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Baobab Industries v Owners of the Vessel Neirau Tadra [2015] FJHC 746; HBC01.2015 (12 August 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA, FIJI
ADMIRALTY JURISDICTION

Admiralty Action No. HBC 01 of 2015

BETWEEN :

BAOBAB INDUSTRIES trading as BAOBAB MARINEa limited liability company having its registered office at Messrs Jay Lal & Company, Chartered Accountants, 21 Tui Street, Marine Drive, Lautoka
PLAINTIFF

AND :

THE OWNERS OF THE VESSEL NEIRAU TADRA presently on dry land at the premises of BAOBAB INDUSTRIES LIMITED trading as BAOBAB MARINE at Vuda Point Road, Vuda, Lautoka
DEFENDANT

Counsel: Mr W Pillay for plaintiff
No appearance for defendant
Date of Hearing: 05 October 2015
Date of Ruling: 12 October 2015

RULING

Introduction

[1] This ruling concerns with an ex parte notice of motion for arrest of vessel.

[2] On 29 September 2015 the plaintiff filed the ex parte notice of motion supported by an affidavit of Brian Smith sworn on 25 September 2015 (‘the application’) seeks an order that:

‘The vessel NEIRAU TADRAbe arrested and kept under safe arrest until further order of the court.

[3]It will be noted that the application does not state the law which the application is made under.

Background

[4] Briefly, the background facts as I have gleamed from the statement of claim are as follows: BAOBAB INDUSTRIES, the plaintiff is a limited liability company and is engaged in the business of inter alia repairing, maintaining and fabricating marine vessels including Yachts and Boats. THE OWNERS OF THE VESSEL NEIRAU TADRA, the defendant was a customer of the Plaintiff .The Plaintiff provided various services to the Defendants since November 2012 and up until the date of filing of this Statement of Claim. The plaintiff continues to provide the Defendant with a storage facility for the Defendant and/or the vessel. The value of services provided to the Defendant by the Plaintiff currently stands at $44,856.00. Despite various reminders sent to the Defendant by the Plaintiff, Defendant has failed and/or wilfully neglected to pay the debt. As a result the plaintiff took out writ of summons against the defendant, and at the same time filed the ex parte notice of motion for arrest of the vessel Neirau Tadra.

Admiralty jurisdiction

[5]In Fiji, the High Court is vested with admiralty jurisdiction by virtue of Section 18 (2) of the High Court Act (Cap 13) which dealing with such jurisdiction provides:

‘The High Court has the admiralty jurisdiction which the High Court of Justice in England possessed on 4th December, 1987.’

[6] The High Court has the powers and authority which the Supreme Court had on 4th December 1987. So the admiralty jurisdiction of the High Court of Fiji is the same as the jurisdiction which the High Court of Justice in England had as at 4th December 1987.

[7] Sections 20-23 both inclusive of the UK Supreme Court Act deals with the admiralty jurisdiction of the High Court of UK.

[8] The admiralty jurisdiction of the Hight of Fiji maji may be exercised in respect of any of the following claims enunciated under section 20 (1) of the Supreme Court Act 1981 which include:

&;...

(m) any claim in respect of goods or mate materials supplied to a ship for her operation or maintenance;

(n) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;

...’ (Emphasis added).

[9] Furthermore, the Admiralty Jurisdiction (Fiji) Order in Council, 1962 (the ‘OiC’) which came into operation on the 27 February, 1962 also confers admiralty jurisdiction on the High Court of Fiji. Section 2 of the OiC provides:

‘2. The Colonial Courts of Admiralty Act, 1890, shall, in relation to the [High Court] of Fiji, have effect as if for the reference in subsection (2) of section 2 thereof to the Admiralty jurisdiction of the High Court ilandgland there were substituted a reference to the Admiralty jurisdiction of that court fined by d by section 1 of the Administration of Justice Act, 1956, subject to the ation and modification of thof the said section 1 that is specified in the First Schedule.’

[10] Section 1 (1) of the Administration of Justice Act, 1956 so far as material provides:

‘The admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following question or claims-

‘...

(l) any claim in respect of goods or materials supplied to a ship for her operation or maintenance;

(m) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;

...’

Arrest of Vessel

[11] In Fiji, arrest of vessel is dealt with in Supreme Court (Now High Court) (Admiralty) Rules. Order 2 of that Rules provides:

‘1. In admiralty actions in rem a warrant for the arrest of property may be issued at the instance either of the plaintiff or of the defendant at any time after the writ of summons has issued, but no warrant of arrest shall be issued until an affidavit by the party or his agent has been filed, and the following provisions complied with:-

(a) the affidavit shall state the name and description of the party at whose instance the warrant is to be issued, the nature of the claim or counter-claim, the name and nature of the property to be arrested, and that the claim or counter-claim has not been satisfied;

(b) in an action of wages or of possession the affidavit shall state the national character of the vessel proceeded against; and, if against a foreign vessel, that notice of the commencement of the action has been given to the Consul of the State to which the vessel belongs if there be one resident in Fiji, and a copy of the notice shall be annexed to the affidavit;

(c) in any action of bottomry the bottomry-bond, and, if in a foreign language, also a notarial translation thereof, shall be produced for the inspection and perusal of the Registrar, and a copy of the bond, or of the translation thereof, certified to be correct, shall be annexed to the affidavit.’ (Emphasis provided).

Determination

[12] The plaintiff applies for arrest of vessel ‘Neirau Tadra’ on the ground that the claim made by the plaintiff for services rendered in repair and maintenance to the vessel has not been satisfied.

[13] The nature of the claim is that the plaintiff provided professional services for the repair, maintenance and general upkeep and storage facility to the defendant and/or the vessel.

[14] The admiralty affidavit states nature of the claim, the name and nature of the property to be arrested and that the claim has not been satisfied.

[15] In the writ of summons the plaintiff claims inter alia special damages and general damages against the defendant. The claims stems from repairs and equipment provided to the vessel.

[16] Mr Pillay, counsel for the plaintiff advanced argument: the claim is in respect of repair and equipment of a vessel. It is an action in rem, as such the plaintiff is entitled to arrest the vessel. He cited the case authorities of Captain & Crew of the MV Voseleai v Owners of the MV Voseleai [1994] FJHC 159; HBG 0006j.1994s (28 October 1994); Donald Pickering & Sons Enterprises Ltd v Karim'sLtd [1997] FJHC 20; [1997] 43 FLR 60;(6 Februarbruary 1997); Baobab Industries Ltd v Owners of the Yacht 'Jubilant' [2009] FJHC 167; Admiralty Action 01.2009L (19 August 2009) &Hai Soon International TradingLtd vrs of the Motor Vtor Vesselessel Yin Chen No 1 [2010] FJHC 474; HBG 05.2008 (15 October 2010).

[17] In MV Voseleai's case (supra) the Master and 10 crew members issued action in rem claiming unpaid wages and allowances. The vessel was arrested by the Admiralty Marshal pursuant to a warrant issued by the Court. Later, vessel was released upon the defendant producing the Bankers Undertaking issued by a bank in the Solomon Islands.

[18] In the case of Donald Pickering (supra), the plaintiffs who claimed not to have been paid for the work done to 2 vessel obtained warrants for their arrest. The defendant owner of the vessels sought discharge of the warrants arguing that the plaintiffs were not entitled to a maritime lien and hence were not entitled to arrest the ships. Dismissing the defendants application, Fatiaki, J, examined the nature and origins of the admiralty action in rem and the Court's jurisdiction to issue a warrant for the arrest of the res.

[19] In Baobab Industries Ltd v Owners of the Yacht 'Jubilant' (supra) the plaintiff alleged that it had done repairs and other work on the yacht but the owners have neglected to pay for them. The court granted an order for the arrest of the yacht.

[20] Hon. Anjala Wati, J in the case of Hai Soon International Trading PTE Ltd (supra) after analysing the relevant admiralty law refused FIRCA's application to be joined as a party in the admiralty proceedings and said that FIRCA's claim could not be brought as an action under the admiralty jurisdiction.

[21] Turning back to the current application. The plaintiff's claim is not against the vessel only. The statement of claim clearly states that its claim is in respect of repairs provided to the defendant and/or to the vessel and thus turning the action somewhat hybrid situation of in rem and in personam action.

[22] The cases cited by the plaintiff do not support the proposition that admiralty jurisdiction can be invoked against the vessel lying on dry land at the premises of the plaintiff. The vessel is under the custody and control of the plaintiff hence the question of arrest will not arise.

Conclusion

[23] The order for arrest is sought in respect of a vessel that is already under custody and control of the plaintiff. In my opinion admiralty jurisdiction cannot be invoked against the vessel lying on the dry land. I therefore refuse to grant order for the arrest of the vessel 'Neirau Tadra'.

The result
The application to arrest of vessel is refused.

M H Mohamed Ajmeer
JUDGE

At Lautoka
12 Oct. 15