Sovremenniy Kommercheskiy Flot v "Socofl Stream" [1999] FCA 42 (29 January 1999)

Last Updated: 5 February 1999

FEDERAL COURT OF AUSTRALIA

Sovremenniy Kommercheskiy Flot v "Socofl Stream" [1999] FCA 42

Den Norske Bank (Luxembourg) S.A. v The Ship "Martha II" (Sheppard J 6 March 1996 unreported)

Malaysia Shipyard & Anor v "Iron Shortland" as surrogate for the Ship "Newcastle Pride" (1995) 131 ALR 738

SOVREMENNIY KOMMERCHESKIY FLOT v THE SHIP "SOCOFL STREAM"

Q 13 OF 1999

KIEFEL J

BRISBANE

29 JANUARY 1999

ADMIRALTY RULES

IN THE FEDERAL COURT OF AUSTRALIA
IN ADMIRALTY
QUEENSLAND DISTRICT REGISTRY	Q 13 OF 1999

BETWEEN:	SOVREMENNIY KOMMERCHESKIY FLOT Plaintiff
AND:	THE SHIP "SOCOFL STREAM" Defendant
JUDGE:	KIEFEL J
DATE OF ORDER:	29 JANUARY 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.. The motion is dismissed.

2. The Marshal's costs on the motion be costs in relation to the arrest, and that they be taxed on a solicitor and own client basis;

3. That the applicant on the motion pay the plaintiff's costs of the motion including the costs of the Marshal paid by it.

4. The costs of the application for directions be reserved.

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

ADMIRALTY RULES

IN THE FEDERAL COURT OF AUSTRALIA
IN ADMIRALTY
QUEENSLAND DISTRICT REGISTRY	Q 13 OF 1999

BETWEEN:	SOVREMENNIY KOMMERCHESKIY FLOT Plaintiff
AND:	THE SHIP "SOCOFL STREAM" Defendant

JUDGE:	KIEFEL J
DATE:	29 JANUARY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

EX TEMPORE

1 In this matter the time-charterer Jebsens Orient Shipping Services applies for an order that the vessel "Socofl Stream", which is presently under arrest in the Port of Brisbane, be permitted to sail to Newcastle and discharge its remaining cargo whilst it remains under arrest. Other cargo has been discharged in Brisbane. The cargo in question comprises steel and timber.

2 The orders sought in my view would expose the vessel to risks. In that connexion I am not satisfied, on the basis of a short letter from the defendant, that the risk of removal of the vessel from the jurisdiction no longer exists. In particular it has not appeared to the action and has no assets in the jurisdiction save for the vessel. The plaintiff in the proceedings has today filed a motion for judgment for possession of the ship and appears to be moving with some haste towards a conclusion in the matter. Even with the aid of an independent Master, the Marshal would not, in my view, have effective control at all times of the vessel on what is a lengthy voyage. In my view he ought not to be placed in a position where he may be unable to ensure the custody and safety of the vessel, in circumstances where the commercial repercussions for the applicant/time charterer do not appear to me to be either great or particularly convincing on the limited material it has made available on that point.

3 It was submitted for the applicant that I ought to draw some comfort from the fact that the plaintiff in the proceedings is prepared to consent to the vessel travelling to Newcastle and therefore, inferentially that the risk is not great. The plaintiff however will not consent to the vessel being released from arrest so as to enable the voyage to Newcastle, where it could be rearrested.

4 The applicant relied upon the decisions in Den Norske Bank (Luxembourg) S.A. v The Ship "Martha II", (Sheppard J, 6 March 1996, unreported); and Malaysia Shipyard v "Iron Shortland" as surrogate for the Ship "Newcastle Pride" (1995) 131 ALR 738. In the latter case Sheppard J made orders permitting the movement of the vessel between Port Hedland and Port Kembla. The orders sought were however by consent and, as his Honour later observed, involved a matter of public interest, since there was a potential shortage of iron ore at the Port Kembla steelworks. In the Martha II particular facilities for storage and discharge of the cargo were necessary. In neither case did the Marshal object to the orders sought.

5 In the Martha II Sheppard J discussed the problems were the vessel to travel outside territorial waters, but was satisfied that this would not occur. I was advised in this case that the voyage to Newcastle should not require that to occur.

6 The resolution of this application requires consideration, on the one hand, of the risks which will attend the voyage and the alternative methods of conveyance of cargo to Newcastle. In this latter respect the applicant's material was deficient. It was apparent at the hearing that little enquiry of the practical alternatives had been undertaken. I was subsequently advised by Mr Thompson SC for the applicant that road costs would be of the order of $125,000. The advices received by the legal representative for the Marshal were somewhat lower. This may be compared with the amount of $80,000 the applicant is prepared to pay into Court to cover costs associated with the voyage to Newcastle. I have not heard argument upon the sufficiency of that figure which I observe does not include the Marshal's costs to date nor those of an independent Master. The applicant was unable to provide information concerning the cost of rail transport.

7 In these circumstances, whilst alternative transport may be somewhat higher than the cost of the sea voyage, I am not satisfied that it is such as would outweigh the risk of permitting the vessel to undertake the journey.

8 For these reasons the application is refused and the motion will be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 29 January 1999

Counsel for the Applicant:	Mr GA Thompson SC and Ms S Derrington
Solicitor for the Applicant:	Allen Allen & Hemsley
Counsel for the Respondent:	Ms A Philippedes
Solicitor for the Respondent:	Thynne & Macartney
Date of Hearing:	29 January 1999
Date of Judgment:	29 January 1999