually brought before the Court urgently in circumstances where all the facts are not fully known with precision and it has not been possible to make a complete and detailed inquiry into ownership of the vessel.
There have been a number of recent cases in Australia and overseas involving the confusing position which currently prevails as to ownership in relation to Ukrainian and Russian vessels.
In my view, it would be oppressive to require the plaintiff to proceed this morning without providing a brief period for it to collect some further evidence. A brief adjournment is appropriate notwithstanding the urgency alleged. I note that this was the course which appears to have been followed by Clarke J in the The "Nazym Khikmet" [1996] 2 Lloyd's Rep. 362 at 363, which also involved an ownership dispute as to whether the Black Sea Shipping Co owned the vessel, although it does not appear there was any contest as to the appropriateness of the procedure. His Honour there pointed out that the question must be determined on the balance of probabilities with the burden of proof being on the plaintiff: see also The "I Congreso del Partido" [1977] 1 Lloyd's Rep. 536 at 561.
Although there is no undertaking as to damages in the present case I note that s 34 of the Admiralty Act 1988 (Cth), ("the Act") provides for damages in cases where an arrest is obtained unreasonably and without good cause. I appreciate that it may often not be easy to satisfy the requirements of the section but its presence in the Act does provide some protection for a party whose vessel or property is arrested.
For the above reasons I granted the brief adjournment, made directions, and reserved the questions of costs on 1 May 1997
I certify that this and
the preceding four (4)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 7 May 1997
Counsel for Plaintiff: Mr A W Street SC
Mr B W Larkin
Solicitor for Plaintiff: Phillips Fox
Counsel for Defendant: Dr A S Bell
Solicitor for Defendant: Norton Smith & Co
Date of Hearing: 1 May 1997
Date Judgment Delivered: 1 May 1997
Date of Publication of Reasons: 7 May 1997
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