Case: Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55 ; (1997) 190 CLR 181
Outcome: discussed
s 19 confers jurisdiction on a court, it should not be construed or hedged about by making implications or imposing limitations that do not appear in its express terms: Shin Kobe Maru 181 CLR at 421; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at 361 [178] per Gummow, Hayne, Heydon and Kiefel JJ. Additionally, s 15AB of the Acts Interpretation Act 1901 (Cth) permits the meaning of an expression in an Act to be confirmed by reference to a report such as ALRC 33 (see s 15AB(1)(a) and (2)(b)): Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55 ; (1997) 190 CLR 181 at 189 per Brennan CJ, 190 per Toohey J, 204 per Gaudron, Gummow and Kirby JJ. However, 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. And, as Gaudron, Gummow and Kirby JJ said in Laemthong 190 CLR at 201 there may be control of a ship without possession. They said that one person may have possession of a ship and another control. Their Honours gave as an example the decision of the Privy Council in The " Utopia " [1893] AC 492 where the owners had not given up their rights to possession of their ship just after she was wrecked but a port authority assumed control of the wreck. In giving their Lordships' advice, Sir Francis Jeune said ( The "Utopia" [1893] AC at 498-499): "In the present case, the Utopia was certainly not abandoned by her owners in the sense that they gave up all rights of property and possession in her. On the contrary, they no doubt always intended to raise her if they could, .... It is clear, however, that before the collision with the Primula the port authority of Gibraltar, represented by the acting captain of the port, took from the owners, and itself assumed, the task of protecting other vessels from the wreck by means of the signals which it directed to be employed for the purpose. The owners of the Utopia yielded to the action of the port authority, and thenceforward stood aloof from the operation of lighting the wreck. In these circumstances, it appears to their Lordships that the control and management of the wreck, so far as related to the protection of other vessels from her, and of her from them, was properly transferred to the port authority . Further, their Lordships are unable to see how any part of the conduct of the owners of the Utopia can lay them open to a charge of negligence. Neither in allowing the port authority to take on itself the control of the lighting, nor in abstaining from interfering with the subsequent action of the port authority in the matter, do their Lordships think that any default can be imputed to them. It would be dangerous if an owner of a wreck were compelled, in order to avoid a personal responsibility, to interfere with the action taken by a public authority constituted for such purposes to ensure the safety of other vessels navigating those waters." (emphasis added) And in Laemthong 190 CLR at 190 Toohey J (and at 198 Gaudron, Gummow and Kirby JJ) referred to the definitions in maritime dictionaries of a disponent owner as a "person or company who controls the commercial operation of a ship, responsible for deciding the ports of call and the cargoes to be carried": see Sullivan, The Marine Encyclopaedic Dictionary (4 th ed, 1995) at 135; Brodie, Dictionary of Shipping Terms (2 nd ed, 1994) at 60. The definition in Brodie went on to say that very often the disponent owner was a shipping line which time chartered ships and issued its own liner bills of lading. As a practical matter, West Asia had and exercised control of the commercial operation of the ships, and, by its Indian employer, Capt Venkat, giving voyage instructions to the masters, decided the ports of call and cargoes to be carried. I am satisfied that West Asia was "... in control of" each of the " JBU Opal" and " JBU Onyx" . The side letters provide a clear admission of that control. And the evidence establishes that West Asia exercised it. The fact that WAMS also had responsibilities under the charterparties and exercised some of them does not mean that its parent did not have control of the chartered ships for the purposes of s 19(a). It is not decisive that WAMS was the charterer of the ships. This does not exclude, for the purposes of s 19(a), there simultaneously being an owner of them, such as Euroceania. Indeed, Gaudron, Gummow and Kirby JJ rejected a construction of s 19(a) that at any one time there must be only one person who could answer all of the descriptions in s 19(a) in respect of a wrongdoing ship: Laemthong 190 CLR at 201, see too at 204, Brennan CJ agreeing at 186, and see too per Toohey J at 191-192. The conclusion that West Asia was in control of the ships by which WAMS was the charterer is also consistent with the views of the Commission in ALRC 33 at [205] (cited with approval in Laemthong 190 CLR at 194 per Toohey J at 204-205 per Gaudron, Gummow and Kirby JJ) that s 19 could permit proceedings to be brought in rem against a ship owned by the relevant person even though that person is not the owner of the wrongdoing ship. Euroceania argued that the role assumed by West Asia under the side letters made it a charterer. It is not necessary to decide this in light of my conclusion that West Asia was in control of the chartered ships. However, I am not sure that the commercial intention was to make West Asia the charterer. Such a result does not sit easily with the language of either the charterparties themselves in which WAMS is named as charterer nor with that of the side letters that place West Asia in a position of responsibility for WAMS as the charterer. I am of opinion that West Asia was the owner of the " Gem of Safaga " at the time these proceedings were commenced and was in control of the " JBU Opal " and the " JBU Onyx " when the maritime claim arose out of the side letter agreements. That claim related to the use or hire of the latter two ships. Thus, West Asia's challenge to jurisdiction fails and its motion must be dismissed. I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 9 December 2009 Counsel for the Plaintiff: A W Street SC and B K Nolan Solicitor for the Plaintiff: Blake Dawson Counsel for the Defendant: G J Nell SC and C O Gleeson Solicitor for the Defendant: James Neill Solicitor Date of Hearing: 30 November, 1 3, 9 December 2009 Date of Judgment: 9 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1467.html