Daina Shipping Company v MV Rena Claimants
[2013] NZHC 3450
•18 December 2013
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
IN ADMIRALTY
CIV 2012-470-838 [2013] NZHC 3450
BETWEEN DAINA SHIPPING COMPANY AND OTHERS
Plaintiffs
ANDTHE MV RENA CLAIMANTS Defendants
Hearing: 17 December 2013
Counsel: P David and M McCarthy for Plaintiffs
P Barratt for Claimants 1–5
M Sharp for Claimants 6, 8, 11 and 67
A Hopkinson for Claimant 9
E Matheson for Claimant 10No appearance by or on behalf of S Elliott (Claimant 12) L Speed for Claimant 13
E Cox for Claimants 14–66
S Gepp for Claimant 68
M Horne (in person), Claimanat 69
S J Hartnett for Claimants 70–73
L Farquhar for Claimant 74
Judgment: 18 December 2013
JUDGMENT OF HEATH J
This judgment was delivered by me on 18 December 2013 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
DAINA SHIPPING COMPANY AND OTHERS v THE MV RENA CLAIMANTS [2013] NZHC 3450 [18
December 2013]
[1] The ship M/V Rena ran aground on Astrolabe Reef on 5 October 2011, while travelling to the Port of Tauranga. It was a container ship with a gross weight of
37,209 tonnes. Despite attempts to remove the ship from the reef, it broke into two parts. There was damage to and loss of cargo containers. Oil was discharged into the sea, and onto some nearby beaches.
[2] On 7 December 2012, Woodhouse J heard an application under s 85(2) of the Marine Transport Act 1994, by which named plaintiffs sought an order under Part 7 to limit their liability in respect of claims arising from the grounding. For reasons given in a judgment delivered on 15 March 2013, a limitation fund was created, with the ability for claimants to file and serve claims which, if established, could be paid from that fund.1
[3] Relevantly, the sealed order entitled the plaintiffs to limit liability and damages to a sum of $11,030,110, in respect of any claim for loss or damage arising from the grounding. The plaintiffs were directed to place a single advertisement in
11 newspapers (both in New Zealand and overseas) specifying a period of not less than 12 weeks following the date of publication within which any notice of appearance and claims could be filed.
[4] As a result, some 74 claims have been made in respect of damage or loss caused by the grounding. While all claims presently come within the limitation cap of $11,030,110, some losses have not yet been fully quantified.
[5] In general terms, the claims fall into two categories: one being loss of, or damage to, cargo, and the other to environmental and business interruption losses caused by oil pollution.
[6] A case management conference was held by telephone yesterday to determine how these claims should be progressed. Litigation of this type (and on this scale) is,
1 Daina Shipping Co v Te Runanga O Ngati Awa [2013] 2 NZLR 799 (HC).
I am told, unprecedented in New Zealand. It will require careful case management through to hearing.
[7] It is possible that some claims may need to be heard separately to others. Preliminary questions, particularly in relation to whether certain claims are statute- barred, may also require resolution. For those reasons, I include among my directions a recommendation that the proceeding be assigned to a specific Judge.
[8] I am grateful to counsel for their assistance in identifying the required directions.
[9] The first point is purely procedural in nature. In its original form, this proceeding sought an order for the establishment of a limitation fund. The nature of the proceeding has changed to encompass claims made by individual claimants against that fund. Without prejudice to any questions of costs that may have arisen to date, I make an order removing the names of Te Rununga O Ngati Awa, Te Runanga O Ngati Te Rangi Iwi Trust and Mr Lancaster from the intitulment to this proceeding, leaving a generic category of “The MV Rena Claimants” as the nominal defendant. That shortened expression is designed to describe those who were named in the original proceeding as “All Persons Claiming or being entitled to claim Damages by Reason of the Grounding of the Containership M/V Rena on the Astrolabe Reef off the Bay of Plenty, New Zealand at 0218 hours New Zealand time on 5 October 2011”. Although the nomenclature is presently reversed, the current plaintiffs are, in effect, defendants to each of MV Rena Claimants’ claims.
[10] Mr David, for the plaintiffs, provided a schedule of claims, in respect of which directions were sought for the provision of further particulars. There are three classes of claimants to whom the proposed directions relate. The first are claims 14–
66,2 being claims made on behalf of various businesses who claim to have suffered
loss caused by the discharge of harmful substances, or containers or other parts of
the ship’s cargo which were separated when the ship broke up. These claims are
2 My reference to claimants 14–66 is to a Schedule prepared by the Registrar of this Court and forwarded to counsel. That numbering (and numbering given in respect of other claims) replaces those used in the plaintiffs’ memorandum of 13 December 2013.
now brought, on their behalf, by Business Action Group Rena Incorporated (BAG Rena).
[11] Mr Cox, for BAG Rena, consents to an order for particulars in the form specified in para 1 of Schedule B to Mr David’s memorandum of 13 December 2013. I make an order that they be served and (where appropriate) filed on or before 14
February 2014.
[12] Without opposition, I direct that Statements of Claim be filed and served by claimants 1–5 and 10, in accordance with the High Court Rules. This is to particularise the causes of action alleged. Documents under which the cargo was carried shall also be provided. The Statements of Claim shall be filed and served on or before 14 February 2014 and the relevant documents shall be served on or before the same date.
[13] The purpose of providing for the additional documents in relation to cargo is to identify any limitation questions arising from the time of shipping that might result in any of those claims being statute-barred. Ms Barratt, for claimants 1–5 and Ms Matheson, for claimant 10, indicated that the limitation question is under consideration by them. If the advisors for those claimants form the view that there are insurmountable difficulties with limitation periods, it is possible that such claims will be discontinued.
[14] Claimants 6–9, 11–13 and 67–74 shall file and serve Statements of Claim in accordance with the High Court Rules, providing particulars of the cause (or causes) of action alleged, and pleading monetary claims as precisely as possible. Those Statements of Claim shall be filed and served on or before 14 February 2014.
[15] Mr David raised a question about litigation funding, following a discussion he had had with Mr Cox. It appears that there is a conditional fee agreement in place between certain claimants and their lawyers. Without making any direction, I draw counsel’s attention to a recent judgment of the Supreme Court in Waterhouse v
Contractors Bonding Ltd,3 so that disclosure of any agreement of the type to which that judgment applies may be undertaken promptly.
[16] A proposal was made to establish a “drop box” (or similar Internet storage site) by which memoranda of appearances, notices of claim, and subsequent documentation could be placed, to enable parties to this proceeding to access the documents promptly. That suggestion may also have advantages for service of documents.
[17] It does not appear that agreement has been reached at this stage as to the form that such a “drop box” could take. It will be necessary for the parties to reach agreement on that issue before this point is taken further. So far as service is concerned, I authorise service to be effected by email to any address to which a particular party has agreed that service may be undertaken in that way. If proof of service were in issue at any time, the party effecting service will need to demonstrate both a prior consent to service by email and actual service through that mode of transmission. Documents must be filed in the High Court in the normal way.
[18] The proceeding will remain in the Tauranga Registry of this Court, where documents shall be filed. I recommend to the Civil List Judge in Auckland (to whom a copy of this judgment is being provided) that a Judge be assigned to oversee management of the proceeding through to a hearing, or hearings. Case management will be undertaken from Auckland, by telephone conference or in person, as may be directed by a Judge.
[19] The Registrar shall convene a case management conference on the first available date after 14 March 2014. I anticipate that the agenda for that conference (and directions in relation to the filing and exchange of memoranda) will be fixed no later than 28 February 2014, either by any Judge assigned to deal with case management issues or (if no assignment were made) by a Judge nominated for that specific purpose.
[20] Leave to apply is reserved.
3 Waterhouse v Contractors Bonding Ltd [2013] NZSC 89 at para [76].
[21] Costs are reserved.
P R Heath J
Delivered at 4.00pm on 18 December 2013
Solicitors:
Lowndes Associates, Auckland
Gibson Sheat, Wellington
Jones fee, AucklandKoning Webster Law, Tauranga Holland Beckett, Tauranga Wilson McKay, Auckland
Ronayne Hollister-Jones and Lellman, Tauranga
Cooney Lees Morgan, Tauranga
McCaw Lewis Chapman, Hamilton
Sally Gepp, Royal Forest and Bird Society
Counsel:
M Ring QC, Auckland
P David, Auckland
N Davidson QC, Christchurch
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