Wills Shipping Pty Ltd v The Ship Oceania Trader & Its Charters Oceania Shipping Corporation Limited

[1990] FCA 685

JUDGMENT No. ..685./..%.-,

PILLS SHIPPING PTY LTP

Plaintiff

IA TRADER 5 ITS C -

TION L -

Defendant

TEMPORE REASONS FOR JUDGMENT

This is an application by the plaintiff, Wills Shipping Pty Ltd, in Admiralty Proceedings No. QG137 of 1990. The proceedings are brought by the plaintiff against the ship "Oceania Trader" and its charterers Oceania Shipping Corporation Limited. There is also a further proceeding between Alexander Watts h Co. Pty Ltd and the same respondents, which is No. QG139 of 1990.

afternoon.

The application has been made orally in chambers.

The plaintiff seeks a direction by the Court to the Marshal directing him to effect or to attempt to effect service of a warrant issued against the ship "Oceania Trader" by 12 p.m. tonight. That warrant was issued out of the Brisbane Registry of the Federal Court shortly before 4 p.m. this afternoon in respect of applications filed in the Court after 3 p.m. this

2   I

By those applications filed late this afternoon, the plaintiff in each proceeding eeeks the arreet of the ehip "Oceania Trader". That ehip has a port of registry of San Lorenzo in the Republic of Honduras and in reepect of the proceedings by Wills Shipping Pty Limited the plaintiff claims an order for the payment of the sum of $229,813.90 pureuant to the w a l t v Ack 1988 (Cth.), and the writ sought an order that a warrant for the arrest of the ehip "Oceania Trader" be issued forthwith.

Particulars of the claim by the plaintiff are that the charterer of the ship is Oceania Shipping Corporation Limited, a company incorporated in Vanuatu and that the plaintiff is the agent of the charterer and claims the sum of $229,813.90 being in respect of payment8 made on behalf of the charterer for ehip diebursemente, for goode, materials and eervices supplied to the ehip for its operation and maintenance and in respect of the alteration, repair and equipping of the ship. The eums were said to have been

of the charterer. The plaintiff aleo claime intereet thereon	incurred between April 1990 and September 1990 at the requeet
and costa.
The claim by the plaintiffe in each action is a general maritime claim as defined in a. 4 of the fidmiraltv Act 1988. That section include8 in B. 4(3) (r), in the definition
of a general maritime claim, the followingr

" a c la im by a master , sh ipper , c h a r t e r e r or

agent i n r e s p e c t o f disbursements on account o f

a sh ip:  "

Sec t ion 14 o f t h e Admiraltv A c t 1988 provides!

" I n a m a t t e r o f Admiral ty or mari t ime

j u r i s d i c t i o n , a proceeding s h a l l no t be

commenced a s an a c t i o n 0- aga ins t a s h i p or

o t h e r proper ty except a s provided by t h i s Act."

Section 17 provides!

" Where, i n r e l a t i o n to a general mari t ime c la im

concerning a	s h i p or	o t h e r property ,	a	r e l e v a n t
person r

( a ) was, when t h e cause o f a c t i o n arose , t h e

owner or c h a r t e r e r o f , or i n possess ion or

con t ro l o f , the s h i p or property: and

(b) i s , when t h e proceeding i s commenced, t h e

owner o f t h e s h i p or property:

a proceeding on the c la im may be commenced a s

an a c t i o n ln rem aga ins t the s h i p or

property . "

S e c t i o n 18 provideet

" Where, i n r e l a t i o n t o a mar1 t i m e c la im

concerning a s h i p , a r e l e v a n t personr

( a ) was, when t h e cause o f a c t i o n arose , the

owner or c h a r t e r e r , or i n possess ion o r

c o n t r o l , o f t h e s h i p ; and

(b) i s , when t h e proceeding i s commenced, a

demise c h a r t e r e r o f t h e ship:

a proceeding on t h e c la im may be commenced a s "

an a c t i o n aga ins t the s h i p .

Both s s . 17 and 18 d i r e c t a t t e n t i o n t o t h e time "when

t h e cause o f a c t i o n arose" .

4   ' 1

Warrants issued shortly before 4 o'clock this afternoon for the arrest of the "Oceania Trader" pursuant to the claims made by the plaintiffs in each of the two proceedings. It was indicated to me orally that the Marshal proposes to attempt to execute those warrants tomorrow morning in daylight and the nature of this application is to direct him to attempt to execute the warrants before midnight this evening. I was told, although there is no sworn or documented material to support this, that the relevant charter party in respect of which the disbursements founding the claim are based, expires at midnight this evening and it was feared that, if the warrants were not executed prior to the expiration of the charter party, the plaintiffs in each of the proceedinge might be irretrievably prejudiced. As to this matter no authority was advanced and I am not aware of any provision in the Act which gives support to such a conclusion, although I can appreciate the concern of solicitors acting on behalf of the plaintiffs in each of those proceedings that their clients' rights not be prejudiced should it be necessary

to arrest the ship during the currency of the demise charter.

Rule 30 of the fidmixaltv Rulee in relation to service of initiating process provides:

" (11 Inl ti atinq process in a proceeding

commenced as an action f n ram:

(a) against a ship: or

(b] against other property that is, at the

time of servf ce, on board a ship:

s h a l l be served by s e c u r e l y a f f i x i n g a sealed

copy o f the process	to a mast , o r some other
conspicuous par t ,	o f t h e s h l p .

( 2 )	I n i t i a t i n g	procees	i n	a	proceedfng
commenced	a s	an	a c t i o n	aga ins t	proper ty

t h a t i s n o t , a t t h e t i m e o f service, on board a

s h i p s h a l l be served by s e c u r e l y a f f i x i n g a

sealed	copy o f t h e process	t o t h e proper ty	or
to a	package	or	con ta iner con ta in ing the

property .

( 3 ) I f access to a s h i p o r proper ty cannot reasonably be obta ined , process may be served

on t h e s h l p or proper ty by:

( a ) handing a sealed copy o f t h e procees t o a

person apparen t l y i n charge o f t h e s h i p or

property:  o r

(b) i f the person r e f u s e s t o accept service -

p u t t i n g a sealed copy o f t h e process down

i n t h e presence o f the person and t e l l i n g

t h e person what t h e document i s . "

Rule 33 provides:

" A Marshal may serve i n i t i a t i n g process i n a

proceeding commenced a s an a c t i o n i n rem

aga ins t a s h i p or other property . "

Rule 34 provideet

" I n a proceedfng commenced a s an a c t i o n i n rem,

a cour t s h a l l not order s u b s t i t u t e d service o f

i n i t i a t i n g procees t h a t i s t o be served on a

s h i p or o t h e r property . "

As t o a r r e s t , r . 39 provides:

" ( l ) A	p a r t y t o a proceeding	commenced	a s an
a c t i o n J n rem	may	a p p l y i n accordance	w i t h Form
12 for	an arrest	warrant	i n r e s p e c t o f t h e s h i p

or o t h e r proper ty aga ins t whi ch t h e proceed1 n g

was commenced.

( 2 ) The a p p l l c a t l o n s h a l l be supported by an

a f f l d a v i t o f t h e app l i can t or o f a ~ o l i c i t o r or

agent	o f	t h e app l l can t	i n accordance	w i t h Form
13. "

And in reepect to the ieeue of a warrant, r. 40

providee :

" ( 1 ) S u b j e c t t o t h i s r u l e , the R e g i s t r a r may

i s s u e a n a r r e s t warran t .

( 2 ) The a r r e s t warrant s h a l l be i n accordance

w i t h Form 14 .

( 3 ) Excep t by l e a v e o f t h e c o u r t , an a r r e s t

warrant s h a l l n o t be i s s u e d i f the R e g i s t r a r i s

made aware t h a t r

( a ) a c a v e a t a g a i n s t the a r r e s t o f the s h i p or

other p r o p e r t y i s i n f o r c e and:

( 1 ) the proceed ing i s a proceed ing o f

t h e k i n d speci f l e d i n the cavea t :

( i f ) t h e c a v e a t specifies an amount t h a t

i s n o t less t h a n t h e amount c la imed

by t h e a p p l i c a n t : and

(iii) the per iod p r e s c r i b e d by s u b r u l e

9 ( 2 ) h a s n o t e x p i r e d ;

(b) the proceed ing i s s t a y e d because paynrent

h a s been made in to c o u r t ; or

( C ) a b a i l bond i n n o t less t h a n the amount

c la imed by the p a r t y h a s been f i l e d . "

Rule 41 providee:

" An a p p l i c a t i o n for a n a r r e s t warrant

c o n s t i t u t e s an u n d e r t a k i n g t o the c o u r t t o pay

to t h e Marshal , on demand, an amount equal t o

the amount o f t h e fees and e x p e n s e s o f the

Marshal i n r e l a t i o n to the a r r e s t . ''

And r. 42 relevantly provideer

" ( l ) An a r r e s t warrant s h a l l not be e x e c u t e d

more t h a n 6 months a f t e r i t was i s s u e d .

Rule 43 provides that an arrest warrant ehall be executed only by the Marehal, and sub-rule (3) provides:

" An	a r r e s t warrant	s h a l l	n o t be	executed	on a
s h l p	or	other	proper ty	u n l e s s	i n i t i a t i n g
process	i n	the	proceeding	concerned	has

p r e v i o u s l y been served , or i s to be served

c o n c u r r e n t l y wi t h the e x e c u t i on of the warrant,

on t h e s h i p or proper ty . "

That ie the preeent caee.

Rule 43(4) provideer

" a s h l p or o t h e r proper t y may be a r r e s t e d i n a

proceeding a f t e r judgment	has been g iven i n t h e
proceeding.	"

Importantly, r. 44 provideer

" A	s h i p or other	proper ty	s p e c i f i e d i n an	a r r e s t
warrant	i s under a r r e s t	from	t h e t i m e when	t h e

warrant 1 s executed u n t i l i t i r r l a w f u l l y

r e l e a s e d front a r r e s t or i s s o l d by order of t h e

c o u r t . "

Ae preeently advieed, nothing in the Act or the Rulee
givee any eupport to the contention that it ie neceeeary to

preeerve the rights of a pereon who has a claim in rem against

executed prior to the expiry of the charter party from which	a ehip that the warrant for the arrest of that ehip be	thoee righte flow.
Independently of my lack of eatiefaction ae to thie premise of the application, it eeeme to me that whether thie application be viewed ae one founded on e. 23 of the Federal
Court &g or the inherent jurisdiction of the Court or,
alternatively, on I. 80 of the Admiraltv Rules, no circumetance hae been shown which would justify the exercise of a diecretion, if it did exiet, to make the direction8 eought on behalf of the plaintiff8 in each of those admiralty proceedinge.

Section 23 of the Federal Court A c t provides:

" The Court has power, in relation to matters in which i t has jurirrdiction, to make orders of such kinds, l ncl udi ng interlocutory orders, and

to issue, or di rect the i srrue of, wri ts of auch

kinds, as the Court thinks appropriate. "

Rule 80 of the U a l t v R U ~ Q relevantly provideer

" (l) The Court may, on application or of i ts own motion and on such terms as are just,

(a)	give any appropriate direction with respect to a proceeding; and
. . .

As a matter of practical reality it may be that, ae
is the caee here, the application for a warrant ie made

ehortly prior to the expiration of the charter party. There

would be aerioue practical difficultiee if execution of the	warrant were to be required ae a neceeeary ingredient of a
eucceeeful claim by a plaintiff in euch a case. The circumetancee of the preeent caee underline that difficulty. I am told the ehip ie at eea eome two milee out from land, and is under way. It is early evening and it will soon be dark. The weather is etormy and foul, the sky ie pea green and hail ie a real likelihood. It would be an extraordinary situation

9   l

if the Court were obliged to direct an officer of the Court to
put hie pereonal safety at eerioue risk.

I am not pereuaded that the postponement of the execution of the warrant until a time of safety would have the neceeeary consequence of the plaintiffs' claims being defeated. While the matter hae had to be considered in circumetancee of extreme urgency, there ie nothing either in the Act or the Rulee, or in any authority quoted to me, which euggeete that it would be competent to make an order euch as that eought.

If there were a power, the circumetancee are euch that it ought not to be exercieed.

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Dated 1440