STX Pan Ocean Co Ltd v Tri Bulk Shipping Co Limited

[2011] FCA 704

FEDERAL COURT OF AUSTRALIA

STX Pan Ocean Co Ltd v Tri Bulk Shipping Co Limited [2011] FCA 704

Citation:		STX Pan Ocean Co Ltd v Tri Bulk Shipping Co Limited [2011] FCA 704
Parties:		STX PAN OCEAN CO LTD v TRI BULK SHIPPING CO LIMITED and RANNVEIG SHIPPING CO LIMITED
File number:		VID 517 of 2011
Judge:		NORTH J
Date of judgment:		6 June 2011
Date of hearing:	6 June 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	12
Counsel for the Plaintiff:	Mr M N C Harvey
Solicitor for the Plaintiff:	Holman Fenwick Willan
Counsel for the First Defendant:	The First Defendant did not appear
Counsel for the Second Defendant:	The Second Defendant did not appear

IN THE FEDERAL COURT OF AUSTRALIA
IN ADMIRALTY
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 517 of 2011

BETWEEN:

STX PAN OCEAN CO LTD
Plaintiff

AND:

TRI BULK SHIPPING CO LIMITED
First Defendant

RANNVEIG SHIPPING CO LIMITED
Second Defendant

JUDGE:	NORTH J
DATE OF ORDER:	6 JUNE 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS EX PARTE THAT:

1.The plaintiff by its nominated expert/marine surveyor, Michel Lagesse, may attend on board the vessel MV “BLACKFIN” (the Vessel) at the ports of Fremantle and/or Kwinana, Western Australia, immediately to inspect, photograph and video tape all relevant parts of the Vessel affected by or involved with the ingress of oil into cargo hold no.3 and fuel oil tank no.2 to monitor and/or observe and take samples of the sludge/oil being disposed and otherwise observe the actual repair works carried out on relevant parts of the Vessel.

2.The plaintiff is to notify the defendants of the terms of this order as soon as possible by email to the solicitor for the first defendant and by handing a copy to the Officer in Charge of the Vessel. 

3.Leave to the defendants to apply for an immediate variation of these orders if they are so advised by contacting the Federal Court on 0419 299 161. 

4.The motion, notice of which was filed by the plaintiff on 6 June 2011, seeking interim relief and pre trial discovery, is adjourned to 3.30 pm AEST on Wednesday 8 June 2011.

5.The costs are reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
IN ADMIRALTY
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 517 of 2011

BETWEEN:

STX PAN OCEAN CO LTD
Plaintiff

AND:

TRI BULK SHIPPING CO LIMITED
First Defendant

RANNVEIG SHIPPING CO LIMITED
Second Defendant

JUDGE:	NORTH J
DATE:	6 JUNE 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an urgent application by the plaintiff, STX Pan Ocean Co Ltd, the charterer of the MV Blackfin (the vessel).  The vessel is presently berthed in Fremantle.  On 21 May 2011, the plaintiff was informed that the vessel experienced an incident which involved the ingress of oil into cargo holds and ballast water into a fuel oil tank of the vessel (the incident).   

2. The first defendant is the head charterer of the vessel. The second defendant is the owner of the vessel. 

3. The plaintiff seeks orders, prior to the commencement of proceedings, for inspection pursuant to O 15A r 12 and preliminary discovery pursuant to O 15A r 6 of the Federal Court Rules.  In particular, the plaintiff seeks an order that its nominated marine surveyor be permitted to board and inspect the vessel, and an order for discovery of certain documents which relate to the vessel. 

4. Counsel for the plaintiff submitted that orders pursuant to O 15A are appropriate because the plaintiff has a potential cause of action based on its entitlement to delivery of the vessel in a seaworthy state.  In the absence of compliance with that condition, the plaintiff may have remedies against one, or both, of the defendants.  The plaintiff may also have other claims or entitlements flowing from the circumstances in which the incident occurred.  It is for this reason that the plaintiff has an interest in determining the cause of the incident.

5. Since the incident occurred, the relevant tanks on the vessel are in the process of being decanted, which involves the emptying of the relevant tanks. To a surveyor, the resulting picture may reveal the cause of the ingress of oil. 

6. In order to determine the cause of the incident, the plaintiff wishes to inspect the vessel while it is berthed in Fremantle.  For that purpose, the plaintiff wishes its surveyor to be permitted on board the vessel as soon as the tanks have been decanted. 

7. The plaintiff has previously sought permission from the defendants for its surveyor to board the vessel for the purpose of an inspection.  The plaintiff’s surveyor was permitted to board the vessel on 1 and 2 June 2011. Further inspection of the vessel following the completion of the decanting exercise has been refused. 

8. The plaintiff’s surveyor learnt that the decanting exercise commenced at around 9.00 am this morning, 6 June 2011. The decanting will be completed at around 9.00 pm this evening. 

9. The application was filed today and attempts were made to serve the defendants. A public holiday in Perth made this exercise difficult, as the first defendant’s solicitors are located in Perth. 

10. The order which the plaintiff seeks, as a matter of urgency, is to allow its nominated marine surveyor to board the vessel at the completion of the decanting, some time this evening, to make the relevant inspections.  The plaintiff is concerned that this inspection occur before any attempts are made to repair or further clean the vessel, as this may make it more difficult for the plaintiff to discover the reason for the oil ingress. 

11. In these circumstances, it is appropriate to make the order giving the marine surveyor authority to board the vessel for the purpose of the inspection pursuant to O 15A r 12 of the Federal Court Rules.  The order will be limited until the Court can make a further order and the application will be adjourned until Wednesday, 8 June 2011 at 3.30 pm Melbourne time.  On that occasion, a continuation of the order can be considered. 

12. Liberty is granted to the defendants to apply to the Court to vary the order authorising inspection if they are so advised.  Furthermore, the terms of the order should be served on the defendants as soon as possible in order, inter alia, to advise them of their right to seek a variation.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        21 June 2011