mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Comandate Marine Corporation v The Ship "Boomerang I" [2006] FCAFC 106 ; (2006) 151 FCR 403
Outcome: applied
course, there is an incongruity in this approach because it ignores the rights of a secured creditor (other than a holder of a maritime lien recognised in s 15) such as a mortgagee and instead prefers those of a co-owner. Thus, if a vessel is co-owned it would not be able to be arrested under s 19 if one co-owner were not a relevant person under s 19(a), but a mortgagee cannot escape the amenability of the vessel to arrest. But this is the consequence of the legislative choice of selecting, as the criterion for actuating the right defined in s 19(b), the "owner", and not extending this to secured creditors or demise charterers: cf Comandate Marine Corporation v The Ship "Boomerang I" [2006] FCAFC 106 ; (2006) 151 FCR 403. As Allsop J observed, the wide group of categories identified in s 19(a) is then "limited to the more narrow funnel in para (b) ...": " Boomerang I " 151 FCR at 411 [35]. Notions of ownership "are not amenable to crisp, comprehensive definition in the abstract": Tisand Pty Ltd v The Owners of the Ship MV Cape Moreton (Ex Freya) [2005] FCAFC 68 ; (2005) 143 FCR 43 at 73 [119] per Ryan and Allsop JJ; see too " Boomerang I " 151 FCR at 411 [33] per Allsop J. Ryan and Allsop JJ said that in the context of ss 17, 18 and 19 of the Act the words "ownership" or "owner" connote the right to have and dispose of dominion, possession and enjoyment of the ship, subject to intervening interests. The word "owner" is used in those sections in a proprietary sense. This reflects the purpose of the Act to require any property arrested to belong to the relevant person.
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466
Outcome: applied
carries the ultimate burden of proof that the jurisdictional facts exist on which the arrest can be justified. It must establish those facts on the balance of probabilities taking into account all relevant matters: s 140 of the Evidence Act 1995 (Cth); see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 479-482 [29] - [38] , 488-489 [70]-[73] per Weinberg, Bennett JJ and myself. And, as Lord Mansfield CJ said long ago in Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 65: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." See too: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ; at 233 per Brennan and Toohey JJ.
Case: Eximenco Handels AG v Partredereit Oro Chief and Levantes Maritime Corporation (The "Oro Chief") [1983] 2 Lloyd's Rep 509
Outcome: cited
agreement to purchase a ship, especially of the size and characteristics of the " Gem of Safaga ", is within the class of contracts for which equity would order specific performance: see Meagher, Gummow &amp; Lehane's, Equity: Doctrines &amp; Remedies (4 th ed 2002) at 659 [20-040]; Eximenco Handels AG v Partredereit Oro Chief and Levantes Maritime Corporation (The "Oro Chief") [1983] 2 Lloyd's Rep 509 at 520-521 per Staughton J; Allseas International Management v Panroy Bulk Transport SA (The "Star Gazer" and the "Star Delta") [1985] 1 Lloyd's Rep 370 at 378 per Neill J, and ss 30 , 56 of the Sale of Goods Act 1923 (NSW).
Case: Furs Ltd v Tomkies [1936] HCA 3 ; (1936) 54 CLR 583
Outcome: discussed
hazards of a managing director engaging in a transaction involving the property of the company, even when told by the board of directors to do the best he or she can for himself or herself in dealings with a third party, were exposed in Furs Ltd v Tomkies [1936] HCA 3 ; (1936) 54 CLR 583 at 592-594 per Rich, Dixon and Evatt JJ. Ordinarily, before a director can obtain a profit or benefit for himself or herself from a transaction in which he or she is concerned on behalf of the company, he or she must fully disclose all the material facts to the shareholders and receive approval by a resolution of a general meeting or all of the shareholders acquiesce: Furs 54 CLR at 592; see too Ch 2 D of the Corporations Act 2001 . There is no evidence of Indian law on these matters. Four M was described in the term sheets as a family or holding company of Mr Qadir and an associate of West Asia. In contrast, West Asia's board minutes state that Mr Qadir only disclosed an interest as director of Four M in its participation in the acquisition of the " Gem of Safaga ". The same board minutes authorised the completion of the purchase for USD13.6 million, entry into the co-ownership agreement and the acceptance by West Asia of the USD14 million facility offered by ICICI bank jointly and severally to it and Four M. The evidence of Four M's role is thus sparse and mysterious. West Asia could have explained that role and the reason why Four M was nominated to become a purchaser as part of its evidence. Its board minutes do not reveal any commercial or financial consideration given or paid by Four M to become a purchaser. Mr Joshi said that he was orally instructed by the executive director to whom he reported that he sign addendum No 1 on behalf of West Asia to add Four M as a purchaser. But, he did so on the terms stated, namely that West Asia would remain fully responsible. Mr Joshi said that at the time he was given the instructions to sign addendum No 1, the executive director told him "10 per cent of the share will be given to Four M". The executive director did not explain why Four M was being given that interest.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: applied
the present circumstances, I am satisfied that it is proper to draw any inference favourable to Euroceania for which there is ground in relation to Four M's role. West Asia was able to put a fuller and truer complexion on the facts, but only tendered some documents and led evidence from Mr Joshi. He said that he was not aware of what had occurred in relation to Four M beyond what he had been instructed. West Asia contended that the one share in the ship held in the name of Four M showed that it was not "the owner" of the " Gem of Safaga " for the purposes of challenging jurisdiction under s 19(b) of the Act. Although Euroceania had the onus of proof on this issue, the unexplained failures of West Asia to call evidence on the matters to which I have referred has enabled me to infer that such evidence would not help its case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 ; CEPU 162 FCR at 489 [72]. West Asia contended that the consequence of Euroceania's argument was that the co-ownership agreement, accounting entries reflecting it and registration of Four M's one share in the ship amounted to a sham. I reject that contention. There is a real difference between creating documents to cloak the reality of a different relationship and a failure to perfect or create the relationship which those documents were capable of representing. Here, I am not satisfied that on all the evidence, West Asia effectively assigned or disposed of any part of its beneficial interest in the ship that it had acquired on entry into the 2 February 2007 memorandum of agreement. Hence, Four M holds its' share in the vessel on a resulting trust.
Case: Kent v SS "Maria Luisa" (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12
Outcome: cited
it is not necessary or conclusive that a person be registered as owner or hold the legal title to a ship for him or her to be found to be "the owner" within the meaning of ss 17, 18 or 19 of the Act: Cape Moreton 143 FCR at 65 [92], 73 [118], 84 [161]-[162]. And, a person who is the beneficial owner of the arrested res , ordinarily, will have the immediate right to exercise dominion over and to enjoy or control that res : Cape Moreton 143 FCR at 85 [168]; Kent v SS "Maria Luisa" (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12 at 33-34 [61] - [66] per Tamberlin and Hely JJ; Malaysia Shipyard and Engineering Sdn Bhd v "Iron Shortland" as the Surrogate for the Ship "Newcastle Pride" (1995) 59 FCR 535 at 547D-F per Sheppard J; see too at 547F-548A. Neither party disputed the correctness of the principles relating to the meaning of "the owner" in ss 17, 18 and 19 stated in Iron Shortland 57 FCR 535 ; Cape Moreton [2005] FCAFC 68 ; 143 FCR 43 and Maria Luisa [2003] FCAFC 93 ; 130 FCR 12.
Case: Luke v Lyde [1759] EngR 18 ; (1759) 2 Burr 882
Outcome: discussed
the considerations for each party's construction of "the owner" in s 19(b) are finely balanced. I am more inclined, as presently advised, to that put by West Asia. This is because the statutory right to proceed in rem should be construed, where possible, harmoniously with concepts of the maritime law forming part of the general law of nations, as Lord Mansfield CJ characterised it in Luke v Lyde [1759] EngR 18 ; (1759) 2 Burr 882 at 887. In The Tolten [1946] P 146 at 155 Scott LJ reflected this approach when he said that British maritime law derived originally, and continued to get inspiration, from the general law of the sea prevailing amongst maritime nations. This reasoning lay behind the observations of the Australian Law Reform Commission (ALRC 33 at [206]) that major maritime jurisdictions and the 1952 Arrest Convention have extended the right to proceed in rem only to sister ships strictly related to those in the sole ownership (even if there is more than one co-owner) of the relevant person or persons that had the requisite connection (in Australia defined in s 19(a)) with the offending ship. The critical factual issue posed in relation to s 19(b) is whether Euroceania has proved that West Asia is the owner of the " Gem of Safaga ". Euroceania advanced a number of arguments which, when considered with West Asia's responses, were of varying levels of complexity. First, Euroceania relied on descriptions of West Asia as sole owner of the ship in a number of public documents. West Asia sometimes appeared as owner of nine shares, and other times appeared as sole owner of the ship in various registers maintained by the Republic of India, ship classification societies and Lloyd's. However, as the variety of these entries suggests, those documents leave the issue equivocal. I am not satisfied that the entries recording West Asia as sole owner were made or continued unchanged because it had caused those recordings to be made or remain. For example, the ship classification society, the Indian Register of Shipping, has recorded West Asia as sole owner despite its surveyor at Port Suez issuing the provisional certificate of Indian Registry on behalf of the Republic of India that recorded Four M as having one of the ten shares.
Case: Malaysia Shipyard and Engineering Sdn Bhd v "Iron Shortland" as the Surrogate for the Ship "Newcastle Pride" (1995) 59 FCR 535
Outcome: applied
it is not necessary or conclusive that a person be registered as owner or hold the legal title to a ship for him or her to be found to be "the owner" within the meaning of ss 17, 18 or 19 of the Act: Cape Moreton 143 FCR at 65 [92], 73 [118], 84 [161]-[162]. And, a person who is the beneficial owner of the arrested res , ordinarily, will have the immediate right to exercise dominion over and to enjoy or control that res : Cape Moreton 143 FCR at 85 [168]; Kent v SS "Maria Luisa" (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12 at 33-34 [61] - [66] per Tamberlin and Hely JJ; Malaysia Shipyard and Engineering Sdn Bhd v "Iron Shortland" as the Surrogate for the Ship "Newcastle Pride" (1995) 59 FCR 535 at 547D-F per Sheppard J; see too at 547F-548A. Neither party disputed the correctness of the principles relating to the meaning of "the owner" in ss 17, 18 and 19 stated in Iron Shortland 57 FCR 535 ; Cape Moreton [2005] FCAFC 68 ; 143 FCR 43 and Maria Luisa [2003] FCAFC 93 ; 130 FCR 12. Euroceania accepted that there was no basis to lift the corporate veil of WAMS: cf Iron Shortland 59 FCR at 540-548 esp at 546-547; The "Maritime Trader" [1981] 2 Lloyd's Rep 153 at 157 per Sheen J; Berlingieri on Arrest of Ships (4 th ed, 2006) at 166-168 [52.446]- [52.452]. Instead, it put its case on the basis that WAMS was the agent of the real charterer, West Asia. Euroceania also asserted that in s 19(a) the word "charterer" had to be construed in the context that ships could be chartered by demise, as well as on voyage or timecharter and that strings of subcharterers could exist during any particular maritime adventure or voyage.
Case: Mead v Mead [2007] HCA 25 ; (2007) 235 ALR 197
Outcome: cited
in contrast to Four M's generosity in not taking any payments, Mr Qadir continued to be paid during this period in excess of the amount he could draw as salary, requiring the approval of the government and then the shareholders to West Asia waiving its right to recover that excess, If he or anyone other than West Asia were beneficially interested in Four M's share of the " Gem of Safaga " it is commercially inexplicable, on the evidence before me, why no payment at all has ever been made to Four M. West Asia argued that there were two other vessels in co-ownership between it and Four M and the state of accounts on those may be a reason for there having been no payments to Four M. But, that is an invitation to speculate on a matter for which West Asia could readily have provided an explanation. In these circumstances I can only draw inferences on the evidence that the parties have adduced and in light of the absence of further or countervailing evidence to explain what Four M's interest and role in holding the one share in the ship was: cp Mead v Mead [2007] HCA 25 ; (2007) 235 ALR 197 at 200-201 [13] per Gleeson CJ, with whom Hayne, Callinan, Heydon and Crennan JJ agreed; CEPU 162 FCR at 488-489 [70]-[73].
Case: MV "Sea Success I" v Liverpool and London Steamship Protection and Indemnity Association Ltd (AIR 2002 Bombay 151)
Outcome: discussed
MV "Sea Success I " (AIR 2002 Bombay) at 184 [56] the Court held that it would follow the broad international legal consensus that the test for beneficial ownership of the shares in a ship was whether the person had a right "... to sell, dispose of or alienate the shares in the ship". The Court also refused to lift the corporate veil between parent and subsidiary companies: MV "Sea Success I" (AIR 2002 Bombay) at 181-182 [54]. Earlier, the Court quoted a passage from the reasons of the Supreme Court of India in MV "Elisabeth" (AIR 1993 SC 1014) at [64]-[65] that recognised the procedural theory of Admiralty jurisdiction in India: i.e. the action in rem overcame the difficulty of personal service on a relevant person and either compelled him to appear to furnish security for release of the res or, in default of appearance, to proceed directly against the res . Although I need not finally decide this issue, I incline to the opinion that the reasoning to which I have referred in MV "Sea Success I" (AIR 2002 Bombay), especially, at 182-183 [55]-[56] and the quotation from MV "Elisabeth" (AIR 1993 SC 1014) at [64]-[65] in (AIR 2002 Bombay) at 163-164 [18]) align the unwritten Indian maritime law with the internationally accepted concepts of the degree of beneficial ownership to justify arrest of a vessel namely that the owner must have, at least, the beneficial right to sell or dispose, not of shares in the ship, but the ship itself. I am not persuaded that Indian law would regard West Asia as having that right merely because of the definition of "owner" in s 3(23) of the Indian Act.
Case: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Outcome: applied
West Asia must still be a relevant person within the meaning of s 19(a) in one of the two ways on which Euroceania relies. Each of the connecting factors referred to in s 19(a) (the owner, charterer, "in possession or in control of") should be construed to have a distinct meaning and operation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71] (esp at [71]) per McHugh, Gummow, Kirby and Hayne JJ. Of course, there will be some overlaps: e.g. an owner or demise charterer will often be in possession of a ship and, indeed, in control of her. But a voyage or time charterer may only meet the description "charterer" in s 19(a). Nor does s 19 require that the general maritime claim be one that the plaintiff could commence as a proceeding in rem against the ship referred to in s 19(a): Laemthong 190 CLR at 202-203.
Case: Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315
Outcome: applied
entry into the memorandum of agreement, on 2 February 2007, West Asia obtained an equitable interest in the ship that would be capable of protection by an order for specific performance against Tedross: Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315 at 332-333 [53] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ. And, as addendum No 1 recognised, West Asia continued as between Tedross and itself to remain fully liable for the performance of the purchaser's obligations. That was, in fact, the reality of what occurred when West Asia arranged all the funding for and completion of the purchase. Indeed, the terms of addendum No 1 referred to West Asia and Four M as the purchasers without identifying any particular share either would take on completion. That was suggestive of the two purchasing in equal shares as at 16 February 2007. However, the co-ownership agreement did identify proportionate interests of West Asia or Four M. The accounting and journal entries made in West Asia's books record that initially it received or paid the full amounts of hire and expenses and next apportioned these to it and Four M. This accounting treatment, however, may be a convenient way of dealing with third parties and is not conclusive in itself. West Asia also argued that the co-ownership agreement prevented it from using the authority it was granted to dispose of the ship or even to mortgage it other than for the purposes of the co-ownership. It contended that under that agreement West Asia only had power to dispose of its own shares in the ship. And it relied on the registration, in the official Register of Indian Shipping of the bank's mortgage against the separate entries for the shares held by West Asia and Four M. More accurately, however, cl 2(b) prevented West Asia or Four M from disposing of its shares in the ship without the others consent.
Case: The "Convenience Container" [2007] 3 HKLRD 575
Outcome: followed
a valuable discussion, Reyes J (with whom Ma CJHC and Stone J agreed in separate judgments) considered the, perhaps narrower, expression "beneficial owner" as used in s 12B(4) of the Hong Kong High Court Ordinance (Cap 4) in The "Convenience Container" [2007] 3 HKLRD 575. Reyes J concluded that the expression focussed "... simply on matters of title, namely, the right to sell or dispose of a ship": " Convenience Container " [2007] 3 HKLRD at 584 [43]. Reyes J also observed that beneficial ownership was not merely concerned with control or administration of a vessel or even the enjoyment of the proceeds of its sale. He recognised that these may or may not be useful as evidence from which a finding of ownership can be made. But he held that the key question was whether the relevant person in s 19 had title, as "the owner" of the res in order to support its arrest: cp "Convenience Container " [2007] 3 HKLRD at 583-584 [35]-[42]; see too per Ma CJHC at 606-607 [165]-[167] and Stone J at 595-597 [108]-[115]; I Congreso del Partido [1978] QB 500 at 538E-F, 541B per Robert Goff J; The Permina 3001 [1979] 1 Lloyd's Rep 327 at 329 per Wee CJ in the Singapore Court of Appeal; and The "Tychy" [1999] 2 Lloyd's Rep 11 at 20 per Clarke LJ, Otton and Waller LJJ agreeing. Each of control and, indeed, possession of property is not necessarily related to or dependent upon the person exercising the control, or in possession, having title to the property: cp The "Permina 3001" [1979] 1 Lloyd's Rep at 329 per Wee CJ (see also "Convenience Container " [2007] 3 HKLRD at 584 [42]) who said: "In our opinion, it would be a misuse of language to equate full possession and control of a ship with beneficial ownership as respects all the shares in a ship. The word "ownership" connotes title, legal or equitable whereas the expression "possession and control", however full and complete, is not related to title. Although a person with only full possession and control of a ship, such as a demise charterer has the beneficial use of her, in our opinion he does not have the beneficial ownership as respects all the shares in the ship and the ship is not "beneficially owned as respects all the shares therein" by him within the meaning of s. 4 (4)."
Case: The "Looiersgracht" [1995] 2 Lloyd's Rep 411
Outcome: discussed
Francesco Berlingieri said that Art 3(2) in the 1952 Arrest Convention did not allow a sister ship to be arrested unless it was fully owned by the same person or persons who owned the ship in respect of which the claim arose: Berlingieri on Arrest of Ships (3 rd ed, 2000) at 112-113 [1.444] (4 th ed: 2006) at 159 [52.433]. And a similar conclusion was reached by Prothonatory Hargrave on the construction of s 43(8) of the Canadian Federal Courts Act which required the arrested ship to be "beneficially owned": The "Looiersgracht" [1995] 2 Lloyd's Rep 411 at 415.
Case: The "Maritime Trader" [1981] 2 Lloyd's Rep 153
Outcome: discussed
accepted that there was no basis to lift the corporate veil of WAMS: cf Iron Shortland 59 FCR at 540-548 esp at 546-547; The "Maritime Trader" [1981] 2 Lloyd's Rep 153 at 157 per Sheen J; Berlingieri on Arrest of Ships (4 th ed, 2006) at 166-168 [52.446]- [52.452]. Instead, it put its case on the basis that WAMS was the agent of the real charterer, West Asia. Euroceania also asserted that in s 19(a) the word "charterer" had to be construed in the context that ships could be chartered by demise, as well as on voyage or timecharter and that strings of subcharterers could exist during any particular maritime adventure or voyage.
Case: The "Tychy" [1999] 2 Lloyd's Rep 11
Outcome: cited
a valuable discussion, Reyes J (with whom Ma CJHC and Stone J agreed in separate judgments) considered the, perhaps narrower, expression "beneficial owner" as used in s 12B(4) of the Hong Kong High Court Ordinance (Cap 4) in The "Convenience Container" [2007] 3 HKLRD 575. Reyes J concluded that the expression focussed "... simply on matters of title, namely, the right to sell or dispose of a ship": " Convenience Container " [2007] 3 HKLRD at 584 [43]. Reyes J also observed that beneficial ownership was not merely concerned with control or administration of a vessel or even the enjoyment of the proceeds of its sale. He recognised that these may or may not be useful as evidence from which a finding of ownership can be made. But he held that the key question was whether the relevant person in s 19 had title, as "the owner" of the res in order to support its arrest: cp "Convenience Container " [2007] 3 HKLRD at 583-584 [35]-[42]; see too per Ma CJHC at 606-607 [165]-[167] and Stone J at 595-597 [108]-[115]; I Congreso del Partido [1978] QB 500 at 538E-F, 541B per Robert Goff J; The Permina 3001 [1979] 1 Lloyd's Rep 327 at 329 per Wee CJ in the Singapore Court of Appeal; and The "Tychy" [1999] 2 Lloyd's Rep 11 at 20 per Clarke LJ, Otton and Waller LJJ agreeing.