Rares, Justice Steven --- "Australias sea change: towards developing a comprehensive system of admiralty and maritime dispute resolution for 21 st century trade in the Asia-Pacific region" (FCA) [2007] FedJSchol 22

Admiralty and maritime papers and publications The 2007 Conference of the International Bar Association Singapore Australia’s Sea Change: Towards Developing A Comprehensive System Of Admiralty And Maritime Dispute Resolution For 21 st Century Trade In The Asia-Pacific Region Justice Steven Rares 19 October 2007 Introduction 1. Australia is one of the great maritime trading nations of the world. About 12% of world trade by volume is carried by sea either into or out of Australia. Australia’s reliance on the sea for a substantial part of its international trade has existed since the time of its European settlement, over two centuries ago. There are major trading ports on every coast line of the world’s largest island and smallest continent. 2.When it gained nationhood at the turn of the 20 th Century, the Constitution of the Commonwealth of Australia conferred power on its national parliament to make laws with respect to trade and commerce with other countries and matters of admiralty and maritime jurisdiction. The laws made in exercise of those powers conferred jurisdiction on Australian Courts to deal with disputes arising from international trade. 3.In recognition of the significance of its place as one of the world’s leading trading nations, Australia has played an important historical part in the development of maritime law. It had a leading role in the development of the Hague Rules, with its enactment of the Sea Carriage of Goods Act 1904 (Cth), which was largely modelled on the Harter Act 1893 (US). 4.Since the coming into force of the Admiralty Act 1988 (Cth), the Federal Court of Australia and the Supreme Courts of its States and Territories have had jurisdiction both in proceedings in rem and in personam. During this period, the Federal Court of Australia has developed to be the jurisdiction of choice not only for the commencement and prosecution of most actions involving admiralty and maritime claims, but also for the enforcement of agreements to arbitrate under the 1958 New York Convention. 5.Of course, international trade looks to national judicial systems to provide predictable, well-reasoned, and, as best as may be achievable, harmonious interpretation and enforcement of not only commercial contracts but obligations that arise in the disparate relations created by international trading disputes. 6.It would be destructive of the confidence which the international commercial community has in the independent administration of justice, for one nation’s courts to ignore the decisions of other judicial systems on aspects of international trade and commerce. And the importance to commercial and business people of national courts recognising and enforcing international arbitration agreements cannot be understated. 7.In international trade and commerce, it is critical that the courts respect and enforce arbitration agreements where they exist in accordance with, in particular, the New York Convention and legislation designed to give effect to it, such as the International Arbitration Act 1974 (Cth). This is because in international trade and commerce, the parties generally will not wish to be subject to serendipity of where a ship may be arrested, an action begun or damage occur to determine a forum of any litigation between them or the substantive law to be applied to their dispute. The parties will be conscious that an accident or fortuity may occur at any point in a voyage or flight and very different legal results may flow depending on which law and which forum determine their dispute. It is for this reason that arbitration clauses invoking arbitration in London under English law have been a popular recourse for parties in international trade for over a century. Nowadays other centres of commercial arbitration, including Australia, are recognized as providing sound and fair fora and laws for the resolution of disputes in international trade or commerce. 8.However, the Court should be astute to uphold and enforce agreements rather than to display a form of judicial prejudice or xenophobia against the parties’ chosen method or place of dispute resolution. Refusal to enforce agreements to arbitrate in international transactions is capable of undermining the reasonable but significant expectations of the international commercial community and the confidence which it and, indeed, local business people place in the readiness of courts to hold people to their bargains. 9.In this paper I wish to discuss: the organisation, structure and activities of the Federal Court of Australia in relation to admiralty and maritime matters; the need to develop a regional perspective within Asia and the Pacific aimed at serving the region’s needs in admiralty and maritime dispute resolution. The Federal Court of Australia 10.The Federal Court of Australia was created by the Federal Court of Australia Act 1976 (Cth). It first sat on 1 February 1977. The Court is a superior court of record and a court of law and equity. It sits in all Australian capital cities and can sit anywhere in the country. Indeed, from time to time judges have sat in tents surrounded by palm trees. That is not to say that the Court administers ‘palm tree justice’. Far from it, it has a well regarded jurisprudence. It currently consists of 47 judges. The Court is both a trial court and an appellate court. Its jurisdiction covers a great many fields in addition to those I have already mentioned. It deals with matters involving corporations, competition, intellectual property, taxation, trade practices, insurance, industrial law, human rights, migration, native title and taxation. 11.The Court has a number of panels comprised of specialist judges who are expert in particular fields. In addition to the Chief Justice, there are 13 judges (about 1/3 of the Court’s complement) who comprise the National Admiralty and Maritime Arrangement of specialist judges. In the larger registries of Sydney and Melbourne the relevant judges are members of the local Admiralty panels. There are at least 2 judges in each State capital registry who are members of the National Arrangement. This ensures that there will always be one judge, at least, in the registry to deal with urgent in rem or other applications, or when, as has just happened with the appointment of Kiefel J to the High Court of Australia, a judge retires or is otherwise unavailable. 12.In each registry, a convening judge case manages all the admiralty matters filed in that registry until they are ready to be allocated to the docket judge. The registry convening judges in each registry comprise a standing committee which advises the Chief Justice on admiralty matters. 13.Where the proceedings are brought in one of the areas covered by a panel, such as the National Admiralty and Maritime Arrangement, the case is included in the docket of one of the panel judges. However, the convening judge of the Admiralty panel still manages those cases until they are ready for hearing or assignment to the docket judge. This ensures consistency of approach, and is more convenient for practitioners who will be able to attend one judge’s directions list and deal with a number of matters that would otherwise be in front of different judges, perhaps on different days or on the same day at the same time. The profession appears to appreciate the way in which this management tool has been used. 14.The Federal Magistrates Court has jurisdiction to hear in personam claims under the Admiralty Act and certain other statutes as well as in matters which are remitted by the Federal Court to it. The Federal Magistrates Court offers a particularly appropriate forum for small claims, with, again, specialist judges who are on that court’s Admiralty Panel. 15.Recently, in Sydney, the Court, in conjunction with the Federal Magistrates Court, has published a draft note regarding the conduct of cargo claims. The draft note seeks to ensure that the real issues in cargo claims litigation are revealed promptly. It requires the parties at an early stage to formulate and reveal to each other the real issues in dispute. 16.The central, but by no means exclusive, statute creating the Federal Court’s jurisdiction in admiralty matters is the Admiralty Act 1988 (Cth). I have attached, as Appendix 2, a brief summary of the types of proprietary and general maritime claims which may be brought under that Act. 17.One of the advantages of having specialist panels of judges such as the Court maintains is that it is possible to constitute a Full Court to sit in the original jurisdiction in order speedily to determine important commercial questions. Where a matter is of sufficient importance, the Chief Justice may direct that the original – ie: trial – jurisdiction of the Court be exercised by a Full Court. The practical effect of this is to have a specialist, three member court decide the trial of the matter with the authority of an appellate court. This assists in giving the parties commercial certainty more rapidly and authoritatively than the conventional mode of a single judge trying the matter and then an appeal being taken to a Full Court of three. The Chief Justice has utilised this power on a number of occasions. 18.A recent example occurred in Comandate Marine Corp v The Ship ‘Boomerang 1’. Comandate Marine brought proceedings inrem against the Boomerang 1 and obtained a writ for her arrest. Pan was the demise or bareboat charterer of the Boomerang 1 and had been the time charterer of another vessel, the Comandate, owned by Comandate Marine. Comandate Marine sought to recover over AUD4,000,000 damages for Pan’s alleged breach and repudiation of the time charter for the Comandate. The question referred to the Full Court was whether, in s 19(b) of the Admiralty Act, the word ‘owner’ included a demise or bareboat charterer, so as to support the exercise of the Court’s power to arrest the Boomerang 1. It was held as a matter of statutory construction that ‘owner’, as used in s 19(b), did not include the demise or bareboat charterer. 19.The Boomerang 1 had been arrested in the port of Fremantle, on the far western coast of Australia, in the early hours of a Saturday morning in June 2006. She was due to set sail the next day for Sydney, some 4,000 km away, as the crow flies. Later that day, Pan entered an appearance and, as defendant, urgently moved the Federal Court, sitting in Sydney, for relief, which included setting aside the arrest. Justice Allsop, the Court’s national Admiralty Convening Judge, heard the motion later on that Saturday night. He made an order permitting the Boomerang 1 to sail to Sydney. By the next Tuesday, a Full Court had been convened to hear the matter in Sydney. 20.The Court delivered detailed ex tempore reasons for dismissing the proceedings. The unsuccessful plaintiff then sought special leave to appeal and a stay from the High Court of Australia. The stay application was refused by Heydon J before the vessel reached Sydney. The special leave application was heard, and refused, in mid August 2006. The whole proceedings had moved from initiation to ultimate disposal by the High Court of Australia in the space of less than two months. This reflected the appreciation of the Federal Court and the High Court of the needs of the international mercantile and maritime community to have authoritative and reasoned decisions in appropriate cases given in a timely, and expeditious, way. 21.In recent years the Federal Court has given consideration to a number of important questions arising in the admiralty jurisdiction. I have attached as Appendix 3 a paper prepared by Justice Ryan entitled ‘A Review of Australian Developments in Admiralty Law from 2001’. It is a summary of some recent decisions in this area, principally of the Federal Court. The paper can be found,together with all other papers prepared by judges of the Court, on the Federal Court’s website, which is . Justice Ryan, a distinguished admiralty lawyer, is also a delegate to this conference. 22.Two other cases of present interest recently decided by the Full Court are Comandate Marine Corp v Pan Australia Shipping Pty Limited and CV Sheepvaartonderneming Ankergracht v Stemcor (A/sia) Pty Ltd. The former case dealt with the principal dispute between the parties to the previously mentioned proceedings involving the Boomerang 1. The Full Court gave an expansive interpretation to the term ‘agreement in writing’ as used in Art II r 2 of the New York Convention. It held that the proceedings should be referred to arbitration. 23.The Full Court also refused to follow the controversial decision of the House of Lords in the Indian Grace. It decided that an action in rem is and remains an action against the ship, while the owner or demise charterer may become a party to an action in personam once they enter an unconditional appearance in the in rem proceeding. 24.In the latter case of the Ankergracht the Full Court examined the concepts of seaworthiness, cargo worthiness and the carriers’ obligations under Arts III and IV of the Hague Visby Rules in relation to two cargoes of steel coils carried between Yokohama, Japan and Sydney, Australia. The majority overturned the trial judge’s findings that the carriers had failed to exercise due diligence to make the vessels seaworthy because each had sailed without being fitted with dehumidifiers. All members of the Full Court upheld the trial judge’s finding that the carriers were in breach of Art III r 2 by permitting cargo sweat to occur during the voyages. Alternative dispute resolution in the Federal Court of Australia 25.The Court may refer matters to mediation and arbitration under s 53A of the Federal Court of Australia 1976. Recently the Court has suggested to the parties in a small cargo claim that one possible solution would be for the docket judge to be appointed as an arbitrator. This would give an authoritative determination on the facts and, subject to the right of appeal in respect of any relevant question of law, on the law as well. The Court has not yet invoked this power, but it has obvious practical and commercial appeal. 26.One facility in which both the Federal Court and the Federal Magistrates Court offer is expert registrars who are trained mediators. Registrar Rainer Gilich, the Admiralty Registrar in the Western Australian District Registry of the Court, is an accredited mediator. He has mediated many in personam claims brought in the Court. Dr Damien Cremean is the Admiralty Registrar in the Victorian District Registry. He is the author of ‘Admiralty Jurisdiction, Law and Practice in Australia and New Zealand’ (2 nd ed) and is qualified as an arbitrator and mediator. He is also highly regarded as an associate professor of law at Deakin University and a part time member of the Victorian Civil and Administrative Tribunal. Judicial Education 27.The Federal Court engages in an extensive and disciplined program of judicial education in admiralty and maritime matters. Since the beginning of 2005 the Court has held two admiralty education days per year in which each of the 13 panel judges come together to deliver and hear papers, some given by external experts. The federal magistrates who are involved in admiralty work also attend these education days. Papers are then put on to the Court’s website so that they are available not only for the judges but for the profession and public as well. The Court also holds a number of individual sessions in which judges deliver papers. Links with the wider maritime community 28.The Federal Court has signed memoranda of understanding with the Australian Maritime Safety Authority and the Association of Australian Ports and Marine Authorities, two key industry bodies. In March 2007 the Court was the venue for the ceremonial signing of a memorandum of understanding between the Chinese Maritime Arbitration Commission and the Australian Centre for International Commercial Arbitration, the steering body for the new Sydney based Australian Maritime and Transport Arbitration Commission. The Court also provides venues for regular meetings with the Maritime Law Association of Australia and New Zealand and the National Maritime Interest Group, two bodies composed of legal and other professionals with a special interest in maritime law. 29.In addition, the Federal Court has developed relationships with the Supreme People’s Court of the People’s Republic of China and the Shanghai Maritime University. Recently, the Court was honoured by the visit of Judge Yang Honglei of the 4 th Civil Division of the Supreme People’s Court, who is an expert on the New York Convention. His visit was intended to provide him with a deeper procedural and substantive understanding of the Australian position on the enforcement and recognition of foreign arbitral awards and resolution of conflicts of laws. A number of our judges also visited the Supreme People’s Court in Beijing in June 2007. Last year, the President of the Shanghai Maritime University, Professor Yu Shicheng, and a senior professorial colleague at the University, visited the Court and presented papers. 30.The Federal Court also has a memorandum of understanding with the Supreme Court of Indonesia, which has led to a number of significant visits by judges of both courts to the other. The memorandum is part of the reform program of the Indonesian judiciary which the Supreme Court of Indonesia leads. In addition, the Federal Court has an active role in the Pacific Judicial Development Program which assists a number of nations in the region. Arbitration and Certainty 31.An emerging trend is the absence of detailed contemporary and authoritative guidance by national courts as to the proper construction of frequently used documents in international trade and commerce (such as the NYPE forms or Baltic forms of charter parties, the Hague, Hague-Visby or other similar rules). Because of the confidentiality of private arbitrations, and the frequency with which these are used, awards may be made which are not consistent with one another. This may be because different private arbitrators may and sometimes do take different views about the interpretation of standard form contracts or conventions or the appropriate quantification of damages. Awards are not publicly available or subject to scrutiny in the way court judgments are. 32.Court judgments can set the commercial scene in which arbitrations can later apply settled legal principles, as happened towards the end of the 19 th century. Court decisions can authoritatively resolve issues concerning the nature and scope of international conventions or frequently used contracts or forms of wording. 33.Moreover, sometimes arbitration can be complex and time consuming. It is not always certain that it will be quicker than contested litigation in providing a resolution. This is not to deprecate arbitration. It obviously plays a vital and indispensable role in international commerce. Rather, it is important to recognise that without guidance from the courts, arbitration can have its weaknesses and become, in individual cases, productive of unfortunate results. 34.Courts have an important role to play which is complimentary to arbitration. Courts systematise and explain the legal principles applicable in particular, as well as frequently occurring, situations faced by those involved in commerce. This gives guidance to the broader international commercial community concerning the incidents of their actual or proposed contractual relationships. Arbitrations cannot offer that perspective because they are conducted confidentially. And, no matter how eminent the arbitrator(s) may be, an award in one arbitration does not bind any other arbitrator or relationship between contracting parties. One possible weakness of universal resort to arbitration may be the loss of certainty. An old reproach of the jurisprudence in the English Court of Chancery before Lord Eldon LC’s systematisation of its principles was, as he once said ‘… the equity of the court varies like the Chancellor’s foot’. He emphasised that the doctrines of courts of law and equity should not change with every judge who hears a dispute. 35.Courts in each jurisdiction should strive for consistency in matters involving international trade disputes. This will lead to a predictable law merchant as a body of law and principles which will serve the needs of commerce. The Courts of the Asia Pacific region should seek to expand their familiarity with one another’s jurisprudence in international trade matters so as to develop such a regional law merchant. The Federal Court of Australia maintains links on its website to legislation of a number of major trading jurisdictions and, more importantly, to recent admiralty and maritime decisions of courts in Australia, New Zealand, Singapore, Hong Kong, the United States and the United Kingdom. The Asia-Pacific Region 36.In early September 2007 the Asia-Pacific Economic Co-operation forum was held in Sydney. The Hon Paul Keating, a former Prime Minister of Australia, observed that the summit brought together leaders representing 60% of the world’s gross domestic product. Among others, as he noted, the Presidents of the United States, China, Indonesia and Russia, the Prime Ministers of Japan and South Korea, as well as Australia, attended. This provided a timely reminder that no one nation has a monopoly on trade or the appropriate legal system in which disputes arising out of international trade should be determined. 37.When a dispute arises from a transaction or incident in international trade, it will rarely be the case that one legal system alone will be engaged. Often one party will commence proceedings in a jurisdiction or forum in which it seeks to obtain an advantage, including sometimes seeking to avoid the consequences of being a party to an arbitration agreement. Nations which have ratified the New York Convention will generally have legal systems that require the parties to arbitrate. But experience has shown that there will sometimes be difficulties, first, in enforcing obligations to arbitrate, and, secondly, in enforcing awards or judgments in different jurisdictions. Moreover difficulties will arise, as can only be expected with independent nation states, where legal systems and legislation differ. But international trade is generally more likely to be assisted by consistency in the principles and application of law wherever disputes are litigated or arbitrated. 38.The size of the intra-regional trade which now exists in Asia and the Pacific raises the question as to why parties would provide for London arbitration on a sale of goods, bill of lading or a charter party for transactions between traders in, or in voyages between, say, Australia and China. All the relevant witnesses, apart, perhaps, from the ship’s company, are likely to be within one or both of the countries concerned. Neither has a relationship to the old colonial power of England. The parties will want a legal system that is transparent, efficient and independent in which to resolve their dispute. They will also want the legal system of any country or countries which is invoked by a party or parties to the dispute to uphold the agreements that were made, including agreements to arbitrate. Moreover they will expect those legal systems to facilitate enforcement of any judgment or arbitration award wherever given or made. 39.The significance of the Asia-Pacific region’s trade can be seen from the following. In 1990, Asia commanded 20 per cent of the world’s merchandise exports. Today, it commands more than 27 per cent. In the same period, North America’s share of exports has declined from 16.6 per cent to 14.5, and Europe’s from 49.6 per cent to 43.0. Imports tell a similar story, with Asia’s share rising from 20.3 to 24.7 per cent between 1990 and 2005, while Europe’s has fallen from 50.3 to 41.2 per cent. Asia now has the world’s largest proportion of seaborne import trade in coal, iron ore, phosphate rock, and a number of other key natural resources. Much of the drive behind the stunning rise in Asia’s share of world trade derives, of course, from China, whose economy has consistently achieved an annual rate of growth of 10 per cent over the last five years, and whose current account balance has gone from USD 35.4 billion in 2002 to USD 238.5 billion last year. 40.The rise in the region’s trade share has led to a concomitant rise in its share of international shipping traffic. South Korea and Japan have long been the undisputed shipbuilding centres of the world. In recent years, they have been joined at the top of the shipbuilding table by China. The Institute of Shipping Economics and Logistics put it succinctly in its Shipping Statistics Yearbook 2005: ‘The market share analysis regarding the world [shipbuilding] order book shows that ships entering the world merchant fleet in the next years to come will largely be built in Asia. As of 1 October 2005, 78.3 per cent (cgt) of the total world order book was attributable to South Korea, Japan and China’. 41.Asia also dominates world port traffic. Shanghai and Singapore, as I am sure few people here need to be reminded, are the world’s two largest ports by total cargo traffic. Seven of the world’s ten largest ports are found in Asia. In 2004, around 64 per cent of the total world port container traffic was attributable to Asian ports. The 2005 and 2006 figures put that percentage even higher. This is because Asia also contains all but two of the world’s ten most dynamic ports – those, in other words, that are growing at the fastest rate. The volume of traffic in each of Shenzhen, Tianjin, Ningbo and Shanghai has grown by an average of around 20 per cent per year over the past five years. Rotterdam, by comparison, has grown by four per cent a year. 42.Australia’s part in all of this is by no means insignificant. Its natural resources have been used in feeding the wider regional economic boom. Five of the world’s 50 largest ports are in Australia. Port Hedland, in the country’s west, is the world’s 11 th fastest growing port, and while it may not be able to match the sonic growth rates of the booming Chinese ports, the fact that it has grown by an average of 11 per cent over the past five years says something about the depth of Australia’s entwinement with the Asian economic miracle. Overall, as things stand today, 12 per cent of world trade by volume either comes into or out of Australia by sea. Asia is home to four of Australia’s five largest trading partners, with Japan, China, South Korea and Singapore accounting for 40 per cent of total Australian trade with the world. 43.The statistics, then, are impressive. Asia is the epicentre of international economic growth. It is the heart of the world shipbuilding trade. And it contains the world’s largest, and fastest growing, ports. The region, in these circumstances, will benefit from a co-ordinated framework within which to deal with the growing numbers of trade and shipping disputes. 44.Recently Allsop J has suggested that the region should consider setting up an Asia Pacific Maritime Arbitration Commission. His idea is that in the resolution of disputes such an organisation could call on the maritime skills available in the whole region, from arbitrators, the judiciary, academia and the profession. This would be assisted by uniform rules as to the law of the arbitration, the rules of procedure, transnational principles of contract and contractual interpretation. 45.In addition, Allsop J suggested striving for the various states to have a uniform approach to judicial supervision, enforcement and assistance based on international conventions. He saw such a commission facilitating disputes being heard in the most convenient location, with widespread use of video link facilities. The parties could be given their choice of language(s) and the ability to select any arbitrator. Similarly, there would need to be generous rights of appearance for lawyers or other professionals from different nations in the seat of the arbitration. A clear regime concerning the law of the seat of the arbitration and inter-jurisdictional curial supervision should also be established. These are concepts worthy of further consideration and debate. 46.International arbitration is seen by the House of Lords as an important commercial interest of the European Community in itself. Lord Hoffmann gave the leading speech in West Tankers Inc v Ras Riunione Adriatica di Sicurta SPA (the ‘Front Comor’) where he said: ‘… it should be noted that the European Community is engaged not only with regulating commerce between Member States but also in competing with the rest of the world. If the Member States of the European Community are unable to offer a seat of arbitration capable of making orders restraining parties from acting in breach of the arbitration agreement, there is no shortage of other states which will. For example, New York, Bermuda and Singapore are also leading centres of arbitration and each of them exercises the jurisdiction which is challenged in this appeal. There seems to me to be no doctrinal necessity or practical advantage which requires the European Community to handicap itself by denying its courts the right to exercise the same jurisdiction.’ (emphasis added) 47.His Lordship may not have been unmindful that the effect of his ‘competitive approach’ to arbitral commercial regulation may have been particularly beneficial to the business of London arbitration. That business has only an accidental connection to the Asia Pacific region in the 21 st Century. It is distant from and unresponsive to the needs of a market in which 60% of the world’s trade by sea now moves. 48.It is a challenge for member States in our region, through not only their parliaments and governments, but their judiciaries, businesses and arbitrators, to seek to develop a convenient, respected and responsive dispute resolution regime and a law merchant. A judicially developed, regionally consistent, law merchant, with complimentary and interlocking legislative backing, would be likely to aid speedy and fair outcomes in international trading disputes in this part of the world. It is important to develop an appropriate approach for the resolution of international commercial disputes that will benefit the region as a whole. APPENDIX 1 DRAFT NOTE REGARDING THE CONDUCT OF CARGO CLAIMS Amendments as at 5 July 2007 The Courts (both the Federal Court and the Federal Magistrates Court) wish to ensure that practitioners approach the resolution of all cargo claims in a manner most conducive to their speedy and cost efficient resolution. It wishes to avoid disputes about the extent of pleading and the provision of information. To this end, the Courts are of the view that the profession and the parties would be assisted by a clear statement about the responsibilities in the exchange of information in their use of the Courts to resolve their maritime disputes. Practitioners are urged to examine, with care, the notices to practitioners issued on 21 December 2005 by Chief Justice Black and in April 2006 by the Federal Magistrates Court. After consultation amongst the Admiralty and maritime judges of the Courts and with the profession, the Courts have decided to require the production of, in addition to relevant pleadings, three particular documents which should stand as a model or a template for the provision of relevant information. These are: Plaintiff’s Relevant Particulars Defendant’s Relevant Particulars Agreed Statement for Court The three information documents are not a substitute for pleadings. Nor are they to be seen as standing in the way of efficient and co-operative exchange of information between parties. Hence, the following is to reduce the number of directions hearings and reduce the need for Court controlled case management conferences in which, experience has shown, the parties sometimes, lose focus on the relevant issue or issues. The timing of the production of the information documents will be, in part, a matter for the parties. The Courts do not wish to force any costly production of unnecessary documents if the parties can settle the matter at an early stage. If early settlement is, however, not possible, the parties should prepare the information documents, unless the parties are able to produce a document of the character of the “Agreed Statement for the Court” without the process of producing the first two documents. The Courts do not see the provision of the information documents as requiring investigation or steps which would not otherwise occur in the careful, but efficient, handling of a cargo claim. The information documents other than the Agreed Statement for the Court are not (unless specifically ordered) to be filed, but rather served on the other side to the litigation. It may be, however, that the Court will require to see such documents if the parties are not able co-operatively to reach an agreement as to relevant issues. Unless the matter can be settled early, or unless the parties can without difficulty agree upon the third document, the “Agreed Statement for Court”, the Courts expect the plaintiff to provide to any defendant who has appeared, at the earliest reasonable opportunity consistently with the above comments, a document entitled “Plaintiff’s Relevant Particulars”. It would include the following information set out in a factual way drafted to obtain agreement and identify any relevant dispute about the following subjects: The identification of the bill of lading or sea carriage document (both hereafter referred to as the SCD) or other transport document. The description of the voyage and the name of the ship. The goods carried. If the goods were containerised, whether the container was packed or stuffed by or on behalf of the shipper or other cargo interest or by or on behalf of the carrier. The party said to be the contractual carrier. The party, if known, said to be the actual carrier, if thought to be different from the contractual carrier. The description of the goods in the SCD or other transport document and whether any limitation of liability argument arises or may arise by reference to such provisions as Article 4 rule 5 of the Hague Rules (HR) or Hague-Visby Rules (H-VR) or Australian Amended Hague-Visby Rules (AAH-VR) or Hamburg Rules (Ham R) or other variant. The legal regime said to govern the carriage: which national law and through it, or otherwise, which convention or regime applies: HR, H-VR, Ham R or AAH-VR or other variant. The causes of action relied upon against each defendant. The facts said to give rise to the title to sue under the relevant Sea-Carriage Documents Act or otherwise. The nature of the damage and the breakdown of the claim. Note: If any of these matters is otherwise clearly identified in the pleading they need not be repeated otherwise than by an incorporation by reference. The defendant will provide to the plaintiff a document entitled “Defendant’s Relevant Particulars”. If the defendant disagrees with any of the matters set out in the Plaintiff’s Relevant Particulars such disagreement must be clearly stated and the basis for it explained. If the defendant’s position is no more than putting the plaintiff to proof (whether this is anticipated to change by anticipated or possible further instructions or information or not) that should be clearly stated. Otherwise the defendant is to state its agreement with the plaintiff’s document with precision. The following must also be included in the document: A clear statement as to whether the title or entitlement of the plaintiff to sue is put in issue, and if it is, the basis of that denial or assertion. If the defendant says that it is not the contractual party to the SCD, it should expressly state that and in so doing identify who it is asserted was the contractual carrier. If the defendant says that it was not the contractual carrier it must identify the circumstances that lead to such conclusion – including the terms of the SCD, the terms of any charterparty (identifying same) and any surrounding circumstance. The defendant must state any defence from any relevant convention or statute that is to be relied upon whether by limitation, time bar or other, such as Article 4 Rule 2 of the HR or H-VR or AAH-VR. At the end of the document the defendant is to set out a coherent and orderly summary of its position on liability and quantum. After the exchange of these documents and if it appears that the matter is likely to proceed to trial, the plaintiff and the defendant through their legal representatives are to consult and co-operate in the production of a document entitled “Agreed Statement for Court” which sets out: Relevant issues not in dispute, which can form the basis of an agreed statement of facts to be tendered at the trial. Relevant issues in dispute and the basis for any dispute. If the plaintiff or defendant is of the view that the position of the other is such that it will or may (identifying which) ask the Court to have resort to s 190(3) of the Evidence Act 1995 (Cth) to waive the rules of evidence in respect of issues not genuinely in dispute or in respect of issues where the application of the provisions referred to in s 190(1) of the Evidence Act would cause or involve unnecessary expense or delay, or that it will seek summary judgment or disposal under s 31A of the Federal Court of Australia Act 1976 (Cth) or that it will otherwise seek summary disposal, that should be stated. The general nature of the evidence to be led in the proceedings identifying lay and expert evidence and what issues are to be proved by such evidence. The need for video-link evidence and the diplomatic position in relation to any relevant country from which such evidence may be taken. The position of the parties as to referral of the dispute to mediation or arbitration before a Judge or Federal Magistrate or Court Registrar or a person of the parties’ choosing. To the extent that there are multiple defendants and cross-claims between those defendants the Court will expect those parties to exchange relevant documents modified mutatis mutandis by reference to the claims and positions of those parties. When the Agreed Statement for the Court is prepared it should be filed. The above regime will be referred to as the “Usual Order for Particulars” in any direction. It will be the responsibility of the parties to include the “usual order for particulars” in the first directions that are made unless the Court specifically varies the position. APPENDIX 2 Section 4 of the Admiralty Act 1988 (Cth) defines a proprietary maritime claim to include: a claim relating to possession of a ship; title to or ownership of a ship or a share in a ship; a mortgage of a ship or a share in a ship; or a mortgage of a ship's freight; a claim between co-owners of a ship relating to the possession, ownership, operation or earnings of the ship; a claim for the satisfaction or enforcement of a judgment given by a Court (including a court of a foreign country) against a ship or other property in a proceeding in rem in the nature of a proceeding in Admiralty; or a claim for interest in respect of a claim referred to in the previous three species of claim. A general maritime claim is defined by the same section to include: a claim for damage done by a ship (whether by collision or otherwise); a claim in respect of the liability of the owner of a ship arising under Part II or IV of the Protection of the Sea (Civil Liability) Act1981 (Cth) or under a law of a State or Territory that makes provision as mentioned in subsection 7(1) of that Act; a claim for loss of life, or for personal injury, sustained in consequence of a defect in a ship or in the apparel or equipment of a ship; a claim (including a claim for loss of life or personal injury) arising out of an act or omission of the owner or charterer of a ship; a person in possession or control of a ship; or a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable; a claim for loss of, or damage to, goods carried by a ship; a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charter party or otherwise; a claim relating to salvage (including life salvage and salvage of cargo or wreck found on land); a claim in respect of general average; a claim in respect of towage of a ship; a claim in respect of pilotage of a ship; a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance; a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched); a claim in respect of the alteration, repair or equipping of a ship; a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of a similar kind, in relation to a ship; a claim in respect of a levy in relation to a ship; a claim by a master, shipper, charterer or agent in respect of disbursements on account of a ship; a claim for an insurance premium, or for a mutual insurance call, in relation to a ship; a claim by a master, or a member of the crew, of a ship for wages; or an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including the operation of the law of a foreign country; a claim for the enforcement of, or a claim arising out of, an arbitral award (including a foreign award) made in respect of a proprietary maritime claim or a claim referred to in one of the preceding paragraphs; a claim for interest in respect of a claim referred to in one of the preceding paragraphs. APPENDIX 3 A REVIEW OF AUSTRALIAN DEVELOPMENTS IN ADMIRALTY LAW FROM 2001 Justice D M Ryan, Federal Court of Australia 22 March 2007 Most of the cases decided over the last five years in the exercise of Admiralty jurisdiction by Australian Courts have continued the process of interpretation and exposition of provisions of the Admiralty Act 1988 which commenced with the coming into force of that Act on 1 January 1989. Predictably, many of those cases have maintained the earlier focus on the effect of various sections of the Act which were framed to confer concurrent jurisdiction on the Federal Court and State and Territory Courts exercising civil jurisdiction subject, except for the Supreme Courts, to particular local limits. Conferral of in personam jurisdiction on the Federal Magistrates Court By Schedule 3 of the Jurisdiction of the Federal Magistrates Court Legislation Amendment Act2006 s 9(1) of the Admiralty Act has been amended to confer on the Federal Magistrates Court, as well as on the Federal Court and on the Courts of the States and Territories, federal jurisdiction in respect of proceedings commenced as actions inpersonam; (a) on a maritime claim; or (b) on a claim for damage done to a ship. However, s 9(2) and s 10 remain unchanged. Those provisions confine jurisdiction in respect of limitation proceedings and actions in rem to the Federal Court and the Supreme Courts of the States and Territories. Jurisdiction of the South Australian District Court under s 9(1) Interestingly, a Full Court of the Supreme Court of South Australia recently had occasion in D & N Investments Pty Ltd v Wagner [2005] SASC 51; (2005) 91 SASR 27 to consider the nature and extent of admiralty jurisdiction conferred on the District Court by the Admiralty Act and by s 8(1) of the District Court Act of that State, which provided; ‘(1) The Court has the same civil jurisdiction (both at law and in equity) as the Supreme Court at first instance subject, however to the following qualifications: (a) the Court has no jurisdiction in probate or admiralty;’ A claim had been instituted in the District Court for damages for breach of contract for the construction of a commercial fishing vessel. Besanko J, with whom Duggan J concurred, noted that s 8(1) provide for a general conferral on the District Court of the civil jurisdiction at first instance of the Supreme Court, subject to certain qualifications. In other words, the general conferral of jurisdiction did not extend to, amongst other things, the Supreme Court’s jurisdiction in admiralty as at the date of the enactment of the District Court Act. However, t his does not mean that the District Court does not have jurisdiction in admiralty if it is otherwise conferred by an Act of the Federal Parliament, or indeed by a State Act (see s 8(4) of the District Court Act); it simply means that it does not have jurisdiction in admiralty by reason of the general conferral of jurisdiction in s 8(1). His Honour continued, at 38 [46]; ‘I think that on the proper construction of s 8(1)(a) the jurisdiction in admiralty referred to therein is the Supreme Court’s jurisdiction in admiralty. That jurisdiction is not given to the District Court by reason of the provisions of s 8(1). Jurisdiction over actions in personam on a maritime claim is given to the District Court by s 9 of the Admiralty Act. This construction of s 8(1) of the DCA is also supported by the consideration that it is not apparent why the South Australian Parliament would deny to the District Court the Federal jurisdiction invested in it by s 9 of the Admiralty Act.’ His Honour then concluded, at 41 [59]; ‘The three courts in this State which have general civil jurisdiction at first instance are this Court, the District Court and the Magistrates Court. A monetary limit is a jurisdictional limit within s 39(2) of the Admiralty Act. I do not think a provision to the effect that a State court has no jurisdiction over a subject matter which is the subject of the investing of federal jurisdiction in that court is a jurisdictional limit within s 39(2) of the Admiralty Act. In other words, a jurisdictional limit within the terms of s 39(2) of the Admiralty Act does not include a provision which purports to prohibit the exercise of the federal jurisdiction invested in the State court by s 9 of the Act. Section 39(2) of the Admiralty Act is predicated on the basis that some federal jurisdiction is vested in the State court, albeit that limits on the jurisdiction of the State court are respected. The second possible construction involves a denial or repelling of federal jurisdiction and I do not think it is within the legislative competence of the South Australian Parliament to do that. It follows that this is an additional reason to adopt the construction of s 8(1) of the DCA which I think is the proper construction of the section (s 22A of the Acts Interpretation Act 1915).’ White J similarly concluded that s 8(1)(a) did not preclude the District Court from hearing and determining the plaintiffs’ claims because jurisdiction was vested in that Court by ss 9 and 39 of the Admiralty Act and was not affected by s 8(1)(a). Aspects of Jurisdiction (i) General maritime claims – The“Global Peace” The nature of general maritime claims as explained in s 4 of the Act has recently been further analysed by Allsop J in Elbe Shipping SA v The Ship “Global Peace” [2006] FCA 954; (2006) 154 FCR 439. While “Global Peace” was being towed to a berth by a tug “Tom Tough”, the tug made contact with the hull of the “Global Peace” causing damage to the hull or side plating as a result of which approximately 25 tonnes of oil escaped into the waters of the Port of Gladstone. Two other vessels, the Medi Vitoria and the Nord Stream which were at berth in the Port were contaminated by the oil. An action in rem against the “Global Peace” was commenced by the owners of each of the “Medi Vitoria” and the “Nord Stream”, and the defendant moved for each action to be dismissed on the ground, principally, that it was not open to the plaintiffs to invoke Part III of the Act which confers jurisdiction in respect of actions in rem. After an extensive review of the authorities, Allsop J held that the plaintiff’s claims were general maritime claims of the character described in: s 4(3)(a) (a claim for damage done by a ship (whether by collision or otherwise)); s 4(3(b) (a claim in respect of the liability of a shipowner under Part II or IV of the Protection of theSea (Civil Liability) Act 1981 or a corresponding law of a State or Territory; s 4(3)(d) (a claim arising out of an act or omission in the navigation or management of the ship); s 4(3)(j) a claim in respect of towage of a ship; and s 4(3)(k) a claim in respect of pilotage of a ship. His Honour also held that the subject proceedings were on a “maritime lien” within the meaning of s 15 of the Act which, by subs (2) includes a lien for damage done by a ship. (ii) “Ship or other property” – whether action can be brought against bunkers. (a)The “Genco Leader” In Metall und Rohstoff Shipping v The Owners of Bunkers on board the Ship MV “Genco Leader” [2005] FCAFC 162; (2005) 145 FCR 145, a Full Court of the Federal Court considered a motion to set aside an arrest by a Marshal of the Court of bunkers on board the “Genco Leader”. That consideration involved the interpretation of s 17 of the Admiralty Act, which provides: ‘Where, in relation to a general maritime claim concerning a ship or other property, a relevant person: (a) was, when the cause of action arose, the owner or charterer of, or in possession or control of, the ship or property; and (b) is, when the proceeding is commenced, the owner of the ship or property; a proceeding on the claim may be commenced as an action in rem against the ship or property.’ It was conceded on both sides that there was at issue a general maritime claim being a charterparty dispute subject to London arbitration between the plaintiff as time charterer of another vessel the “Tolmi” and Maywall which was the time charterer of the “Genco Leader” and the owner of the bunkers on that vessel. The Full Court rejected a construction of s 17 which would have allowed the arrest of any “maritime property” even if unconnected with the general maritime claim the subject of the action provided that, when the cause of action arose, the defendant was the owner or charterer of, or in possession or control of that other property. Allsop J, with whom Lee and Tamberlin JJ agreed, concluded, at 147-148 [16]; ‘To construe s 17 in this way, would, in my view, lead to a width of s 17 which would in effect permit a form of maritime or Admiralty attachment of property of a debtor, limited only by the kind of considerations covered by s 13. In my view, the argument should be rejected for a number of reasons. First, in my view, the plain (and elegant, if I may say so) drafting of s 17 does not admit of any importance in the absence of the definite article before the word "property" in para (a) or para (b). As I said, the Act is simply drafted. That is not a gratuitous comment. It is important to understand the intended simplicity of the provision. Section 17(a) can and should be read as meaning: "the owner or [the] charterer of, or in possession or control of, the ship or [the] property." That is not to read words into, or put a gloss on, the section. It is to understand what I think is the plain and literal meaning of the words. The draftsperson has simply been economical and, if I may say so again, elegant, in the way the phrases were expressed. To place emphasis on the absence of the definite article before the word "property" is to import the word "any" before it.’ His Honour left open the question of whether “property” in s 17 was capable of including “bunkers”, observing, at 148 [20]; ‘It is unnecessary to decide whether "property" includes bunkers. For my part, I see no reason to limit the word "property" to particular types of property that would exclude bunkers. The relevant limitation is, as I have said, found in the words "general maritime claim concerning" in the first part of s 17. (See generally ALRC Report [107]-[110].) (b)The FV “Taruman” That subsidiary question was more recently considered by another Full Court of the Federal Court in Scandinavian Bunkering AS v The Bunkers on board the Ship FV “Taruman” [2006] FCAFC 75; (2006) 151 FCR 126. In that case, officers of the Australian Fisheries Management Authority (AFMA) had served a notice of seizure upon FVTaruman when it arrived in Hobart on 12 September 2005. On 15 September 2005 the plaintiff commenced in rem proceedings against the bunkers on board the “Taruman”. A warrant of arrest was issued and executed upon the bunkers, which comprised approximately 220,000 litres of fuel. The questions formulated for determination by the Full Court were whether AFMA or the Commonwealth had any right, title or interest in and to the bunkers and if so, whether that right title or interest prevailed over the interest in the bunkers claimed by the plaintiff. The Full Court held that the word “boat” in s 106A of the Fisheries Management Act 1991 (Cth) (“the FMA”) included the bunkers on board a boat so that a forfeiture under the FMA prevailed over any purported arrest under the Admiralty Act. It was also held that “ship” as defined in s 3(1) of the Admiralty Act includes the bunkers on board a ship and that bunkers were not capable of comprising “property” within the meaning of s 17 separate from the ship. The question left open by Allsop J in the Genco Leader was adverted to by Kiefel J at 149 [92] where her Honour observed; ‘The ratio of The Genco Leader concerns the connexion between the property and the general maritime claim referred to in s 17. The reference in [20] of that decision, as to whether bunkers might come within the description of "property" in s 17, does not form part of its ratio. I understand his Honour to have left that question open and to allow for the possibility that this might be so in a particular case. His Honour's comments are consistent with no narrow approach being taken to words of wide meaning. There is nothing in his Honour's reasons which suggests that the questions in this case concerning bunkers were raised in argument before that Court.’ To similar effect Ryan J pointed out, at 133 [20]; ‘The Full Court in that case does not appear to have had the benefit, which we have received, of detailed analysis of the line of authority to which The Silia is central. Nor, apparently, was attention given to the practical implications of treating bunkers as "property", separate and distinct from the ship. In my view, almost as a matter of definition, fuel, once taken on board as bunkers, is an integral part of the ship. To admit of the possibility of its separate arrest as "property" would compel its disgorgement from the ship, upon or before arrest, or the provision by the owners of security in respect of an item of property in which ex hypothesi they have no interest. Accordingly, I consider that the meaning of "property" in s 17 which I favour is consistent with the approach to interpretation of the Admiralty Act outlined by a Full Court of this Court in Tisand Pty Ltd v Owners of Ship MV Cape Moreton (Ex Freya) [2005] FCAFC 68; (2005) 143 FCR 43 at [59]- [65].’ (iii) Ownership when proceedings commenced (a) The “ Cape Morton” The last-mentioned case also involved adjudication on a special case referred to a Full Court of the Federal Court. To the great regret of the Court and the wider maritime legal community Cooper J, who was a member of that Full Court and whose contribution to the development of maritime jurisprudence in this country has been immense, died before judgment could be given. The parties consented to judgment being pronounced by the two remaining members of the Full Court. The plaintiffs in the Cape Morton commenced proceedings in rem against the “Cape Morton” in support of a claim relating to damage to a cargo of zircon sand carried on board the “Cape Morton” from South Africa to China. The carrier was alleged to have been Freya Navigation Shipholding Ltd (“Freya”) which, at the time when the cause of action arose and when the proceedings were commenced, was registered as the owner of the vessel on the Liberian register of ships. However, it was agreed between the parties that, after the cause of action had arisen but before commencement of proceedings, Freya had sold and delivered the “ Cape Morton” to Alico Marine Ltd. The principal issue before the Full Court was whether the expression “the owner” in s 17(b) of the Act incudes a registered owner of a vessel in the position of Freya, or whether Alico had become the owner in that sense. If Freya was the owner, within the meaning of the section, then arrest of the ship could be upheld, as damage to the cargo had occurred while the ship was in the possession of Freya and before the sale of the ship to Alico. The Full Court upheld the application to set aside the arrest, holding that Freya, after the sale and delivery to Alico, was no longer the owner within the meaning of s 17. Their Honours concluded that “owner” within ss 17, 18 and 19 of the Act is not necessarily synonymous with a person whose name is entered on any international register of ships, applying Kent v SS “Maria Luisa” (No 2) (2003) 130 FCR 12. It was also considered that the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships 1952 (“the Arrest Convention”) confers a right of arrest only if the offending ship is still owned by the person said to be liable on the claim when the cause of action arose. The Full Court concluded that whether a person is the “owner” for the purposes of ss 17, 18 and 19 is not necessarily answered by reference to an international shipping register. The true enquiry is whether the relevant person is, when the proceedings are commenced, the owner in a proprietary sense. Parallels between those sections and corresponding legislation in the United Kingdom, Canada, Hong Kong, Singapore and New Zealand were said to support that conclusion; see eg, s 21 of the Supreme Court Act ( UK). By this process of reasoning, the Full Court imputed to the ALRC, which had formulated the principles enacted in the Admiralty Act, an intention that a ship or other property should only be amenable to arrest if it were the property of the presumptively liable relevant person or be under demise charter to that person when the proceedings were commenced. (iv) Surrogate ship arrest (a)The “ Island Sun” This concept was examined by Lee J in Safezone Pty Ltd v The Ship “Island Sun” [2004] FCA 1797; (2004) 215 ALR 690 where the plaintiff had applied for the arrest of the “ Island Sun” as a surrogate for the MV “World Adventurer”. The cause of action invoked by the plaintiff was breach of a charterparty in respect of the “World Adventurer”. The “relevant person” within the meaning of s 3 of the Act was identified as Mauritius Island Cruise Ltd (“MIC”) which was the owner of the “World Adventurer”. However, Lloyd’s Register of Ships for 2004 disclosed that the registered owner of the “ Island Sun” was Sun Shipholding Ltd, which was said to be a wholly-owned subsidiary of MIC. His Honour set aside the arrest on the ground that MIC was not the “beneficial”, “real” or “true” owner of the “ Island Sun”. He applied the reasoning of the majority in the Maria Luisa (2003) 130 FCR 12 and concluded, at 695 [30]; ‘Accordingly, the circumstances relied on by the plaintiff are not sufficient to give rise to an inference that MIC is the beneficial owner of the vessel for the purposes of s 19(b) of the Act. Even if it is assumed that there is single management for the corporate chain that constitutes MIC and Sun Shipholding Ltd the fact that Sun Shipholding Ltd is a wholly owned subsidiary of MIC does not assist the plaintiff. It may be taken that Maria Luisa (in particular at [47]) has established that the concept of beneficial ownership in relation to proceedings against a surrogate vessel is to be construed narrowly and does not extend to wholly-owned subsidiary “one ship” companies. On the evidence so far adduced the plaintiff has not demonstrated entitlement to effect an arrest of the vessel under s 19(b) of the Act.’ (b) The “Maria Luisa” In the Maria Luisa Beaumont J, at first instance, had set aside the arrest of the “Maria Luisa” which had been arrested as the surrogate of the “Monika” and the “ Boston Bay.” [see Kent v Maria Luisa (No 1) [2002] FCA 1207; (2002) 130 FCR 1]. The plaintiff had been employed as a diver and deck hand on boats, including the “Monika” and the “Boston Bay” owned by trustees of unit trusts of which the sole beneficiary was Australian Fishing Enterprises Pty Ltd (“AFE”). AFE was the charterer of each of the wrongdoing vessels the “Monika” and the “ Boston Bay” at the time when the cause of action arose. At the time when the proceedings commenced, the registered owner of the “Maria Luisa” was Everdene Pty Ltd which was a wholly owned subsidiary of AFE and the trustee of a unit trust over assets including the “Maria Luisa”. All the units in the “Maria Luisa” unit trust were owned by AFE. The majority of the Full Court (Tamberlin and Hely JJ) declined to hold that AFE was “the owner” of the “Maria Luisa” within the meaning of s 19 of the Act although they acknowledged on the authority of “The Iron Shortland” (1995) 59 FCR 535 that “owner” in that context extended to “beneficial owner”. Beneficial ownership, in their Honours view, involved something greater than a beneficial or equitable interest such as that held by a unit holder in the assets of a unit trust. AFE had the ability to collapse the trust and compel the transfer of the subject property, including the “Maria Luisa” to itself. However, at the relevant time it had not done so. (c) The “Boomerang I” Section 19 of the Act also arose for consideration by a Full Court of the Federal Court in Comandate Marine Corporation v The Ship “Boomerang I” (2006) 151 FCR 403. In that case, Pan Australia Shipping Pty Ltd (“Pan”) was the demise or bareboat charterer of “Boomerang I” and the time charterer of another vessel, “Comandate” owned by the plaintiff, Comandate Marine Corporation. A dispute arose between the plaintiff and Pan over performance of their mutual obligations under the time charter. In support of that asserted liability of Pan, the plaintiff sought to arrest “Boomerang I” as a surrogate of “Comandate”. Allsop J identified the sole question for resolution as being whether “the owner” or “owner” in s 19(b) of the Act encompassed a demise or bareboat charterer. It was held that neither expression did. His Honour considered that ss 17, 18 and 19, and in particular s 19 of the Act, distinguished between the owner, charterer and the person in possession or control of the ship. The phrase “the owner” against the total background and context provided by the ALRC Report and the body of jurisprudence behind it, together with the Arrest Convention, was clearly not intended to extend to a demise charterer. To similar effect, Emmett J noted that the use of the word “owner” in paras (b) of ss 17 and 19 of the Act in contradistinction to the use of demise charterer in s 18(b), indicates an intention on the part of the drafter of the provisions to distinguish between the owner, on the one hand, and a charterer, whether a demise charterer or otherwise, on the other. Again, as a matter of language of the provisions the word “owner”, when used in s 17, must be capable of referring not only to the owner of a ship but to the owner of other property; ‘One would not ordinarily refer to a hirer of chattels, other than a ship, as the owner. What is relevant, of course, are the words of the Act and not what was stated by the drafter or the legislators as their intention. While such statements may be relevant in the case of ambiguity they cannot change the meaning of the statute. However, if there were any ambiguity, and I am not disposed to consider that there is any, it is clear that ambiguity would be unequivocally resolved in favour of the defendant’s constructions. (at 405 [6]). Exclusive jurisdiction clause in a charterparty The “Alkimos” Another issue of jurisdiction, arising not from the terms of the Act, but from the contractual arrangements embodied by the parties in a charterparty confronted Allsop J in Incitec Ltd v Alkimos Shipping Corporation [2004] FCA 698; (2004) 138 FCR 496. Upon arrival of the Alkimos at Newcastle in about March 2002, the Australian Quarantine and Inspection Service (AQIS) found residues of barley in a number of holds and it refused to permit discharge of part of the fertiliser. In March 2003, Incitec Ltd and another cargo interest affected by the refusal commenced proceedings against the vessel’s owner, Alkimos Shipping Corporation (“ASC”), and the time charterer, Hyundai Merchant Marine Co Ltd (“Hyundai”). The time charter between Alkimos and Hyundai contained cl 17, which required dispute resolution to be conducted in London in accordance with the Arbitration Act 1996 UK, as per the Baltic and International Maritime Council. After proceedings had been commenced against them in the Federal Court, Alkimos and Hyundai agreed to substitute for arbitration an identified litigation process, in the High Court of Justice in London applying English law and procedure. Alkimos subsequently sought, by notice of motion, to file and serve cross-claims against Hyundai in both Federal Court proceedings. Hyundai, by oral motion, claimed that should such leave be granted, the cross claims should be stayed by virtue of the exclusive jurisdiction clause. The Court considered two issues; whether the cross-claims made by Alkimos arose out of, or were in connection with, the time charter and thereby fell within the terms of the exclusive jurisdiction clause; and secondly, if so, whether the cross claims should be stayed. His Honour held, first, that the cross-claims fell within the dispute resolution clause agreed between Alkimos and Hyundai because, in his Honour’s view, the words “any dispute arising out of or in connection with this Contract” should be given a wide or generous construction. His Honour then proceeded to consider whether the cross-claims against Hyundai should be stayed. He noted that, the discretion not to grant a stay in the face of an exclusive jurisdiction clause requires substantial grounds for its exercise. It is not a matter of mere convenience or of forum non conveniens. The question is one of the exercise of a discretion in all the circumstances, but recognising that the starting point is the fact that the parties have agreed to litigate elsewhere, and should, absent strong countervailing circumstances, be held to their bargain. However, important considerations weighing against the operation of the exclusive jurisdiction clause include whether inconvenience, financial or otherwise, will be caused to third parties, the effect upon the due administration of justice and other appropriate public policy considerations. Of particular significance to his Honour was the risk of inconsistent curial findings of equivalent superior courts and the risk of inconvenience to third parties not party to the exclusive jurisdiction clause. They were said to militate strongly against preventing ASC from litigating its cross-claims in the Federal Court. Implicit within the chosen replacement for arbitration, the High Court of Justice, was the potential for inconsistent curial findings of equivalent superior courts and the risk of inconvenience to third parties by the use of compulsory curial process, not available in arbitral proceedings. In applying what he acknowledged was a fine balance, his Honour came down against promoting competing and potentially conflicting litigation in circumstances where one forum can conveniently and promptly deal with the whole controversy. Cargo claims A recent judgment by Emmett J canvassed issues of international importance in relation to the carriage of goods by sea. In CV Sheepvaartonderneming Angerkracht v Stemcor (A’sia) Pty Limited [2005] FCA 1808 his Honour was required to attribute liability for damage caused by corrosion to coils of steel sheet in the course of voyages from Japan to Australia. The questions for adjudication were whether the damage had occurred because the coils were inadequately packed or had resulted from the carriers’ lack of due diligence in making the vessels seaworthy and to stow, carry and keep the coils properly during the voyage. Those questions, in turn, raised the application of the amended Hague Rules as defined in s 7 of the Carriage of Goods by Sea Act 1991 (Cth). At first instance, his Honour held the carriers liable because he characterised each vessel as unseaworthy because it had not been fitted with dehumidifiers. Alternatively, he considered that if the ventilators, which were present on each vessel had been operated so as to permit the ingress of water that was a failure to carry, keep and care for the coils properly and carefully. By contrast, the carriers had contended that the loss had resulted from “insufficiency of packing” within the exception erected by Act 4(2)(a) of the Amended Hague Rules. The carriers have appealed from his Honour’s orders and a Full Court of the Federal Court has reserved its judgment on that appeal. The author acknowledges the assistance received from his associate, Aaron Timms, in the preparation of this paper Sections 51(i) and 76(3) of the Constitution of the Commonwealth The Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958; see International Arbitration Act 1974 (Cth); Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 172 See Pan Australia Shipping Pty Ltd v The Ship ‘Comandante’(No 2) [2006] FCA 1112 (2006) 234 ALR 483 at 498-499 [65]- [66] per Rares J from which pars 7 and 8 above are taken; reversed on other grounds: Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192 (2006) 157 FCR 45 see at 94-95 [192] per Allsop J with whom Finn and Finkelstein JJ agreed on this part See e.g.: Vimar Seguros y Reaseguros SA v M/V Sky Reefer [1995] USSC 75; 515 US 528 at 538 (1995); Mitsubishi Motors Corp v Soler Chrysler-Plymouth Inc [1985] USSC 203; 473 US 614, 638 (1985); Scherk v Alberto-Culver Co [1974] USSC 173; 417 US 506, 516 (1974); Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 at 343 per Brennan and Dawson JJ, 354 per Toohey J agreeing (cf: Nanisivik Mines Ltd v F.C.R.S. Shipping Ltd (1994) 113 DLR (4th) 536 at 541-542 (Federal Court of Appeal) The Court also has the following other panels: Corporations, Human Rights, Industrial, Patents, Copyright, Trade Mark and Design, Taxation and Competition. The Court operates on a docket system. This means that each matter which is filed in the registry is allocated to a particular judge. See the draft note amended as at 5 July 2007. A copy is attached as Appendix 1. Section 20(1A) of the Federal Court of Australia Act 1976 (Cth) (2006) 151 FCR 403 USD3.3,000,000 Section 19 of the Admiralty Act provides: ‘19: A proceeding on a general maritime claim concerning a ship may be commenced as an action in rem against some other ship if: (a) a relevant person in relation to the claim was, when the cause of action arose, the owner or charterer of, or in possession or control of, the first-mentioned ship; and (b) that person is, when the proceeding is commenced, the owner of the second-mentioned ship.’ With a video link to one of the judges in Perth see: 151 FCR 403; [2006] HCA Trans 353 (Heydon J); [2006] HCA Trans 421 respectively Go to the ‘Information for Litigants’ link on the left of the home page and click on ‘Admiralty’, then click on ‘Papers’. The direct link is: [2006] FCAFC 192; (2006) 157 FCR 45 [2007] FCAFC 77 Republic of India v India Steamship Co (No 2) [1997] UKHL 40; [1998] AC 878 157 FCR at 81 [128] per Allsop J with whom Finkelstein J agreed at 52[9]. Finn J did not consider it necessary to decide the point: see 51 [3] [2007] FCAFC 77 Ryan and Dowsett JJ Gee v Pritchard [1818] EngR 605; (1818) 2 Swans 402 at 414; [1818] EngR 605; 36 ER 670 at 674 The Hon Paul Keating quoted in the Sydney Morning Herald 1-2 September 2007 p 1 ‘Asia-Pacific Economic Co-operative Summit’ WTO, International Trade Statistics 2006, p 35. Available at Ibid Ibid, p 36 Institute of Shipping, Economics and Logistics, Shipping Statistics Yearbook 2006 ( Bremen: ISL, 2006), pp 107, 109, 114 Australian Department of Foreign Affairs and Trade, China: Fact Sheet 2006. Available at Institute of Shipping, Economics and Logistics, Shipping Statistics Yearbook 2005 ( Bremen: ISL, 2005), p XIII ISL, Shipping Statistics Yearbook 2006, p 327 ISL, Shipping Statistics Yearbook 2005, p XVI ISL, Shipping Statistics Yearbook 2006, p 327 Ibid Australian Department of Foreign Affairs and Trade, Composition of Trade Australia 2006, pp 11-12. Available at (2006) F S Dethridge Memorial Address, ‘International Commercial Law, Maritime Law and Dispute Resolution: The Place of Australia, New Zealand and the Asia Pacific Region in the Coming Years’, pp 28 ff. [2007] 1 Lloyd’s Rep 391 at 395 [25]