Patrick Stevedores No 2 Pty Ltd v The Proceeds of the Sale of the Vessel MV "Skulptor Konenkov"

[1998] FCA 100

BETWEEN:

PATRICK STEVEDORES NO 2 PTY LIMITED (Formerly known as STRANG PATRICK STEVEDORING PTY LIMITED (First Plaintiff) and PATRICK STEVEDORES NO 1 LIMITED (Formerly known as AUSTRALIAN STEVEDORES NO 1 LIMITED (Second Plaintiff)

AND BY AMENDMENT:

BERGEN BUNKERS A/S ENSO-GUTZEIT OY, FINNPAP MARKETING ASSOCIATION, GLAVERBELL SA and G JAMES AUSTRALIA PTY LIMITED,
ROMET LIMITED (Formerly METRO MEAT LTD), SHEED THOMSON INTERNATIONAL LIMITED, OPAL MARITIME AGENCIES PTY LIMITED (Additional Plaintiffs)

JAMES ROLFE AND ROLFE-OPAL PTY LTD v. THE PROCEEDS OF SALE OF THE VESSEL MV "SKULPTOR KONENKOV"
No. NG 495 of 1995
FED No. 100/98
Number of pages -
6
Admiralty
(1999) 160 ALR 132

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

IN ADMIRALTY

TAMBERLIN J

Admiralty - claim for recovery of money from proceeds of sale of the vessel - whether an in rem claim - whether the advance of moneys by an agent to meet charges for stevedoring services gives rise to an in rem claim - whether an additional characterisation of a claim as one for unjust enrichment prevents a claim in respect of the "provision of stevedoring services" or "disbursement by an agent" being described as in rem - whether purpose of payment defines character of that payment - whether moneys advanced in contemplation of repayment from proceeds arising from sale of containers precludes a claim for moneys advanced for stevedoring services to the vessel being characterised as an in rem claim.

Admiralty Act 1988 (Cth) ss 4(3)(m) and (r), 24

Patrick Stevedores No 2 Pty Ltd & Ors v Proceeds of the Sale of the Vessel MV "Skulptor Konenkov" (1997) 144 ALR 394, applied

The "Fairport" No 5 [1967] 2 Ll L Rep 162, distinguished

The "Mogileff" [1921] P 236, distinguished

SYDNEY, 18 December 1997 (hearing), 20 February 1998 (decision)

#DATE 20:2:1998

Counsel for James Rolfe and Rolfe-Opal Pty Ltd: Mr M Aldridge

Solicitor for James Rolfe and Rolfe-Opal Pty Ltd: Goldsmiths

Counsel for the Receivers and Managers of the

assets of the Baltic Shipping Company: Mr G J Nell

Solicitor for the Receivers and Managers of the

assets of the Baltic Shipping Company: Zaparas Dandanis Pty ltd

Solicitor for the Admiralty Marshal: Mr Douglas Coleman

TAMBERLIN J

Before me is a Statement of Claim filed by James Rolfe and Rolfe-Opal Pty Limited ("the plaintiffs") (who are described in the title page to Statement of Claim as "the Applicants"), wherein they claim to recover a debt of $427,127 together with costs and interest. It is sought to recover this money from the proceeds of sale of the vessel MV "Skulptor Konenkov", ("the vessel").

The Statement of Claim filed on 9 October 1997 relevantly reads:

1. The secondnamed applicant is and was at all material times a company incorporated pursuant to the laws of the State of Victoria.

2. This proceeding is brought pursuant to s24 of the Admiralty Act 1988 (Commonwealth) ('the Act') against the proceeds of sale of "Skulptor Konenkov" a ship formerly owned by the Baltic Shipping Company ("BSC"), a company incorporated in St Petersberg, Russia.

3. At all relevant times, ships occurred and operated by BSC included MV Skulptor Vuchetich and MV Skulptor Konenkov.

4. The BSC is indebted to the Applicant in the sum of 427,127.51 together with costs and interest herein since 19 July 1996 at the rate prescribed from time to time in respect of outstanding judgments from the Supreme Court of New South Wales.

5. At the request and direction of BSC the Applicants paid the sums set out hereunder as agents for and on behalf of BSC for the purposes and services provided hereunder.

DATE AMOUNT SERVICE-SHIP TO WHICH SERVICE WAS

PROVIDED

26 July 1995 220,000 To Patrick Stevedoring for the stevedoring

of Skulptor Konenkov

3 August 1995 100,000 To Patrick Stevedoring for the stevedoring

of the Skulptor Vuchetich

72,018 To Patrick Stevedoring for the stevedoring

of the Skulptor Vuchetich

392,018

6. Further and in the alternative at the request and direction of BSC the Applicants paid the sums set out hereunder on behalf of BSC for the purposes and services provided hereunder.

DATE AMOUNT SERVICE-SHIP TO WHICH SERVICE WAS

PROVIDED

26 July 1995 220,000 To Patrick Stevedoring for the stevedoring

of Skulptor Konenkov

3 August 1995 100,000 To Patrick Stevedoring for the stevedoring

of the Skulptor Vuchetich

72,018 To Patrick Stevedoring for the stevedoring

of the Skulptor Vuchetich

392,018

8. The Plaintiff is entitled to interest on the amount referred to in paragraph 5 pursuant to the Supreme Court Act (NSW) from the dated of issue of the proceedings in the Supreme Court of New South Wales to the date of judgment and was so awarded interest in the sum of $35,109.81.

9. The Plaintiff is entitled to interest from the dated of judgment (19 July 1996) to the date the Plaintiff receives payment at the rate prescribed by the Supreme Court Act (NSW) from time to time

And the Plaintiff Claims

A. 427,127.81

B. Interest from 19 July 1996 to date of receipt of payment

C. Costs

The Supreme Court of New South Wales judgment referred to in par 4 of the Statement of Claim is a reference to orders made by Simos J. Those orders were made in a proceeding brought by the plaintiffs seeking judgment under an arrangement which included payment of stevedoring fees. The alleged arrangement provided for payment to the plaintiffs from the sale of containers, and if there were any unsatisfied claims, from the proceeds of sale of the vessel.

In order to justify the claim as an in rem claim, recoverable against the proceeds of sale of the vessel, the plaintiffs rely on subs 4(3)(m) and (r) of the Admiralty Act 1988 (Cth) ("the Act") which provide:

"Maritime claims 4. (3) A reference in this Act to a general maritime claim is a reference to: .... (m) a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance; .... (r) a claim by a master ... or agent in respect of disbursements on account of a ship; ..."

Mr Coleman appears for the Admiralty Marshal and Mr Nell appears for the Receivers of the assets of Baltic, Messrs McCann and Scott. They submit that the applicants' claim cannot be maintained against the proceeds of sale because the debt relied on does not give rise to a maritime claim.

Mr Coleman submits that the claim is founded on orders made in an in personam action and cannot be maintained as an in rem claim. However, he fairly concedes, that the weight of authority favours the conclusion that moneys advanced by an agent to pay a claim for stevedoring services may give rise to an in rem claim.

In particular he refers to Nigel Meeson, Admiralty Jurisdiction and Practice, 1993, at 41 where it is said in relation to claims in respect of goods or materials supplied to a ship for its operation or maintenance:

"This paragraph covers not only claims made directly by the supplier of goods or materials, but also claims by other persons making advances to enable the purchase of goods or materials. But, it is an essential ingredient of claims under this paragraph that they relate to a particular identified ship. It does not cover a claim in respect of the hire of containers let out under a container lease agreement." (Emphasis added)

The authority cited for this proposition is The "Fairport" No 5 [1967] 2 Ll L Rep 162 where Brandon J, in a succinct judgment, considered that the term "necessaries" covered payments made by way of advances to enable "necessaries" to be purchased. The authority relied on in that case was The "Mogileff" [1921] P 236.

Mr Coleman also directed my attention to the statement in Roscoe's Admiralty Practice 5th ed, 1931, at 205 which refers to that decision where it is stated:

"At the same time the existence of the relationship of principal and agent will not of itself prevent the latter from maintaining an action in rem for necessaries against the former. Mr Justice Hill, in The Mogileff [1921] P 236 pointed out that the ultimate test whether a necessaries action is maintainable is whether the plaintiff, at the date of the institution of the necessaries suit, could have maintained an action in debt in respect of the very subject of his claim. If he could have maintained such an action, his claim may be enforced in a necessaries suit, notwithstanding that the relationship of principal and agent may exist between the parties and the advances sued for may be items in the agent's account. On the other hand, if the sum claimed is the balance of an agent's account, under the terms of which the agent was obliged to give credit, the claim cannot be enforced in a necessaries suit."

The present is not a case where it should be inferred that the agent has elected to look to the personal liability of the principal alone and therefore has no right to initiate proceedings in rem or to seek recourse against the vessel or proceeds of sale: cf Hill J, in The "Mogileff" at 252. I agree that the authorities favour the proposition that moneys advanced by an agent meet charges for stevedoring services and in the present case, gives rise to an in rem claim. I, therefore, do not accept the first submission of Mr Coleman.

Mr Coleman, however, advances an alternative submission, namely; that the claim in the present case is really a claim for unjust enrichment arising from payment in respect of the provision of stevedoring services. He argues that the characterisation of the claim as one for unjust enrichment means that the claim does not fall within s 4(3) of the Act.

I do not accept this proposition. In my opinion the claim meets the description of "a claim in respect of stevedoring services" or "a disbursement by an agent on account of a ship". The fact that it may also be formulated as an action to recover moneys paid on behalf of another, does not require a conclusion that it is not a general maritime claim within s 4(3).

Accordingly, I do not accept either of the submissions of Mr Coleman on the issue of characterisation of the plaintiffs' claim.

Mr Nell, for the Receivers, supports the proposition that the plaintiffs' claim is not in rem. This support is advanced on two bases. The first is that the moneys were not paid on behalf of the shipowner for the purpose of its business, nor on account of the ship, nor for services supplied to the ship. The second is that the funds sought to be recovered were advanced as part of an overall settlement and thus the advance was made on the credit of certain containers which were to be sold. This is said to be so because Mr Rolfe agreed, in cross-examination, that he would not have advanced the moneys but for the fact that he was party to an agreement that said he would be paid from the sale of the containers. He argues that the moneys were advanced solely in reliance on the commercial credit of Baltic. He points out that containers were within the jurisdiction and the plaintiffs relied on them as available security.

As to the first submission, in my view, the underlying basis on which the moneys were advanced by the plaintiffs was to satisfy claims in respect of the supply of stevedoring services. That was the basic purpose of the advances. This purpose defines the character of the payment. The fact that the advances were also paid in the course and for the purposes of the business, does not prevent the payments being made in respect of stevedoring services supplied to a ship or being a claim by an agent in respect of disbursements on account of a ship within the subsection. There may be a dual character attributable to the payments. However, so long as the payments satisfy the wording of the subsection, the fact that they also bear an additional characterisation does not prevent a general maritime claim within s 4(3). The question of whether the claim is within the language of the subsection is one of construction.

The second submission advanced by Mr Nell, in my view, should not be accepted because, although the payment was made in the context of other arrangements between the parties as to the sale of the containers to satisfy the debt, it cannot be said that the applicants did not look to the vessel for satisfaction of the debt. Moreover, the circumstance that was contemplated in the arrangement, namely; that the moneys advanced might be repaid from the proceeds arising from sale of containers, does not require a conclusion that the moneys were not advanced for stevedoring services to the vessel.

Furthermore, in the reasons for judgment of Sheppard J, on the original hearing of these proceedings, Patrick Stevedores No 2 Pty Ltd & Ors v Proceeds of the sale of the vessel MV "Skulptor Konenkov" (1997) 144 ALR 394 at 418, his Honour said:

"It was submitted by Counsel for the two original plaintiffs that a claim for reimbursement of expenses was not itself a claim in respect of goods, materials or services supplied within par (m). My answer to that submission is simply to say that the claim is in respect of goods, materials or services supplied to the ships by third parties at the request of the ships' agent, Opal Maritime."

In addition to the above expression of opinion by Sheppard J, statements made by the Australian Law Reform Commission in its Report on Civil Admiralty Jurisdiction 1986 at par 164 support the view that the claim brought by the agent in this matter can be properly described as a claim within s 4(3) of the Act. The Report refers to the width of the language of the subsection and states:

"The term 'agent' would appear sufficiently elastic to cover not only those trading as ship's agents but others making payments on behalf of the ship. To the extent that these payments are for necessaries ... they could be claimed under the head of jurisdiction covering goods or materials supplied to a ship. But the overlap may not be complete." (Emphasis added)

Accordingly, for the above reasons, I am satisfied that the claims set forth in the Statement of Claim by the plaintiffs fall within s (4)3 and can be maintained against the proceeds.

There was discussion between the parties as to the way in which, and the date from which interest should be calculated. At the conclusion of discussions it appeared that the parties were in substantial agreement on these questions.

I direct the parties within seven days to bring in Short Minutes of Order to give effect to my reasons and to specify the amount to be awarded and the way in which this is calculated by reference to interest. I will also hear the parties on that occasion, if necessary, on the question of costs.