New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek, The Owner of the MV "Aya Trigon" [1980] PNGLR 205

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer AJ
• Judgment Date: 29 August 1980
• Court: National Court
• Citation: [1980] PNGLR 205
• Year: 1980
• Judgement Number: N251

Full Title: New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek, The Owner of the MV "Aya Trigon" [1980] PNGLR 205

National Court: Bredmeyer AJ

Judgment Delivered: 29 August 1980

1 Admiralty Act 1890 (UK) no longer in force in PNG—no action in rem now available in PNG for the supply of necessaries to a vessel—common law of contract applicable to the supply of goods and services to a vessel

2 SHIPPING AND NAVIGATION—Admiralty jurisdiction—Law and practice—Jurisdiction of National Court—Claim for necessaries supplied to foreign ship—Law applicable—Colonial Courts of Admiralty Act 1890 no longer in force in Papua New Guinea—No action in rem for necessaries—Common law of contract applicable to supply of goods and services.

3 SHIPPING AND NAVIGATION—Law and practice—Goods and services supplied to foreign vessel—Cause of action in contract—Implied authority for port charges, cargo expenses and sundry expenses reasonably incurred—Specific authority required for purchases of major items.

4 SHIPPING AND NAVIGATION—Law and practice—Arrest of foreign vessel—National Court—Power to order—Semble by way of interlocutory relief—Constitution s155(4).

In an action in rem brought against the MV "Aya Trigon" a foreign vessel in respect of necessaries supplied to the vessel (which included claims for port charges, cargo expenses, bulk fuel and sundry expenses), it was argued that the statement of claim did not disclose a cause of action known to the law of Papua New Guinea.

Held:

(1) The cause of action in rem for necessaries supplied to a foreign vessel was abolished in Papua New Guinea by virtue of the repeal of the Colonial Courts of Admiralty Act 1890 (UK), by the Papua New Guinea Independence Act 1975, on Independence.

Milan Capek v The Yacht "Freja" (No 2) [1980] PNGLR 161 per Miles J at 168 and Milan Capek v The Yacht "Freja" [1980] PNGLR 57 per Kapi J not followed.

(2) The Admiralty Courts Acts 1840 and 1861 are no longer applicable in Papua New Guinea for the same reason.

(3) The cause of action for necessaries supplied to a foreign ship, being now a statutory one in England under the Supreme Court of Judicature Act 1925 (UK), forms no part of the common law of England adopted into Papua New Guinea under Sch2.2 of the Constitution.

(4) The common law of contract and quasi–contract is applicable and appropriate to the circumstances of Papua New Guinea, and is adequate to enable recovery of payment for goods and services supplied to a foreign vessel.

(5) Semble the National Court of Justice has power under s155(4) of the Constitution to order the arrest of a ship by way of interlocutory relief at the outset of an action.

Mauga Logging Co Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No 1) [1977] PNGLR 80 and Nippon Yusen Kaisha v Karageorgis [1975] 3 All ER 282 referred to.

(6) When a shipping agent agrees to act for a foreign vessel, it is implied that the agent will incur expenses on behalf of the ship for port charges, cargo expenses, and sundry expenses including requests by the master of a normal and usual kind in the shipping business, but an agent normally requires specific authority from the client for the purchase of major items such as bulk fuel.

(7) In the circumstances there was no contract between the defendant as owner of the MV "Aya Trigon" and the plaintiff and judgment should be entered for the defendant.

Action.

This was an action in the National Court in which the plaintiff sued in respect of "necessaries" supplied to a foreign vessel. At the beginning of the trial it was argued that the statement of claim did not disclose a cause of action known to Papua New Guinea.

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Bredmeyer AJ: This action is brought in the Admiralty jurisdiction of this Court. It is an action in rem brought against the MV "Aya Trigon" in respect of "necessaries" supplied to the vessel when it berthed in Port Moresby in October 1978 and later anchored in the inner harbour for a month. The "Aya Trigon" is a foreign vessel. The plaintiff conducts business inter alia as shipping agents in Rabaul but not in Port Moresby. It arranged for a Port Moresby firm of shipping agents, JC Waller & Co Pty Ltd (hereinafter "JC Waller"), to attend to the ship in Port Moresby. That firm arranged for the berth of the vessel and its entry into the port. It paid the berthage and pilotage charges and other charges. It paid the stevedores' charges for unloading the cargo. It also purchased fifty–seven tons of bulk fuel costing K8,381.45 for the vessel and various other provisions. Altogether the money spent by JC Waller on providing goods and services to the vessel together with its charges for its own services came to K12,618.27. JC Waller collected K7,797.94 from consignees of cargo discharged in Port Moresby, which had been shipped freight collect, leaving a balance of K4,820.33 owing to it. The plaintiff has paid this sum to JC Waller and has brought this action to recover the same against the ship. As is the practice in this jurisdiction, the vessel was arrested, the money was paid into court as bail to secure its release and the vessel was released.

As stated above the plaintiff's action is brought in the Admiralty jurisdiction of this Court; it is an action in rem which explains why the vessel was arrested before any judgment issued; and the statement of claim says that the action is for "necessaries supplied to the vessel". At the outset of the trial Mr Molloy, counsel for the defendant, contended that the statement of claim did not disclose a cause of action known to the law of Papua New Guinea. I consider that this submission is correct—that the cause of action in rem for necessaries supplied to a vessel was abolished by statute on Independence. I wish to explain how that came about and I later consider what other law should be applied to determine this dispute.

The High Court of Admiralty in England was given jurisdiction to hear claims for necessaries supplied to foreign ships by s6 of the Admiralty Court Act 1840 (3 & 4 Vic c 65) which reads as follows:

"s6 The court, in certain cases, may adjudicate on claims for services and necessaries, etc, although not on the high seas. The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or sea–going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea–going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a country, or upon the high seas, at the time when the services were rendered or damage received, or necessaries furnished, in respect of which the claim is made."

This jurisdiction was extended to certain English ships by s5 of the Admiralty Court Act 1861 (24 & 25 Vic c 10) which reads as follows:

"s5 As to claims for necessaries supplied to ships. The High Court of Admiralty shall have jurisdiction over any claims for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner is domiciled in England or Wales: Provided always, that if in any such cause the plaintiff do not recover twenty pounds, he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said Court."

The High Court of Admiralty had power to hear actions in rem (against a thing) or in personam (against a person). The court's rules provided that an action in rem was commenced by the court issuing a warrant for the arrest of the ship (and/or cargo and freight). Bail or other security could be given to secure the release of the ship. If the plaintiff succeeded in proving his claim the ship could be sold by the marshall to meet the claim. There was nothing to stop a plaintiff who had supplied goods or services to a vessel to sue the master who had requested them, or his principal, say the owner, in personam in the Admiralty jurisdiction, see s35 of the Admiralty Court Act 1861 (UK), nor to stop the plaintiff suing the shipowner under the law of contract in the common law courts, (see s23 of the Admiralty Court Act 1840...