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All Engineering (Fiji) Ltd v Owners of Bulou and Barge Pro Dive II [2009] FJHC 262; Admiralty Action 2 of 2009 (25 November 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Admiralty Action No: 2 of 2009L

BETWEEN:

ALL ENGINEERING (FIJI) LTD
Plaintiff

AND

THE OWNERS OF THE TUGBOAT “BULOU” AND BARGE “PRO DIVE II”
Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr F Khan for the Plaintiff
Solicitors:Messrs Faiz Khan Lawyers for the Plaintiff

Date of Hearing: 25 November 2009
Date of Judgment: 25 November 2009

INTRODUCTION

[1] This is an ex-parte application for the arrest of the tugboat “Bulou” and the barge “Pro Dive II”.

[2] After hearing Mr Khan, Counsel for the Plaintiff, I granted his application with my written reasons to be published later. These are my reasons.

THE ARREST

[3] The arrest is founded on repairs carried out by the Plaintiff on the two vessels. The affidavit in support of the motion sworn by the Plaintiff’s accountant had annexed to it invoices and a summary of the amounts owing to the Plaintiff by the owners of the vessels for repairs and maintenance as far back as December 2007. I accept this evidence as sufficient proof of the repairs and maintenance carried out on the two vessels.

[4] The amount claimed is substantial. The Plaintiff’s accountant says that there has never been any dispute as to the debt owed for the works carried out on the vessels. The Plaintiff’s solicitors have also issued a statutory demand under the Companies Act to the owners of the vessels for payment of the debt. The demand has not been met. In fact solicitors acting for the owners wrote to the Plaintiff’s solicitor saying that their client does not deny the indebtedness but, because of the down turn in business, seeks the Plaintiff’s indulgence and asks to be given until the end of January 2010 to “formalise the restructuring options (of the owner company) and revert to you with a plan for payment.” The accountant is fearful that the company’s debt may not be paid at all if the vessels and assets of the owners are disposed of so, on legal advice, they have held off the winding up action and are pursuing this action as a surer way of securing payment of the debt.

[5] Mr Khan, Counsel for the Plaintiff, submitted that there was some urgency in the matter because the vessels were about to leave the Lautoka wharf for the outer islands, which they do every evening and return to the wharf. I accept that the vessels, like any others, could perish at sea on any of these trips and we are now in the cyclone season. I do not think that whether the vessels are insured or not give adequate protection to the Plaintiff.

[6] I am satisfied that a case of urgency has been established. The owners of the vessels do not deny liability. They are not prejudiced by their absence at the hearing of this application. Also, the likelihood of irreparable or serious mischief ensuing is real. For these reasons I am satisfied that the application should proceed ex-parte.

THE LAW

[7] The law in Fiji is well settled that a repairer of a vessel has an action in rem against the vessel despite the lack of a maritime lien: Donald Pickering & Sons Enterprises Ltd v Karim's Ltd [1997] FJHC 20; [1997] 43 FLR 41 (6 February 1997); Baobab Industries Ltd v Owners of the Yacht 'Jubilant' [2009] FJHC 167; Admiralty Action 01.2009L (19 August 2009).

THE OUTCOME

[8] This case clearly falls within that principle so the Plaintiff is entitled to warrants for the arrest of the two vessels.

[9] The Plaintiff has arranged for a security firm to assist the Admiralty Marshall in the arrest of the vessels and to secure the safety of the vessels after the arrest so I have made the latter arrangement a part of the Order.

[10] The matter is adjourned for mention on 4 December 2009 at 9.30am before me.

Sosefo Inoke
Judge