Case: Tisand Pty Ltd v The Owners of the Ship MV Cape Moreton (Ex Freya) [2005] FCAFC 68 ; (2005) 143 FCR 43
Outcome: followed
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. However, 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. And the person or persons entered on an international register of ships is not necessarily the same person who will be found to be "the owner" for the purposes of s 19(b) of the Act: " Cape Moreton " 143 FCR at 65 [92]. I am not satisfied that the disparate information in the various registers establishes, individually or collectively, that West Asia is "the owner" of the ship for present purposes under s 19(b). Euroceania also relied on West Asia being registered as sole owner of the ship by The Britannia Steam Ship Insurance Association Limited in the protection and indemnity section of that P&amp;I Club's register. That registration was an admission by West Asia since the rules provided for the register to maintain the names of members and their interests in a ship, listing those names in order of their rights of seniority. I infer that West Asia caused and maintained its listing as sole owner. That listing was last updated on 23 November 2009, well after this dispute arose. The critical issue is whether Euroceania has established, on the evidence, that whatever role Four M has it is not an owner of the ship within the meaning of s 19(b). In " Cape Moreton " 143 FCR at 73-74 [122] Ryan and Allsop JJ left open whether the use of the definite article before the word "owner" in s 19(b) allowed a construction that treated it as including more than one owner. Such a construction of s 19(b) would permit an arrest of a ship partly owned by the relevant person in s 19(a) but also partly owned by a stranger to the general maritime claim: see too s 23 of the Acts Interpretation Act which provides that, unless the contrary intention appears, words in the singular number include the plural and vice versa. I am inclined to the view that s 19(b) does evince a contrary intention, particularly in light of the discussion that I have quoted above from ALRC 33 at [206] and [207]. However, I do not need to express a final view on this since I have reached a firm conclusion that West Asia is the sole person who is "the owner" of the ship for the purposes of s 19(b). However, in those paragraphs, Ryan and Allsop JJ were discussing other authorities. They expressed their conclusion in " Cape Moreton " 143 FCR at 78-79 [140] as follows: "... the law of Australia will govern the question of the characterisation of such rights (and their existence, nature and extent) as are derived by Freya or Alico from the transaction of transfer or assignment of the ship. The existence, nature and extent of such rights created or recognised by the transaction will be governed or affected by any law that Australian rules of private international law regard as relevant. The characterisation of those rights as "ownership" or not and of either Freya or Alico as "the owner" is then undertaken by reference to Australian law. The process involves applying an Australian statute dealing with authority to commence a suit in an Australian court to the facts as found, those facts including the rights created or recognised by the foreign law mandated by the applicable Australian rule of private international law. The approach that we favour entails a rejection of the proposition that the law of the forum (as domestic law only and not including its rules of private international law) applies. We see no justification for limiting the role of the law of the forum in this regard. To do so would, by necessity, leave out of account in the assessment of the proprietary question any foreign law relevant to the assignment of the ship." They concluded that the law of the place in which the ship is registered ordinarily will be determinative of questions of title, property and assignment: " Cape Moreton " 143 FCR at 79-80 [146]-[148]. Of course, questions of the public policy of the law of the forum and the forum's own legislation may lead to a different result, but no issue on these latter questions arose in this matter. However, the Indian Act, like similar flag state statutes, provides only for a register that is evidence of title and does not provide for a system of title by registration. Thus, no notice of any trust can be registered: see s 70 of the Indian Act; see too "Cape Moreton " 143 FCR at 81-84 [152]-[159]. West Asia argued that it did not have the sole power to dispose of the " Gem of Safaga " because of Four M's registration of its one share and s 25(d) of the Indian Act. Relevantly, ss 3(23)(a) and 25 of the Indian Act provides: "3 ( 23 ) "owner" means - ( a ) in relation to a ship, the person to whom the ship or a share in the ship belongs; 25. Register book.- Every registrar shall keep a book to be called the register book and entries in that book shall be made in accordance with the following provisions: - ( a ) the property in a ship shall be divided into ten shares; ... ( c ) a person shall not be entitled to be registered as owner of a fractional part of a share in a ship; but any number of persons not exceeding five may be registered as joint owners of a ship or of any share or shares therein; ( d ) joint owners shall be considered as constituting one person and shall not be entitled to dispose in severalty of any interest in a ship or any share therein in respect of which they are registered; ..."