Waitemata Stevedoring Services Pty Ltd v The Ship "Rangitata" - [1998] FCA 386

FEDERAL COURT OF AUSTRALIA

ADMIRALTY - proceeding in rem against ship - application by shipowner for release of ship from arrest - whether owner must first file an appearance where owner not served with initiating process but wishes to challenge validity of arrest on ground of lack of jurisdiction.

Admiralty Rules, 6(1), 15, 23(1), 52(1)
Federal Court Rules O 9 rr 2(1), 6, 7

Trade Practices Commission v The Gillette Company (No 1) (1993) 45 FCR 366
Caltex Oil (Australia) Pty Ltd v Dredge Willemstad (1976) 136 CLR 529
J Gadsden Pty Ltd v Australian Coastal Shipping Commission [1977] 1 NSWLR 575
The Gemma [1899] P 285
KMP Coastal Oil Pte Ltd v The Owner of Motor Vessel “Iran Amanat” (unreported, FCA, 20/12/96)

WAITEMATA STEVEDORING SERVICES LIMITED v THE SHIP MV “RANGITATA” & ANOR

NG 115 of 1998

LINDGREN J
SYDNEY
7 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 115 of 1998

BETWEEN:

WAITEMATA STEVEDORING SERVICES LIMITED
PLAINTIFF

AND:

THE SHIP MV “RANGITATA”
FIRST DEFENDANT

ECOMAR-SCHIFFARTS GMBH CO KG
SECOND DEFENDANT

JUDGE:

LINDGREN J

DATE:

7 APRIL 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(ex tempore)
(necessity for party applying for release of ship from arrest to file appearance)

INTRODUCTION
Admiralty Rule 52(1) provides:

“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.”

The second defendant (“Ecomar”) wishes to file an application in the form of Admiralty Form 19 for release of the ship “Rangitata” from arrest. Ecomar claims to be the owner of the ship. It appears that the plaintiff, a stevedore, also thought Ecomar was the owner of the ship, since it named Ecomar as second defendant, on the basis that it was a “relevant person”: see Admiralty Rule 15.

The master and crew filed a caveat on 25 February 1998 claiming a maritime lien pursuant to section 4(3)(t)(i) and (ii) of the Admiralty Act 1988 (Cth). They and the plaintiff submit that Ecomar lacks standing to apply for the release because it is not a “party to the proceeding”. Their first submission is that, on the evidence, it is not clear that Ecomar is the owner of the ship. This submission depends on a result of a search of Lloyds Register of Ships which is in evidence, and which shows the owner as “m.s. ‘Rangitata’ Ecomar - Schiffarts GmbH Co KG”. I accept Ecomar’s submission that the omission of the prefix “m.s. ‘Rangitata’” in the heading to the proceeding is an obvious misnomer capable of correction: see Admiralty Rule 6 (1); Federal Court Rules O 13 r 2; Bridge Shipping Pty Limited v Grant Shipping SA (1991) 173 CLR 231.

I proceed now to more substantial issues. The proceeding is one in rem, that is, against the thing, in this case the ship. Admiralty Rule 18 provides that a proceeding commenced as an action in personam s

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.

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Details

Case: [1998] FCA 386
Decision Date: 7 APRIL 1998

CaseChat Overview and Summary

The case of Waitemata Stevedoring Services Limited v The Ship "Rangitata" and Anor was heard in the Federal Court of Australia's New South Wales District Registry. The plaintiff, Waitemata Stevedoring Services Limited, is a stevedore company that filed a maritime lien against the ship "Rangitata". The second defendant, Ecomar-Schiffarts GmbH Co KG, claims to be the owner of the ship and has applied for the release of the ship from arrest. The key legal issue before the court was whether Ecomar, who had not been served with the initiating process, must file an appearance before applying for the release of the ship from arrest.

The court examined the relevant rules and case law to determine whether Ecomar could apply for the release of the ship without first filing an appearance. The court found that Ecomar was a "party to the proceeding" for the purposes of Admiralty Rule 52(1), despite not having been served with the initiating process. The court held that Ecomar must file an appearance before applying for the release of the ship from arrest. This was based on the Federal Court Rules and the plain meaning of the word "party" in the context of the rules. The court found that Ecomar's arguments against this result were unconvincing.

The court's decision was based on the interplay between the Federal Court Rules and the Admiralty Rules. The court found that the requirement to file an appearance before making an application for the release of the ship from arrest was not inconsistent with the Admiralty Rules. The court also found that the disadvantages to a shipowner in a proceeding in rem who had not been served were not sufficient to create an exception to the requirement to file an appearance. The court noted that a conditional appearance may be an option for Ecomar, but did not explore this issue in detail.

The court's decision has implications for shipowners who have not been served with the initiating process and wish to challenge the validity of an arrest. The court's decision may put such shipowners at a disadvantage compared to shipowners in personam proceedings, but the court found that this did not override the requirement to file an appearance before making an application for the release of the ship from arrest. The court reserved the question of costs.

Orders