Recent New Zealand Admiralty cases

Philip Rzepecky of McElroys details some recent admiralty actions which have been before the courts in New Zealand

MM08650

Sea Tow Ltd v Grey District Council (Court of Appeal) (15 June 2000)
Duty of care of wharf owner to provide safe mooring

MM08745

Bridon NZ Ltd v The Ship "Wybia" (13 June 2000)
Ship on charter by demise (2 yrs + renewal option 2yrs)
Claim by P for tackle supplied to ship at request of charterer (Admiratly Act 1973, s4(1)
Application by owner to strike out claim dismissed
HC had jurisdiction in rem
Claim after charter terminated but no redelivery to owner (s5(2))
Mobil Oil NZ Ltd v The Ship "Rangiora" [2000] 1 NZLR 49 applied

MM08622

Heinz-Wattie Ltd v Hamburg Sudamerikanische Dampschiffahrts-gesellschaft (5 April 2000)
Cargo claim
Bill of lading stipulated time for bringing claim
"Suit brought" within time even though amended out of time
Hague Rules (12 months) applied regardless of bill of lading (9 months)

MM08393

AO Karelrybflot v Udovenko [2000] 2 NZLR 24 (CA) (17 December 1999)
Ship forfeited to Crown for fishing offences
Claims by crew for unpaid wages
Employment contracts not frustrated by forfeiture (charter taken in shadow of threatened foreclosure)
No termination for insubordination (when wages unpaid for 5 months)
Admiralty jurisdiction existed (Admiralty Act 1973, s4(1)(o)) despite alternative forum (Employment Tribunal)
Ps paid by hour, contract rate exceeded rate Minimum Wages Act 1983, Order

MM08132

Wallace & Cooper Engineering Ltd v Orlovka [2000] 1 NZLR 401 (CA) (17 December 1999)
Ship forfeited to Crown for fishing offences
Transfer of ownership of vessel from D2 to K if vessel redeemed
6 month option D2 to repurchase
Option not exercised
Later claim in rem by P against D2 for work, goods supplied to ship (Admiralty Act 1973, s5(2)(b))
Distinction between maritime lien (arose immediately), claim in rem (arose when filed)
Transfer to K effective (voidable not void) until set aside (Property law Act 1952, s60 - alienation with intent to defeat creditors)
D2 not "beneficial owner" when P's claim filed

MM08456

Wallace & Cooper Engineering (Lyttelton) Ltd v Orlovka (HC, Christchurch) (10 December 1999)
Arrest of ship on application of P
Ship in custody of registrar
Registrar claimed costs of supplying oil to ship
P's indemnity to registrar for expenses of care, custody of vessel after arrest incl oil, provisioning for crew, bunkering
Evidence suggested significant stockpiling
Factual issue, lack of evidence
Registrar to meet costs from consolidated fund

MM08452

Wallace & Cooper Engineering (Lyttelton) Ltd v Orlovka (HC, Christchurch) (26 November 1999)
Security for supply of necessaries to ship
Adjourned for further evidence

MM08024

Vostok Shipping Co Ltd v Confederation Ltd (CA) [2000] 1 NZLR 37 (7 October 1999)
Arrest of ship set aside
At arrest O had agreed to sell ship to C Ltd
D not "beneficial owner" (Admiralty Act 1973, s5(2)(b))
NZ law (lex fori) not Russian law (lex situs) applied

MM08031

Dorn v Maritime Safety Authority (CA) (22 September 1999)
P's boat ran aground when towed from wharf on tidal river
Boat "stranded", "obstruction to navigation" (Maritime Transport Act 1994, s110)

MM07998

Wallace & Cooper Engineering Ltd v Orlovka (20 August 1999)
Appeal allowed - see MM08132

MM08747

Mobil Oil NZ Ltd v The Ship "Rangiora" (2000) 13 PRNZ 563 (11 August 1999)
Claim by Ps for priority for legal costs
General principles stated
Allowed costs for resisting strike out by owners
Reduction for unsuccessful support of challenge to registrar's appointment of broker, unnecessary duplication of expert evidence

MM07807

Mobil Oil NZ Ltd v The Ship "Rangiora" (10 August 1999)
Charterer (S) went into liquidation
Claims to bunkers (fuel)

(1) Supplied by M under supply contract - risk passed on delivery
M claimed terms of trade on invoice applied - ownership passed when customer paid (retention of title clause)
Supply contract applied

(2) M claimed bunkers as assignee of S
Mortgagees, owners argued (a) bunkers merged in, part of ship, (b) title passed to them on termination of charter
Held - bunkers not part of ship, property of S
Cl 8 of charter - owner to take over, pay for bunkers on redelivery
"redelivery" meant end of charter period not earlier termination Judgment for M (as assignee of S)

MM08746

Mobil Oil NZ Ltd v The Ship "Rangiora" [2000] 1 NZLR 82 (9 August 1999)
Maritime liens claimed by crew of ship on demise charter
Redundancy within scope of maritime lien wages claim
Ps' contracts had to relate to engagement for particular ship
Further evidence required

MM07686

Udovenko v Karelrybflot (27 April, 24 May 1999)
Appeal allowed in part - see MM08393

MM07547

Fournier v The Ship "Margaret Z" (1 April 1999)
Priority claims - mortgagee, crew (personal injury, maritime lien for damage by ship), supplier of fuel, lubricants
Previous arrest in Guam
Lex fori applied to priority of maritime claims
Fuel supplied not for necessaries but fishing expedition after arrest
Jurisdiction in rem to rank priorities, personal injury claims
Claims for maritime lien for damage by ship rejected
Mortgage had priority

MM07227

Sellers v Maritime Safety Inspector (CA) [1999] 2 NZLR 44 (5 November 1998)
Port or coastal state had no power to impose conditions on foreign ships as to construction, safety, equipment, crewing with effect on high seas
Domestic legislation interpreted in context of, (if possible) consistently with international law
Maritime Transport Act 1994, s21, did not have effect on high seas

MM08187

Prokofyev v Minister of Fisheries (1998) 12 PRNZ 510 (12 October 1998)
Adjournment to allow D to reply to issue first raised at hearing by P (procedure)
Costs against P

MM06976

Mobil Oil NZ Ltd v The Ship "Rangiora" [2000] 1 NZLR 49 (14 July 1998)
Application by owners to set aside in rem proceedings
SPS (demise charterer) not "beneficial owner" of ships (Admiralty Act 1973, s5(2)(b))
Beneficial owners partenreederei
Sham as to ownership rejected
Termination of demise charter when (a) charterer's right to possession, control withdrawn, (b) redelivery (methods stated)
Ps' proceedings before redelivery - application dismissed
Notes (i)Non-demise or time charter terminated by owner withdrawing services; redelivery not required (p40)
(ii) Well-drafted charter by demise could deem redelivery on certain events, eg while vessel still at sea (p48)

MM08222

Ports of Auckland Ltd v The Ship "Raumanga" (1998) 12 PRNZ 84 (15 May 1998)
Summary judgment for admiralty proceeding available
Granted to P

MM07225

Prokofyev v Minister of Fisheries (23 April 1998)

MM06701

Partenreederei MS "Takitumu" v The Ship "Takitimu" (23 March 1998)
Application to move ship under arrest from Tauranga to Auckland
Jurisdiction (sparingly exercised) to move vessel while under arrest
High threshold not met
Agreement of counsel - vessel to be moved using crew, terms

MM08749

Canterbury Stevedoring Services Ltd v The Ship "Rangiora" (4 March 1998)
....

MM06425

De Nationale Investeringsbank NV v The Ship "Queeny Margreth" (1997) 11 PRNZ 454 (18 December 1997)
Application to move ship under arrest from anchor (3 miles off port) to port
Jurisdiction existed - Admiralty Rules, R15(10), preservation of property rules in High Court Rules, inherent jurisdiction
Port Companies Act 1988 - did not override jurisdiction, international law as to port of refuge
But port had legitimate concerns (costs, duration)
Order granted on security or payment (port company costs of moving vessel, standard daily berthage charges, degassing costs (LPG carrier), maintenance of crew, provisioning ship, insurance of Registrar as statutory bailee)

MM06426

De Nationale Investeringsbank NV v The Ship "Queeny Margreth" (18 December 1997)
Orders as to costs for ship while in custody of registrar

MM06580

Simpson Grierson v The Ship "Irina Zharkikh" (1997) 11 PRNZ 446 (17 November 1997)
Claim in rem against ship for legal fees in relation to arrest of ship
Not Admiralty Act 1973, s4(1)(h) or (p)
But was s4(1)(l) (services in operation of ship)