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Admiralty and maritime cases - Federal Court of Australia
Listing by year (including catchwords) (with links to full text where available)
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4 Nov 2011 Visscher v Teekay Shipping (Australia) Pty Ltd [2011] FCAFC 137
ADMIRALTY – seafarer’s wages – relevant principles – obligation of shipowner to pay seafarer’s wages before or at the time of discharge under s 75 of the Navigation Act 1912 (Cth) – whether shipowner had defence based on a reasonable dispute as to its liability for wages within the meaning of s 78 of the Navigation Act 1912 (Cth) – whether seafarer, when obtaining his discharge, accepted as repudiation shipowner’s insistence of his holding lower rank, after earlier promotion to chief officer withdrawn – shipowner failing to pay wages and accrued leave at time of discharge from ship – whether seafarer entitled to claim extra wages under s 78 during period after his discharge and before final payment under s 75 – whether parties’ later agreement that seafarer serve on a further voyage in higher rank without prejudice to their positions as to his actual rank capable of evidencing reasonable dispute as to shipowner’s liability for wages at earlier time of seafarer’s discharge – no evidence before primary judge that there was reasonable dispute as to shipowner’s liability for wages including accrued leave at time of seafarer’s discharge
13 Oct 2011 Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCAFC 126
CONSTITUTIONAL LAW – operation and effect of the Constitution – conflict between State and Federal legislation – whether Part 3 of the Building and Construction Industry Security of Payment Act 1999 (NSW) regarding the enforcement of a statutory claim for progress payments is inconsistent with the institutional integrity of Chapter III Courts – exercise of Commonwealth judicial power
CONSUMER LAW – Australian Consumer Law – misleading and deceptive conduct
13 Oct 2011 Daebo Shipping Co Ltd v The Ship Go Star [2011] FCA 1015
ADMIRALTY – time charterparty – bunkers – claim for conversion and detinue of the bunkers – whether disponent owner had property in the bunkers
CONFLICT OF LAWS – claim for unlawful interference in contractual relations – double actionability rule – whether the events comprising the tort in substance took place in the People’s Republic of China
27 Jul 2011 Navios International Inc v Ship “Huang Shan Hai’ [2011] FCA 895
ADMIRALTY – bail bonds – sufficient surety – defendant proffered bail bonds with supplementary undertaking to the Court as security to obtain release of vessel under arrest – objections to bail bond –whether sufficient bail is given by filing a bail bond signed by only one surety rather than two, as required under r 54(2) of Admiralty Rules 1988 (Cth) – whether affidavit on information and belief by solicitor can satisfy requirements in r 56(3A) of Admiralty Rules 1988 (Cth) as to a proposed surety’s financial circumstances – relevance of proposed surety being a foreign corporation when considering sufficiency of bail – development of modern commercial practice a relevant consideration
10 Jun 2011 Norddeutsche Landesbank Girozentrale v The Ship "Beluga Notification" (No 2) [2011] FCA 665
ADMIRALTY - action in rem under s 16 of the Admiralty Act 1988 (Cth) - claim relating to mortgage of ship and interest in respect of it under ss 4(2)(a)iii) and (d) of Admiralty Act 1988 (Cth) - no appearance filed by arrested ship or any relevant persons including owners – application for valuation and sale of ship under r 69(1) of the Admiralty Rules 1988 (Cth) – no apparent prospect that owners or any one else will pay or provide security to obtain ship’s release from arrest – duty of Marshal to conduct sale and realise highest price – whether mortgagee having obtained arrest of ship and order for sale should be permitted to make a bid or offer and participate in sale by the Marshal
21 April 2011: Norddeutsche Landesbank Girozentrale v The Ship "Beluga Notification" [2011] FCA 410
ADMIRALTY – arrest of vessel – application by Marshal to move vessel to another port.
13 April 2011: Walker v Government of the Repubic of Vanuatu [2011] FCA 364
ADMIRALTY – consideration of whether claims recited in an amended application and statement of claim are justiciable before the Federal Court of Australia PRACTICE AND PROCEDURE – consideration of an application to set aside service of proceedings upon the Republic of Vanuatu – consideration of whether claims recited in an amended application and statement of claim are justiciable before the Federal Court – consideration of Order 8, rule 3(1), (2) and (5) of the Federal Court Rules
22 March 2011: Chevron Australia Pty Ltd v The Registrar of the Australian Register of Ships [2011] FCA 265
ADMIRALTY – consideration of an application to rectify the Australian Register of Ships as to remove an entry wrongly existing in the Register
4 Mar 2011: Beluga Shipping GmbH & Co v Suzlon Energy Ltd (No 5) [2011] FCA 176
PRACTICE AND PROCEDURE – service out of jurisdiction – application for service of originating process on person in foreign country outside jurisdiction – service on person in foreign country party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 – service in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 pursuant to O 8A r 3(2)(A) – whether court had jurisdiction under O 8 r 2 of Federal Court Rules – whether proceedings were of kind mention in O 8 r 2 – whether prima facie case for relief claimed in proceedings
26 Nov 2010: STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 3) [2010] FCA 1374
12 Nov 2010: STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd ( No 2) [2010] FCA 1240
ADMIRALTY – contract of affreightment – voyage charterparty – payment of freight and load port demurrage due within five banking days after signing and release of bills of lading – time when charterer defaults CONTRACT – TRADE AND COMMERCE – whether representations made by conduct of entry into contract – whether by entering into or signing contract party represents it is and will be ready, willing and able to perform all obligations at time performance is and after it becomes due – where standard-form contract, such as charterparty, not contain such term – use in contract in international trade and commerce – obligation to be ready, willing and able to perform – actual breach established by default in performance – anticipatory breach only established if party actually could not perform at all TRADE PRACTICES – misleading and deceptive conduct – admiralty and shipping – charterparty –whether officer of charterer made personally, or at all, representation that charterer ready, willing and able to perform both at time of contract and when performance would be due in future – representation not an express or implied term of contract – whether representation made by conduct of negotiating for and signing contract – allegation that party unable ever to perform, or not ready, willing and able to perform, its obligations as and when they fell due at the time of entry into charterparty – allegation must be proved in fact not supposition – Trade Practices Act 1974 (Cth) ss 75B, 52, 82 TRADE PRACTICES – misleading and deceptive conduct – damages – false representations as to charterer’s ability to pay hire under voyage charterparty after default in payment – shipowner induced to keep charterparty on foot – measure of damage DAMAGES – misrepresentation as to readiness, willingness and ability to perform – shipowner induced to enter into charterparty or keep it on foot after default – distinction between damages in tort and contract – measure of damages under s 82 of the Act – whether damages in tort for loss opportunity to earn freight, demurrage and other entitlements assessed at the rates agreed to under charterparty – demurrage and other rates in charterparty not appropriate guide of a vessel’s earning capacity in market – no evidence of market or alternative charter rates
8 Oct 2010: Parlei Pty Limited v Rowe [2010] FCA 1111
1 Oct 2010: Duarte v Australian Maritime Safety Authority [2010] FCAFC 127
ADMINISTRATIVE LAW – jurisdictional fact – jurisdiction of tribunal to reopen its own previous decision on jurisdiction – tribunal cannot conclusively determine its own jurisdiction
28 Sep 2010: Brisbane Slipways Operations Pty Ltd v Pantaloni (No. 2) [2010] FCA 1055
ADMIRALTY – determination of the question of costs arising out of the orders made in Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654
PRACTICE AND PROCEDURE – determination of the question of costs arising out of the orders made in Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654
5 Jul 2010: Seafood Imports Pty Ltd v ANL Singapore Pte Ltd [2010] FCA 702
SHIPPING AND NAVIGATION – Carriage of goods by sea – In refrigerated container supplied by carrier – controller on container becoming stuck in defrost mode due to incompatible software – Whether goods properly and carefully carried, kept, cared for and discharged – Exception of latent defect – Whether malfunctioning of container not discoverable by due diligence – Hague-Visby Rules Arts III rr (1) and (2) and IV rr (1) and (2)(p)
24 Jun 2010: Brisbane Slipways Operations Pty Ltd v Pantaloni [201] FCA 654
ADMIRALTY – consideration of a challenge to the jurisdiction of the Federal Court to hear a proceeding commenced as an action in rem in reliance upon ss 10, 17 and 18 of the Admiralty Act 1988 (Cth) – consideration of the Court’s jurisdiction in an action in personam in reliance upon s 9 of the Admiralty Act 1988 (Cth) – consideration of whether the plaintiff’s proceeding to the extent that it engages an action in rem against the ship Aremiti 4 should be struck out as beyond jurisdiction – consideration of whether monies paid into Court to secure the release of the ship by the first defendant ought to be paid out of Court to that party – consideration of whether a remedial freezing order ought to be made under Order 25A of the Federal Court Rules preventing the removal by the first defendant of monies brought into the jurisdiction to secure release of the ship, from the jurisdiction, in aid of the plaintiff’s action in personam – consideration of whether a New Caledonian corporation should be joined as a party in the proceedings
PRACTICE AND PROCEDURE – consideration of an application for a freezing order under Order 25A of the Federal Court Rules – consideration of Order 6, rule 8 as to joinder of a party
8 Jun 2010: Strong Wise Limited v Esso Australia Resources Pty Ltd (No 2) 2010 FCA 575
HIGH COURT AND FEDERAL COURT – JURISDICTION – STATUTORY INTERPRETATION – whether jurisdiction of Court limited by pleadings in proceedings under s 25 of the Admiralty Act 1988 (Cth), s 9 of the Limitation of Liability for Maritime Claims Act 1989 (Cth) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth) seeking relief under Convention on Limitation of Liability for Maritime Claims 1976 as affected by the 1996 protocol to amend that Convention – shipowner pleaded entitlement to limit liability on only one distinct occasion – defendant pleaded existence of four distinct occasions – Court found existence of two distinct occasions – whether Court has jurisdiction to make orders that shipowner entitled to limit liability for both distinct occasions consistent with its findings.
PRACTICE AND PROCEDURE – PLEADINGS – relief flowing from pleadings – Convention does not deny shipowner the right to limit because number of distinct occasions is misidentified in pleadings – real controversy to be resolved in proceedings is whether shipowner can invoke limitation of liability under Art 10 of the Convention on one or more distinct occasions – Court able to give effect to findings by ordering the constitution of one limitation fund and making a declaration of shipowner’s entitlement to establish a second fund.
PRACTICE AND PROCEDURE – PLEADINGS – orders to prevent multiplicity of proceedings under s 22 of the Federal Court of Australia Act 1976 (Cth) from shipowner’s failure to plead more than one distinct occasion – Court able to grant relief appropriate to dispose of the controversy litigated – multiplicity of proceedings inevitable consequence of not making orders giving effect to reasons due to shipowner’s failure to plead more than one distinct occasion –refusal to grant relief not consistent with interests of justice.
PRACTICE AND PROCEDURE – PLEADINGS – amendment of pleadings – late application to amend after reasons delivered – power of Court to make amendments of its own motion to determine real questions in controversy – no unqualified duty to permit late addition of any new claim – tactical choices significant factor in exercise of discretion to allow amendments.
COSTS – unfettered discretion to award costs under s 43(2) of the Federal Court of Australia Act 1976 – no special practice as to costs in limitation actions under the Convention – substantial issues won and lost by each of the parties – limitation of liability under Convention a right rather than privilege – no general rule that shipowner liable for all costs in limitation proceedings – shipowner liable for costs of establishing uncontested entitlement to limitation: r 61(1) of Admiralty Rules 1988.
Held: jurisdiction of Court not limited by pleading of shipowner – plenary jurisdiction to determine the controversy between the parties – orders made to avoid multiplicity of proceedings – shipowner to pay 50% of defendants’ costs.
26 Mar 2010: Patrick Stevedores No 2 Pty Ltd v The Proceeds of Sale of the Vessel MV Skulptor Konenkov [2010] FCA 301
ADMIRALTY - UNCLAIMED MONEY FROM SALE OF SHIP – whether appropriate to advertise before paying money to Commonwealth as unclaimed moneys – international creditors
Held: advertise in Lloyd’s List
18 Mar 2010: Strong Wise Limited v Esso Australia Resources Pty Ltd [2010] FCA 240
ADMIRALTY LIMITATION OF LIABILITY application under s 25 of the Admiralty Act 1988 (Cth) by shipowner to limit liability under Limitation of Liability for Maritime Claims Act 1989 (Cth) and the Convention on Limitation of Liability for Maritime Claims 1976 as affected by the 1996 Protocol to amend that Convention meaning of claims arising on any distinct occasion in Arts 2(1)(a) and 6(1) of the Convention Arts 6(1)(b) and 11 of the Convention permitting shipowner to apply to limit liability for all claims arising on a distinct occasion maritime liens multiple claims alleged to arise from ships anchor fouling submarine gas pipeline, ship then going astern, ship later moving ahead, pipeline then fractured, later ship moving astern and further bending pipeline claims by pipelines owners for repairs, loss of gas and economic loss consumers of gas claiming economic losses longer repair period because of further bending whether the different events causing damage to the pipeline on one or more distinct occasions
ADMIRALTY STATUTORY INTERPRETATION construction of international convention given force of law by an Act of the Parliament construction of Convention on Limitation of Liability for Maritime Claims 1976 as affected by the 1996 Protocol to amend that Convention construction of international conventions application of principles in Vienna Convention on the Law of Treaties of 1969 purpose of limitation Convention to protect shipowner from financial ruin, encourage investment in shipbuilding, international trade and commerce and provide for limited and certain insurable risks unbreakable limitation purpose only to limit the liability of shipowner for each separate act, neglect or default from which claims arise history of limitation of maritime claims laws and conventions use of domestic law precedents
PRACTICE AND PROCEDURE EVIDENCE concurrent evidence direction that experts in each relevant discipline confer together, without the parties or their lawyers to prepare joint report setting out issues on which they agree and disagree, giving brief reasons for their differences
Held: Whether one occasion is distinct from another will depend upon whether the causes of the claims that arise from each act, neglect or default are sufficiently discrete that, as a matter of commonsense, they can be said to be distinct from one another. Claims arose on two distinct occasions.
26 Feb 2010: The Ship “Gem of Safaga” v Euroceanica (UK) Ltd [2010] FCAFC 14
ADMIRALTY – appeal against decision refusing to set aside writ in rem issued against surrogate ship under s 19 of Admiralty Act 1988 (Cth) – where Memorandum of Agreement for purchase of surrogate ship originally included "relevant person" under s 19(a) as sole purchaser, but Addendum to Memorandum of Agreement included relevant person as nine-tenth purchaser and third party as one-tenth purchaser – where purchase price for surrogate ship paid by loan for which both purchasers were jointly and severally liable – whether third party was legal and beneficial owner of one-tenth of surrogate ship – whether definition of "owner" in s 19(b) includes part owner – whether relevant person was "owner" under s 19(b) by reason of law of country in which ship was registered, or by reason of ownership rights conferred on relevant person by Co-ownership Agreement, or by reason of estoppel
23 December 2009: EMAS Offshore Pty Ltd v The Ship “APC Aussie 1” (No 2) [2009] FCA 1583
ADMIRALTY –– arrest –– costs of arrest, custody and release of ship –– payment in compliance with demand by Marshal –– plaintiff pays pursuant to an undertaking given under r 41 of the Admiralty Rules 1988 (Cth) –– defendant/relevant person pays money into court as security for the plaintiff's claim, and also pays money demanded by Marshal pursuant to an undertaking given under r 53 in order to obtain release of ship –– ship released after payments and r 53 undertaking by defendant/relevant person –– as a result the amount of the cost of custody of the ship paid twice in compliance with the rr 41 and 53 undertakings –– r 41 undertaking not provide for demand by Marshal for costs of release –– r 53 undertaking not provide for demand by Marshal for costs of arrest –– Admiralty Act 1988 (Cth) s 34 providing limited rights against plaintiff for wrongful arrest.
Held: The costs and expenses of the arrest be paid out of the amount provided to the Marshal by the plaintiff; the defendant’s payment to the Marshal should bear all other costs and expenses of the Marshal, including those in connection with keeping the ship and its release; the equivalent of the amount paid for the costs of the arrest should be added, from money paid to Marshal by defendant/relevant person, to security paid into court
15 December 2009: Beluga Shipping GmbH v Suzlon Energy Ltd (No 4) [2009] FCA 1568
9 December 2009: Euroceanica (UK) Ltd v The Ship “Gem of Safaga” [2009] FCA 1467
ADMIRALTY –– ARREST –– meaning of the expression “the owner” in s 19(b) of the Admiralty Act 1988 (Cth) –– 9 of 10 shares in arrested ship registered on Indian Register of Shipping in name of relevant person: 1 share registered in name of company of which director was managing director of relevant person –– whether 1 share held beneficially by registered shareholder or on resulting trust –– purchase initial ship in sole name of relevant person –– before completion relevant person procures amendment to purchase agreement to add nominee as additional purchaser –– evidence nominee given the one share. ADMIRALTY –– ARREST –– jurisdiction –– Admiralty Act 1988 (Cth) s 19(b) –– "the owner" in s 19(b) means sole owner, thus not permitting arrest of sister ships when relevant person consisted of more than one person –– beneficial ownership sufficient to constitute ownership under s 19(b). ADMIRALTY –– ARREST –– challenge to jurisdiction –– Admiralty Act 1988 (Cth) s 19(b) –– plaintiff arrests ship as sister ship for general maritime claim –– relevant person owner of 9 of 10 shares in a ship registered in India –– other registered shareholder was stranger to plaintiff's claim –– whether relevant person was the owner of the ship –– relevant person gave 1 share in ship to other shareholder for no consideration before completion –– relevant person substantial company arranged all finance for purchase and managed ship as part of its business –– other shareholder never received any payment, other than credits in relevant person’s accounts–– no explanation of, or direct evidence of reason for involvement of other shareholder –– relevant person, as sole owner, employed masters. ADMIRALTY –– ARREST –– meaning of “in control of” in s 19(a) of the Admiralty Act 1988 (Cth) –– whether relevant person was “in control of” two other ships at the time plaintiff’s general maritime claim under s 4(3)(f) arose for default in payment of hire by its subsidiary named as charterer in charterparties for those two ships –– whether side letter to charterparties providing that relevant person was ultimately responsible for true fulfilment of charterers’ obligations put it in control of or made it charterer of the two ships under s 19(a) –– relevant person controlling appointment of masters, officers of chartered ships, their commercial operation and giving voyage instructions.
Held: relevant person was the owner of arrested ship; other share held on resulting trust for it, relevant person in control of two chartered ships. Arrest proved to be within jurisdiction.
Words and Phrases: "the owner", "charterer", "in control of"
6 November 2009: Beluga Shipping GmbH v Suzlon Energy Ltd (No 3) [2009] FCA 1347
30 October 2009: Beluga Shipping GmbH v Suzlon Energy Ltd (No 2) [2009] FCA 1346
25 September 2009: BHBP Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 3) [2009] FCA 1087
AGENCY – warranty of authority – shipbroker purportedly acting for one party but actually acting for another – measure of damages. TRADE PRACTICES – misleading conduct – damages recoverable under s 82 – whether possible to avoid operation of s 82(1B) by claiming compensation under s 87. ADMIRALTY – shipbroking contract – implication of terms – no implied obligation to provide copies of documents relating to charterparty – implication of term requiring broker to exercise reasonable skill and care – whether term breached. WORDS AND PHRASES – “sponsorship, approval or affiliation” – whether agency relationship constitutes approval or affiliation
25 September 2009: Qenos Pty Ltd v Ship 'APL Sydney" [2009] FCA 1090
18 September 2009: Beluga Shipping GmbH v Suzlon Energy Ltd [2009] FCA 1020
18 September 2009: Sumitomo Corporation v CV Scheepvaartonderneming Emmagracht [2009] FCA 1127
COSTS –– proper approach to admiralty and commercial litigation –– goods transported under bill of lading incorporating Himalaya clause –– shipper and consignee sued ship owner and stevedore for damage to cargo –– stevedore successful in obtaining consent orders on motion dismissing proceedings against it based on Himalaya clause –– stevedore not furnishing critical evidence or information until after motion filed –– whether stevedore should have its costs –– importance of parties cooperating to identify the real issues in dispute –– duty to resolve uncontentious issues at an early stage of litigation –– stevedore awarded 75% of its costs of the proceedings.
31 July 2009: EMAS Offshore Pte Ltd v The Ship "APC Aussie 1" [2009] FCA 872
ADMIRALTY –– proceeding in rem –– procedure –– application to amend writ after arrest –– adding new claim for indemnity –– relevant person –– construction of ‘maritime claim’ and ‘cause of action’ in s 18 Admiralty Act 1988 (Cth) –– whether the plaintiff can amend writ to add new claim for indemnity, in respect of liability arising in foreign proceedings, against demise charterer as relevant person after termination of charterparty. ADMIRALTY –– proceeding in rem –– procedure –– Admiralty Act 1988 (Cth) s 18 –– proceeding in rem commenced against demise charter –– charterparty terminated –– owner offering security for plaintiff’s claim in writ naming demise charterer as relevant person –– purpose of proceedings in admiralty not to put pressure on person not under a liability to the plaintiff. PRACTICE AND PROCEDURE –– amendment of document –– Federal Court Rules O 13 –– interaction of the Rules with the Admiralty Rules 1988 (Cth) –– admiralty writ –– amendment to originating process to add new cause of action –– whether amendment to add claim to admiralty writ where relevant person is no longer demise charter would be appropriate in all the circumstances –– discretion to allow amendment. Held: application refused, plaintiff not permitted to add new claim to writ in rem against demise charterer after the demise charterparty has been terminated
26 June 2009: APC Marine Pty Ltd v T-D Joint Venture Pty Ltd [2009] FCA 713
25 June 2009: APC Marine Pty Ltd v Ship “APC Aussie 1” [2009] FCA 690
21 May 2009: Australian Fisheries Management Authority v Su [2009] FCAFC 56
CRIMINAL LAW – offence of strict liability under Fisheries Management Act 1991 (Cth) – defence available under s 9.2 Criminal Code (Cth) – defence of mistaken but reasonable belief about facts which, had they existed, would have meant that the conduct would not have constituted offence – mistaken but reasonable belief that red line on GPS represented AFZ boundary, so mistaken but reasonable belief that vessel positioned above red line was outside AFZ – whether mistake of law or mistake of fact
15 May 2009: Omega Tankers & Trailers Pty Ltd v East-West Air Services Co Ltd [2009] FCA 648
10 February 2009: Australian Maritime Safety Authority v Livestock Transport & Trading [2009] FCAFC 10
ADMIRALTY – treatment or holding of livestock sewage onboard ship – Maritime Authority refused foreign-flagged ship permission to load livestock because of lack of compliance with parts of Marine Orders Pt 43, O 12.2 and cl 6.6 of Appendix 4 – appeal from decision by primary judge that these parts of Marine Orders were invalid, being inconsistent with Div 12C of Pt IV of Navigation Act 1912 (Cth), to extent applicable to foreign-flagged ships – law of State of flag of ship
STATUTORY INTERPRETATION – extent of regulation making power – Authority’s powers to make regulations or orders under ss 190B(1) and 257(1) – whether Div 12C of Pt IV of Navigation Act imposed limitation on Authority’s powers under ss 190B(1) and 257(1) to make regulations or orders with respect to Annex IV of MARPOL 73/78 – whether s 267ZQ gave Authority power to require structure of foreign ship to be modified so that it would comply with Annex IV – subject matter, scope and purpose of Act
8 December 2008: Thor Shipping A/S v The Ship "Al Duhail" (No 2) [2008] FCA 2007
5 December 2008: Thor Shipping A/S v The Ship "Al Duhail" [2008] FCA 1842
ADMIRALTY – engagement of admiralty jurisdiction dependant on ownership, possession or control of the relevant vessel – Section 17 of the Admiralty Act 1988 (Cth)
PERSONAL PROPERTY – whether title to a vessel was passed under the conditions of a relevant agreement to the satisfaction of s 17 of the Admiralty Act 1988 (Cth) – whether registration is proof of "ownership" as that term is defined by the common law – whether an entitlement to own is sufficient to prove ownership for the purposes of s 17 of the Admiralty Act 1988 (Cth)
IMMUNITY – whether a head of state and his possessions are inviolable ratione personae while that head of state is still in office – geographical restrictions on such an immunity – Article 31 of the Vienna Convention on Diplomatic Relations as adopted by the Diplomatic Privileges and Immunities Act 1967 (Cth)
26 November 2008: Beluga Shipping GmbH & Co v Headway Shipping Ltd (No 2) [2008] FCA 1770
ADMIRALTY straight bills of lading non-negotiable freight prepaid bill of lading with named consignee claused in traditional manner expressly providing that, on production of an original, others would be void and terms embodied in bill will be accomplished whether document of title whether "sea carriage document" under Sch 1A of Carriage of Goods by Sea Act 1991 (Cth)
ADMIRALTY shipping and navigation bills of lading and carriage of goods by sea generally application to vary Court orders to permit delivery of cargo without presentation of original bills of lading whether permissible in circumstances
10 November 2008: BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 2) [2008] FCA 1656
PRACTICE AND PROCEDURE – application to bring a cross-claim under Pt VIA of the Trade Practices Act 1974 (Cth) and Pt IVAA of the Wrongs Act 1958 (Vic) – application of s 79 Judiciary Act 1903 (Cth) – properly constituted action
5 November 2008: Beluga Shipping GmbH & Co v Headway Shipping Ltd [2008] FCA 1791
ADMIRALTY – straight bills of lading – non-negotiable freight prepaid bill of lading with named consignee – claused in traditional manner expressly providing that, on production of an original, others would be void and terms embodied in bill will be accomplished – whether document of title – whether "sea carriage document" under Sch 1A of Carriage of Goods by Sea Act 1991 (Cth)
ADMIRALTY – shipping and navigation – bills of lading and carriage of goods by sea generally – application to vary Court orders to permit delivery of cargo without presentation of original bills of lading – whether permissible in circumstances
16 October 2008: Livestock Transport & Trading v Australian Maritime Safety Authority (No 2) [2008] FCA 1544
ADMIRALTY – foreign-flagged vessel was refused permission to load livestock because it did not comply with parts of Marine Orders Pt 43 – whether O 12.2 and s 6.6 of Appendix 4 of the Marine Orders are inconsistent with Div 12C of Pt IV of the Navigation Act 1912 (Cth) to the extent they apply to foreign-flagged vessels
16 October 2008: Tai Shing Maritime CO SA v The Ship "Samsun Veritas" as surrogate for the Ship "Tai Hawk" (Corrigendum dated 17 October 2008) [2008] FCA 1546
ADMIRALTY – urgent ship arrest – serious safety and financial risks in ship remaining in Port – urgent orders sought permitting ship to move beyond the 12 mile zone – orders made permitting ship to make 12 hour trip to suitable port – jurisdictional questions – balancing interests
3 October 2008: Mei Ying Su v Australian Fisheries Management Authority No 2 [2008] FCA 1485
CRIMINAL – Strict liability offences – mistake of fact – whether mistake of fact or law – whether affirmative belief as to fact – whether mistaken belief reasonable
ADMIRALTY – Forfeiture of foreign fishing vessel – civil proceedings to prevent forfeiture – onus of proof and standard of proof – whether vessel being used for offence – purpose of enforcement provisions – purpose of reasonable mistake of fact defence
5 August 2008: Elbe Shipping SA v Giant Marine Shipping SA [2008] FCA 1135
ADMIRALTY – ship under tow – liability of ship under tow for loss and damage caused by tug – imputation of liability under contract – cannot be relied upon by third party
PRACTICE AND PROCEDURE – summary judgment and judgment on admissions – entering such a judgment for the plaintiff without appropriate orders
18 April 2008: Balaji Cranes Ltd v Lampson (Australia) Pty Ltd [2008] FCA 882
11 April 2008: Deiulemar Compagnia Di Navigazione SpA (ID No 395485) v The Ship "George T" [2008] FCA 577
ADMIRALITY – change of ownership of vessel – whether writ in rem should be renewed
6 March 2008: Lampson (Australia) Pty Ltd v Australian Crane & Machinery Pty Ltd [2008] FCA 400
PRACTICE AND PROCEDURE – summary judgment – s 31A(1) Federal Court of Australia Act 1976 (Cth) – test to be applied – whether reasonable prospect of successful defence
PRACTICE AND PROCEDURE – award of interest under s 51A Federal Court of Australia Act 1976 (Cth) – adopt rates of interest applied by Supreme Court of State or Territory in which Court is sitting
CONTRACTS – contracting parties – general principles – contracting parties to be identified by consideration of objective intention of parties
14 December 2007: Hilditch Pty Ltd v Dorval Kaiun KK (No 2) [2007] FCA 2014
SHIPPING AND NAVIGATION – carriage of goods by sea – bill of lading – endorsement in blank – effect of – whether bill became a bearer bill by being endorsed in blank – whether delivery of bill of lading endorsed in blank was sufficient to vest property in cargo in the bearer of the bill – where endorsed bill was one of a set of three – whether necessary separately to endorse all three original bills of lading for the bearer to be able to claim delivery of the goods
SHIPPING AND NAVIGATION – carriage of goods by sea – contamination of cargo – point at which contamination occurred – whether carrier complied with its obligations to properly and carefully discharge the cargo under Art 3 r 2 of the amended Hague Rules
SHIPPING AND NAVIGATION – discharge of cargo – where cargo in good condition in ship’s tanks but later discharging at the ship’s manifold in a contaminated condition – where portion of cargo slopped at the direction of the owner of the goods – where cargo remained visibly contaminated at the conclusion of slopping – where owner of the goods permitted discharge to continue – whether owner of the goods was responsible for any part of its claimed loss in these circumstances – whether conduct of the owner of the goods constituted an act or omission under Art 4 r 2(i) of the amended Hague Rules – concurrent causes of a loss
SHIPPING AND NAVIGATION – contamination of cargo – whether notice of loss or damage of cargo given in writing to the carrier 'at the time of' discharge for the purposes of Art 3 r 6 of the amended Hague Rules
PRACTICE AND PROCEDURE – interest under s 51A of the Federal Court of Australia Act (1976) – method of calculating pre-judgment interest
11 December 2007: Mitsubishi Australia Limited v Ship MV Patriot [2007] FCA 1982
3 October 2007: Heilbrunn v Lightwood PLC [2007] FCA 1518
ADMIRALTY AND MARITIME JURISDICTION – meaning of “a claim arising out of an agreement that relates to carriage of goods by a ship” for s 4(3)(f) of the Admiralty Act 1988 – whether damage to goods caused by a warehouseman acting under an agreement with a freight forwarder who undertook to carry the goods by land and sea, loading a shipping container at its premises prior to transportation to the port for loading on board ship fell within the provision – whether the proceeding should be dismissed or stayed because of a time bar or exclusive jurisdiction clause
25 September 2007: APS Ship Management Pty Ltd v Steven Sidney Wood [2007] FCAFC 142
ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal – calculation of worker’s compensation payments – Tribunal applied improper construction of s13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) – determination of class precedes determination of percentage increase or decrease of normal weekly earnings – remuneration wrongly assigned paramountcy when determining class
31 August 2007: WK Marble & Granite Pty Ltd v CASA China Limited [2007] FCA 1382
ADMIRALTY AND MARITIME – practice and procedure – discontinuance of small claim – approach to costs
17 August 2007: Gruppo Mastrotto SPA v Jet Air Services SPA [2007] FCA 1280
ADMIRALTY AND MARITIME – practice and procedure – leave to serve originating process out of jurisdiction
3 August 2007: OW Bunker & Trading Company Ltd A/S v The Ship MV "Mawashi Al Gasseem" (No 2) [2007] FCA 1139
ADMIRALTY – priority of claims in rem against ship over proceeds of sale of ship and sale of bunkers – whether mortgage over ship includes fuel oil in bunkers;
WORDS AND PHRASES – ship – component – appendage – annexe
1 August 2007: United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2007] FCAFC 115
SHIPPING – salvage – appeal from award of salvage reward – discretionary nature of award – role of appellate Court – whether primary judge erred in exercising discretion in fixing reward – whether failed to take into account degree of risk of global and of local failure – sufficiency of evidence – whether potential liability to third parties – relevance of costs and actual expenses of salvage – whether judge used actual costs and expenses as benchmark – whether value of services depends critically upon the potential losses that are avoided – whether judge took correct approach to value – encouragement of reward – proof of beneficial ownership
27 July 2007: KDB Capital Corp v BHP Mitsui Coal Pty Ltd [2007] FCA 1150
ADMIRALTY AND MARITIME – practice and procedure – proceedings commenced in Australia and foreign jurisdictions
17 July 2007: Renault SAS v Nissan Motor Car Carrier Co Ltd [2007] FCA 1068
ADMIRALTY AND MARITIME – practice and procedure – leave to serve originating process out of jurisdiction
9 July 2007: Lampson (Australia) Pty Limited v Australian Crane and Machinery Pty Limited [2007] FCA 1043
BILLS OF LADING – practice and procedure – production of original bill of lading
5 July 2007: Elbe Shipping SA v Giant Marine Shipping SA [2007] FCA 1000
Constitutional law – judicial power – whether legislation infringes or usurps judicial power of Commonwealth – whether legislation invalid. Procedure – motion to set aside subpoena to produce documents – production of documents to court prohibited under s 60 of Transport Safety Investigation Act 2003 (Cth) – whether the power of the court to order the production of documents by subpoena is properly characterised as practice and procedure – subpoena set aside
2 July 2007: Hilditch Pty Ltd v Dorval Kaiun KK [2007] FCA 999
ADMIRALTY AND MARITIME – practice and procedure – case management – production of evidence
29 June 2007: Dalian Liangzi Seafood Product Co Ltd v Commonwealth [2007] FCA 996
21 June 2007: Stena Rederi Aktiebolag v Austal Ship Sales Pty Ltd [2007] FCA 864
PATENT – hull structure of multi-hull vessel – whether claims ambiguous or uncertain
31 May 2007: C V Sheepvaartonderneming Ankergracht v Stemcor (A/sia) Pty Limited [2007] FCAFC 77
SHIPPING AND NAVIGATION – carriage of goods by sea – liability for damage to steel coils by corrosion before or during voyage – effect of amended Hague Rules as defined in s 7 of Carriage of Goods by Sea Act 1991 (Cth) – whether vessel unseaworthy for voyage from northern winter to southern hemisphere summer because not fitted with dehumidifiers – seaworthiness – cargoworthiness – whether carriers established exercise of due diligence – whether carrier failed to carry, keep and care for coils properly and carefully – effect of ventilation of non-hygroscopic cargoes during voyage – application of dew point rule – whether packaging of steel coils sufficient – effect of evidence of standard industry practice of wrapping steel coils – whether carriers established inherent defect, quality or vice
29 May 2007: Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) [2007] FCA 815
PROCEDURE – operation of O 35 r 2(2)(c) of the Federal Court Rules – whether declaration should be made on deemed admissions – where declaration sought as to validity of mortgage over ship – where declaration affects priority of other claims against ship – where other claimants have had opportunity to intervene – considerations in exercising discretion to make declaration – declaration made
11 May 2007: Brazin Limited v Transarea China Ltd [2007] FCA 753
11 May 2007: Hilditch Pty Ltd v Dorval Kaiun KK [2007] FCA 752
ADMIRALTY AND MARITIME – practice and procedure – proper approach to issues in the Admiralty and maritime list
4 May 2007: Villasenor v The World of Residensea II Ltd [2007] FCA 647
27 April 2007: Brazin Limited v Transarea China Ltd [2007] FCA 610
11 April 2007: Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" [2007] FCA 550
PROCEDURE – application to strike out defence as an abuse of process – where plaintiff adduces uncontroverted evidence to show ground of defence not genuinely arguable – where no response from defendant – defence struck out
28 March 2007: Heilbrunn v Lightwood PLC [2007] FCA 433
ADMIRALTY AND MARITIME JURISDICTION – practice and procedure – service out of the jurisdiction – damage suffered wholly or partly within Australia for item 5 in table accompanying Order 8 rule 2
23 November 2006: United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 1611
COSTS – Offer of Compromise made by defendants prior to hearing – application of O 23 r 11(5) – whether Offer of Compromise was defective because the sum of money was inclusive of interest and costs and/or the Offer required the plaintiffs to execute a “satisfactory deed of release” – whether “satisfactory deed of release” requirement is uncertain or would result in oppression to plaintiffs - whether defendants had engaged in disentitling conduct such that the Court should not award indemnity costs
20 November 2006: Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192
ADMIRALTY AND MARITIME JURISDICTION – action in rem in Australia commenced by foreign party who had commenced London arbitration against Australian party – no statutory basis for commencing the in rem action – no election or waiver or abandonment of arbitration – nature of action in rem discussed
INTERNATIONAL ARBITRATION – proceedings begun in this Court by Australian party – stay sought by foreign party under International Arbitration Act 1974 (Cth) – stay granted
18 October 2006: ASP Holdings Ltd v Pan Australia Shipping Pty Ltd [2006] FCA 1379
ADMIRALTY – demise charterer – notice of termination – notice uncertain – termination conditional – whether redelivery required.
CORPORATIONS – leave to commence action in rem against ship
13 October 2006: Comandate Marine Corp v Pan Australia Shipping [2006] FCA 1370
PRACTICE AND PROCEDURE – ADMIRALTY AND MARITIME – obligation of parties and lawyers to co-operate to ensure that only questions truly necessary for decision are brought to court for argument
11 October 2006: Hyundai Merchant Marine Co Ltd v Dartbrook Coal (Sales) Pty Ltd [2006] FCA 1324
ADMIRALTY & MARITIME JURISDICTION – carriage of goods by sea - contract for cargo - whether binding contract - correspondence of offer and acceptance of terms - whether charterparty conditional upon existence of cargo contract - whether wrongful repudiation of charterparty.
ADMIRALTY & MARITIME JURISDICTION - Meaning of force majeure event - Whether force majeure event existed due to non performance of a contract by another party – whether impractability of performance amounts to prevention of performance.
DAMAGES - The measure of damage - modern rule where cargo not delivered - shipowner's obligations - whether duty to mitigate loss - whether shipowner obliged to seek alternative employment for vessel - circumstances in which rule operates - onus of proof.
DAMAGES - Quantum of damages – cost of hire and voyage expenses including contingencies – cargo leg of the voyage.
COSTS - Entitlement to indemnity – whether agent personally liable – whether agent entitled to be indemnified – meaning of wilful misconduct – distribution of costs
15 September 2006: G P Marketing International Pty Ltd v Pacific Orient Sea Transport Pte Ltd [2006] FCA 1307
ADMIRALTY AND MARITIME JURISDICTION – cargo claim – costs discontinuance against one party – misunderstanding of essential fact by both plaintiffs and defendant – need for parties in cargo case large or small to pay precise attention to the facts
7 September 2006: Austal Ships Pty Ltd (ACN 079 160 679) v Thurlow [2006] FCA 1219
PRACTICE AND PROCEDURE – preliminary discovery - to ascertain prospective respondents – to ascertain whether right to obtain relief – confidential internal research report – procured by employee of competitor – published to third parties to disparage applicant’s product – former employee of applicant now working for competitor – criteria for preliminary discovery satisfied – orders made
1 September 2006: Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCA 1246
PRACTICE AND PROCEDURE - stay of proceedings – application for leave to appeal against decisions granting anti-anti-suit injunction and finding foreign arbitral proceedings abandoned – conditions on grant of leave to appeal - whether Court should impose a condition requiring the discharge of restraining orders granted by foreign courts in support of foreign arbitral proceedings
1 September 2006: United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 1141
SHIPPING – Salvage – Amount of Salvage Reward – factors Relevant to Assessment – liability Salvage – whether excluded from consideration – 1989 Convention on Salvage – interpretation – extrinsic aids - Vienna Convention – Travaux Preparatoires – proof of beneficial ownership
22 August 2006: Pan Australia Shipping Pty Ltd v The Ship ‘Comandate’ (No 2) [2006] FCA 1112
ARBITRATION – ELECTION - stay of proceedings – anti-anti-suit injunction – where arbitral proceedings brought in England and in rem proceedings brought in Federal Court of Australia by same party - whether action in rem constituted election to litigate rather than arbitrate – abandonment of right to arbitrate – whether right to arbitrate waived - whether arbitration agreement rendered inoperative. ARBITRATION – definition of agreement in writing under International Arbitration Act 1974 (Cth) – interpretation of Art II r 2 of the New York Convention – meaning of ‘contained in an exchange of letters or telegrams’- agreement formed by provision of bank guarantee. ARBITRATION - scope of arbitration clause – whether trade practices claim falls within scope of arbitration clause – where arbitration clause governed claims ‘arising out of this contract’. PRACTICE & PROCEDURE – stay of proceedings – continuation of anti-anti-suit injunction – continuation of injunction to restrain the defendant from obtaining an injunction in a foreign court which would restrain the continuation of proceedings in the Federal Court of Australia – where defendant threatening to take steps in English High Court of Justice to restrain proceedings in the Federal Court of Australia. ADMIRALTY & MARITIME JURISDICTION – arrest of vessel – in personam claim.
2 August 2006: Elbe Shipping SA v The Ship “Global Peace” [2006] FCA 954
ADMIRALTY AND MARITIME JURISDICTION – Jurisdiction to hear in rem proceeding – discussion of s 15 of the Admiralty Act (proceeding on a maritime lien), of the nature of the general maritime claim in s 4(3)(a), (b), (d), (j) and (k) of the Admiralty Act, of jurisdiction under ss 9 and 10 of the Admiralty Act, and of the associated jurisdiction in s 12 of the Admiralty Act
3 July 2006: Consort Express Lines Limited (ARBN 065 374 183) v J-Mac Pty Limited (ACN 055 284 270) (No 2) [2006] FCA 833
DAMAGES -title to sue - whether parent company can sue for loss suffered by subsidiary company - separate and distinct loss - measure of damages - `no transaction´ case.
ADMIRALTY - where ship required repairs following purchase - action against prepurchase surveyor - recovery of hire costs of substitute vessel and repair costs
27 June 2006: Comandate Marine Corp v The Ship “Boomerang I” [2006] FCAFC 106
ADMIRALTY AND MARITIME JURISDICTION – surrogate arrest under s 19 of the Admiralty Act 1988 – the phrase “the owner” in s 19(b) does not include demise charterer
24 June 2006: Comandate Marine Corp v The Ship “Boomerang I” [2006] FCA 859
ADMIRALTY AND MARITIME JURISDICTION – arrest of vessel as surrogate ship under s 19 Admiralty Act – urgent application for release from arrest – permission to sail on conditions in the absence of release from arrest – undertaking as to damages – undertaking as to Marshal’s fees
22 June 2006: Pan Australia Shipping Pty Ltd v The Ship ‘Comandate’ [2006] FCA 881
JURISDICTION – stay of action – anti-anti-suit injunction – quia timet relief - application for injunction to restrain defendant obtaining injunction in a foreign court which would prevent plaintiff filing statement of claim in personam pursuant to r 22 of the Admiralty Rules so as to invoke Australian jurisdiction under Trade Practices Act 1974 (Cth) – where defendant threatening to take steps in English High Court of Justice to restrain proceedings in the Federal Court of Australia.
ADMIRALTY & MARITIME – arrest of vessel – in personam claim
19 June 2006: Cheng XI Shipyard v The Ship ‘Falcon Trident’ [2006] FCA 759
PRACTICE AND PROCEDURE – application by respondent to action for order that applicant give security for costs – Federal Court Act 1976 (Cth), s 56 – Federal Court Rules, O 28 r 3 – factors relevant to exercise of discretion – apparent strength of applicant’s case – where applicant resident outside jurisdiction and has no assets in jurisdiction – held, in circumstances, appropriate to order security for costs
24 May 2006: Scandinavian Bunkering AS v The Bunkers on Board The Ship FV "Taruman" [2006] FCAFC 75
ADMIRALTY AND MARITIME– effect of seizure by the Australian Fisheries Management Authority ("AFMA") of a boat pursuant to s 84(1)(ga) of the Fisheries Management Act 1991 (Cth) ("the FMA") – automatic forfeiture pursuant to s 106A of the FMA of, amongst other things, a foreign boat used in an offence against s 100, s 100A, s 101 or s 101A of the FMA – whether it extends to bunker fuel on board a boat – whether forfeiture of a boat prevails over arrest of bunkers under the Admiralty Act 1988 – whether bunkers come within the meaning of ‘ship’ in s 17 of the Admiralty Act or are ‘other property’ – whether bunkers are susceptible to arrest under the Admiralty Act separately from the ship on which they are to be found.
27 March 2006: Broken Bay Slipway Pty Ltd v The Yacht ‘Flying Cloud’ [2006] FCA 309
10 March 2006: ASP Ship Management Pty Limited v Administrative Appeals Tribunal [2006] FCAFC 23
SHIPPING AND NAVIGATION – who is the operator of a ship – proper approach to apply the phrase "operated by" in s 10 of Navigation Act 1912
ADMINISTRATIVE LAW – incorrect question addressed in application of s 10 of the Navigation Act 1912
WORKERS COMPENSATION – proper approach to the application of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) by reference to the application of Part 2 of the Navigation Act through s 10 thereof
17 February 2006: United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116
DIRECTIONS - discovery
8 February 2006: United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 50
PRACTICE AND PROCEDURE – Notice to Produce – Application to set aside – requests too broad
17 January 2006: AWB ( Australia) Limited v The Ship MV “Chang Fu Star” [2006] FCA 10
Admiralty and Maritime – practice – consent movement of vessel between berths
16 December 2005: Stemcor
(A/sia) Pty Ltd v C.V. Scheepvaartonderneming Ankergracht
[2005] FCA 1808
MARITIME JURISDICTION – Shipping – Sea
Carriage of Goods - responsibility for corrosion damage to
steel coils before or during course of carriage by sea –
whether damage due to insufficiency of packaging of steel
coils or due to failure by Carrier to exercise due diligence –
method by which water entered packaging around steel coils –
whether steel coils packaged following usual industry method –
whether Carriers followed usual practice – measure of
damages
12 December 2005: Braverus
Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC
256
ADMIRALTY AND MARITIME - SHIPPING AND
NAVIGATION - compulsory pilotage - construction and
interpretation of s 410B of Navigation Act 1912 (Cth)
and ss 85 and 86 of the Ports Corporatisation and
Waterways management Act 1995 (NSW) - shipowner liable
for fault of pilot, though pilot not properly licensed.
TRADE PRACTICES ACT - no reliance by master of ship on
conduct of the pilot.
CONTRACT - formation - no contract
between shipowner and pilotage service provider .
TORT -
contributory negligence - no relevant causal link between
conduct of the plaintiff and the damage
4 November 2005: Associated
Packaging Pty Limited v Lloyd Triestino Di Navigazione S.P.A.
[2005] FCA 1631
2 November 2005: United
Salvage Pty Ltd v Louis Dreyfus Armateurs SAS [2005] FCA
1549
PRACTICE AND PROCEDURE - subpoena to produce documents -
application to set aside subpoena - whether documents sought
are relevant to an issue in the proceedings - whether
documents sought are reasonably necessary for a legitimate
purpose of the litigation - witness will only be precluded
from seeing commercially confidential documents in exceptional
circumstances
19 September 2005: Adsteam
Harbour Pty Limited v The Registrar of the Australian Register
of Ships [2005] FCA 1324
ADMIRALTY AND MARITIME - rectification of
Australian Ship Register - federal jurisdiction - jurisdiction
of the Court
15 August 2005: Walter
Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005]
FCA 1102
PRACTICE AND PROCEDURE – stay – operation
of International Arbitration Act 1974 (Cth) –
approach to construction of arbitration clauses
12 August 2005: Metall
Und Rohstoff Shipping v the Owners of Bunkers on Board the
ship MV “Genco Leader” [2005] FCAFC 162
ADMIRALTY AND MARITIME – arrest
– proper construction of s 17 of the Admiralty Act 1988 – no
statutory authority to arrest bunkers owned by relevant person
when those bunkers were not the property with which the
relevant general maritime lien was concerned
29 July 2005: Ahmad
v Mitsui O.S.K. Lines Limited (ARBN 008 311 831) [2005] FCA
1036
ADMIRALTY- Whether defendant entitled to
recover under the cross-claim, even if it succeeded in its
primary contention that plaintiff was not the holder in due
course or the lawful holder of the Bill of Lading - such
defence to cross-claim not raised in hearing - leave to amend
the defence to the cross-claim denied - defendant entitled to
succeed on cross-claim
26 July 2005: OW
Bunker and Trading Company Ltd A/S v "Mawashi Al Gasseem"
[2005] FCA 1041
ADMIRALTY – arrest of ship – claim for
payment of bunkers supplied – application for summary judgment
– application unopposed
6 June 2005: Ahmad
v Mitsui O.S.K. Lines Limited (ARBN 008 311 831) [2005] FCA
731
MARITIME
JURISDICTION Shipping Bills of Lading cargo shipped in
two containers cargo in first container released without
presentation of original Bills of Lading whether cargo in
first container was the subject of conversion because it was
released without presentation of the Bills of Lading cargo
not converted, but released erroneously and negligently,
giving rise to breach of contract - second container held in
storage and not claimed second container the subject of
cross-claim for storage fees.
MARITIME JURISDICTION Shipping Sea
Carriage of Goods Governing Rules Bill of Lading expressly
excludes operation of Hague Rules Limitation of liability in
Bill of Lading to apply
27 May 2005: Humane
Society International Inc v Kyodo Senpaku Kaisha Ltd [2005]
FCA 664
SERVICE OUTSIDE JURISDICTION -
INTERNATIONAL LAW - The applicant sought leave to serve
originating process in Japan in light of the respondent’s
whaling activities in Antarctic waters - exercise of
discretion under Order 8 of the Federal Court Rules. Clear
prima facie case of contravention of Australian law. However,
Australia’s claims to sovereignty over the Australian
Antarctic Territory are only recognised by a small number of
countries, not including Japan. Views of the Executive
Government although non-justiciable, were deemed to be
relevant considerations in the exercise of the judicial
discretion. Held: An injunction would be unenforceable, while
a declaration alone would be an empty assertion of domestic
law which would likely place the Court at the centre of an
international dispute. Application dismissed
29 April 2005: Tisand
(Pty) Ltd v The Owners of the Ship MV “Cape Moreton” (ex
“Freya”) [2005] FCAFC 68
ADMIRALTY – ARREST- meaning of the phrase
‘the owner' in Part III of the Admiralty Act 1998 (Cth) – sale of vessel – completion of sale before the
commencement of proceeding but after cause of action arose –
vendor being the ‘relevant person' remained entered as owner
on the Liberian Register – whether the phrase ‘the owner'
necessarily includes the registered owner irrespective of the
terms and state of completion of the underlying transaction –
vendor held not to be ‘the owner'
27 April 2005: Stuart
Alexander & Co Pty Ltd v Trans-Atlantic (SA) (Pty) Ltd
& Ors [2005] FCA 490
PRACTICE & PROCEDURE - motion
for summary judgment
15 March 2005: Nicholson
v Owners of the Vessel "The Sea-Ya" [2005] FCA 257
Sale of yacht -
dispute whether a concluded contract - consensus ad idem but
on the facts no intention to be legally bound before signature
4 March 2005: GRD
Minproc Limited v Shanghai Flying Wheel Non-Ferrous Company
(No 2) [2005] FCA 180
PRACTICE AND PROCEDURE - service out of
the jurisdiction - criteria for service out - alleged
contraventions of Trade Practices Act 1974 (Cth) - allegedly
committed in Australia - respondent corporations in China -
injunction claim based on estoppel - injunction claim based on
Carriage of Goods by Sea Act 1991 (Cth) - requirements for
service out of the jurisdiction in China - requirement for
formal request by Australian courts
4 March 2005: Incitec
Ltd v Alkimos Shipping Corporation [2005] FCA 191
Service out of the
jurisdiction
31 January 2005: Pan-United
Marine Limited v The Ship "Farid F" [2005] FCA 57
ADMIRALTY PRACTICE - application for leave
to serve writ in rem - whether good reason for leave
to be granted
21 December 2004: Advertising
Department Pty Ltd v The Ship 'MV PORT PHILLIP' [2004] FCA
1762
ADMIRALTY -
registration - procured by fraud - grant of mortgage -
indefeasibility of title
12 December 2004: Safezone
Pty Ltd v The Ship Island Sun [2004] FCA 1797
ADMIRALTY AND MARITIME application for
arrest of a surrogate vessel pursuant to section 19 of the
Admiralty Act 1988 (Cth) whether it has been established
that the relevant person is the owner of the surrogate
vessel under section 19(b) of the Admiralty Act 1988 (Cth).
10 December 2004: United
Salvage Pty Limited v Oltramare Shipping Co SA [2004] FCA
1751
(no catchwords)
23 November 2004: Blue
Scope Steel (AIS) Pty Limited v Panathena Maritime Inc [2004]
FCA 1525
ADMIRALTY AND
MARITIME - practice and procedure - no point
of principle.
23 November 2004: Humane
Society International Inc v Kyodo Senpaku Kaisha Ltd [2004]
FCA 1510
PRACTICE service outside the
jurisdiction alleged contravention of Commonwealth law by
Japanese nationals acting under permits issued by the Japanese
Government for killing of whales for scientific
purposes.
18 November 2004: Denmeade
v Stingray Boats [2004] FCA 1503
PRACTICE AND PROCEDURE appeals
application for extension of time in which to file a notice of
appeal variation of original order retrospective effect of
slip rule prospects of success on appeal.
8 November 2004: CSL Ltd v P & O Nedloyd Ltd [2004] FCA 1456
24 September 2004: Stingray
Boats v Denmeade [2004] FCA 1256
(no catchwords)
17 September 2004: Port
Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA
1211
SHIPPING AND NAVIGATION
- compulsory pilotage - negligent navigation by pilot -
liability of shipowner for damage caused by collision with
berth - pilot employed by port corporation - vicarious
liability of shipowner for default of pilot - pilot deemed to
be shipowner's servant by s 410B of Navigation Act 1912 (Cth) and s 85 of the Ports Corporatisation and
Waterways Management Act 1995 (NSW) - shipowner
vicariously liable for negligence of servant - entitlement to
contribution from port corporation - no entitlement to
contribution - statutory immunities operate to defeat
contribution claim
SHIPPING AND NAVIGATION - licensing of pilots - no valid licence issued to pilot - statutory scheme operates despite absence of licence
TORT - vicarious liability - employers - employee exercising independent duties - pilot employed by port corporation but deemed by statute to be servant of shipowner - duty imposed by statute operative to exclude vicarious duty of employer
TORT - contributory negligence - causation - insufficient causative link between increased risk of damage and damage ultimately suffered - no contributory negligence
CONTRACT - formation - alleged existence of standing offer on the part of port corporation for provision of pilotage services - pilotage services offered pursuant to statutory obligation - no voluntary assumption of duty - no contract where duty imposed by statute - imperfect performance of statutory duty does not give rise to a contract
CONSTITUTIONAL LAW - just terms - Navigation Act alleged to have effect of removing cause of action and imputing incontestable liability without provision of just terms - Navigation Act not a law with respect to the acquisition of property - in any event, no liability or cause of action had accrued at the relevant time
TRADE PRACTICES - misleading or deceptive conduct - pilot carrying out statutory function - pilotage not an activity bearing a trading or commercial character - pilotage not 'in trade or commerce'
16 September 2004: Olbers
Co Ltd v Commonwealth of Australia [2004] FCAFC
262
FISHERIES - Fisheries
Management Act 1991 (Cth)- Forfeiture of vessel under s 106A -
Whether forfeiture effective on commission of offence -
Seizure of vessel on the High Seas - Whether such seizure
lawful under the Fisheries Act - Whether such seizure involved
'repossession' - Constitutional validity of forfeiture and
seizure provisions
15 September 2004: Stingray
Boats v Denmeade [2004] FCA 1222
ADMIRALTY AND MARITIME JURISDICTION -
ordinary rules as to priorities - agreement as to order of
priority and quantum of payments
10 September 2004: Tisand
Pty Ltd v The Owners of the Ship MV "Cape Moreton" (Ex
"Freya") [2004] FCA 1191
ADMIRALTY AND MARITIME JURISDICTION - in rem proceedings under s 17 of the Admiralty
Act 1988 (Cth) - challenge to jurisdiction - security for
the claims of the plaintiffs provided by p & i club letter
conditional upon jurisdiction being established - security for
costs sought by defendant in relation to jurisdictional
challenge.
19 August 2004: Daeyang
Shipping Co Limited v U-Ming Marine Transport (Hong Kong)
Limited [2004] FCA 1086
DISCOVERY BEFORE SUIT - considerations of
restrictions on use in the light of foreign arbitrations
commenced
10 August 2004: El
Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA
[2004] FCAFC 202
ADMIRALTY
AND MARITIME LAW - carriage of goods by sea - Hague-Visby
Rules - Australian COGSA Art 3 Rules 3, 4 and 8 - method for
assessing value of cargo - where no 'commodity exchange price'
or 'current market price' - where 'normal value' of goods at
destination not determined.
ADMIRALTY AND MARITIME LAW - limitation of liability - bill of lading - how to treat posters and prints enumerated as 'pieces' - whether an enumeration of packages or units - whether contractual limitation applies.
STATUTORY INTERPRETATION - construction of Carriage of Goods by Sea Act 1991 (Cth), Art 4 Rule 5(c) - meaning of 'enumeration of packages or units' - meaning of 'as packed'.
23 July 2004: Alkimos
Shipping Company v Hind Lever Chemicals Corporation Limited
[2004] FCA 969
ADMIRALTY AND
MARITIME JURISDICTION - leave to serve outside Australia -
anti-suit injunction - sought on the basis of incorporation of
charterparty Brisbane arbitration clause into Congenbill of
lading
21 July 2004: Daeyang
Shipping Co Ltd v U-Ming Marine Transport (Hong Kong) Ltd
[2004] FCA 991
ADMIRALTY AND
MARITIME JURISDICTION - order for preliminary discovery -
limitations to be ordered on use
30 June 2004: Incitec
Ltd v Alkimos Shipping Corporation [2004] FCA 839
ADMIRALTY AND MARITIME - practice and
procedure - costs
30 June 2004: Tiezone
Pty Ltd v Schenker Stinnes Logistics [2004] FCA
847
ADMIRALTY AND MARITIME -
practice and procedure - delay in service using diplomatic
channels - alternative method of service ordered
11 June 2004: CMC
(Australia) Pty Ltd v Austral Asia Line B.V. [2004] FCA
765
11 June 2004: Tisand
Pty Ltd v MV Cape Moreton [2004] FCA 752
ADMIRALTY AND MARITIME - ADMIRALTY
PRACTICE AND PROCEDURE - release of ship under Admiralty Rules
rule 52 - costs - use of p & i club undertaking
conditional on arresting party satisfying the criteria within
ss 17, 18 or 19 of the Admiralty Act 1988 (Cth) in due
course
3 June 2004: Incitec
Ltd v Alkimos Shipping Corporation [2004] FCA 698
ADMIRALTY AND MARITIME
JURISDICTION - PRACTICE AND PROCEDURE - exclusive jurisdiction
clause - multi-party litigation - circumstances where
cross-claim will be allowed to be filed and served and not
stayed in the face of an exclusive jurisdiction clause -
importance of not fostering duplication in court proceedings -
importance of avoiding potential risk of inconvenience to
third parties
10 May 2004: Alstom
Power v Polar Circle A.S. [2004] FCA 607
ADMIRALTY AND MARITIME - practice and
procedure - service ex juris
28 April 2004: Soufflet
Beheer v AWB Limited [2004] FCA 518
PRACTICE AND PROCEDURE - whether orders
should be made to determine certain separate and preliminary
questions - insufficiency of factual foundation - orders
refused
23 April 2004: Smith
v Caltex Australia Petroleum Pty Limited [2004] FCA 480
COMPENSATION - issue
estoppel - injury to applicant in 1985 - findings made by
Judge concerning applicants resultant incapacity in 1992 -
whether Administrative Appeals Tribunal bound by earlier
findings when determining alleged incapacity for period after
1998
5 April 2004: Stemcor
(A/sia) Pty Ltd v Oceanwave Line SA [2004] FCA 391
ADMIRALTY - practice -
subpoena to party overseas
30 March 2004: McConaghy
Pty Ltd v The Yacht 'Ragamuffin' [2004] FCA 433
ADMIRALTY - Arrest
23 March 2004: Incitec
Ltd v Alkimos Shipping Corporation [2004] FCA 348
ADMIRALTY - procedure - service ex juris
11 February 2004: Pan
United Shipyard Pte Ltd v The Ship 'Rodolfo Mata' [2004] FCA
117
ADMIRALTY PRACTICE -
application for leave to serve writ in rem - whether good
reason for leave to be granted - where no opportunity to
effect service on ship or surrogate vessel
21 November 2003: Bajpayee & Ors v The Ship "Estancia" [2003] FCA 1640
ADMIRALTY AND MARITIME - application of proceeds
of sale of arrested vessel - lien for unpaid wages - whether a
component of wages may be given priority over other part
thereof - whether just and equitable to provide priority for
payment of ordinary wages over payment of provident fund
contributions
5 September 2003: Denmeade
v Stingray Boats [2003] FCAFC 215
ADMIRALTY - claim in respect of construction
of a boat
CONTRACT - whether all work was performed under
the original contract - whether there was an agreement as to
amount owing for 'extras' - whether promise to pay for
'extras' was made under economic duress
13 June 2003: El
Greco (Australia) Pty Ltd v Mediterranean Shipping Company SA
[2003] FCA 588
SHIPPING -
Carriers liability - whether the carrier is responsible for
loss and damage to cargo - whether the damage to the goods
occurred at sea - the applicants right to sue for the loss
and damage - the method for assessing loss and damage to cargo
- whether the sea-carriage document contains an enumeration of
all items of the cargo as a unit - whether the relevant
package or unit is the container itself
30 May 2003: Fortis
Bank (Nederland) N.V v 'MSC Sumatra' [2003] FCA 524
ADMIRALTY - arrest of ship on
time charter - whether property in bunkers retained by
charterer - whether property in reefer spare parts retained by
charterer - whether bunkers and provisions consumed subsequent
to arrest are an expense of the Marshal
22 May 2003: Pacific
Manning Company Pty Ltd v Barton [2003] FCA 498
COMPENSATION - Seafarers Rehabilitation and
Compensation Act 1992 (Cth) - application appealing a decision
of the Administrative Appeals Tribunal - whether the
respondent failed to comply with statutory requirements for
notification of injury - whether the Administrative Appeals
Tribunal failed to consider the respondents capacity for work
in suitable employment - whether the Administrative Appeals
Tribunal failed to give adequate reasons for its decision -
application dismissed
16 May 2003: Kent
v The Vessel 'Maria Luisa' as Surrogate for the Vessels
'Monika' and 'Boston Bay' [2003] FCAFC 93
ADMIRALTY - appeal from single Judge setting
aside application for want of jurisdiction - appellant
sustained injury while employed as a diver on vessel owned by
Australian Fishing Enterprises Pty Ltd ('AFE') - in rem
proceedings against surrogate vessel
26 March 2003: Tiezone
Pty Ltd v Schenker Stinnes Logistics [2003] FCA 281
CARRIAGE OF GOODS - service ex
juris
16 May 2003: Tomen
Australia Ltd v CV Scheepvaartonderneming Edisongracht [2003]
FCA 479
ADMIRALTY - PRACTICE AND
PROCEDURE - Parties - Non-appearance of party
PRACTICE AND
PROCEDURE - Vacate hearing dates
14 February 2003: Stingray
Boats v Denmeade [2003] FCA 83
ADMIRALTY - claim in respect of construction
of a ship
CONTRACT - whether there was agreement as to
amount owing for 'extras' - whether promise to pay given under
duress
29 Nov 2002: Western Bulk Carriers (Australia) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520
Western Bulk Carriers (Australia) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520 (Corrigendum)
ADMIRALTY - PRACTICE AND PROCEDURE - application for preliminary discovery under O 15A Federal Court Rules - where reasonable cause to believe that cranes on vessel not fit for purpose - where potential claim for recovery of economic loss - application for access to vessel to inspect cranes and related documentation
PRACTICE AND PROCEDURE - motion to set aside service outside jurisdiction - where alleged that no prima facie case
21 Nov 2002: Stingray Boats v Denmeade [2002] FCA 1446
ADMIRALTY - objection to jurisdiction - whether claim 'is in respect of the construction of a ship' - whether writ is properly brought in Admiralty
14 Nov 2002: Watson v Speed Boat 'Sneaky Bits' [2002] FCA 1437
ADMIRALTY - application for arrest of ship under Admiralty Act 1988 (Cth) - where ship arrested pursuant to Federal Court warrant - application for transfer of proceedings to Supreme Court of Queensland where order of that court in relation to sale of vessel already in operation
19 Sep 2002: News Maritime Co Ltd v 'Hyundai Cosmos' [2002] FCA 1164
ADMIRALTY - ship arrested by Marshal at Port Gladstone - vessel loaded with cargo at the port of Newcastle - further cargo of coal to be loaded at Port Gladstone - application to move arrested vessel to enable loading of coal cargo at Port Gladstone - application to move and load vessel opposed - consideration of whether appropriate to move vessel to berth and permit loading - whether Court should permit movement and loading of vessel under arrest
31 May 2002: Christoforidis
v Cygnet Bulk Carriers SA [2002] FCA 690
ADMIRALTY - collision between two vessels -
application seeking damages - maritime safety investigation
into circumstances of collision - subpoena for production of
documents and records relating to report produced by the
Australian Transport Safety Bureau - privilege claimed on
basis that the Navigation (Marine Casualty) Regulations 1990
(Cth) generally prohibit such disclosure and on basis of
public interest immunity - privilege - disclosure - whether
regulations prevent disclosure - whether Court is a person -
public interest in administration of justice - stages of
production and tender of documents under subpoena - whether
divulging of information - whether grant of access is
authorising disclosure of information - interpretation of law
giving effect to International Code - whether provisions
ambiguous
7 May 2002: Kent
v SS 'Maria Luisa' [2002] FCA 629
PRACTICE AND PROCEDURE - discovery
7 May 2002: Kent
v SS 'Maria Luisa' [2002] FCA 1207
ADMIRALTY - jurisdiction - application to set
aside principal proceedings for want of jurisdiction - vessel
'Maria Luisa' arrested as surrogate for 'Monika' and 'Boston
Bay' - whether 'owner' in s19(b) of Admiralty Act 1988
includes demise charterer
12 Apr 2002: Westrac
Equipment Pty Ltd v 'Assets Venture' [2002] FCA 440
REPORTED: (2002) 192 ALR
277
ADMIRALTY - loss of cargo - whether carrier took
reasonable care in stowage of cargo - whether breach of
implied term of contract - appropriate measure of
damages
BAILMENT - sub-(or quasi) bailment - duties of
bailee and sub-bailee - liability of bailee for breach of duty
by sub-bailee
19 Mar 2002: Banwell v Ship 'The Sydney Sunset' [2002] FCA 271
PRACTICE AND PROCEDURE - whether order was interlocutory - whether Registrar erred in proceeding to taxation - whether taxation of a bill of costs should be set aside - whether order for costs should be amended - whether solicitor acting for one or two parties
Australian
Competition & Consumer Commission v The Maritime Union of
Australia [2001] FCA 1549
Australian
Competition & Consumer Commission v The Maritime Union of
Australia [2001] FCA 1549 Corrigendum
REPORTED: (2001) 114 FCR 472
TRADE
PRACTICES - policy of Maritime Union of Australia that
shore-based labour be used to clean foreign vessels
discharging and taking on cargo in an Australian port - three
vessels sought to use crew to clean holds emptied in the Port
of Adelaide while at sea - each vessel plied between
Australian ports and ports overseas but loaded and/or unloaded
at Australian ports - departure of each vessel delayed by
formation of picket lines manned by members of the Maritime
Union of Australia - whether Maritime Union of Australia
contravened s 60 of Trade Practices Act 1974 (Cth) in relation
to the incidents concerning two of the three vessels - whether
the word 'undue'qualifies the word 'coercion' in s 60 -
meaning of the words 'harassment' and 'coercion' considered -
whether person engaging in harassing or coercive conduct must
be the same person as supplies the goods or services referred
to in s 60 - whether conduct complained of was 'in relation
to' international trade - whether individual respondents were
agents of the Maritime Union of Australia - whether the second
and third respondents contravened s 75B of the Trade Practices
Act 1974 (Cth) by being knowingly concerned in or party to a
contravention of s 60
TRADE PRACTICES - Maritime Union of
Australia admitted it engaged in conduct that contravened s
45DB of the Trade Practices Act 1974 (Cth) - second respondent
admitted being knowingly concerned in contravention relating
to 'Star Sea Bird' - fourth respondent admitted being
knowingly concerned in contravention relating to 'Anangel
Eagle' - course to be taken by the Court in making orders by
consent and assessing whether a pecuniary penalty suggested by
the parties is appropriate considered
TRADE PRACTICES -
standard of proof where proceedings for contravention of s 60
not instituted by way of criminal prosecution but by
application seeking declaratory and injunctive relief
WORDS & PHRASES - 'harassment', 'coercion', 'in
relation to'
Banwell
v The Ship The Sydney Sunset [2001] FCA 210
MARITIME LAW - application for the release of
a vessel from arrest - whether monies owed constituted a
'general maritime claim' - where some of the monies were paid
by the plaintiff in relation to slippage, renovations and
repairs, registration and insurance of the vessel - where some
monies paid by the plaintiff were in relation to the purchase
of the vessel
MARITIME LAW - application for the release of
a vessel from arrest - whether the debtor was the demise
charter of the vessel - where the vessel was being hired out
for short cruises by the debtor pending its sale
Banwell
v Ship The Sydney Sunset [2001] FCA 1039
ADMIRALTY
CGU
Insurance Ltd v Malaysia International Shipping Corp Berhad
[2001] FCA 681
PRACTICE AND
PROCEDURE - preliminary discovery - application to vary order
for preliminary discovery - issue of Notice to Produce -
whether documents should be produced under Notice to Produce
where some documents are the subject of the application to
rescind the discovery order
CGU
Insurance Limited v Malaysia International Shipping
CGU
Insurance Limited v Malaysia International Shipping
Corporation Berhad [2001] FCA 1223 Corrigendum
REPORTED: 187 ALR 279
ORDERS - whether
discovery order should be set aside - liberty to apply -
interests of justice - discretion - preliminary discovery
order made on application in extreme urgency
DISCOVERY -
preliminary discovery - whether to commence proceedings -
salvage - general average - cargo claims - vessel grounded on
Great Barrier Reef - application for inspection of vessel -
removal of documents from the vessel - application for
discovery of documents - whether all reasonable inquiries had
been made prior to application for discovery
Cook
v ASP Ship Management [2001] FCA 598
ADMINISTRATIVE LAW - Administrative Appeals
Tribunal - Practice and procedure- Directions given by the
Tribunal - Whether the Court should interfere with
interlocutory directions on matters of practice and procedure
- Undesirable for the process adopted by the Tribunal to be
fragmented by inappropriate applications for judicial review
to the Court
Graham
Bailey Pty Limited v The Owners of MV Beadon [2001] FCA
1537
ADMIRALTY - Arrest -
Possession or ownership of ship
Smithers
v Lokys [2001] FCA 239
REPORTED:
(2001) 108 FCR 303
PRACTICE AND PROCEDURE - Maritime claim
- whether proceedings should be transferred to the Supreme
Court of New South Wales - where the Supreme Court proceedings
relate to damages for personal injury resulting from a
collision - where the plaintiff instituted separate
proceedings in the Federal Court to limit its liability
resulting from the collision
The
Ship Socofl Stream v CMC (Australia) Pty Ltd (ACN 002 007 427)
[2001] FCA 961
ADMIRALTY -
Shipping and Navigation - Bills of lading - Sea carriage of
goods - Charterparties - Vessel demised by disponent owner to
charterer - Disponent owner giving notice of default in
payment of charter hire and calling on charterer to forthwith
re-deliver the vessel at a safe port to be nominated by
disponent owner - Vessel subsequently taking on cargoes in
Singapore and Malaysia from plaintiff for which bills of
lading issued and signed 'as agents for and on behalf of
master' who was employee of charterer - Vessel later arrested
in Brisbane at instigation of disponent owner - Whether
plaintiff entitled to succeed in action in rem for breach of
bills of lading against disponent owner - Whether master had
ostensible authority to bind disponent owner to bills of
lading - Whether bills of lading contractual documents or mere
receipts - Carriers duty to deliver with reasonable dispatch
- Whether breached by arrest of vessel in Brisbane en route to
Sydney
Vilona
v The Ship Alnilam [2001] FCA 411
ADMIRALTY - application for the release of a
vessel from arrest - right to proceed in rem against a
surrogate ship limited to general maritime claims - whether
the plaintiffs claim should be summarily dismissed
Bollen
v Condor of Bermuda (No 2) [2000] FCA 143
ADMIRALTY - COSTS - Indemnity basis
CMC
CMC
(Australia) v 'Socofl Stream' [2000] FCA 82 (Corrigendum)
COSTS - apportionment between issues - success
on one issue - payable forthwith
CMC
(Australia) Pty Ltd v 'Socofl Stream' [2000] FCA 1681
ADMIRALTY - action in rem
against demise charterer of vessel brought by owner of cargo -
bills of lading - whether bills gave rise to contract of
carriage or were mere receipts - apparent or ostensible
authority - agency by estoppel - whether defendant bound under
bills of lading as carrier - whether master of vessel had
apparent or ostensible authority to bind defendant - where
master not employed by defendant - where defendant purported
to terminate charterparty with sub-demise charterer but failed
to nominate a port for redelivery of vessel - where sub-demise
charterer indicated to defendant that it proposed to continue
to trade - whether defendant breached implied term of contract
that goods would be delivered with reasonable
dispatch
Cook
v ASP Ship Management [2000] FCA 1393
ADMINISTRATIVE LAW - appeal from
Administrative Appeals Tribunal - applications for
compensation under Seafarers Rehabilitation and Compensation
Act 1992 (Cth) - directions hearing in Tribunal - allegations
of bias and failure to give natural justice
Hi-Fert
Pty Ltd v Kiukiang Maritime Carriers Inc [2000] FCA 660
REPORTED: (2000) 173 ALR
263
MARITIME LAW - Bills of lading - Contracts of carriage
- Whether bills of lading mere receipts or evidence of
contract
TRADE PRACTICES - Misleading and deceptive conduct
- Misrepresentation - Breach of s 52 Trade Practices Act 1974
(Cth)
CONTACT - Misrepresentation - Breach of
contract
DAMAGES - Assessment - Measure of damages -
Mitigation
Jetopay
Pty Ltd v Ocean Marine Mutual Insurance Association (Europe)
OV [2000] FCA 239
COSTS -
Indemnity costs - whether a letter constituted a Calderbank
letter - time from which pre-judgment interest should
run
Kalymnian
Shipping Pte Ltd v Rose [2000] FCA 614
REPORTED: (2000) 61 ALD 668
APPLICATION FOR
AN EXTENSION OF TIME - application for an order of review made
outside time period prescribed by the Administrative Decisions
(Judicial Review) Act 1977 (Cth) - whether time for making
such application should be extended
ADMINISTRATIVE LAW -
validity of an Australian Certificate for the Carriage of
Livestock ('ACCL') - express power to modify provisions of
Marine Orders Part 43 - provision for an ACCL to be valid for
a period of 5 years subject to annual endorsement - provision
purported to be modified, such that ACCL in question was
issued for a period of about three months - whether ACCL so
issued was valid - whether, if time stipulation was invalid,
it could be severed such that the resultant ACCL was for a
period of 5 years
Maritime
Union of Australia v Honourable John Anderson [2000] FCA
850
REPORTED: (2000) 100 FCR
58
MARITIME LAW - Shipping - single voyage permit -
unlicensed vessel - grant of permits to unlicensed vessels to
transport fertiliser challenged by labour organisations -
whether licensed vessel 'available for the service' under s
286(1) of Navigation Act 1912 - where licensed vessel could
not carry full cargo and could not meet shippers timetable -
permits not improperly granted
ADMINISTRATIVE LAW -
natural justice - procedural fairness - right to be heard -
whether labour union had legitimate expectation of being heard
under Ministerial guidelines before permit granted to
unlicensed vessel - whether unions interests directly
affected by decision - whether guidelines for granting permits
here irrelevant considerations
PRACTICE & PROCEDURE -
locus standi - whether labour union has standing to challenge
decision to grant permit to unlicensed ship - where increase
in permits to unlicensed vessels said to effect union members
employment prospects - where application filed after voyages
well under way - outcome of review nugatory - standing
denied
Den
Norske Bank (Luxembourg) SA v 'Martha II' [2000] FCA 241
ADMIRALTY - Marshals costs and
expenses - insurance - whether commercial insurance is a cost
and expense of the arrest -admiralty practice in relation to
insurance
PROCEDURE - jurisdiction to vary an order -
discretion - order entered three years ago - merits of the
substantive application poor
Ocean
Marine Mututal Insurance Association (Europe OV) and Jetopay
Pty Ltd [2000] FCA 1463
REPORTED: (2000) 120 FCR 146
ADMIRALTY -
marine insurance - claim in respect of damage to engine of
fishing vessel - whether policy-holder indemnified by policy
in respect of damage - whether damage caused by negligence of
repairers
EVIDENCE - opinion - expert reports - whether
admissible - where no explicit evidence as to training, study
or experience of authors of reports - whether pursuant to the
Evidence Act 1995 (Cth), s 183 inferences may be drawn from
contents of report as to the specialised knowledge of its
author
pal
Maritime Agencies Pty Ltd v 'Skulptor Konenkov' [2000] FCA 507
REPORTED: (2000) 98 FCR
519
ADMIRALTY - General maritime claim - consideration of
the requirements to claim on the proceeds of sale fund -
whether claims against the proceeds of sale must be 'in rem'
claims - whether in the circumstances of this case, agency
commission or agency fees came within a general maritime claim
- specifically consideration of agency commission or agency
fees as disbursements or in respect of goods and materials or
services - discussion of disbursements made on behalf of a
ship or on behalf of a ships owner - consideration of the
nature of shipping containers - what property constitutes the
'ship' - discussion of 'equipping' a ship.
TRADE AND
COMMERCE - running account - set-off accounts - consideration
of the nature of the disbursement and freight account
arrangements - the effect, if any, of the appointment of a
provisional liquidator
Patrick
Stevedores No 2 Pty Ltd v Proceeds of MV 'Skulptors Konenkov'
[2000] FCA 1710
COSTS - costs of
the Admiralty Marshal - whether the Marshals costs should be
paid on an indemnity basis - whether Schedule 2 of the Federal
Court Rules regulates the quantum of an indemnity cost order
in favour of the Marshal
COSTS - variation of a taxation
order - whether an order that the Marshals costs be taxed
should be varied and replaced with an award of a gross
sum
PROCEDURE - power of a single Judge to vary an order of
the Full Court - whether a single Judge has power to vary an
order of the Full Court that the Marshals costs be
taxed
Seereederei
Barco Liner GmbH v 'Al Aliyu' [2000] FCA 656
ADMIRALTY - motion to stay proceedings in
favour of proceedings not yet commenced in a different
jurisdiction - collision in Conakry, Guinea - sinking of barge
- vessel arrested in Australia - whether Federal Court of
Australia is a clearly inappropriate forum to determine the
dispute - relevance of criticisms of another jurisdictions
ability to fairly and impartially determine the dispute -
weight to be given to such criticisms made by an advocate in
that jurisdiction - witnesses to collision between vessel and
barge all reside outside Australia - where ship arrested in
Australia - possible cross-claim and action against Port
Authority and others in Guinea arising out of
collision
ASP
Ship Management Pty Ltd v Wood [1999] FCA 851
COMPENSATION - appeal from AAT
Bollen
v Condor of Bermuda [1999] FCA 1832
TORT - Negligence - member of crew on maxi
yacht injured in course of charity race on Sydney Harbour when
genoa block comes off its track and strikes him on inside of
right knee - whether plaintiff had been invited to be on yacht
- duty of care - whether duty required owner to have stopper
block in place to safeguard against known risk of sailing -
whether res ipsa loquitur - whether defence of volenti non fit
injuria available - whether plaintiff, an experienced sailor,
guilty of contributory negligence by standing in a position of
danger
Bremer
Landesbank Kreditanstalt Oldenburg v 'Turakina' The Ship
[1999] FCA 261
REPORTED: (1999)
161 ALR 587
ADMIRALTY - appeal against costs order made by
primary judge - costs order made in proceedings where the
Master and crew of two arrested ships sought payment of wages
since arrest and costs of repatriation as part of the
Marshal's costs of arrest - proceedings were successful in
part only - whether primary judge erred in holding that the
Master and crew were entitled to recover the whole of the
costs of their application payable from the fund created by
the sale of the ships - whether decision to depart from the
ordinary rule that costs follow the event was open to the
primary judge - whether primary judge entitled to view the
'reasonableness' of the Master and crew's application as a
relevant consideration in awarding costs - principles
governing payment of legal costs from a fund - whether leave
should be given for the Marshal to intervene in the appeal -
role of the Marshal in proceedings in the Court
CMC
(Australia) v The Ship 'Socofl Stream' [1999] FCA 1419
CMC
(Australia) v "Socofl Stream" [1999] FCA 1419 (Corrigendum)
CMC
(Australia) v "Socofl Stream" [1999] FCA 1419 (Corrigendum)
Reported: (1999) 95 FCR 403
ADMIRALTY -
application to strike out proceedings for want of jurisdiction
- whether a person nominated as a 'relevant person' in
relation to a maritime claim was such a person so as to found
a right to proceed in the Court in rem under s 18 Admiralty
Act
Caravelle
Investments Ltd v Martaban Ltd [1999] FCA 1505
REPORTED: (1999) 95 FCR 85
ADMIRALTY -
jurisdiction - negotiations for the sale of a ship -
allegation that no contract for sale was made - action in
restitution for recovery of money paid - whether claim
'relating to' ownership of a ship
PRACTICE AND PROCEDURE -
interlocutory injunction - undertaking in damages by foreign
plaintiff - whether security should be provided to support
undertaking
Chapman
Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 178
Chapman
Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 178 (Corrigendum)
CONTRACT - contract for carriage of goods by
sea - bill of lading to which the Carriage of Goods by Sea Act
1936 (US) applies - obligation properly and carefully to load,
handle, stow, carry, keep, care for and discharge the goods -
limitation provision -Carriage of Goods by Sea Act 1936 (US)
s4(5) - whether package limitation applies - whether a cruiser
is a 'package' or 'customary freight unit' - Himalaya clause -
whether stevedore can rely on limitation provisions in bill of
lading - whether stevedore was performing the whole or any
part of the contract - undertaking by shipper not to impose
any liability on anyone other than the carrier - whether claim
by shipper against stevedore should be stayed - Carriage of
Goods by Sea Act 1936 (US) s3(8) - deviation - whether stowage
of cargo on deck was authorised - whether cruiser a 'yacht' -
indemnity sought by carrier from stevedore - whether stevedore
negligent - whether carrier contributed to the loss
Chapman
Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 241
DAMAGES - COSTS
Eastern
Basin Pty Ltd v Maritime Union of Australia [1999] FCA
294
ADMIRALTY - Industrial Law - Unions
Howard
Smith Industries Pty Ltd v Richards [1999] FCA
1144
REPORTED: (1999) 95 FCR 268
WORKERS COMPENSATION - Seafarer - industrial hearing loss
and tinnitus - no permanent impairment - hearing loss due to
exposure to noise - exposure occurred during period of
operation of Seamens Compensation Act 1911 (Cth) and after
commencement of Seafarers Rehabilitation and Compensation Act
1992 (Cth) - hearing loss prior to commencement of Seafarers
Rehabilitation and Compensation Act 1992 (Cth) did not disable
seafarer from earning full wages - whether injury or disease
incurred prior to commencement of Seafarers Rehabilitation and
Compensation Act 1992 (Cth) when seafarer not disabled from
earning full wages or not incapacitated for work compensable
under Seafarers Rehabilitation and Compensation Act 1992 (Cth)
- status of rights under Seamans Compensation Act 1911 (Cth)
- Effect of Seafarers Rehabilitation and Compensation
(Transitional Provisions and Consequential Amendments) Act
1992 (Cth)
Howard
Smith Industries Pty Ltd v Richards [ 1999] FCA
1310
ADMINISTRATIVE LAW - Appeal
- Costs
Jetopay
Pty Ltd v The Ocean Marine Mutual Insurance Association
(Europe) OV [1999] FCA 1773
REPORT: (1999) 95 FCR 570
MARINE INSURANCE
- whether underwriter bound to indemnify assured under policy
in respect of damages to the vessel and the cost of its repair
- question of the terms of the policy and its relationship to
a lineslip arrangement between the underwriter and a broker -
whether underwriter could cancel the policy for non-receipt of
premiums - whether broker is liable for failing to ensure that
the policy covered all the items of loss sustained - whether
assured relied on the existence of that coverage in taking up
the policy
Lloyd
Werft Bremerhaven GmbH v 'Zoya Kosmodemyanskaya' [1999] FCA
471
PRACTICE AND PROCEDURE -
last minute application for adjournment - critical witnesses
unable to obtain visas in time for hearing - not possible to
proceed to a fair and complete hearing - costs thrown away -
whether on an indemnity basis - need to make application to
Court in a timely way rather than making repeated requests for
further discovery - costs awarded on party-party
basis
Lloyd
Werft Bremerhaven GMBH v Owners of the Vessel 'Zoya
Kosmodemyanskaya' [1999] FCA 1765
ADMIRALTY - Notice of Motion
PRINCIPAL AND
AGENT - whether intermediate parties acted as agents for the
underwriter or the assured
Papua
New Guinea Banking Corp v 'Spartan' [1999] FCA 1829
PRACTICE AND PROCEDURE -
application for transfer of proceedings to Queensland District
Registry of the Federal Court - balance of convenience - ends
of justice - efficient administration of the Court - location
of vessel in Queensland - related issues in another action
brought in the Queensland Registry
Patrick
Stevedores No 2 Pty Ltd v The Ship 'Turakina' [1999] FCA 1463
REPORTED: (1999) 167 ALR
143
ADMIRALTY - application for payment out of fund from
sale of ship - payment out prior to determination of
priorities - retention of funds for taxation of Marshal's
costs and expenses - distinction between legal and non-legal
costs
Patrick
Stevedores No 2 Pty Ltd v The Ship 'Turakina' [1999] FCA 1615
REPORTED: (1999) 95 FCR
52
ADMIRALTY - whether plaintiffs legal costs form part of
its costs of arrest - where costs of arrest and preservation
rank in priority over all substantive claims other than the
Admiralty Marshals fees and expenses - plaintiffs opposition
to owners application for release of vessel from arrest -
application for sale of vessel and making orders for payment
of costs - opposing application of solicitor to be released
from undertaking given to Marshal on application for release -
whether circumstances warrant taxation of costs on an
indemnity basis - court discretion - ensure party not
penalised by its initiative in preserving the
arrest
Sovremenniy
Kommercheskiy Flot v 'Socofl Stream' [1999] FCA 42
ADMIRALTY
Sun
Lucky Marine Co Ltd v Mu Gung Wha [1999] FCA 919
Sun
Lucky Marine Co Ltd v "Mu Gung Wha" [1999] FCA 919 (Corrigendum)
PRACTICE AND PROCEDURE - Stay of proceedings
Practice & Procedure - Security for costs - Admiralty
Sun
Lucky Co Ltd v "Mu Gung Wha" [1999] FCA 220
ADMIRALTY - arrest of vessel - release -
application to strike out proceeding and for release or
reduction of security - voyage charterparty - issue of bills
of lading for discharge at additional port - whether approved
- waiver and estoppel - security - causation
PRACTICE AND
PROCEDURE - strike out application - writ based on breach of
charterparty and implied indemnity - principles relating to
strike out of proceedings and release of security - implied
terms in charterparty - effect of bills of lading issued at
request of charterer
WORDS AND PHRASES - 'charterparty',
'bill of lading'
Westpac
Banking Corp v "Stone Gemini" [1999] FCA 434
REPORTED: (1999) 110 FCR 47
BANKING -
letter of credit - incorporation of Uniform Customs and
Practice for Documentary Credits 500 (UCP) - effect of
incorporation of UCP into letter of credit - discrepant
documents - time for acceptance or rejection
CONVERSION -
bill of lading as a title document - bearer bill of lading -
right to delivery - discharge of cargo against letter of
indemnity - bills of lading not presented - whether bills in
possession of bearer where sent to issuing bank for
acceptance
CONTRACT - letter of credit - international sale
of goods - whether negotiating bank entitled to security in
title by possession of bearer bills of lading - negotiating
bank not mere agent for collection - letter of indemnity
provided to vessel - whether Master of vessel relied on letter
of indemnity for discharge - whether liability where plaintiff
later reaches agreement with third party for payment
TRADE
PRACTICES - misleading and deceptive conduct - Trade Practices
Act 1974 (Cth) s 52 - inducement
Westpac
Banking Corp v Stone Gemini [1999] FCA 595
TRADE PRACTICES - whether misleading and
deceptive conduct and misleading representations - knowingly
concerned - Trade Practices Act 1974 (Cth) ss 52, 53, 75B
Westpac
Banking Corp v 'Stone Gemini' [1999] FCA 917
PRACTICE AND PROCEDURE - currency of
prejudgment interest - purpose of prejudgment interest to
compensate plaintiff for detriment suffered in being kept out
of his money - whether to follow general rule that interest be
in the same currency as the principal judgment amount -
consideration of all the circumstances - where judgment in US
dollars - where plaintiff an Australian bank but involved in
significant US dollar transactions - whether double counting
of interest
Bergensbanken
ASA v The Ship 'Aliza Glacial' [1998] FCA 251
PRACTICE AND PROCEDURE - Parties - Joinder of
parties
Bergensbanken
ASA v The Ship 'Aliza Glacial' [1998] FCA 1322
ADMIRALTY
Bergensbanken
ASA v The Ship 'Aliza Glacial' & Ors [1998] FCA 1642
ADMIRALTY
Crayford
Freight Services Ltd v Coral Seatel Navigation Co & Ors
[1998] FCA 263
REPORTED: (1998)
82 FCR 328
PRACTICE AND PROCEDURE - summary judgment -
whether a cross claim irregularly filed out of time without
leave was a nullity - whether leave to file the cross claim
could be granted nunc pro tunc after the discontinuance of the
principal proceeding - circumstances where solicitors error
provided ground for a grant of leave
Esam,
Alan v ASP Management [1998] FCA 1129
REPORTED: (1998) 28 AAR 78 ; (1998) 1 AWR 598
WORKERS COMPENSATION - injured Seaman - application for
review of Administrative Appeals Tribunal decision - error of
law - interpretation of Seafarers Rehabilitation and
Compensation Act 1992 (Cth) - inability to engage in suitable
employment because of economic circumstances - whether state
of labour market is a relevant consideration when calculating
amount of compensation - beneficial construction of remedial
legislation - terms of specific compensation scheme - causal
link between injury and exposure to labour market
conditions
Glen
King Marine & Trading Services v Owners of the Ship
'Armada Ternak' & Quality Livestock Australia Pty Ltd v
Owners of the Ship 'Armada Ternak' [1998] FCA 747
CONTRACT - agency agreement -
whether expenses relating to repair of vessel properly
incurred by agent of ship owners - whether agent entitled to
be paid on a quantum meruit for preparation of livestock
capacity plan - where payment for preparation of plan not
provided for in agency agreement
CONTRACT - construction -
construction of agreement in relation to 10 per cent loading
entitlement - meaning of 'disbursements' - whether agent
entitled to recover moneys from principal for which agent was
liable to third parties - whether agent entitled to lost
commission under first and second charterparties - whether
entitlement waived
MARITIME LAW - breach of charterparty -
where second charterparty entered into for transportation of
live cattle following failure of shipowners to present vessel
pursuant to first charterparty - whether terms of second
charterparty precluded litigation arising from breach of the
first - whether forbearance to sue in respect of first
charterparty expressed in second charterparty was dependent on
performance of second charterparty
CONTRACT - frustration -
whether doctrine of frustration applicable - where vessel did
not present for performance of charterparty due to failure of
ship owners to comply with maritime safety
requirements
DAMAGES - assessment of damages - where
substitute voyages undertaken to transport cargo due to
shipowners failure to present vessel for six voyages
contracted for - where charter of substitute vessels occurred
at spot rates which were higher than rates payable under the
continuous voyage charterparty
Hi-Fert
Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor
[1998] FCA 558
REPORTED: (1998)
86 FCR 374
PRACTICE & PROCEDURE - whether orders
granting stays interlocutory or final - orders staying Federal
Court proceedings and referring parties to arbitration
pursuant to International Arbitration Act 1974 (Cth) - trial
judge refused leave to appeal - applicants seeking leave to
appeal from stay orders or from refusal of leave to appeal -
whether appeal lies as of right from decision to stay
proceedings - leave required where judgment interlocutory -
construction of the International Arbitration Act -
construction of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards - possibility of
circumstances arising justifying a lifting of the stay -
possibility of arbitration agreement becoming null and void,
inoperative or incapable of being performed - inequitable for
parties to be precluded from litigating issues the subject of
an ineffective arbitral award - stay orders pursuant to the
International Arbitration Act interlocutory in nature - appeal
incompetent
Hi-Fert
Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor
(No. 2) [1998] FCA 651
REPORTED:
(1998) 86 FCR 399
PRACTICE AND PROCEDURE - interlocutory
orders granting stays - order of single judge 'Leave to appeal
is refused' - order made as one of a number of orders - true
meaning of order - earlier reasons for judgment published
without orders being made - no application before single judge
under O 52 r 10 of the Federal Court Rules for leave to appeal
- whether Court can grant leave to appeal - Borthwick
principle - whether single judge acting in original or
appellate jurisdiction of the Court - whether single judge has
jurisdiction to determine whether orders interlocutory or
final - questions raised of public importance - whether leave
to appeal should be granted
Hi-Fert
Pty Ltd v United Shipping Adriatic Inc & Anor [1998] FCA
1426
JUDGMENTS AND ORDERS -
ARBITRATION - International
Hi-Fert
Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor
[1998] FCA 1485
REPORTED: (1998)
90 FCR 1
CONSTITUTIONAL LAW - whether s 7(2) of the
International Arbitration Act constitutes an intrusion upon
the judicial power vested in the Federal Court by Chapter III
of the Constitution - whether s 7 confers on an arbitrator the
judicial power of the Commonwealth
CONTRACT - meaning of
the term 'charter' in the Charter Party and the Time Charter -
meaning of the phrase 'arising from' in the Charter Contract -
whether claims for breach of duty and negligence 'arise from'
the Charter Contract - whether s 7 of the International
Arbitration Act applies to claims arising from the Charter
Contract
ARBITRATION - whether a claim under s 82 of the
Trade Practices Act can be a claim arising from the Charter
Contract - application of arbitration clause to causes of
action arising under the Trade Practices Act - whether
reference to English law in the Charter Contract excludes the
operation of the Trade Practices Act - whether there is an
implied term that claims under the Trade Practices Act would
be settled by arbitration
ADMIRALTY - effect of s 11(2) of
the Carriage of Goods by Sea Act on arbitration clause -
difference between the Sea Carriage of Goods Act 1924 and the
Carriage of Goods by Sea Act - whether Federal Court a clearly
inappropriate forum for conduct of proceedings
Hi-Fert
Pty Ltd v United Shipping Adriatic Inc & Ors [1998] FCA
1622
REPORTED: (1998) 89 FCR
166
SHIPPING AND NAVIGATION - Bills of lading - Arbitration
clause in head charter - Whether arbitration expressly
incorporated into bill - Whether s 11 of the Carriage of Goods
by Sea Act 1991 (Cth) operates to prevent arbitration clause
precluding or limiting jurisdiction of the Court - Whether s
11 of the Carriage of Goods by Sea Act 1991 (Cth) only applies
to agreements to which the Convention for the Unification of
Certain Rules of Law Relating to Bills of Lading 1924 as
amended (Hague-Visby Rules) apply - Amendment of legislation
by regulation - Invalidity of regulation which expands scope
of enactment - Carriage of Goods by Sea Act 1991 (Cth), s 11 -
Carriage of Goods by Sea Amendment Act 1997 (Cth), s 7(3) -
Carriage of Goods by Sea Regulations 1998 (Cth), reg
6.2
ARBITRATION - Arbitration clause - Undertaking to
instruct solicitors to accept service of particular
proceedings on condition that no other legal or arbitration
proceedings be commenced - Whether such undertaking rendered
arbitration clause inoperative - Arbitrator - Appointment -
Reservation of right to object to arbitrator's jurisdiction -
Whether appointment constitutes ad hoc submission to
arbitration - International Arbitration Act 1974 (Cth), s
7(5)
Hi-Fert
Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor
[1998] FCA 1640
COSTS -
CONSTITUTIONAL LAW
Hi-Fert
Pty Ltd v United Shipping Adriatic Inc & Ors [1998] FCA
1671
PRACTICE AND PROCEDURE -
ADMIRALTY
Hi-Fert
Pty Ltd v United Shipping Adriatic Inc & Ors [1998] FCA
1672
EVIDENCE - Documentary
evidence - Admiralty
Morris,
Danny & Anor The Ship 'Kiama' ('Mubum') [1998] FCA 256
REPORTED: (1998) 16 ACLC
945
ADMIRALTY LAW - CORPORATIONS LAW - proceedings
commenced in rem against ship - ship arrested - order for sale
of ship - ship sold and proceeds of sale paid into Court by
Marshal before administrators appointed to corporate owner of
ship - one plaintiff suing to recover loan of moneys -
repayment secured by equitable unregistered charge of ship -
both plaintiffs also suing to recover wages earned as crew
members - whether leave required to enforce charge - whether
leave to proceed required - whether obligatory that moneys in
Court be paid to the administrators - whether s 440G of
Corporations Law prevented Court from exercising discretion to
retain proceeds of sale in Court - whether plaintiffs should
have leave to proceed
Opal
Maritime Agencies Pty Ltd v Baltic Shipping Co & Ors
[1998] FCA 1343
REPORTED: 158
ALR 416
ADMIRALTY - maritime agency agreement - set-off -
right to freight collected after termination of agency
agreement - running account - continuance after termination -
contractual set-off - equitable set-off - non deduction from
freight
Pacific
Composites Pty Ltd & Anor v Transpac Container System Ltd
(carrying on business as Blue Anchor Line) & Ors [1998]
FCA 496
ADMIRALTY - claim for
damage to cargo - FOB sale - payment under irrevocable letter
of credit - whether breach of contract of carriage -
non-refrigeration of consignment - whether contract and
carriage required a refrigeration clean negotiable Bill of
Lading - construction of Bill of Lading - effect of attachment
station goods are refrigerated for shipment - whether
respondent was the 'carrier' - whether plaintiff had title to
bring proceedings - passing of property and risk in the cargo
- nexus between the breach of contract and the damage claimed
- whether fault of other parties involved in transaction
breaks the causal link between the plaintiff and the defendant
- assessment of quantum of damages - whether Hague Rules apply
in the present situation - meaning of 'package'
Pacific
Composites Pty Ltd & Anor v Transpac Container System Ltd
(carrying on business as Blue Anchor Line) & Ors [1998]
FCA 1215
COSTS - Indemnity basis
Patrick
Stevedores No 2 Pty Ltd & Anor v The Proceeds of the Sale
of the Vessel MV 'Skulptor Konenkov' [1998] FCA 99
REPORTED: (1998) 81 FCR
16
ADMIRALTY - sale of ship pursuant to order for
appraisement and sale - claim in rem against fund representing
the proceeds of sale - running offset account pursuant to
agency agreement between plaintiff and shipowner - whether
claim is in rem - whether a party can appropriate all credits
so as to maximise its in rem claims - whether Court can or
should segregate claims to make up the balance of a running
account
Patrick
Stevedores No 2 Pty Ltd & Ors v The Proceeds of the Sale
of the Vessel MV 'Skulptor Konenkov' [1998] FCA 100
REPORTED: (1998) 79 FCR
560
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
Patrick
Stevedoring No 2 Pty Ltd v The Ship 'Turakina' Waitemata
Stevedoring Services Ltd v The Ship MV 'Rangitata' & Anor
[1998] FCA 244
ADMIRALTY -
Arrest
Patrick
Stevedoring No 2 Pty Ltd v Turakina Waitemata Stevedoring
Services Ltd v Rangitata & Ors [1998] FCA 457
REPORTED: (1998) 84 FCR
493
ADMIRALTY - arrested vessel - responsibility of Marshal
to Master and crew - whether Marshal should direct arresting
party or its solicitor to pay post arrest wages of Master and
crew - whether wages claimed by Master and crew, if paid by
Marshal, are an expense of the Marshal in relation to the
arrest - no assumption by Marshal of employers responsibility
for wages of Master and crew - functions and responsibilities
of the office of the Admiralty Marshal in relation to vessels
under arrest - extent of the maritime lien in respect of
unpaid wages - whether cost of repatriation of the Master and
crew to their home port can be described as an expense of the
Marshal in relation to the arrest - nexus required between
expenses and duties of the Marshal in relation to the safe
custody and preservation of an arrested vessel
Patrick
Stevedores No 2 Pty Ltd v MV 'Turakina' [1998] FCA 495
REPORTED: (1998) 154 ALR
666
ADMIRALTY - application for release of vessel from
arrest - whether at commencement of arrest proceeding Federal
Court had jurisdiction to arrest vessel - whether plaintiff
was demise charterer - whether demise sub-charter was
effectively terminated by a letter prior to the time when
proceedings for arrest were instituted - effect of withdrawal
of vessel from service under a demise charter - meaning of
're-delivery' in the demise charter agreement - whether there
was a maritime claim - whether an unsatisfied condition
precedent prevented valid arrest - whether resolution to enter
into voluntary liquidation operates to terminate demise
charter or employment contracts of Master and crew
Patrick
Stevedores No 2 Pty Ltd v The Ship 'Turakina' [1998] FCA
886
REPORTED: (1998) 84 FCR
506
ADMIRALTY - application for order releasing owners
solicitor from undertaking - undertaking given in respect of
application for release of vessel from arrest - application
for release unsuccessful - competing considerations - whether
application for release prolonged period during which vessel
was in custody - whether Marshal should have benefit of
undertaking required by r 52 of Admiralty Rules ('the Rules')
and Form 19 notwithstanding application for release was
unsuccessful - whether undertaking is exhausted once
application for release is refused - proper construction of r
52 in context of other rules relating to
undertakings
Patrick
Stevedoring No 2 Pty Ltd v The Ship 'Turakina' Waitemata
Stevedoring Services Ltd v The Ship MV 'Rangitata' & Anor
[1998] FCA 1011
ADMIRALTY -
costs in respect of application by Master and crew for wages
and repatriation - Master and crew partially unsuccessful on
application - order for sale of vessel - whether Master and
crew should repay to fund costs attributable to unsuccessful
application - whether all costs of all parties should be taken
from fund
Patrick
Stevedoring No 2 Pty Ltd v The Ship 'Turakina' [1998] FCA 1012
NOTICE OF MOTION
Patrick
Stevedoring No 2 Pty Ltd v The Ship 'Turakina' Waitemata
Stevedoring Services Ltd v The Ship MV 'Rangitata' & Anor
[1998] FCA 1013
ADMIRALTY -
application for declaration of title to personal property
items on vessel at time of arrest - evidence not sufficient -
application dismissed - application for declaration of title
to bunkers and lubricants - ownership -whether evidence as to
payment - whether 'ship' includes all property aboard the ship
other than property not owned by shipowner - onus of proving
ownership
Ravenor
Overseas Inc Readhead, Phillip Martin & Ors [1998] FCA
1363
REPORTED: (1998) 72 ALJR
671
PROCEDURE - summary judgment - applicants pursuing
civil claim in Federal Court - two applicants failing to
appear to defend criminal proceedings in which common issue
open to be raised in their defence - further applicant failing
to join other proceedings in this Court which may determine
claim made here - whether claim in this Court an abuse of
process
Readhead,
Phillip & Ors v Admiralty Marshall, Western Australia
District Registry & Ors [1998] FCA 1173
REPORTED: (1998) 87 FCR 229
ADMIRALTY -
whether a sale by the Marshal pursuant to an order of a Court
of Admiralty made within jurisdiction in an action in rem
confers title free of all defects including statutory rights
of detention - rights of detention and possible detention
under Fisheries Management Act 1991 - whether power of Court
of Admiralty to order sale thereby suspended or deferred -
effect of order in action in rem - distinction between power
to detain a ship in relation to a civil claim and penal power
of detention
Rolfe,
James Geoffrey v Transworld Marine Agency Co NV [1998] FCA 532
REPORTED: (1998) 83 FCR
323
ADMIRALTY - sale of vessel arrested by Court -
successful claim against the proceeds of sale - whether
commission is payable to applicant - whether agreement exists
as to amount of commission
CONTRACT - whether any binding
contract made - examination of correspondence - whether an
equitable charge or lien over proceeds of sale arises in
respect of commission - agreement to pay from proceeds of sale
- whether any equitable assignment
BANKRUPTCY - Letter of
Request from Belgian Court - whether any moneys held in
Australia should be assigned to Belgian trustees to be
administered as part of a world-wide administration of assets
and liabilities - external administration in Corporations Law
and Bankruptcy Act - Belgium not a prescribed country -
relevant considerations - avoidance of duplication - security
- delay - uniform administration of bankruptcy - mutual
co-operation - comity
Seapeace
Ltd v Meridian Marine Sales Ltd & Ors [1998] FCA 789
PRACTICE AND PROCEDURE - leave
to amend application and statement of claim - leave to join
two additional parties - whether prejudice to existing
respondents - costs
Thasos
Shipping Agency Co Ltd v The Owners of the Ship [1998] FCA 520
COSTS - Admiralty - application
for security for costs in respect of challenge to jurisdiction
- effect of a conditional appearance - whether unconditional
appearance is a necessary prerequisite for seeking security
for costs - distinction between offensive and defensive
procedural steps - substance verses form of application -
whether application for security for costs by a party is a
waiver of conditional appearance - whether there had been a
submission to courts jurisdiction - determination of amount -
judicial discretion - otherwise unfettered
Total
Marine Services Pty Ltd v Kiely, Michael [1998] FCA 153
REPORTED: (1998) 51 ALD
635
ADMINISTRATIVE LAW - judicial review - appeal from
decision of Administrative Appeals Tribunal that worker was
incapacitated for work - whether AAT failed to comply with its
obligations under s 43(2B) of the Administrative Appeals
Tribunal Act 1975 (Cth) - whether adequate reasons given by
the Tribunal for its determination - whether decision
unreasonable
Waitemata
Stevedoring Services Pty Ltd v The Ship 'Rangitata' & Anor
[1998] FCA 304
ADMIRALTY -
Arrest
Waitemata
Stevedoring Services Pty Ltd v The Ship 'Rangitata' & Anor
[1998] FCA 386
REPORTED: (1998)
82 FCR 462
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
Waitemata
Stevedoring Services Pty Ltd v The Ship 'Rangitata' & Anor
[1998] FCA 441
ADMIRALTY -
Application for leave to appeal against trial Judges
direction that Admiralty Marshal be paid $20,000 to enable him
to engage two engineers to service each of two ships under
arrest - power of Admiralty Marshal under Admiralty Rule 78
(b) to require payment of sum on account of fees and expenses
yet to be incurred by him - futility of appeal - absence of
substantial injustice in refusing leave to appeal even if
decision at first instance wrong.
Waitemata
Stevedoring Services Ltd v The Ship "Rangitata"
& Anor [1998]
FCA 778
NOTICE OF MOTION
Waitemata
Stevedoring Services Ltd v The Ship 'Rangitata' & Anor
[1998] FCA 885
ADMIRALTY -
Admiralty Rules rr 52 and 53 - application for release of
vessel from arrest - whether at commencement of arrest
proceedings Federal Court had jurisdiction to arrest vessel -
whether South Pacific Shipping ('South Pacific') was demise
charterer - whether demise sub-charterer was terminated by
letter prior to time when proceedings for arrest were
instituted - cancellation of charterparty by withdrawal of
ship - repudiation of the charterparty by non-payment of hire
- acceptance of repudiation by letter - history of non-payment
of hire as required by charterparty - whether notice is
necessary for effective acceptance of repudiation in
circumstances where there is no strict insistence on timely
payment
Associated
Euro-Atlantic Shipping Corp v Maritime Union of Australia
& Ors [1997] FCA 827
COSTS -
Federal Court of Australia Act 1976 (Cth), s 56 - application
for security for costs - applicant not resident in
jurisdiction - quantum of security - form in which security is
to be provided
PRACTICE AND PROCEDURE - O 11 r 16 Federal
Court Rules - whether pleading 'has a tendency to cause
prejudice, embarrassment or delay in the proceeding'
PRACTICE AND PROCEDURE - O 12 r 5 Federal Court Rules -
whether Court should order applicant to provide particulars of
pleadings
Barde
AS v Oceanfast Ferries Pty Ltd [1997] FCA 315
PRACTICE AND PROCEDURE - application to
transfer proceedings to the Western Australian Registry of the
Federal Court - where potential witnesses resident in Western
Australia - where substantial amount of work carried out in
Sydney - whether sound reason in the interests of justice and
the efficient administration of the Court for proceedings to
be transferred
Bayside
Air Conditioning Pty Ltd v The Owners of the Ship 'Cape Don'
[1997] FCA 690
ADMIRALTY - Sale
pendente lite - principles - Marshal's costs and expenses -
enforcement of undertaking.
Bayside
Air Conditioning Pty Ltd v The Owners of the Ship 'Cape Don'
[1997] FCA 790
Judgments &
Orders
Broken
Hill Proprietary Co Ltd v Finestone, Andrew Lionel [1997] FCA
1240
ADMINISTRATIVE LAW -
procedural fairness - whether denial of an opportunity to the
parties to adduce evidence on an issue not argued at the
hearing but crucial in the Tribunals determination
constitutes an error of law
COMPENSATION - distinction
between injury and disease - Tribunal finding that cerebral
infarct was an injury despite no argument on that issue during
the hearing - Tribunal finding that cerebral infarct was not
caused in manner alleged by the worker despite no argument on
other possible causes - whether these findings constitute
errors of law - whether parties should have been afforded an
opportunity to adduce evidence after the hearing
finished
Broken
Hill Proprietary Co Ltd v Mathiassen, Peter Edward [1997] FCA
1056
COMPENSATION - An injury
arising out of or in the course of employee's employment
Broken
Hill Proprietary Co Ltd v Mathiassen, Peter Edward [1997] FCA
1525
ADMINISTRATIVE LAW -
Consideration by Administrative Appeals Tribunal of claim for
compensation under the Seafarers Rehabilitation and
Compensation Act 1992 - whether finding of injury and
consequential incapacity by Tribunal open to it having regard
to the medical evidence - whether Tribunal made findings
inconsistent with findings of injury and incapacity
Cahalan,
Adrienne v Dalman Nominees Pty Ltd [1997] FCA 641
COSTS - application by
cross-defendant for security for costs - where cross-claimant
unable to provide security - where director of cross-claimant
prepared to assume personal liability for a costs order -
whether appropriate to order that assets of director be
charged to secure personal liability
Carlton
International PLC & Anor v Crayford Freight Services Ltd
& Ors [1997] FCA 726
COSTS -
application for solicitor-client costs - whether a properly
advised plaintiff should have been aware that there was no
chance of success - whether proceedings unnecessarily
prolonged
Carlton
International PLC & Anor v Crayford Freight Services Ltd
& Ors [1997] FCA 902
REPORTED: (1997) 78 FCR 302
PRACTICE AND
PROCEDURE - application for cross claim to be dismissed as
against the second and third cross defendants - whether cross
claim against third cross defendant should be struck out as
having no basis in law - whether third cross defendant under
duty as bailee - where third cross defendant time charterer of
the vessel - whether Court has jurisdiction to entertain cross
claim - where cross claim filed without leave of the Court and
principal proceedings have been discontinued - whether Court
has power to grant an extension of time for filing cross
claim
Compagnie Maritime D'Affretement & Ors v Uniflag
Shipping Pty Ltd & Ors [1997] FCA 758
Judgments & Orders Costs
Dyno
Nobel Asia Pacific Ltd v Sunny Shore Shipping Finance Inc
[1997] FCA 1114
DISCOVERY AND
INTERROGATORIES - discovery and inspection of documents -
client legal privilege - whether documents brought into
existence for the dominant purpose of providing legal advice
or for use in legal proceedings
Hi-Fert
Pty Limited, Cargill Fertilizer Inc v Kiukiang Maritime
Carriers & Western Bulk Carriers (Australia) Ltd [1997]
FCA 575
REPORTED: (1997) 75 FLR
583
CONSTITUTIONAL LAW - judicial power of the Commonwealth
- constitutional validity of s 7 of the International
Arbitration Act 1974 (Cth) - federal jurisdiction - whether
section operates to oust jurisdiction of the Court - common
law principle of non-ouster of jurisdiction - common law
principle does not delimit the power of the legislature -
judicial power of the Commonwealth - whether section amounts
to a usurpation by the legislature of judicial power - whether
Court must act at the direction of the legislature - section
enables the agreement of the parties to be implemented -
whether section confers judicial power on arbitrators - nature
of final act of arbitrators - arbitrators have no power to
enforce determination - arbitrators performing contractual
function
ARBITRATION - jurisdiction - whether trade
practices claim capable of settlement by arbitration - whether
trade practices claim is in respect of 'defined legal
relationship' - 'defined legal relationship' may be a
statutory relationship
Hi-Fert
Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor
[1997] FCA 1423
REPORTED: (1997)
150 ALR 345
JUDGMENTS AND ORDERS - settlement of orders -
previous determination that Australian proceedings be stayed
and the disputes referred to arbitration in London -
conditions on which stay granted - whether order as to costs
in the stay proceedings should be made - whether order as to
security in respect of arbitration should be made
PRACTICE
AND PROCEDURE - application for leave to appeal from
interlocutory judgments - whether substantial injustice would
result if leave were refused - whether decisions attended with
sufficient doubt
Hollier,
William, The Engen Institute (ARBN A25398A) v The Australian
Maritime Safety Authority [1998] FCA 176
REAL PROPERTY - Acquisition of title -
Proprietary estoppel - Equity of acquiescence - Twelve months
lease of island - Negotiations for continued occupation upon
expiration of lease - Whether owner encouraged lessee to
believe he had or would obtain permanent occupancy -
Constructive trust - Whether unconscionable for owner to
insist on legal rights
ESTOPPEL - Proprietary estoppel -
Twelve months lease of island - Negotiations for continued
occupation upon expiration of lease - Whether owner encouraged
lessee to believe he had or would obtain permanent
occupancy
ADMIRALTY - Australian Maritime Safety Authority
Act
Hollier,
William for the Holliers of Bass Stait Islands & Anor v
Minister for Workplace Relations & Small Business [1998]
FCA 429
PRACTICE AND PROCEDURE -
Dismissal of claim to proprietary interest in land - Appeal to
Full Court - Application for injunction pending appeal
restraining owner from ejecting applicants - Concurrent
application for order that Minister direct owner not to eject
applicants - Land originally owned by Commonwealth -
Transferred to statutory authority - Minister empowered to
transfer 'obligation' to authority where Commonwealth bound by
'obligation' immediately before transfer - Whether claimed
interest an 'obligation' of Commonwealth - Mandatory
interlocutory injunction - Principles applicable to grant -
Whether court must feel high degree of assurance that
applicant will succeed at trial
ADMIRALTY - Australian
Maritime Safety Authority Act
Jessop,
Terrence Maxwell v Broken Hill Proprietary Ltd [1997] FCA 1036
ADMINISTRATIVE LAW -
Administrative Appeals Tribunal Act 1975 (Cth) - appeal from a
decision of the Administrative Appeals Tribunal - whether the
Tribunal failed to address and make findings in relation to
issues raised by the Seafarers Rehabilitation and Compensation
Act 1992 (Cth) - obligation of Tribunal to provide reasons for
affirming the decision of the respondent - whether it did
provide adequate reasons
KMP
Coastal Oil Pte Ltd v The owners of Motor Vessel 'Iran Amanat'
and the 84 other vessels set out in the application [1997] FCA
483
REPORTED: (1997) 75 FCR
78
SHIPPING AND NAVIGATION - Admiralty jurisdiction, law
and practice - In respect of what matters action will lie -
Action in rem - Whether jurisdiction should be determined
before liability - Did the owner have the relevant nexus as
required by section 19(a) of the Admiralty Act 1988 (Cth) to
entertain jurisdiction - Admiralty Act 1988 (Cth) ss 3, 4, 5,
10, 17, 19
KMP
Coastal Oil PTE Ltd v The Owners of Motor Vessel 'Iran Amanat'
& the 84 other vessels set out in the Application [1997]
FCA 665
PRACTICE AND PROCEDURE -
Stay of order of the Full Court of the Federal Court pending
application for special leave to appeal to High Court -
Preservation of subject matter of litigation - Factors
relevant to exercise of discretion to stay
Koryar,
Philip & Ors v Perry, Donald N & Anor (No. 2) [1997]
FCA 1468
ADMIRALTY - action in
rem seeking warrant for arrest of a ship - joint venture to
fund a commercial fishing operation - defendants withdrew ship
from the joint venture - whether contractual right to do so -
construction of the contract
WORDS AND PHRASES - meaning of
'jointly' and 'satisfied' - whether 'satisfactory' to the
defendants or to all the joint venturers
EQUITY - joint
ventures - whether relationship fiduciary Lloyd Werft Bremerhaven GmbH v Ship 'Zoya Kosmodemyanskaya'
& Ors [1997] FCA 342
ADMIRALTY
Lloyd
Werft Bremerhaven Gmbh v The Owners Of The Ship 'Zoya
Kosmodemyanskaya' As Surrogate For The Ships 'Taras
Shevchenko', 'Delphin' (Previously 'Kazakhstan Ii' Previously
'Byelorussiya') And 'Kazakhstan' [1997] FCA 379
ADMIRALTY - application for release of vessel
from arrest - whether Black Sea Shipping Co ('BLASCO')
beneficial owner of vessel - 'hand-over' of vessel by
Ukrainian government to Ukrainian Shipping Co - whether
ownership transferred - vessel lawfully transferred - BLASCO
no longer beneficial owner of vessel - whether adverse
inferences should be drawn - no appearance by Ukrainian
Shipping Co - no evidence of consideration for transfer - no
documents evidencing transfer - relevant considerations - not
persuasive given countervailing documentary evidence - whether
transfer voidable - whether transfer for the purpose of
defeating creditors of BLASCO - evidence fails to establish
that purpose of Ukrainian government false or colourable -
whether failure to make full and frank disclosure on
application for arrest sufficient grounds for release -
reliance on out-dated information - evidence fails to
establish non-disclosure by plaintiff - importance of thorough
and careful investigation prior to arrest
proceedings
PRIVATE INTERNATIONAL LAW - proof of foreign
law - presumption that foreign law the same as the law of the
forum unless proven otherwise - whether transfer of vessel
avoided by Conveyancing Act 1919 (NSW) - evidence of Ukrainian
law - transfer lawful under Ukrainian law - act of State
doctrine - whether transfer of vessel an act of State -
consideration of nature and intention of act - transfer an act
of State - transfer non-justiciable
Lloyd Werft Bremerhaven GmbH v Ship 'Zoya Kosmodemyanskaya'
[1997] FCA 419
ADMIRALTY
Lloyd
Werft Bremerhaven Gmbh V The Owners Of The Ship Zoya
Kosmodemyanskaya As Surrogate For The Ships Taras Shevchenko,
Delphin And Kazakhstan And Tor Shipping Company [1997] FCA
1162
REPORTED: (1997) 79 FCR
71
ADMIRALTY PRACTICE & PROCEDURE - jurisdiction of the
Federal Court - action in rem - allegation of failure to pay
under repair contracts - application by demise charterer of a
ship for release of that ship from arrest - whether the arrest
was made without jurisdiction - meaning of 'owner' in s 19 of
the Admiralty Act - onus of proving jurisdiction - whether
demise charterer had submitted to the jurisdiction of the
Court - no appearance filed on behalf of the ships putative
owner - time constraints in admiralty arrest
proceedings
PRACTICE & PROCEDURE - objection to
competency of appeal - whether decision as to jurisdiction
final or interlocutory - whether orders of the trial Judge
finally determined all of the rights of the parties that were
at issue in the proceedings - whether orders of trial Judge
merely released the vessel and discharged the warrant or
dismissed the whole proceedings - whether demise charterer a
'party' to the proceedings - significance of filing an
unconditional appearance - inferences to be drawn from failure
of putative owner to file appearance
EVIDENCE - tender of
foreign experts legal opinions - application of the rules of
evidence at interlocutory or final stages of proceedings -
final decision as to jurisdiction where evidence in informal
state - whether trial Judge received evidence in proper
form
Loucas
G Matsas Salvage & Towage Maritime Co v The Fund in
Respect of the Proceeds of the Sale of the Ship [1997] FCA
1242
REPORTED: (1997) 79 FCR
351
SHIPPING AND NAVIGATION - Arrest and sale of ship -
Salvage claim for services pre-dating arrest - limitation of
actions - whether limitation period expires on anniversary of
date when services rendered at place where they were rendered
or of corresponding date in forum - whether action in rem
available to enforce maritime lien against fund in court -
Lloyds Open Form 1990 of salvage agreement - whether
acceptance of security extinguishes maritime lien -
supervening bankruptcy of guarantor - merger of cause of
action in arbitral award - whether cause of action in rem
extinguished
Marine
Trade Consulting GmbH v The Owners of the ship 'Kareliya'
[1997] FCA 253
INJUNCTIONS -
jurisdiction to grant an 'anti-suit injunction' compelling
party to cease proceedings in foreign forum - principles
governing exercise of jurisdiction - Court will not make order
depriving party of a legitimate advantage available in the
foreign forum - whether a legitimate advantage had been taken
in circumstances in which the party seeking relief in the
foreign forum could benefit there from a legal doctrine which
was not available in this forum and where that party was at
some forensic disadvantage in the proceedings in this
forum
Morlines
Maritime Agency Ltd & Ors v Ship 'Skulptor Vuchetich'
[1997] FCA 432
SHIPPING AND
NAVIGATION - Admiralty - sale of vessel pursuant to order for
appraisement and sale - claims in rem by creditors against the
fund - determination of order of priorities - whether one
claim based on maritime lien created by agreement in United
States was to be afforded priority as a maritime lien in
Australia - whether claims otherwise general maritime claims -
whether recovery of moneys pursuant to distribution of
proceeds of sale of a vessel under same ownership in another
jurisdiction in respect of the same causes of action precludes
a claimant proceeding against the fund in this jurisdiction -
construction of s.20 Admiralty Act 1988 - circumstances in
which ships agent will have a general maritime claim -
whether claims by attorneys or solicitors for costs incurred
in resisting proceedings involving arrest and potential sale
of owners vessels general maritime claims - adequacy of proof
of claims
Morlines
Maritime Agency Ltd v Skulptor Vuchetich [1997] FCA 858
ADMIRALTY - sale of vessel
pursuant to order for appraisement and sale - claims in rem
against the fund representing the proceeds of sale -
previously determined that a claim for agency commission was
not an in rem claim - whether failure by plaintiff
('Morlines') to properly credit moneys received against in rem
claims - where Morlines received payments in return for the
release from arrest of surrogate vessels and from the proceeds
of sale of surrogate vessels - whether moneys so received
could be allocated to the payment of agency commission -
general law principles of appropriation of payments by a
creditor - moneys received in substitution for the security
provided by the vessel are impressed with the character of in
rem funds - such moneys can only be used in payment of in rem
claims - moneys paid pursuant to escrow agreement - purpose
and effect of escrow agreement to procure release of vessel
from arrest - moneys impressed with the character of in rem
funds - whether moneys can be allocated to payment of interest
on in rem claim and legal costs incurred in recovering in rem
debts
ADMIRALTY - sale of vessel pursuant to order for
appraisement and sale - claims in rem against the fund
representing the proceeds of sale - where dispute as to moneys
owed to additional plaintiff ('Transworld') - whether letter
from Transworld evidence of statement of account or offer of
compromise - whether Transworld entitled to claim moneys
owing, but not yet paid, to suppliers of goods and services to
the vessel - whether Transworld had assigned a portion of the
claim to a third entity - consideration of evidence of
assignment
DEBTOR and CREDITOR - appropriation of payments
- where payments received come from sale or arrest of vessel -
rule in Claytons case not applicable -weight of creditors to
appropriate
Morlines
Maritime Agency Ltd v Skulptor Vuchetich [1997] FCA 1003
ADMIRALTY - Possession or
ownership of ship
Morlines
Maritime Agency Ltd v The Ship 'Skulptor Vuchetich' [1997] FCA
1004
REPORTED: (1997) 78 FCR
414
ADMIRALTY - sale of vessel pursuant to order for
appraisement and sale - claims in rem against fund
representing the proceeds of sale - previously determined that
payments received in return for release of surrogate vessels
from arrest and from the proceeds of sale of surrogate vessels
could only be allocated to reduction of the plaintiffs in rem
claim - whether legal costs incurred by plaintiff in
recovering those payments could be recovered against the
fund
Pacific
Composites Pty Ltd & Anor v Blue Anchor Line & Ors
[1997] FCA 576
PRACTICE AND
PROCEDURE - application to amend Statement of Claim to plead
additional causes of action - whether amendments give rise to
an arguable cause of action - bill of lading altered after
issue - allegation of fraud - whether evidence establishes an
arguable case of fraud - whether arguable case of recklessness
- importance of bill of lading as an instrument of
international commerce - whether arguable case of estoppel -
defendant cannot be estopped form denying the breach - whether
arguable case of negligence
Patrick
Stevedores No 2 Pty Ltd & Ors v Ship [1997] FCA 361
REPORTED: (1997) 75 FCR
47
SHIPPING AND NAVIGATION - Admiralty - sale of vessel
pursuant to order for appraisement and sale - claims in rem by
creditors against the fund - whether general maritime claims -
determination of order of priorities - whether recovery of
moneys pursuant to distribution of proceeds of sale of a
vessel under same ownership in another jurisdiction in respect
of the same causes of action precludes a claimant proceeding
against the fund in this jurisdiction - construction of s.20
Admiralty Act 1988 - circumstances in which ships agent will
have a general maritime claim - adequacy of proof of claims -
costs
Patrick Stevedores No 2 Pty Ltd (Formerly Known as Strang
Patrick Stevedoring Pty Ltd) & Ors v The Proceeds of the
Sale of the Vessel MV 'Skulptor Konenkov' [1997] FCA 1378
COSTS
Patrick
Stevedores No 2 Pty Ltd (Formerly Known as Strang Patrick
Stevedoring Pty Ltd) & Ors v The Proceeds of the Sale of
the Vessel MV ''Skulptor Konenkov'' [1997] FCA 1424
REPORTED: (1997) 150 ALR
651
ADMIRALTY - sale of vessel pursuant to order for
appraisement and sale - claim in rem against the fund
representing the proceeds of sale - running account between
plaintiff and shipowner - whether Court can go behind balance
of running account to determine whether claims are in personam
or in rem - whether claim for agency commission is a claim in
rem - whether agency commission is a 'disbursement' on account
of the ship - whether agency commission is in respect of goods
and services supplied to a ship for its operation and
maintenance - whether claim for expenses incurred in servicing
and handling containers is a claim in rem - whether servicing
and handling of containers is in respect of the supply of
services to a ship for its operation and maintenance - whether
servicing and handling of containers is in respect of the
'equipping of a ship'
Plimsoll Shipping Pty Ltd v Transfield Defence Systems Pty
Ltd [1997] FCA 418
PRACTICE AND
PROCEDURE - Transfer of proceedings
Seapeace
Ltd v Meridian Marine Sales Ltd & Ors [1997] FCA 1482
PRACTICE AND PROCEDURE -
application for leave to amend statement of claim -
application for joinder of respondent - whether indemnitor
should be joined to the proceedings prior to the establishment
of liability on the part of the indemnified party where there
is no evidence that the indemnitors liability will be
disputed once liability of the indemnified party is
established - whether joinder necessary for the complete
adjudication of all issues raised in the matter
Switzerland
Insurance Australia Ltd v Mowie Fisheries Pty Ltd [1997] FCA
231
REPORTED: (1997) 74 FCR
205
INSURANCE - marine insurance - appeal on whether
appellant liable to indemnify respondent for loss of fishing
vessel which sank off Victorian coast during voyage from Eden
in New South Wales to Portland in Victoria - whether
respondent breached express warranties in policy relating to
survey and manning requirements - whether respondent in breach
of the implied warranty in s 47 of the Marine Insurance Act
1909 (Cth) that the adventure on which it embarked should be
carried out in a lawful manner
STATUTORY CONSTRUCTION -
construction of Victorian Marine Regulations - whether reg 402
was intended to refer to the Uniform Shipping Law Code as
enacted, or as amended from time to time
SUBORDINATE
LEGISLATION - validity of reg 402 of the Victorian Marine
Regulations - statutory requirements met where a subordinate
instrument incorporates matter contained in another
document
STATUTORY CONSTRUCTION - whether the Marine Act
(Tas) applied to the fishing vessel - whether the vessel was
plying to seaward from a 'port' in Tasmania
The
Owners Of The Ship 'Carina' v The Owners Or Demise Charterers
Of The Ship 'Msc Samia' [1997] FCA 1001
REPORTED: (1997) 78 FCR 404
ADMIRALTY -
arrest of vessel - application for release of vessel - where
defendants proffered undertaking as security for release of
vessel - whether application for release should be granted -
dispute as to form and terms of undertaking - consideration of
principles governing courts power to order the release of a
vessel under arrest where there is a dispute as to security -
whether abuse of process - whether plaintiff acted
oppressively in refusing to accept undertaking proffered by
defendants - whether plaintiffs conduct manifestly
unreasonable
The
Owners of the Ship 'Carina' v The Owners or Demise Charterers
of the Ship 'MSC Samia' [1997] FCA 1115
PRACTICE AND PROCEDURE - application for leave
to appeal - whether decision attended with sufficient doubt -
whether substantial injustice would result if leave
refused
COSTS - application for security for costs -
dispute as to appropriate quantum of security
Tiwi
Barge Services Pty Ltd v Stark, Julie Ann [1997] FCA 874
COMPENSATION - seafarers
compensation - appeal from AAT - employee means a seafarer
- compensation for injury resulting in death - definition of
prescribed ship - definition of inter-State voyage -
vessel capsized before reaching destination - whether engaged
in inter-State travel
United
States Trust Co of New York v Master & Crew of the Ship
'Ionian Mariner' Kharitonov, Andrey & Ors v United States
Trust Co of New York [1997] FCA 909
REPORTED: (1997) 77 FCR 563
SHIPPING AND
NAVIGATION / ADMIRALTY JURISDICTION - claim by master and crew
under the Admiralty Act 1988 (the Act) asserting maritime lien
for unpaid wages - whether lien for wages arose by reason of
agreement between shipowner and maritime unions to which the
master and crew were not parties - whether promise made by the
shipowner to the unions was the subject of a trust in favour
of the crew - whether crew had a right to proceed in rem under
s 17 of the Act notwithstanding that the shipowner was not
liable at the suit of the master and crew in an action in
personam - effect of the Admiralty Act 1988
SHIPPING AND
NAVIGATION / ADMIRALTY JURISDICTION - cross-appeals by master
and three of the officers from declaration by trial judge that
the lien for unpaid wages and other remuneration cease at
particular dates - consideration of the entitlement of the
crew to wages and other remuneration
Ahrenkiel Pacific Services Inc v Fuel & Diesel Oil on
board the vessel 'Nand Nidhi' [1996] FCA 14
SHIPPING AND NAVIGATION - Costs - Indemnity
Australian
Competition and Consumer Commission v The Adelaide Steamship
Company Ltd & Ors [1996] FCA 10
REPORTED: (1996) ATPR 41-462
TRADE
PRACTICES - enforcement and remedies - injunction - proposed
acquisition of assets - interim injunctions - exercise of
discretion where divestiture order possible on acquisition of
assets
BHP
Trading Asia Ltd & Ors v Oceaname Shipping Ltd & Anor
[1996] FCA 271
REPORTED: (1996)
67 FCR 211
ADMIRALTY - rust damage to cargo - ship
chartered on time charter and subsequent voyage charter -
whether time charterer liable for damage to cargo - whether
bill of lading signed by captain made time charterer a party
liable on the bill
ADMIRALTY - NEGLIGENCE - whether
charterer owes a duty of care to the owner of goods shipped to
provide a cargoworthy vessel - content of that duty discussed
- whether want of due diligence will breach that duty -
content of due diligence discussed
ADMIRALTY - BAILMENT -
whether cargo held by voyage charterers as bailee - whether
breach of bailee's duty
ADMIRALTY - BILL OF LADING - bill
silent as to whether 'to order or assigns' - whether bill of
lading negotiable - nature of bill of lading discussed -
whether delivery of goods effected by presentation of the bill
- bill presented other than by holder in due course - whether
implied contract that goods be delivered in good order and
condition on the terms and condition of the bill - whether
property in goods passed independently of
endorsement
ADMIRALTY - AGENCY - whether charterer's agent
had actual authority to sign bill - whether bill of lading
signed by master binds the ship owner or the charterer -
whether actions of agent ratified
Empire
Shipping Co Inc v Navix Line Inc [1996] FCA 333
ADMIRALTY - proceedings for damages arising
from breach of joint venture agreement - application to amend
defence and cross-claim
PRACTICE and PROCEDURE -
application to amend defence and cross-claim - whether
evidence of actual prejudice - whether delay
Empire Shipping Co Inc v Navix Line Inc [1996] FCA 367
DISCOVERY
Hi-Fert
Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor
[1996] FCA 1059
REPORTED: (1996)
71 FCR 172
ADMIRALTY - two applications - application that
proceedings be stayed permanently on the basis of an
arbitration clause in the charter party - whether Australian
proceedings are vexatious or oppressive - whether Australia is
an 'inappropriate forum' for resolution of the disputes -
proceedings relate to contamination of fertiliser - statutory
interpretation - meaning of the term 'arising from' - whether
all disputes should be referred to the elected arbitrator -
'one-stop adjudication' encouraged by courts - authorities
favour broad interpretation of adjudication clauses - effect
of s 11(2) of the Carriage of Goods by Sea Act 1991 (Cth) - s
11(2) allows no scope for severance of arbitration clause into
positive and negative aspects - permissible for Court to take
arbitration clause into account in exercising its discretion -
possibility of duplication and inconsistent
findings
PRACTICE AND PROCEDURE - whether proceedings are
vexatious or oppressive - whether Australia is an appropriate
forum for resolution of the disputes
KMP
Coastal Oil Pte Ltd v The Owners Of Motor Vessel 'Iran Amanat'
& the 84 other vessels set out in the Application [1996]
FCA 664
ADMIRALTY - application
for release of arrested vessel - whether debts on which arrest
is based were incurred by the 'owner' - whether owner is a
'relevant person' - no authority on charterer to make owner
liable on contracts for supply of fuel - burden of proof of
the facts on which jurisdiction depends to be on balance of
probabilities - vessel released due to lack of
jurisdiction
KMP
Coastal Oil PTE LTD v The Owner of Motor Vessel 'Iran Amanat'
& Ors [1996] FCA 1122
ADMIRALTY - application to vary or set aside a
judgment and orders of the court - O 35 r 7(1) of the Federal
Court Rules - proceedings relate to release from arrest of a
vessel on basis of a finding that the defendant/owner was not
a 'relevant person' within the meaning of s 3 of the Admiralty
Act 1988 (Cth) - grant of application to review prior decision
is 'exceptional' and only granted where court has good reason
to consider it has proceeded under a misapprehension as to
facts or law - whether lodging an unconditional appearance
amounted to an admission of jurisdiction in the circumstances
- defendant plainly submitted court lacked jurisdiction to
arrest vessel - nature of appearance not raised at hearing -
whether application under r 52 of the Admiralty Rules amounted
to a concession that there was a valid arrest - 'arrest'
simply refers to detention - Admiralty Act 1988 contemplates
arrests which may be unreasonable and without good cause -
whether letter of indemnity prevents defendant relying on want
of jurisdiction - indemnity provided for purpose of lifting
stay of orders and does not operate as a concession that the
Court has jurisdiction
PRACTICE AND PROCEDURE - application
to stay or vary or set aside a judgment and orders of the
Court - O 35 r 7(1) of the Federal Court Rules - Court only
grants applications for review of prior decision in
exceptional circumstances where court has a good reason to
consider it has proceeded under a misapprehension as to facts
of law
Marine
Trade Consulting GmbH v The Owners of the Ship 'Kareliya' as
named and also as Surrogate for the Ships 'Azerbaydzhan', 'Lev
Tolstoi' and 'Odessa' [1996] FCA 794
ADMIRALTY - Application for release of a
vessel from arrest pursuant to r 52 of the Admiralty Rules -
whether it has been established that the Black Sea Shipping
Company of Odessa ('BLASCO') is the 'owner' of the vessel at
commencement of proceeding - whether 'owner' in the sense of s
17 of the Admiralty Act 1988 (Cth) - insufficient evidence to
show BLASCO as beneficial owner or demise charterer of the
vessel - evidence circumstantial
Marine
Trade Consulting GmbH v Globus [1996] FCA 1071
ADMIRALTY - appeal from orders for release of
a vessel from arrest and an order setting aside the warrant
for the arrest of the vessel pursuant to the Admiralty Rules -
whether it has been established that the Black Sea Shipping
Company of Odessa ('BLASCO) is the 'owner' of the vessel when
the cause of action arose - whether BLASCO was the beneficial
owner or demise charterer - whether the contract for sale of
the vessel was a sham
APPEAL AND NEW TRIAL - admission of
fresh evidence - whether leave to adduce further evidence on
the hearing of the appeal pursuant to s27 of the Federal Court
of Australia Act (1976) (Cth) should be granted
Marinis
Ship Suppliers (Pty) Ltd v The Ship 'Ionian Mariner' [1996]
FCA 563
SHIPPING AND NAVIGATION
- ADMIRALTY JURISDICTION, LAW AND PRACTICE - Ships - action in
rem - claim by master and crew for unpaid wages - lien over
proceeds of sale of ship - whether quantified by reference to
collective agreement concluded between union affiliate of
International Transport Federation and ship owner or operator
or to individual employment agreements - whether a claim
invoking a collective agreement is for wages or an amount that
a person as employer is under an obligation to pay a person as
employee being an obligation arising out of the contract of
employment or by operation of law - whether contract made by
union as agent for seafarers to be employed on the ship in
future - whether such a contract capable of ratification -
whether union is trustee of promise embodied in collective
agreement for the benefit of seafarers subsequently employed
on the ship - to what date seafarers' entitlement to wages or
accommodation expenses should be calculated - words and
phrases 'collective agreement'
Maretech
CMDL Pty Ltd v Commissioner of Taxation of Commonwealth of
Australia [1996] FCA 1110
TAXES
AND DUTIES - income tax - fringe benefits tax -
living-away-from-home allowance - offshore vessel rigged to
drill exploratory holes at sea to discover petroleum or gas
hydrocarbons - payment of daily allowances - whether payment a
fringe benefit - whether vessel 'an oil rig' or '
installation'
ADMIRALTY- Sea Installations Act
Morlines
Maritime Agency Ltd v The Ship 'Skulptor Vuchetich' and her
owners & Anor [1996] FCA 41
REPORTED: (1996) 62 FCR 602
SHIPPING AND
NAVIGATION - Admiralty law and practice - vessel under arrest
sold by Marshal - equipment on vessel included fork lift
trucks and other associated equipment used to move cargo about
the vessel - whether such equipment properly to be regarded as
part of the ship - whether a Mareva injunction obtained by
creditor not having a maritime claim affected Marshal's power
to dispose of such equipment as part of ship
Mowie
Fisheries Pty Ltd v Switzerland Insurance Australia Ltd [1996]
FCA 888
REPORTED: (1996) 140 ALR
57
INSURANCE - marine insurance - application for damages
- vessel lost in travelling from Eden in New South Wales to
Portland in Victoria - which version of the Uniform Shipping
Laws Code is applicable - whether there was a breach of
warranty - whether vessel 'in survey' at time of sinking -
whether vessel correctly manned at time of sinking -
consideration of the meaning of 'propulsion power' within
Section 3 of the Uniform Shipping Laws Code - extensive expert
evidence in relation to the definition of 'propulsion power' -
implied warranty under s47 of the Marine Insurance Act 1909
(Cth) - meaning of 'port' within s4 of the Marine Act 1976
(Tas) - Waiver - whether there was a waiver of the breach by
insurer - whether there is waiver in the absence of election
or estoppel - Commonwealth v Verwayen (1990) 170 CLR 394
considered and discussed - whether breach of duty of utmost
good faith
Mowie
Fisheries Pty Ltd v Switzerland Insurance Australia Ltd [1996]
FCA 931
PRACTICE AND PROCEDURE -
COSTS - application for indemnity costs - wide discretion to
be exercised judicially - s 43 Federal Court of Australia Act
1976 - O 23 r 11 Federal Court Rules 1979 - relevance of
Calderbank offer - nature of proceedings and late formal
amendment to pleading not relevant - Calderbank principle
discussed - applicant's offer reasonable - indemnity costs
awarded following Calderbank offer
Mowie Fisheries Pty Ltd v Switzerland Insurance Australia Ltd [1996] FCA 608
Den
Norske Bank (Luxembourg) S.A. v The Ship 'Martha II' [1996]
FCA 136
SHIPPING AND NAVIGATION
- Admiralty practice and procedure - ship loaded with mixed
cargo under arrest in Port Jackson - cargo consisting of
containers of rice and other cargo, liquid plastic in vessel's
deep tanks and bulk cargo of mineral sands - more satisfactory
facilities for unloading containers and liquid cargo in Port
Botany and mineral sands in Port of Newcastle - balancing of
considerations relating to the necessity to keep the vessel
under arrest secure against considerations relating to safety
and integrity of cargo - circumstances in which vessel under
arrest might be permitted to sail from one port within the
jurisdiction to another
Patrick
Stevedores No 2 Pty Ltd & Anor v MV 'Skulptor Konenkov'
Morlines Maritime Agency Ltd v The Ship 'Skulptor Vuchetich'
and her Owners [1996] FCA 81
REPORTED: (1996) 64 FCR 223
SHIPPING AND
NAVIGATION - Admiralty - practice and procedure - separate
proceedings in rem brought against two vessels in the same
ownership - plaintiffs in each case claim to have general
maritime claims - vessels arrested and sold by marshal - large
number of caveators also claiming to having general maritime
claims against one or both vessels - likelihood of substantial
deficiency - application supported by majority of claimants
for direction that the two funds from the sale of the two
vessels be treated as and administered as one fund in respect
of general maritime claims - consideration of relevant
provisions of legislation and of applicable principles -
discussion of applicability of doctrine of marshalling to
circumstances of cases - whether court had wide discretionary
power to make direction sought
Sandford
Pty Ltd v NZI Insurance Ltd [1996] FCA 279
REPORTED: (1996) 65 FCR 266
SHIPPING AND
NAVIGATION - admiralty jurisdiction - 'claim for damage done
to a ship' - whether that expression is wide enough to
encompass claims on policies of insurance that indemnify ship
owners against damage to their ship
The
Sanko Steamship Co Ltd & Anor v Sumitomo Australia Ltd
[1996] FCA 22
PRACTICE AND
PROCEDURE - costs - application by successful party to
protracted litigation for costs to be paid on the indemnity
basis - consideration of relevant principles and of particular
facts of matter
Yellow
Wood Holdings Pty Ltd v The Owners of the Ship MV 'Cape Don'
[1996] FCA 32
ADMIRALTY - Bank
guarantee provided to avoid arrest of vessel - acceptance of
guarantee by plaintiff in lieu of benefit of arrest - vessel
left jurisdiction and traded - estoppel - no alternative
security offered
Yellow
Wood Holdings Pty Ltd v The Owners of the Ship MV 'Cape Don'
[1996] FCA 531
ADMIRALTY -
Action for declaration that plaintiff entitled to a ten per
cent interest in ship or to ten per cent of proceeds of sale -
bank guarantee provided as security to prevent arrest -
recovery sought against bank guarantee as representing the
res.
PRACTICE AND PROCEDURE - Application pursuant to O 32
r 2(d) of the Federal Court Rules
Associated
Steamships Pty Ltd v Hore, Norman [1995] FCA 798
REPORTED: (1995) 61 FCR 506
ADMINISTRATIVE
LAW - appeal from decision of Administrative Appeals Tribunal
- entitlement to continuing compensation under Seaman's
Compensation Legislation
STATUTORY INTERPRETATION -
whether monetary limit imposed by Seamen's Compensation Act
1911 (Cth) is preserved by Seafarers Rehabilitation &
Compensation (Transitional Provisions and Consequential
Amendments) Act 1992 (Cth) - construction of ss 4, 5, 6, 7
& 12 of Seafarers Rehabilitation & Compensation
(Transitional Provisions & Consequential Amendments) Act
1992 (Cth) - legislative intention - principles
discussed
Barde,
A S v ABB Power Systems & Ors [1995] FCA 828
REPORTED: (1995) 69 FCR 277
SHIPPING AND
NAVIGATION - limitation of liability - effect of constitution
of limitation fund - whether claimant wishing to establish
matters disentitling shipowner from limiting liability is
entitled to have that question determined prior to the
constitution of a limitation fund
Commissioner of Taxation v Holmes, E.W. [1995] FCA 563
REPORTED: (1995) 58 FCR
151
INCOME TAX - Assessable Income - salvage reward -
whether payment of salvage reward to crew member for
participation in successful salvage operation payment in
respect of services rendered - Income Tax Assessment Act 1936
s26(e)
International Alpaca Management Pty Ltd v Ensors & Ors
[1995] FCA 209
CONTRACT -
importation of alpaca - proper construction of agreements -
determining operative agreement - proper law of contracts -
whether parties expressed choice of law to be applied -
whether the word 'facilities' should be construed as including
an import permit - whether respondent obtained beneficial
title pursuant to reserve contract
TORT - whether applicant
entitled to damages for tortious inducement of breach -
whether respondent has possessory title
SALE OF GOODS -
passing of property - whether goods ascertained or
unascertained - FOB contract - transfer of property under
Chilean law - 'traditio' - whether party obtained possessory
title to goods
UNJUST ENRICHMENT - whether applicant
unjustly enriched - whether sufficient evidence to prove level
of unjust enrichment
ACTION ON THE CASE - application of
principles in Beaudesert Desert Shire Council v Smith -
whether any unlawful act
Ling
v The owners of the ship 'Longevity' [1995] FCA 797
SHIPPING AND NAVIGATION -
application for extension of time in which to sue - collision
between plaintiff's yacht and defendant's ship - collision
occurred in open sea off Queensland coast - plaintiff's
solicitor mistakenly considered limitation period to be three
years - limitation period in fact two years - action brought
one year out of time - considerations relevant to exercise of
court's discretion - significance of solicitor's negligence -
defendant's solicitor advised of contemplated action less than
two months after collision - defendant claims no significant
prejudice
Malaysia
Shipyard & Anor v 'Iron Shortland' as the surrogate for
the ship 'Newcastle Pride' [1995] FCA 768
REPORTED: (1995) 59 FCR 535
SHIPPING AND
NAVIGATION - application to set aside arrest warrant - vessel
'Iron Shortland' arrested as surrogate for 'Newcastle Pride'
itself under arrest in Singapore - whether s.19 of Admiralty
Act 1988 applies to beneficial, as distinct from registered,
ownership - analysis of complex evidence concerning ownership
of vessels - whether the same company was 'a relevant person'
for the purposes of s.19, the owner and/or in possession or
control of the Newcastle Pride, and the owner of the Iron
Shortland
Marinis
Ship Suppliers Pty Ltd v The Ship 'Ionian Mariner' [1995] FCA
711
REPORTED: (1996) 59 FCR
245
SHIPPING AND NAVIGATION - ADMIRALTY JURISDICTION, LAW
AND PRACTICE - Ships - action in rem - application for an
order for valuation and sale of ship pendente lite - claim for
payment for goods, materials or services supplied to ship -
evidence of deterioration in value of ship - whether order for
valuation and sale should be made where owner defends the
action and has not abandoned the ship - substantial port
charges and associated expenses being incurred by Marshal
during ship's arrest - need for speedy resolution of claims
where crew are claiming substantial unpaid wages
McMillan,
Kevin Campbell v Toledo Enterprises International Pty Ltd
[1995] FCA 911
REPORTED: 18 ACSR
603
CORPORATIONS - interlocutory application - appointment
of provisional liquidator - appointment of receiver and
manager - whether affairs of the company conducted unfairly
within the meaning of s260 Corporations Law - whether just and
equitable that a provisional liquidator be appointed within
the meaning of s461(k) Corporations Law - appropriate relief -
whether receiver and manager should be appointed rather than
provisional liquidator where the company has entered a
potentially profitable contract
Patrick
Stevedores No. 2 Pty Ltd & Anor v MV 'Skulptor Konenkov'
[1995] FCA 864
SHIPPING AND
NAVIGATION - sale of vessel by Marshal - application by owners
of vessel to exclude from subject matter of sale one forklift
truck - forklift truck allegedly the subject of a lease from a
Swiss company - no application made by that company -
application made after tenders for sale of vessel had been
called and after last day for lodgment of tenders had passed -
insufficient evidence to support the application - application
for adjournment in order to obtain further evidence -
consideration of various factors relevant to exercise of
Court's discretion - application dismissed
Seapeace Ltd v Meridian Marine Sales Ltd & Ors [1995]
FCA 1156
PRACTICE AND PROCEDURE -
Transfer of proceedings
The
Sanko Steamship Co. Ltd & Anor v Sumitomo Australia Ltd
& Ors [1995] FCA 962
REPORTED: (1995) 63 FCR 227
SHIPPING AND
NAVIGATION - cargo of phosphate consigned from Tampa, Florida
to Esperance WA lost when ship carrying it sank before
completion of voyage - cargo shipped pursuant to voyage
charterparty entered into by first plaintiff, Sanko, and
defendant - vessel provided by second plaintiff, Grandslam,
pursuant to time charter entered into between plaintiffs -
Grandslam bareboat charterer of vessel - construction of
charterparty - whether United States Carriage of Goods by Sea
Act incorporated in charterparty - whether Grandslam entitled
to immunities provided for in charterparty between Sanko and
defendant - whether vessel seaworthy - whether plaintiffs had
exercised due diligence to make ship seaworthy - whether
plaintiffs entitled to limit their liability under the 1957
Limitation Convention - whether Sanko entitled to recover
balance of freight provided for in voyage
charterparty
Yellow
Wood Holdings Pty Ltd v The owners of the ship MV Cape Don
[1995] FCA 659
PRACTICE AND
PROCEDURE - application to stay or dismiss proceedings
disputed issue of fact - real question to be tried - security
for costs - principal out from behind company - personal
guarantee
Freshpac
Machinery Pty Ltd & Anor The Ship Joana Bonita [1994] FCA
661
Reported: (1994) 125 ALR
683
SHIPPING AND NAVIGATION - admiralty jurisdiction law
and practice - release from arrest (of a ship) - provision of
security by way of P&I Club letter of undertaking -
consideration of relevant principles
George
Fethers & Company Trading P/L & Anor v Yangming Marine
Transport Corporation [1994] FCA 468
SHIPPING AND NAVIGATION - damage to cargo of
sheet glass consigned from Hong Kong to Sydney and Adelaide -
glass packed in eight containers - four containers damaged,
four undamaged - whether glass properly and sufficiently
packed - whether in good order and condition when delivered to
defendant's agent in Hong Kong - whether damage caused by
'perils of the sea' - whether vessel seaworthy in sense of
being fit and safe for carriage of cargo - whether GM
(metacentric height) of vessel appropriate
Pondcil P/L & Anor v Tropcial Reef Shipyard P/L [1994]
FCA 452
CONTRACT - part oral, part
written contract - implied terms - exemption clauses - test
for incorporation of terms - whether reasonable notice of
terms given - previous course of dealings - breach of implied
term that supervision and inspection would be performed with
due care and attention
NEGLIGENCE - failure to exercise due
skill and care in inspection of work completed
MISLEADING
AND DECEPTIVE CONDUCT - breach of implied warranty alone
insufficient to constitute breach of section 52 of the Trade
Practices Act 1974 or indicate incompetence and inexperience
DAMAGES - causation
Pondcil P/L & Anor v Tropical Reef Shipyard P/L [1994]
FCA 559
COSTS - discretion to award
costs - principles to be applied - relevant factors
Pondcil P/L & Anor v Tropical Reef Shipyard P/L [1994]
FCA 580
COSTS
Ssangyoung Australia Pty Ltd v Spliethoffs
Bevrachtingskantoor B.v & Ors [1994] FCA 610
PRACTICE AND PROCEDURE - Statement of claim -
Admiralty - Shipping and Navigation - Bill of
lading
Translink
Pacific Shipping Ltd v Baltic Shipping Co & Ors [1994] FCA
1095
SHIPPING AND NAVIGATION -
Admiralty - proceedings in rem brought against vessel as a
surrogate ship under s 19 of the Admiralty Act 1988 -
application for release of vessel on the ground that arrest
was unjustifiable and wrongful - ownership of vessel in issue
- commencement of consecutive separate proceedings against
defendant and arrest of second vessel - whether an oppressive
step
Comalco
Aluminium Ltd & Ors. v Mogal Freight Services P/L &
Ors. [1993] FCA 180
REPORTED:
(1993) 113 ALR 677
TRADE PRACTICES - consumer protection -
representations as to competence and skill - representations
as to exercising reasonable care - whether representations as
to future conduct - whether misleading or deceptive conduct -
whether reliance placed upon representations
TRADE
PRACTICES - consumer protection - implied statutory warranties
- transportation of goods - packing services rendered as part
of contract to transport goods from Sydney to Auckland -
whether packing services provided as part of contract from
operation of s.74 of Trade Practices Act 1974
SHIPPING AND
NAVIGATION - Carriage of goods - action for damage to cargo -
causation - whether inadequate packing of goods into container
sole cause of damage - 'freight forwarder' - whether liable
for damage resulting therefrom - exclusion clauses - Hague
Rules
SHIPPING AND NAVIGATION - bill of lading - whether
'consignment note' issued by freight forwarder was 'bill of
lading or similar document of title' - Hague Rules - exclusion
clauses
Hunter
Grain P/L v Hyundai Merchant Marine Co. Ltd & Anor. [1993]
FCA 276
REPORTED: (1993) 117 ALR 507
SHIPPING AND NAVIGATION - carriage of goods by
sea - cargo of soyabean meal shipped from Portland, Oregon to
Brisbane - vessel subject to time charter by first defendant
and voyage charter by seller of cargo - bill of lading
indorsed to plaintiff as purchaser - whether time charterer
carrier under bill of lading - cargo contaminated by soda ash
- soda ash left in loading equipment not properly cleaned by
stevedore - soyabean meal contaminated with soda ash on start
up of loading equipment - whether cargo received on board
vessel in apparent good order and condition - clean receipt
for cargo signed by agents (not master) of time charterer
(i.e. the carrier under the bill of lading) of vessel knowing
that bill of lading containing receipt would be sent to
plaintiff's bank to secure payment of letter of credit to
seller - whether time charterer's conduct fraudulent - whether
time charterer (the carrier under the bill of lading) estopped
from denying cargo received on vessel in apparent good order
and condition - whether charterer's agent negligent in signing
clean receipt - whether owners of vessel in breach of
obligations owed to plaintiff as bailee of plaintiff's goods
TRADE PRACTICES (consumer protection) - whether provisions
of Part V of Trade Practices Act 1974 apply to misleading or
deceptive (and other proscribed conduct) engaged in outside
Australia
Kawasaki
Steel Corporation & Ors v The Owners & Others
Interested in the Ship Daeyang Honey & Ors [1993] FCA 888
REPORTED: (1993) 120 ALR
109
PRACTICE AND PROCEDURE - stay of proceedings - forum
non conveniens - test to be applied - whether selected forum
clearly inappropriate - proceedings on foot in another country
seeking a negative declaration
ADMIRALTY - writs in rem -
whether an action in rem may be commenced by one writ against
both the primary ship and a surrogate ship
INJUNCTIONS -
distinction between injunction to stay foreign proceeding and
stay of local proceeding as brought in clearly inappropriate
forum
Mogal
Freight Services P/L v Comalco Aluminium Ltd & Ors [1993]
FCA 714
TRADE PRACTICES -
misleading or deceptive conduct - representation as to
competence - sufficiency of evidence as to falsity -
admissions on interrogatories - absence of evidence on part of
respondents to action
North
Western Shipping & Towage Co. P/L v Commonwealth Bank of
Australia Ltd & Anor. [1993] FCA 168
CONTRACTS - Construction of - when does title
pass from supplier of a component part to ship builder - issue
of letters of credit - conditional or absolute payment -
relationship of payment to passing of title - when does title
in component part pass from ship builder to purchaser -
meaning of 'ready to be appropriated'
CHARGE - Fixed and
floating - effective date of fixing of a charge
SALE OF
GOODS - Passing of property - performance of
contract
Roder
Zelt-und Hallenkonstruktionen gmbh v Rosedown Park Pty Ltd
& Anor [1995] FCA 275
REPORTED: (1995) 57 FCR 216
SALE OF GOODS
- United Nations Convention on Contracts for the International
Sale of Goods - retention of title - appointment of
administrator of the purchaser corporation under Part 5.3A of
the Corporations Law - whether seller entitled to recover
possession whilst the purchaser remained under administration
- whether the administrator incurred liability for refusing to
deliver up the goods - administration ended by purchaser
executing deed of company arrangement - whether seller
required leave to proceed with action for recovery of the
goods - whether purchaser and the administrator of the deed
liable for the tort of conversion for retaining possession of
the goods after the purchaser executed the deed
North
Western Shipping & Towage Company P/L v Commonwealth Bank
of Australia Ltd & Anor [1993] FCA 842
REPORTED: (1993) 118 ALR 453
MERCANTILE
LAW - contract with Australian buyer for construction in
Canada of equipment for installation in tug boats under
construction for a third party - payment to be by irrevocable
letter of credit - whether in the events that happened title
to the equipment had passed to the third party free of
security held by the banker which supplied funds to the
Australian buyer for the purchase of the equipment
The
Phosphate Co-operative Co. of Australia Ltd v SGS Supervision
Services Inc. [1993] FCA 206
PRACTICE AND PROCEDURE - service out of the
jurisdiction - foreign tort - whether damage suffered wholly
or partly in the Commonwealth - forum non conveniens - whether
Federal Court a clearly in appropriate forum
The
Sanko Steamship Co. Ltd & Anor v Sumitomo Australia Ltd
[1993] FCA 678
SHIPPING AND
NAVIGATION - limitation of liability - whether Limitation of
Liability for Maritime Claims Act 1989 may be invoked in
respect of occurrence before commencement of the Act.
PUBLIC INTERNATIONAL LAW - Convention on Limitation of
Liability for Maritime Claims, 1976 - effect of legislative
declaration that provisions of Convention have 'the force of
law in Australia' - relevance to interpretation of Australian
statute of Vienna Convention on the Law of Treaties,
1969.
Sea
Containers Ltd v Owners of Vessel Seacat 031 [1993] FCA
1080
Non-disclosure - setting aside an arrest
Victrawl
P/L v A.O.T.C. Limited & Ors [1993] FCA 677
REPORTED: (1993) 45 FCR 302
SHIPPING AND
NAVIGATION - limitation of liability - whether limitation of
liability provisions of the Limitation of Liability for
Maritime Claims Act 1989 may be invoked after the commencement
of that Act in respect of a prior occurrence
PUBLIC
INTERNATIONAL LAW - Convention on Limitation of Liability for
Maritime Claims, 1976 - effect of legislative declaration that
provisions of Convention have 'the force of law in Australia'
- relevance to interpretation of Australian statute of Vienna
Convention on the Law of Treaties, 1969
Visscher v Associated Steamships Pty Ltd [1993] FCA
1074
PRACTICE AND PROCEDURE -
Proceedings - Transfer of proceedings -
Admiralty
Alexander
Watt & Co P/L v The Ship Oceania Trader and Its Charterers
Oceania Shipping Corporation Ltd [1992] FCA 8
SHIPPING AND NAVIGATION - Proceeds of sale of
arrested ship - pre-judgment reimbursement of arresting
partys costs and expenses of arrest and preservation of ship
- proper construction of Admiralty Rules rr. 71 and
72
Alstergren,
I.M. v The Owners of the ship Territory Pearl [1992] FCA 367
REPORTED: (1992) 36 FCR
186
SHIPPING AND NAVIGATION - Damage by vessel - Liability
of shipowner - Limitation of - Actual fault or privity -
Meaning of - Whether failure of shipowner to supervise master
may amount to actual fault or privity - Navigation Act 1912
(Cth), s 333
Dailey, A.R. v North Queensland Marine Towage Pty Ltd
[1992] FCA 944
PRACTICE AND
PROCEDURE - Discontinuance of proceedings
North
Queensland Marine Towage Pty Ltd v Dailey, A.R. [1992] FCA
124
REPORTED: (1992) 34 FCR 302
INDUSTRIAL LAW - Construction of Tugboat Industry Award
1982 - whether the employer is under an obligation to provide
insurance cover in the case of death of an employee engaged on
a special voyage by taking out an insurance policy
Port
of Geelong Authority v The Ship Bass Reefer [1992] FCA 554
REPORTED: (1992) 37 FCR
374
SHIPPING AND NAVIGATION - Admiralty Jurisdiction, Law
and Practice - Admiralty Act 1988 (Cth) - ship arrested
pursuant to writ in rem - whether claim for rent owing under a
lease agreement relating to land used for handling cargo for
the ship a maritime claim under the Act - whether licence fees
under a licence agreement for priority berthing of the ship a
maritime claim under the Act - which party bears onus to
establish that there is a strong argument for the opinion that
the Court has jurisdiction
SHIPPING AND NAVIGATION -
Admiralty Jurisdiction, Law and Practice - Admiralty Act 1988
(Cth) - whether claims for rent and licence fees 'relate' to
carriage of goods by a ship or to the use or hire of a ship
under s 4(3)(f) of the Act
SHIPPING AND NAVIGATION -
Admiralty Jurisdiction, Law and Practice - Admiralty Act 1988
(Cth) - whether claims for rent and licence fees constitute
for 'services' supplied to the ship are 'services' to a ship -
whether 'services' should be interpreted restrictively -
whether 'operation' to be interpreted restrictively - whether
characteristics particular to a ship to be referred to in
defining 'operation'
SHIPPING AND NAVIGATION - Admiralty
Jurisdiction, Law and Practice - Admiralty Act 1988 (Cth) -
whether rent and licence fess fall under s 4(3)(p) of the Act
- whether licence fees 'tolls, charges or dues' payments in
relation to a ship contemplated by s 4(3)(p) of the Act -
whether payments contemplated must be imposed by a port
authority pursuant to statutory rights - whether payments
contemplated to be construed liberally so as to include
payments arising from contract as well as statutory
imposition
JURISDICTION, PRACTICE AND PROCEDURE - Federal
Court of Australia - whether claims for rent owing and licence
fees associated with acknowledged maritime claims falling
within the Court's admiralty jurisdiction - whether s 12 of
the Admiralty Act 1988 (Cth) and s 32 of the Federal Court of
Australia Act 1976 (Cth) allow conversion of in personam
actions in admiralty actions in rem
Survival
& Industrial Equipment (Newcastle) P/L (Trading as S.I.E.
Liferaft Servicing) v The owners of the vessel Alley Cat
[1992] FCA 319
REPORTED: (1992)
38 FCR 501
PRACTICE AND PROCEDURE - Admiralty - Action in
rem - Location of ship unknown - Application that solicitor be
examined as to whereabouts - Whether permissible when action
already commenced - Whether preliminary discovery at common
law available - Federal Court Rules 1979 (Cth), O 1, r 8; O 4,
r 17; O 15A, r 3
SHIPPING AND NAVIGATION - Admiralty -
Action in rem - Already commenced - Whereabouts of ship
unknown - Whether solicitor may be examined as to whereabouts
- Whether preliminary discovery at common law
available
Strang Patrick Stevedoring P/L v The owners of
the ship Sletter (formerly the Hibiscus Trader) [1992] FCA 845
PRACTICE AND PROCEDURE - Affidavits
Strang
Patrick Stevedoring P/L v The Owners of the Motor Vessel
Sletter (formerly the Hibiscus Trader) [1992] FCA 852
REPORTED: (1992) 38 FCR
501
ADMIRALTY - time charter - contractual arrangements -
provision of stevedoring services - default under the charter
party - labour ordered
UNJUST ENRICHMENT - whether
received benefit - whether unjustly enriched by the attendance
of the labour gangs - special conditions in the charterparty -
effect of clauses - duties and obligations imposed - power to
appoint agents - whether total failure of consideration.
TRADE PRACTICES - representations - whether misleading or
deceptive or likely to mislead or deceive
The
Owners of the Ship Shin Kobe Maru v Empire Shipping Company
Inc. [1992] FCA 698
REPORTED:
(1992) 38 FCR 227
CONSTITUTIONAL LAW - Admiralty and
maritime jurisdiction - scope of power of the Parliament to
make laws conferring original jurisdiction on the High Court
in matters of Admiralty and Maritime jurisdiction under the
Constitution s. 76(iii) - interpretation of s.
76(iii)
SHIPPING AND NAVIGATION - Action in rem - when
proprietary maritime claim will 'relate to' possession or
title to or ownership in a ship - claim between co-owners -
sufficiency of equitable interest to found a claim within s.
4(2)(a) and (b) Admiralty Act (Cth) 1988 - meaning and
construction of s. 6 Admiralty Act (Cth) 1988
PRACTICE AND
PROCEDURE - burden of proof required of a plaintiff on
application to set aside originating process on a proprietary
maritime claim
The
Sanko Steamship Co. Limited & anor v Sumitomo Australia
Ltd [1992] FCA 585
REPORTED:
(1992) 37 FCR 353
PRACTICE AND PROCEDURE - documents
produced pursuant to subpoenas served on Secretary, Department
of Transport and Communications and plaintiffs - application
by defendant for inspection of documents - contention by
Secretary of Department that documents should not be produced
because of the provisions of the Navigation (Marine Casualty)
Regulations - objection by plaintiffs to production of
documents prepared by their solicitor on the grounds that the
documents came into existence solely for the purpose of
anticipated litigation or the making or meeting of an
anticipated claim
Victrawl Pty Ltd v OTC Ltd & Ors [1992] FCA 322
ADMIRALTY - practice and
procedure
Altendorf
Australia Pty Ltd v Parkanson Pty Ltd & Ors [1995] FCA
252
CONTRACT - Australian
distributorship of machinery of a particular German
manufacturer - whether fiduciary agency - 'Romalpa' clause in
sales of goods to distributor - effect - whether goods
affected by floating charge held by Bank - re-purchase of
goods at cost plus duty and import charges, and later
re-export of some of the goods back to Germany - whether duty
'drawback' belonged to original importer or re-purchaser -
whether it was received by original importer as a fiduciary -
the nature of a 'drawback' - whether the 'owner' of goods the
subject of a drawback claim must be identical with the owner
at the time of importation - effect of novation of contract -
effect of later termination agreement - whether duty refund
under retroactive Commercial Tariff Concession Order belonged
to original importer or to company introduced by novation
which had reimbursed the original importer the full amount of
the duty paid - construction of termination agreement and
whether it effected an assignment of any right to the duty
refund
FIDUCIARY DUTIES - whether import documents were
held by agent as fiduciary - equitable compensation for breach
of fiduciary duty causing loss
PRACTICE - allowance of
interest under s. 51A of Federal Court of Australia Act ,
nature of discretion and rate
TRADE PRACTICES ACT, S. 52 -
representation of intention honestly held, later a change of
intention - keeping quiet about change of intention was
deceptive conduct - a representation does not cease to be
misleading because the party giving it binds himself
contractually to comply with it if he does not intend to
honour his contract
BHP
Trading Asia Ltd & Ors v Oceaname Shipping Ltd & Anor
[1991] FCA 568
ADMIRALTY - writ
in personam - service outside Commonwealth - leave of Court to
serve - delay in serving writ - possible effect of delay on
limitation of liability - leave to serve writ given ex parte -
whether leave properly given - discretion - matters relevant
to exercise of discretion
Bakri
Navigation Company Ltd v Ship Golden Glory, Glorious Shipping
S.A. (Owners of) [1991] FCA 242
ADMIRALTY - proprietary maritime claim - claim
by Saudi Arabian purchaser for specific performance of
contract for sale by Panamanian owner of Panamanian registered
ship - denial of existence of contract - arrest - application
for release from arrest - release granted on terms
Bakri
Navigation Company Ltd v Ship Golden Glory Glorious Shipping
S.A. [1991] FCA 306
SHIPPING AND
NAVIGATION - negotiations for sale of tanker conducted by
brokers in London and Tokyo - whether contract formed -
whether then varied - effect of 'recaps' and
'subjects'
INTERNATIONAL ARBITRATION - whether arbitration
agreement rendered inoperative by subsequent agreement and by
giving and acceptance of undertakings to the Court - whether
stay of proceedings should not be ordered
Dailey,
A.R. v North Queensland Marine Towage Pty Ltd [1991] FCA
580
REPORTED: (1992) AILR 20; 39
IR 123
INDUSTRIAL LAW - interpretation of award - tugboat
workers - special provisions for workers who go to sea on
'special voyages' - obligation on employer to provide
insurance coverage in case of death of employee - additional
to superannuation or other retirement benefits - question of
need for causal nexus - whether obligation cast on employer to
make payment regardless of whether insurance coverage taken
out or insurance company pays
Dineen, B. v National Terminals (Australia) Ltd Christian,
F.N. v Patrick Stevedoring Operations t/as Patrick Stevedoring
Company [1991] FCA 93
PRACTICE AND
PROCEDURE - Discontinuance of proceedings Workers
Compensation
Empire
Shipping Company Inc. v The owners of the ship Shin Kobe Maru
[1991] FCA 641
REPORTED: (1991)
32 FCR 78
CONSTITUTIONAL LAW - Admiralty and maritime
jurisdiction - Provisions with Imperial connections -
Relevance of changes in nature of Imperial relations -
Relevance of contemporary usage and practice - Constitution of
the Commonwealth, s 76(iii) - Admiralty Act 1988 (Cth), s
4(2)(a), (b)
SHIPPING AND NAVIGATION - Jurisdiction -
Application to set aside originating process on a proprietary
maritime claim - Onus of proof - Applicable standard -
Proprietary maritime claim - Whether beneficial interest in
ship a claim relating to possession of, title to, or ownership
of a ship - Claim between co-owners - Admiralty Act 1988
(Cth), s 4(2)(a), (b)
Murphy,
S.J. v A. Raptis & Sons [1991] FCA 197
ADMIRALTY - application for extension of time
to commence proceedings under Admiralty Act 1988 - delay by
solicitors - prejudice to defendant - plaintiffs ability to
sue solicitors
Sunshine
Fisheries v Lambert-Bain P/L & Anor [1991] FCA 498
SHIPPING AND NAVIGATION - marine
insurance - whether intention to abandon - whether notice of
abandonment given and accepted by the insurer - whether
implication that the assured gave notice of abandonment in the
context that the vessel was a constructive total
loss
NEGLIGENCE - whether insurance broker gave negligent
advice - whether insurance broker undertook to advise on
suitability of master - findings based on worth of witnesses -
whether an appeal court may set aside such findings
The
Owners, Charterer, Master & Crew of the Ship Margaret
Philippa v The Ship, M.v Santo Rocco Di Bagnara [1991] FCA 250
REPORTED: (1991) 101 ALR
491
MARITIME LAW Shipping and navigation Salvage
Voluntary nature of Contractual obligation to render
assistance Effect of On owners and charterers On master
and crew Considerations relevant to assessment of
award
Thomas,
H.C. v the ship 'Xiphias Hunter' & Ors [1991] FCA 365
ADMIRALTY - dispute as to the
ownership of a fishing vessel - whether a valid Bill of
Sale
ESTOPPEL - whether parties estopped from contradicting
representations previously made
EVIDENCE - whether evidence
of ownership adduced was the best evidence available - whether
evidence was even a fair representation of the facts which
have occurred - whether as a result all persons who may be
interested in the claim have been given due notice of the
claim as it has been presented to the Court
Westpac Banking Corporation & v P & O Containers
Ltd Fedgold P/L & Anor v P & O Containers Ltd [1991]
FCA 886
PRACTICE AND PROCEDURE -
Amicus curiae
Credit
Suisse v The Owners of the Ship Satouf 1 [1990] FCA 445
ADMIRALTY
Hodson,
C.J. & Ors v The Owners of the Ship Super Sport [1990] FCA
570
REPORTED: (1990) 26 FCR
157
ADMIRALTY - Salvage - Establishment of claim for -
Quantum of award
Sunshine
Fisheries v Lambert-Bain P/L & Anor [1990] FCA 725
INSURANCE - breach of contract
of marine insurance alleged - claim for loss of vessel -
defence that ships master not qualified under Tasmanian law
to be sailing in place where sank - whether incorrect answers
given regarding licence of ships master - principles of
construction where imprecise words used in document drawn by
insurer
INSURANCE - whether failure to disclose every
material circumstance known to assured - whether material
misrepresentation by assured to insurer - whether applicant
abandoned vessel to insurer by acquiescing in its
sale
Wills Shipping Pty Ltd v The Ship Oceania Trader & Its
Charters Oceania Shipping Corporation Limited [1990] FCA 685
ADMIRALTY
Allonah
P/L v The ship Amanda N & Ors [1989] FCA 681
REPORTED: (1989) 21 FCR 60
SHIPPING AND
NAVIGATION - Admiralty jurisdiction, law and practice - In
respect of what matters action will lie - Right to proceed in
rem in respect of owner's liabilities - Requirement that a
relevant person be owner when cause of action arose and when
proceeding commenced - Whether satisfied - Admiralty Act 1988
(Cth), ss 5, 3, 17
SHIPPING AND NAVIGATION - Admiralty
jurisdiction, law and practice - Stay of proceeding on ground
claim 'should be determined by arbitration' - Condition as to
security - Discretion - Admiralty Act 1988 (Cth), s 29(1)
Australian
Foremen Stevedores Association & Ors v W.P. Crone, First
Assistant Secretary, Maritime Policy Division, Department of
Transport & Communications & Anor [1989] FCA 15
ADMINISTRATIVE LAW - locus
standi - question of degree - 'a person aggrieved by a
decision' - decisions to permit importation of ships -
importer uses non-union labour - competitive advantage from
importation - whether unions and union members have
standing
ADMINISTRATIVE LAW - time limit to make
application for order of review - decision recorded in writing
and set out in document - meaning of 'furnished to the
applicant' in s 11(1)(c) of Administrative Decisions (Judicial
Review) Act
Pickersgill,
I.D. v The Seamans Union of Australia [1990] FCA
26
INDUSTRIAL LAW - application
for admission to membership of union - declaration sought -
whether applicant a person of general bad character - proper
time for assessment of character - onus of proof of general
bad character - whether both reputation and disposition of
applicant are relevant to assessment of general bad
character - impact of criminal convictions upon reputation -
general bad character distinguished from bad character and
lack of general good character
Lloyd,
D. v The Marine Council (Federal Department of Transport)
& Ors [1987] FCA 758
ADMINISTRATIVE LAW - Navigation Act - decision
of Marine Council that applicant be considered unsuitable for
engagement as a seaman - whether decision is a decision 'under
an enactment' - natural justice
Re TNT Alltrans Grounding (Court of Marine
Enquiry) [1986] FCA 102
COURTS OF
MARITIME INQUIRY - nature of jurisdiction - charges of
misconduct against officers - the role of assessors - the
desirability or otherwise of making recommendations as to the
cancellation or suspension of an officers certificate
Jones, John Charles v South British Insurance Co Ltd [1984]
FCA 90
REPORTED: (1984) 71 FLR 98
APPEAL - claim under policy of marine insurance - damages
in the nature of interest - rate of interest appropriate -
relation to commercial rates - compensatory aspects of
interest - relevance of rate of interest on judgment debts -
failure to take account of practice of court or actual rates -
practice of Supreme Court of Northern Territory
Repatriation Commission v Harris, Raymond Frederick [1984]
FCA 208
REPATRIATION - pension under
Seamen's War Pensions and Allowances Act 1940 - 'Australian
mariner' serving as a seaman employed in a ship registered
outside Australia who was resident in Australia for at least
twelve months immediately before entering into such employment
- 'war injury' causing incapacity - procedure on hearing an
application for such pension at first instance before Pension
Committee, and review by the Repatriation Review Tribunal
established under the Repatriation Act 1920 - onus of proof on
such applications - standard of proof on such applications -
Tribunal applying incorrect onus and standard of proof -
remittal to Tribunal for further hearing and
determination
Gray, William John v Marine Council (Department of
Transport & Construction) [1983] FCA 362
ADMINISTRATIVE LAW - Judicial Review - Rules
of Natural Justice - No opportunity for applicant to submit
relevant facts to decision maker - Suitability of applicant
for employment - Relevance of applicants conduct whilst on
leave
The circumstances of the fire on the motor tanker Cellana
official no. 317787 when berthed at No. 2 wharf, Gore Cove,
N.S.W. 29th June 1976 Court of Marine Enquiry judgment [1977]
FCA 15
ADMIRALTY
