[1988] 1 Lloyds Reports 288

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Pratt J, Woods J
• Judgment Date: 20 January 1986
• Citation: [1986] PNGLR 5
• Court: Supreme Court
• Docket Number: The Ship "Federal Huron" v Ok Tedi Mining Ltd [1986] PNGLR 5
• Judgement Number: SC313

Full Title: The Ship "Federal Huron" v Ok Tedi Mining Ltd [1986] PNGLR 5; [1988] 1 Lloyds Reports 288

Supreme Court: Kidu CJ, Pratt J, Woods J

Judgment Delivered: 20 January 1986

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE SHIP "FEDERAL HURON"

V

OK TEDI MINING LTD

Waigani

Kidu CJ Pratt Woods JJ

31 October 1985

20 January 1986

SHIPPING AND NAVIGATION — Admiralty jurisdiction — Law and practice for Papua New Guinea — Colonial Courts of Admiralty Act 1890 (Imp) adopted and developed as underlying law — Constitution, Schs 2.3, 2.4, 2.6 (2).

ADMIRALTY LAW — Jurisdiction — Law and practice for Papua New Guinea — Colonial Courts of Admiralty Act 1890 (Imp) adopted and developed as underlying law — Constitution, Schs 2.3, 2.4, 2.6 (2).

CONSTITUTIONAL LAW — Development of underlying law — Formulation of — Retrospective operation — Constitution, Schs 2.3, 2.4.

CONSTITUTIONAL LAW — Development of underlying law — Admiralty law — Law and practice for Papua New Guinea — Colonial Courts of Admiralty Act 1890 (Imp) adopted and developed — Constitution, Schs 2.3, 2.4. 2.6 (2).

STATUTES — Retrospective operation — Development of underlying law — Formulation of under Constitution — Retrospective operation — Constitution, Schs 2.3, 2.4.

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Interpretation — Adoption of pre-Independence laws — Effect of — Constitution, Sch 2.6 (2).

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Interpretation — Reception of common law — "Notwithstanding" revision by statute — Meaning and effect of — Statutory modifications excluded — Constitution, Sch 2.2 (3).

JUDGMENTS AND ORDERS — Final or interlocutory — Test for — Nature of application determinative — Exception where split hearing.

Held

(1) The courts of Papua New Guinea have, and have had since 16 September 1975, by statute, and by development of the law under the Constitution, Sch 2.3 and Sch 2.4, an admiralty jurisdiction for the whole of Papua New Guinea, such jurisdiction being within the parameters and limitations set down in the Colonial Courts of Admiralty Act 1890.

Milan Capek v The Yacht "Freja" [1980] PNGLR 57; Milan Capek v The Yacht "Freja" (No 2) [1980] PNGLR 161, approved:

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

Held Further

(2) In formulating an appropriate rule of law as part of the underlying law of Papua New Guinea pursuant to the Constitution, Sch 2.3 and Sch 2.4, the Court may formulate such law so as to have a retrospective operation.

(3) The effect of the Constitution, Sch 2.6 (2), relating to the adoption of pre-Independence laws is that all laws made by the several Legislative Councils and the House of Assembly before Independence are re-enacted as laws of the new National Parliament of Papua New Guinea together with certain adopted laws which thereby become laws of the State.

(4) The expression, "The principles and rules of common law and equity are adopted ... notwithstanding any revision of them by a statute of England ...", in the Constitution, Sch 2.2 (3), is to be construed as excluding statutory modifications to the common law.

Booth v Booth (1935) 53 CLR 1, not followed.

Held further

(5) Whether a decision or judgment of the court is final or interlocutory is determined by the nature of the application to the court, except where there is a split trial or a split hearing.

Salaman v Warner [1891] 1 QB 734; Salter Rex & Co v Ghosh [1971] 2 QB 597; White v Brunton [1984] QB 570 at 573, followed and applied.

Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119 at 121-122, considered.

Cases Cited

Administration of the Territory of Papua and New Guinea v Guba [1973] PNGLR 603; (1973) 130 CLR 353.

Bankers Trust International Ltd v Todd Shipyards Corporation; The Halcyon Isle [1981] AC 221.

Bennet v Grainger (Unreported, 0S No 107 of 1985, 10 December 1985).

Booth v Booth (1935) 53 CLR 1.

Constitutional Reference No 1 of 1977 (Sch 2.3) [1978] PNGLR 295.

Cretanor Maritime Co v Irish Marine Management; "The Cretan Harmony" [1978] 1 WLR 966: [1978] Lloyd's Rep 425.

Dawson v Commonwealth (1946) 73 CLR 157.

Donoghue v Stevenson [1932] AC 562.

Harmer v Bell; The Bold Buccleugh (1852) 7 Moo PCC 267; 13 ER 884.

"The Immacolata Concezione" (1884) 9 PD 37.

McEnroe (Dennis) v Felix Mou [1981] PNGLR 222.

Milan Capek v The Yacht "Freja" [1980] PNGLR 57.

Milan Capek v The Yacht "Freja" (No 2) [1980] PNGLR 161.

Ninemia Maritime Corp v Trane Schiffahrtsgesellschaft GmbH und Co KG; "The Niedersachsen" [1983] 1 WLR 1412; 2 Lloyd's Rep 600.

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

R v Bernasconi (1915) 19 CLR 629.

Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corporation [1981] QB 368.

Rylands v Fletcher (1868) LR 3 HL 330.

SCR No 3 of 1985: The State v Uniss Kamugaip [1985] PNGLR 278.

Salaman v Warner [1891] 1 QB 734.

Salter Rex & Co v Ghosh [1971] 2 QB 597.

Sharp (John) & Sons Ltd v Katherine Mackall (1924) 34 CLR 420.

Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119.

Strachan v Commonwealth (1906) 4 CLR (Pt 1) 455.

Union Steamship Co of New Zealand Ltd v The Ship Caradale: "The Caradale" (1937) 56 CLR 277.

United Africa Co Ltd v Owners of MV Tolten; "The Tolten" [1946] P 135; 2 All ER 372.

Wahgi Savings and Loans Society Ltd v Bank of South Pacific Ltd (Unreported, SC 185, 25 November 1980).

White v Brunton [1984] QB 570.

Wilkinson v Barking Corporation [1948] 1 KB 721.

Appeal

This was an appeal from a decision of Bredmeyer J in which he held that the Colonial Courts of Admiralty Act 1890 (Imp) ceased to operate in Papua New Guinea on Independence (16 September 1975), and then formulated a law pursuant to the Constitution, Sch 2.3 (1), allowing the action.

Counsel

R Cooper QC and I Molloy, for the appellant.

R O'Regan QC and P King, for the respondent.

Cur adv vult

20 January 1986

KIDU CJ PRATT WOODS JJ: The facts out of which this appeal arose are contained in the judgment appealed from (of Bredmeyer J) at 1-3:

"The ship 'Federal Huron' berthed in Port Moresby on 24 May 1982. The plaintiff was the owner and consignee of 410 crates of modular houses which were sent from Houston, Texas and needed for the OK Tedi Mining project. Five pieces were damaged on unloading and the plaintiff issued a writ for K200,000 damages. The ship was arrested under a warrant of arrest in rem. Security was given by the ship and it was released from arrest and sailed away.

On 2 June 1982 the defendant entered a conditional appearance to the writ in these terms:

'Enter a conditional appearance in this action for the defendant the ship "Federal Huron" who denies the writ was in force at the date of service.'

On 10 June 1982 the defendant gave notice of a payment into court in these terms:

'Take notice that the defendant has paid into court two thousand and one kina (K2,001) and says that the sum is enough to satisfy the plaintiff's claim in respect of all causes of action set forth in the statement of claim.'

In August 1983 the plaintiff filed and served a statement of claim alleging: (1) damages for breach of the contract of carriage as evidenced by the bill of lading; (2) damages for breach of the defendant's duty as bailee; and (3) damages for the tort of negligence.

To this the defendant filed a defence, an amended defence and then a further amended defence. I can consider the defence and the amended defence together. In those two pleadings the defendant admitted the bill of lading and that four pieces of cargo were damaged on unloading. It said that under the bill of lading the contract was governed by the United States Carriage of Goods by Sea Act 1936 and that liability was limited to $US800 in respect of each package, a total of $2,000. The defendant denied that the fifth piece of cargo was damaged and said that if it was, the defendant's liability was also limited to $500; alternatively that the claim was time barred under the United States statute, by not having been made within three days of delivery and, in any event, because the suit in relation to that claim was not brought within one year.

The further amended defence filed on 18 November 1983 adds the further ground that the statement of claim does not disclose a cause of action known to the law of Papua New Guinea. That ground has been argued before me as a preliminary point."

Bredmeyer J decided, as he had already done in New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek, the owner of the MV "Aya Trigon" [1980] PNGLR 205 (The Aya Trigon hereon), that the Colonial Courts of Admiralty Act 1890 (Imp) ceased to operate in Papua New Guinea when the country attained its independence on 16 September 1975. The consequence of this was that actions in rem in the admiralty jurisdiction with respect to things such as damage to cargo are not...