Marine Trade Consulting GmbH v The Owners of the Ship "Kareliya" as named and also as Surrogate for the Ships "Azerbaydzhan", "Lev Tolstoi" and "Odessa"

[1996] FCA 794

CATCHWORDS

ADMIRALTY - Application for release of a vessel from arrest pursuant to r 52 of the Admiralty Rules - whether it has been established that the Black Sea Shipping Company of Odessa ("BLASCO") is the "owner" of the vessel at commencement of proceeding - whether "owner" in the sense of s 17 of the Admiralty Act 1988 (Cth) - insufficient evidence to show BLASCO as beneficial owner or demise charterer of the vessel - evidence circumstantial.

Admiralty Act 1988 (Cth) ss 17, 18

Admiralty Rules rr 52, 53

Malaysia Shipyard v "Iron Shortland" as surrogate for the ship "Newcastle Pride" (1955) 131 ALR 738, applied

Owners of the ship "Shin Kobe Maru" v Empire Shipping Co Inc. (1994) 181 CLR 404, considered

The Evpo Agnic [1988] 1 WLR 1090, cited

Baumvoll Manufactur Von Scheibler v Gilchrest & Co [1892]
1 QB 253, cited

Anderson's (Pacific) Trading Co Pty Ltd v Karlander New Guinea Line Ltd (1980) 2 NSWLR 870, cited

Mocatta, AA, Mustill, MJ, Boyd SC, Scrutton on Charterparties and Bills of Lading (1984) 19th ed.

MARINE TRADE CONSULTING GmbH v
THE OWNERS OF THE SHIP "KARELIYA' as named and also as SURROGATE for the SHIPS "AZERBAYDZHAN", "LEV TOLSTOI" and "ODESSA"

No NG 665 of 1996

Tamberlin J
Sydney
5 September 1996

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG665 of 1996
GENERAL DIVISION                 )
IN ADMIRALTY

BETWEEN:          MARINE TRADE CONSULTING GmbH
  Plaintiff

AND:              THE OWNERS OF THE SHIP
  "KARELIYA"
  as named and also as
  SURROGATE for THE SHIPS
  "AZERBAYDZHAN", "LEV TOLSTOI"
  and "ODESSA"
  Defendant

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       5 SEPTEMBER 1996

REASONS FOR JUDGMENT

TAMBERLIN J:
Introduction

This is an application by Globus, described in the evidence as a Ukrainian "Private Enterprise", which has entered an appearance in the arrest proceeding and which describes itself as the bareboat charterer of the ship "Kareliya" ("the vessel").

The application is made under r52 of the rules ("the Admiralty rules") made pursuant to the Admiralty Act 1988 (Cth) ("the
Act") to release the vessel from an arrest effected by the Court on the morning of 30 August 1996.

Later on that day after considering evidence and hearing submissions from the parties, I made an order to release the vessel. I now give my reasons.

The vessel is a large passenger liner capable of accommodating up to 644 passengers. It was due to depart Sydney on Friday evening, 30 August 1996, on a cruise with over 300 passengers on board. It has now departed. It is scheduled to return to Sydney with passengers on the cruise in the next few weeks.

The vessel first came to Australia in November 1994 and has cruised in Australian waters since that time with the exception of a four and half month period in 1995, when it was sub-chartered to Japanese interests and it travelled around the world. The vessel returned to Australia in about November 1995 and has been continuously cruising from Australian ports since that time. It is scheduled to continue cruising from Australian ports until July 1997, apart from one voyage to Singapore.

An affidavit was filed in Court on 30 August 1996 by Dr Markov. He is the General Director of CTC Package Holidays Pty Limited ("CTC Holidays"). Dr Markov is also a Director of Charter Travel Company Limited ("CTC"). Prior to June 1996 he
had been Managing Director of CTC in London for about twelve months.

He says that from enquiries and from his own knowledge he understands that when the vessel arrived in Australia 1994 and up to July 1995, it was operated by CTC pursuant to a time charter from Black Sea Shipping Company of Odessa ("BLASCO"). This is a Joint Stock Shipping Concern created pursuant to a decree of the Ukrainian President on 13 August 1993.

From July 1995 until January 1996 when the vessel was bareboat chartered to Globus, which is also based in Odessa, the vessel was operated by CTC pursuant to a time charter from the registered owner, Maddock Trading Inc. That is a Liberian registered company. Since 12 January 1996 the vessel has been operating pursuant to a time charter from Globus to CTC.

Ownership - The Primary Issue

The present dispute raises the question as to whether BLASCO, which is "the relevant person", was at the time the proceeding was commenced on 15 August 1996 the owner under s17(b) of the Act or a demise charterer under s18 of the Act. In view of the conclusion I have reached on this question it is not necessary for me to consider whether the requirements of ss17(a) or 18(a) of the Act have been satisfied.

History

The vessel was arrested two weeks ago pursuant to an application by the present applicant made on 15 August 1996. As I understand it, after some preliminary discussion before Sheppard J, his Honour made orders as follows:

"(1)The vessel be released from arrest upon the Undertaking to the Court of CTC Package Holidays Pty Ltd to use its best endeavours to ensure that the vessel returns to Sydney on or about 30 August 1996.

(2)The Plaintiff has liberty to apply to rearrest the vessel.

(3)The Marshall be at liberty to permit passengers to board the vessel forthwith.

(4)The Defendant's Notice of Motion dated today be stood over with liberty to apply on 2 days notice.

(5)The Plaintiff to file an Application to Registrar for release of ship pursuant to Form 19 forthwith.

(6)The ship be released from arrest.

(7)Costs be reserved."

On the vessel's return to Sydney from a cruise during the latter half of August, on the morning of Friday 30th August 1996, the vessel was re-arrested

In the course of the application before Sheppard J for arrest, doubts were raised as to the ownership of the vessel as at the relevant date. The particulars of claim in the writ read as follows:

"WRIT

BY THIS WRIT the Plaintiff commences action against the ship specified above.

PARTICULARS OF SHIP: "KARELIYA"; Port of Registry - Odessa, Ukraine

AMOUNT CLAIMED OR OTHER RELIEF SOUGHT:

The Plaintiff claims the following relief:

(a)arrest of the ship "Kareliya"

(b)judgment in the sum of DM 6,077,148.58;

(c)security for the claim in the sum of $A6,625,514.58;

(d)damages for breach of contract;

(e)interest;

(f)costs.

PARTICULARS OF CLAIM

The Plaintiff, pursuant to an Agreement dated 25 March 1994 (hereinafter referred to as the "Management Agreement") between themselves and the owners (BLASCO, of 1 Lastochkina Street, Odessa, 270026, Ukraine, hereinafter referred to as "Owners") of the ships "Kareliya", "Azerbaydzhan", "Lev Tolstoi" and "Odessa" (hereinafter referred to as "the Ships"), performed various management services in relation to the Ships during the period 1 April 1994 to 30 June 1996, and in addition incurred disbursements in relation to the supply of  various goods, materials, and services to the Ships. The Management Agreement provided that the fees for the said management services and disbursements would be paid by the Owners to the Plaintiff. The said fees and disbursements were to be paid in an amount determined by reference to an Agreement dated 24 May 1994 between the Plaintiff and Lloyd Werft Bremerhaven GmbH. In breach of the Management Agreement the Owners have failed to pay the Plaintiff the said fees and disbursements, which remain outstanding as calculated below:

Management fees for the period

1 April 1994 to 31 March 1996             DM 3,000,000.00

Management fees for the period
     1 April 1996 until 30 June 1996      DM   250,000.00

Outstanding disbursements incurred
     in relation to the ship "Kareliya"        DM   852,605.07

Outstanding disbursements incurred
     in relation to the ship "Azerbaydzhan" DM   960,695.91

Outstanding disbursements incurred
     in relation to the ship "Odessa"     DM 1,013,847.60

TOTAL:  DM 6,077,148.58 

...."

The writ was taken out in respect of the ship "Kareliya" for debts owing in relation to it and also as surrogate for three other ships referred to in the title to the proceeding.

Statutory Provisions

The relevant provisions of the Act are as follows:

"17. Where, in relation to a general maritime claim concerning a ship or other property, a relevant person:

(a) was, when the cause of action arose, the owner or charterer of, or in possession or control of, the ship or property; and

(b) is, when the proceeding is commenced, the owner of the ship or property;

a proceeding on the claim may be commenced as an action in rem against the ship or property.

Section 3 of the Act defines "relevant person" as follows:

"relevant person, in relation to a maritime claim, means a person who would be liable on the claim in a proceeding commenced as an action in personam;"

Rule 52 of the Admiralty Rules provides:

"52(1) A party to a proceeding may apply to the court in accordance with Form 19 for the release of a ship or other property that is under arrest in the proceeding.

.....

(3) On an application under subrule (1), the court may order the release from arrest of the ship or property on such terms as are just.

(4) The court must not hear an application for the release from arrest of a ship or any property under this rule unless:

(a)the applicant for the release has given to the plaintiff notice, being notice that the court is satisfied is reasonable in the circumstances, of the hearing of the application for the release; or

(b)the court is satisfied that there are exceptional circumstances that justify hearing the application without giving notice to the plaintiff."

Rule 53 empowers the Marshal to refuse to release a ship from arrest in accordance with an order of the court unless arrangements satisfactory to the Marshal have been made for payment of the fees and expenses of the Marshal in connection with the custody of the ship or property whilst it was under arrest.

As can be seen from the particulars, the relevant person is BLASCO. The period in respect of which the claims are made is from 1 April 1994 to 30 June 1996.

The primary question I will address is whether it has been established on the evidence that BLASCO was, in August 1996 when the proceedings commenced, the owner of the vessel.

The most recent and relevant authority is the case Malaysia Shipyard v "Iron Shortland" as surrogate for the ship "Newcastle Pride" (1995) 131 ALR 738. In that matter Sheppard J held that for the purposes of s19 of the Act "owner" includes a beneficial owner as well as a registered owner.

His Honour's observations on this question apply equally to the interpretation of s17 of the Act.

At 749 his Honour said:

"I think there are difficulties in taking the simple view that "owner" in the section means only "registered owner". After all, the section does not use those words. Obviously the registered owner will, in the absence of other evidence, be taken to be the beneficial owner. But there seems to me to be no reason of policy why the section should not be construed to mean or to include a beneficial owner. Because the judges who decided Shin Kobe Maru were dealing  with
a case directly concerned with the ownership of a vessel and thus with a proprietary, rather than a general, maritime claim, there is a danger in taking too much from the dicta about the meaning of ownership in s4(2) and applying them to cases under s4(3), particularly bearing in mind the terms of both ss 17 and 19. But at least the judgments show that the concept of "owner" and "ownership" in the Act may have a meaning which involves or includes beneficial ownership. There is thus nothing which runs counter to ordinary concepts of admiralty law or jurisdiction which should lead me to reject the plaintiff's submission."

In that case, neither the parent company nor its subsidiary which was the registered owner of the "Iron Shortland", had entered an appearance in the proceedings. His Honour stated that in such circumstances, he would have found the parent to be the beneficial owner of the vessel if there had been any real evidence of beneficial ownership. However, notwithstanding this he considered that the evidence did not establish or tend to establish that the parent beneficially owned the vessel.

The question of ownership by the relevant person at the commencement of the proceeding is a jurisdictional fact and as the High Court said in its joint judgment in Owners of the ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 426-427:

"Where jurisdiction depends on particular facts or a particular state of affairs, a challenge to jurisdiction can only be resisted by establishing the facts on which it depends.  And, of course, they must be established on the balance of probabilities in the light of all the evidence advanced in the proceedings held to determine whether there is jurisdiction."

In the present case, there has been no appearance by BLASCO or Maddock Trading Inc. It is the latter company which is said to be the owner.

This is not a case where it is open to the Court to lift the corporate veil so as to make entities, which may be holding companies, liable for the obligations and debts of subsidiaries. In this regard it is helpful to bear in mind the conclusions expressed in the Australian Law Reform Commission Report, (No 33, Civil Admiralty Jurisdiction) at 108-9, where the Commission said:

"Again, differing views were expressed to the Commission about the desirability of a corporate veil provision, either confined to the identification of surrogate ships, or applying more generally. The predominate view was that a special provision in the legislation was undesirable. It was suggested that the right to proceed in rem with respect to owners' and demise charterers' liabilities, combined with the existing law of maritime liens, covered most situations. But the fundamental consideration, in the Commission's view, is the undesirability of making special provision with respect to the corporate veil in legislation dealing with admiralty jurisdiction. If questions of the
liability or indebtedness of corporate groups are to be addressed this is properly done through company or insolvency law rather than in specific legislative contexts such as admiralty jurisdiction. Accordingly, there should be no special provision dealing with the corporate veil, or defining "related" or "associated" companies, in the proposed legislation."

The Evidence

The evidence adduced by the plaintiff is that on 25 March 1994 a Management Agreement was entered into between MTC Marine Trade Consultants GmbH of Hamburg (MTC") as Manager. The recitals refer to BLASCO as the owner of Ukrainian registered passenger vessels, MV "Odessa", MV "Lev Tolstoi", MV "Azerbaydzhan" and MV "Kareliya".

BLASCO appointed MTC to manage and maintain the vessels and perform the services set out in the agreements. There were two addenda. They are not of present significance.

A memorandum from Lloyds Maritime Information Services dated 8 July 1996 states that according to Lloyds records, the current registered ownership of the vessel is listed as being:

"Maddock Trading Inc.

Monrovia
             Liberia
             c/o
             Charter Travel Co Ltd
             1 Regent Street, London, United Kingdom"

Lloyds listed the vessel as "ex-Ukraine flag". There is also a Certificate of Ownership and Encumbrance issued by the Bureau of Maritime Affairs of the Republic of Liberia, dated 21 August 1996, showing the owner as Maddock Trading Inc, a company which is stated to have its residence in Liberia and to have Liberian citizenship.

According to a company search from Companies House, Cardiff,(UK), dated 27 August 1996, the shareholders of CTC are Anglo-Soviet Shipping Co Ltd and BLASCO.

A letter to MTC from Globus of Odessa dated 23 August 1996, states that the vessel works under bareboat charter with Globus and "doesn't concern BLASCO". A fax from BLASCO, on a letterhead entitled "Ministry of Transport of Ukraine", to MTC, dated 27 August 1996, asserts that the vessel was sold by BLASCO to "Messers Maddock", who are the rightful owners of the vessel. BLASCO denies having any proprietary rights or ownership in the vessel.

There is also in evidence a Bill of Sale of the vessel expressed to be executed on 10 July 1995, transferring all the shares in the ship from BLASCO to Maddock Trading Inc. of Monrovia in consideration of the sum of USD 12 million. There is also a bareboat charter executed by Maddock Trading Inc as owner and Globus as charterer dated 12 January 1996 in relation to the vessel. In addition, there is a signed Contract of Time Charter between Globus as Shipowners and CTC London, as charterers, for the period 12 January 1996 until September 1996.

A Ship's Certificate dated 5 March 1996, issued by the Port Office of Odessa shows the owner of the ship as being Globus. However, later in the certificate, it is said:

"According to the Merchant Shipping Code of the Ukraine, this certificate is to be considered as final and complete evidence of the right of property of Maddock Trading Inc, Monrovia, Liberia on the ship Kareliya."

A Classification Certificate issued and dated 2 April 1996 describes "Clobus" (sic) as the shipowner in relation to the "Kareliya". This classification certificate is expressed to be valid until 12 December 1997.

The plaintiff tendered a footnote to the financial statements for the year ended 31 December 1994 for the Charter Travel Company Limited and subsidiaries which reads:

"22 ULTIMATE HOLDING COMPANY

At 31 December 1994 the Company was a 70% subsidiary of BLASCO, an undertaking incorporated in the Ukraine. On 26 February 1996 BLASCO entered into an agreement to purchase the minority stake in the Group held by Anglo-Soviet Shipping Company Limited."

This is some evidence that CTC may have been, in February 1996, a wholly owned subsidiary of BLASCO. There is also in evidence a letter, dated 8 August 1996, from East Wind Schiffsausrustung GmbH of Hamburg ("East Wind") to MTC which states:

"We herewith confirm that we have been supplying M/V "Kareliya" with technical ships supplies since May 1994. Orders were received from Shipowners Black Sea Shipping Company in Odessa and payment was guaranteed from Managers MTC - Marine Trade Consulting GmbH in Hamburg.

Since 1996 we have been receiving several delivery orders for M/V "Kareliya" from Black Sea Shipping Company with payment from charterers CTC in London.

Original invoices are sent to Blasco.

..."

The above statements are supported by an affidavit of Norbert Dennstedt, dated 28 August 1996. He is employed by East Wind. He annexes to that affidavit communications passing between East Wind and BLASCO in the course of which BLASCO seeks quotes for spare parts from East Wind and seeks confirmation of delivery to Australia for "MV Kareliya". The annexures contain statements that payment will be effected by CTC London or CTC Sydney for such parts.

There is also a direction from BLASCO to CTC Lines London, requesting them to effect payment to East Wind in the sum of DM 120,806.25.

An agreement dated 12 March 1996 between "Globus" and SSC BLASCO provides that the owner, Globus, will entrust the operator BLASCO with the technical management of the vessel. The "technical management" is defined to include:

" ...

2.1Technical survey of a/m vessel during navigation;

2.2Supervision for ship's documents;

2.3Appointments of ship engineers on the vessel, examination of their qualifications and working experience;

2.4Organising of any kind of ship's repair, including classification repair;

2.5Order of necessary spare parts and materials for the vessel;

2.6Carrying out of regular inspections of the vessel by superintendents to maintain the vessel in good order.

..."

It is pointed out in an affidavit sworn by Mr Luxford of Messrs Phillips Fox, filed for the plaintiffs, that the telex number of BLASCO in a telefax from BLASCO to East Wind of 31 July 1996 is the same telex number for BLASCO as appears in the entry under the heading "BLASCO" in an extract from Lloyds Maritime Directory 1993. This does not seem to me to carry the matter much further.

Entries in the Lloyds Register of Ships for 1992 through 1995 to 1996, indicate that an entry with the name "Kareliya", is coupled with a reference to BLASCO. In the 1995-1996 entry, however, the name "Kareliya" is associated with a reference to Maddock Trading Co Inc. In relation to the list of shipowners for 1996-1997, the directory shows Maddock Trading Inc. as owner of the vessel. Three other entries concerning Maddock Trading relate to different entities namely, Maddock Trading 2 Inc, Maddock Trading 6 Inc, and Maddock Trading 8 Inc. These entries also refer to BLASCO. However, the principal entry relating to Maddock Trading Inc has no such reference.

Firstly, it seems to me that these entries in the Lloyds Directory are ambiguous and unclear as to what they purport to show. Secondly, they can only provide some guidance of a marginal and indicative nature. Thirdly, they do not appear to have any formal status as to the ownership of vessels. The history and  basis of the statements are not known.

The plaintiff provided several ASC searches in relation to CTC Package. These indicate that CTC Package, with its registered office at Clarence Street, Sydney, is ultimately held by CTC. From an extract of Business Names records, it appears that the business of CTC Cruise Line (a trading name) is passenger shipping and travel. The name is registered until 2 June 1998. The principal place of business is Clarence Street, Sydney. CTC began operation on 1 June 1992. It is used by "CTC Package
Holidays Pty Limited" of the same address in Clarence Street, Sydney.

In address the plaintiff relied on the following circumstances to make out a case that BLASCO was the beneficial owner of the vessel:

•The unchallenged ownership of BLASCO up to the early half of 1995.

•The non-appearance of Maddock Trading Inc. in the proceeding.

•The employment by BLASCO of the master and crew and its continuing control.

•The continued involvement of BLASCO in ordering parts for the vessel and the procuring of payments by the CTC Group.

•The absence of any evidence as to shareholding or directors of Maddock Trading Inc.

•The registration of Maddock Trading Inc. in Liberia, which is a "flag of convenience" country.

Whilst there is some force in the above considerations, I am not persuaded that, when considered in the light of the documentary evidence placed before me and the oral evidence of Dr Markov, they are of sufficient weight to establish that BLASCO was the beneficial owner of the vessel at the commencement of the proceeding for arrest on the balance of probabilities.

The evidence shows that the vessel was sold to Maddock Trading Inc. and that Maddock Trading Inc. is the registered owner. The circumstances relied on by the plaintiff are not sufficient to give rise to an inference that, notwithstanding the documented sale, BLASCO has continued to be the beneficial owner of the vessel, in the sense of owning the vessel or having shares in the vessel, as opposed to ownership of shares in companies which are involved with the operation of the vessel. For example, the existence of the Technical Management Agreement between Globus as owner and BLASCO as operator, does not raise an inference that BLASCO is in fact the owner of the vessel even when considered in the light of all the evidence proffered.

The evidence in relation to the ownership of Globus is limited but there is some evidence that the founder-owner of Globus is a Mrs E Kulybachenko. There is no evidence to indicate that, in any way, she is a nominee, trustee, or agent for BLASCO.

From the evidence it appears to me that the correct conclusion is that the owner of the vessel is Maddock Trading Inc. The Bill of Sale indicates that the transfer was made from BLASCO on 10 July 1995. This is consistent with the assertions of BLASCO. It is reinforced by reference to the bareboat charter of 12 January 1996 from Maddock Trading Co Inc to Globus. The expenditure of funds by BLASCO in 1996 appears to be based on the Technical Management Agreement with Globus of 12 March 1996. These documents provide important evidence and should not be disregarded lightly. See the remarks of Lord Donaldson in The Evpo Agnic [1988] 1 WLR 1090 at 1096.

While there is evidence of a general and circumstantial nature to indicate that there may be links between the vessel and BLASCO, I do not consider that the evidence discloses that as at 15 August 1996 BLASCO had any ownership interest in the vessel beneficial or otherwise.

The evidence leads me to the conclusion that the owner is Maddock Trading Co Limited with a bareboat charter to Globus, which in turn has entered into a Time Charter Contract with CTC.

Demise Charterer

Section 18 of the Act provides:

"Where, in relation to a maritime claim concerning a ship, a relevant person:

(a) was, when the cause of action arose, the owner or charterer, or in possession or control, of the ship; and

(b) is, when the proceeding is commenced, a demise charterer of the ship;

a proceeding of the claim may be commenced as an action in rem against the ship."

The plaintiff submits that all requirements of s18 have been met in the present case. In particular, it is submitted that when the proceeding was commenced (on the assumption that BLASCO was not the owner) BLASCO was the demise charterer of the ship.

This is said to flow from a number of considerations, including the fact that Dr Markov is said to have testified that the master and crew were employed by BLASCO. The submission was that such employment together with the control evident in the communications from East Wind in terms of the instructions given in relation to the vessel, and the control through CTC, which BLASCO exercised, led to the conclusion that BLASCO was a demise charterer for the purpose of jurisdiction under s18.

However, Dr Markov in cross-examination did not agree that the master and crew on the vessel were paid by BLASCO or were under the control and direction of BLASCO. He agreed that they were employed by BLASCO, but said that according to the agreement they were recruited by Globus and that Globus paid their salary and their wages.

When asked whether in relation to the master and crew on the vessel, he understood they were able to be repatriated or engaged or dismissed by BLASCO, Dr Markov replied that Globus on his understanding was the entity able to repatriate, engage or dismiss them. 

The crewing agreement between Globus and BLASCO, dated 15 January 1996, which was Exhibit B, is in the Russian language and the only evidence as to its effect is that of Dr Markov.

In these circumstances, the evidentiary basis for the submission that BLASCO has been shown to be a demise charterer has not been made out.

As Scrutton on Charter Parties, 19th Edition, 1984 points out at 48, the question depends on whether the owner has parted with the whole possession and control of the ship and whether he has given the charterer a power and right independent of the owner and without reference to the owners; to do whatever is considered appropriate with respect to the captain, the master, the crew and the management and employment of the ship. There has to be a parting with the whole possession and control of the ship. In each case it is necessary to consider the particular terms of the Charter: Baumvoll Manufactur Von Scheibler v Gilchrest & Co [1892] 1 QB 253 at 259 applied by Hunt J in Anderson's (Pacific) Trading Co Pty Ltd v Karlander New Guinea Line Ltd (1980) 2 NSWLR 870 at 872. In every case
it is necessary to look at the substance and not merely the form of the relationship.

Although in general the employment of the master and the crew affords an indication of the existence of a demise charterer, I do not think that the fact of employment and the provision of technical management are sufficient in the present case to establish degree of possession and control. In the present case, in my view,  greater weight must be given the documentary evidence and that provides substantial support for the conclusion that BLASCO was not, when the proceedings were commenced, a demise charterer of the vessel.

Conclusion

My conclusion was that the vessel should be allowed to depart.
In the circumstances, however, I thought it appropriate to make an order that there be an undertaking from CTC Holidays to use its best endeavours to ensure that the vessel returns to Australia in accordance with its existing schedule of departures which according to Dr Markov is applicable until July 1997. I have also made orders as to the provision of an undertaking in respect of the expenses of the Marshal. I considered that the arrest warrant of 30 August 1996 should be set aside.

I have also ordered that the time limitation for lodgment of a notice of appeal will run from the date on which these reasons for judgment are delivered.

In principle, the costs of the application to release the vessel should be borne by the plaintiff. However, I will hear any submissions which the parties may wish to make on this question.

I certify that this and
the preceding twenty-two (22)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.

Associate:

Date:  5 September 1996  

Counsel for Applicant:           Mr A W Street  

Solicitors for Applicant:        Phillips Fox

Solicitors for Respondent:       Mr S Hetherington
  of Ebsworth & Ebsworth

Solicitor for Admiralty Marshal:    Mr D Coleman

Date of Hearing:               30 August 1996  

Date Judgment Delivered:              5 September 1996