Incitec Ltd v Alkimos Shipping Corporation [2005] FCA 191 (4 March 2005)

Last Updated: 9 March 2005

FEDERAL COURT OF AUSTRALIA

Incitec Ltd v Alkimos Shipping Corporation [2005] FCA 191

INCITEC LTD v ALKIMOS SHIPPING CORPORATION AND ORS
NSD 303 of 2003

SUMITOMO AUSTRALIA LTD v ALKIMOS SHIPPING CORPORATION AND ORS
NSD 304 of 2003



ALLSOP J
4 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 303 of 2003

BETWEEN:	INCITEC LTD PLAINTIFF
AND:	ALKIMOS SHIPPING CORPORATION FIRST DEFENDANT/ CROSS CLAIMANT HYUNDAI MERCHANT MARINE CO LTD SECOND DEFENDANT/ FIRST CROSS DEFENDANT CALEB BRETT USA., INC SECOND CROSS DEFENDANT

JUDGE:	ALLSOP J
DATE:	4 MARCH 2005
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1.	Leave be granted to Alkimos Shipping Corporation as Third Cross Claimant to amend its Cross Claim filed 27 April 2004, to change the name of the Cross Defendant, Intertek Caleb Brett USA, Inc., to Caleb Brett USA, Inc. and dispense with further service.
2.	Leave be granted to Caleb Brett USA, Inc. to file its Defence to Cross Claim, in Court.
3.	Listed for directions on 6 May 2005.
4.	Liberty to restore on two days’ notice.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 304 of 2003

BETWEEN:	SUMITOMO AUSTRALIA LTD PLAINTIFF
AND:	ALKIMOS SHIPPING CORPORATION FIRST DEFENDANT/ CROSS CLAIMANT HYUNDAI MERCHANT MARINE CO LTD FIRST CROSS DEFENDANT INCITEC LTD SECOND CROSS DEFENDANT INTERTEK CALEB USA INC. THIRD CROSS DEFENDANT
JUDGE:	ALLSOP J
DATE OF ORDER:	4 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	Leave be granted to Alkimos Shipping Corporation as Second Cross Claimant to amend its Cross Claim filed 27 April 2004, to change the name of the Cross Defendant Intertek Caleb Brett USA Inc., to Caleb Brett USA, Inc. and dispense with further service.
2.	Leave be granted to Caleb Brett USA, Inc. to file in Court, its Notice of Motion dated 4 March 2005 seeking that the Second Cross Claim insofar as it claims against Caleb Brett USA, Inc., be struck out, the Notice of Motion to be returnable at 9:30 am on 6 May 2005 for directions only and direct Caleb Brett USA, Inc. to serve that Notice of Motion as amended on all parties.
3.	Listed for directions on 6 May 2005.
4.	Liberty to restore on two days’ notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 303 of 2003

BETWEEN:	INCITEC LTD PLAINTIFF
AND:	ALKIMOS SHIPPING CORPORATION FIRST DEFENDANT/ CROSS CLAIMANT HYUNDAI MERCHANT MARINE CO LTD SECOND DEFENDANT/ FIRST CROSS DEFENDANT CALEB BRETT USA., INC SECOND CROSS DEFENDANT

	NSD 304 of 2003
BETWEEN:	SUMITOMO AUSTRALIA LTD PLAINTIFF
AND:	ALKIMOS SHIPPING CORPORATION FIRST DEFENDANT/ CROSS CLAIMANT HYUNDAI MERCHANT MARINE CO LTD FIRST CROSS DEFENDANT INCITEC LTD SECOND CROSS DEFENDANT INTERTEK CALEB USA INC. THIRD CROSS DEFENDANT

JUDGE:	ALLSOP J
DATE:	4 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Both these matters were filed in the year 2003. They involve a voyage to Australia by a bulk carrier carrying fertiliser. The difficulty it faced was due to the apparent presence of grain in the hold and/or cargo of the ship, which led to the rejection of the ship by the Australian Quarantine Inspection Service in adherence to strict quarantine requirements in relation to a disease sought to be kept out of Australia known as karnal bunt. The whole cargo of fertiliser was rejected at the port. The ship was required to depart and the cargo was onsold in due course to parties significantly or largely in South Asia.

2 That led to a further arrest and further claims concerning the fate of the cargo and the ship in South Asia. Claims are made by the cargo interests against the carrier interests for various matters including the loss of value of the fertiliser as fertiliser to be imported and in one of the cases there is also the additional claims concerning the arrest of the vessel and the consequential losses that occurred by reason of the arrest.

3 The matter has been complicated by the joinder of the American surveyor who surveyed the cargo and ship in Florida prior to departure. I granted leave to serve that surveyor, Caleb Brett USA Inc, out of the jurisdiction. It is proceeding with its pleadings in NSD 303 of 2003 and has filed a notice of motion seeking orders that the claim against it in the other matter, NSD 304 of 2003 be struck out.

4 The parties have been seeking to mediate this matter in London. The American surveyor has been, in effect, a participant in the proceedings for a considerable number of months now. I have permitted a fairly leisurely timetable since the middle of last year or thereabouts to allow the parties to mediate this matter and to have the American surveyor catch up, as it were. There is and has been for some months a Judge from the Sydney Admiralty and maritime panel in this Court ready and available to hear this matter. I have informed the parties of that.

5 The parties have chosen to mediate the matter in London. That is a matter for them. They have chosen not to mediate the matter before a mediator in Australia or with a Court annexed mediator in this Court or a private mediator. The choice of the mediation is, of course, ultimately and perfectly properly a matter for the parties and nothing that I am saying today should be seen as the slightest criticism of that.

6 However, in making these orders and, in effect, further allowing this case to tread water in this Court, I am doing so only at the request of the parties who wish to mediate the matter in London. The parties, given that they are foreign, may not be aware that this Court has available to it court annexed mediation with experienced skilled mediators, if they so desire to use it.

7 For these reasons, I am prepared to make the orders that I have made and stand the matter over for directions to 6 May 2005.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 8 March 2005

Counsel for the Plaintiffs:	Mr R Withnell (Slr)
Solicitor for the Plaintiffs:	Withnell Hetherington
Counsel for the Second Cross Defendant in NSD 303/ 2003 and Third Cross Defendant in NSD 304/ 2003:	Ms J Soars
Solicitor for the Second Cross Defendant in NSD 303/ 2003 and Third Cross Defendant in NSD 304/ 2003:	Ebsworth & Ebsworth
Date of Hearing:	4 March 2005
Date of Judgment:	4 March 2005