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Capek v The Yacht 'Freja' [1980] PGNC 53; [1980] PNGLR 57 (23 April 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 57 - Milan Capek v The Yacht 'Freja' 

[1980] PNGLR 57

N224

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MILAN CAPEK

V.

THE YACHT “FREJA”

Waigani

Kapi J.

14 April 1980

23 April 1980

SHIPPING AND NAVIGATION - Admiralty jurisdiction - Law and practice - Jurisdiction of National Court - Claim for necessaries supplied to foreign ship - Whether proper action in rem - Substance of action to be derived from statement of claim not affidavit supporting arrest - Admiralty Court Act (Imp.) 1840, s. 6 - National Court Rules O. 7, r. 11.

In an action in the National Court, the plaintiff’s statement of claim read:

“The plaintiff sues the Defendant vessel in respect of necessaries supplied to the vessel at the port of Port Moresby for the period 6th April, 1979 to 21st August, 1979.”

Under O. 7 r. 11 of the National Court Rules a ship may be arrested in an action in rem provided that a warrant of arrest shall not be issued until there has been filed an affidavit setting forth the particulars prescribed in the rule, viz., the national character of the ship and a belief that the ship is domiciled in Papua New Guinea at the time of the commencement of the action.

The affidavit filed under O. 7 r. 11 of the National Court Rules stated that “the plaintiff has a claim against the yacht ... in respect of monies advanced ... for work to be carried out on the said yacht”.

On a preliminary point as to whether the plaintiff had a proper cause of action in rem:

Held:

N1>(1)      The jurisdiction of the National Court, and the law to be administered in the Admiralty jurisdiction is to be found in the Colonial Courts of Admiralty Act 1890 (Imp.), and the Admiralty Court Acts 1840, and 1861 (Imp.) including the Merchant Shipping Act 1894 (Imp.) adopted in Sch. 5 of the Constitution of the Independent State of Papua New Guinea.

History of the relevant legislation discussed.

N1>(2)      The substance of the plaintiff’s claim must be derived from the particulars contained in the statement of claim and not from the material contained in the affidavit filed pursuant to O. 7 r. 11 of the National Court Rules.

N1>(3)      Having regard to the particulars in the statement of claim, the plaintiff’s claim was one for necessaries, supplied to a foreign ship, which is a statutory action in rem created by s. 6 of the Admiralty Court Act 1840 (Imp.), and the writ had been issued in the proper form.

Action.

This was an action commenced in the National Court in which the plaintiff sued in respect of necessaries supplied to the defendant vessel. On the filing of an affidavit in support of the arrest of the ship under O. 7 r. 11 of the National Court Rules, the defendant took a preliminary point as to whether the action in rem was properly based.

The plaintiff in person.

Counsel:

R. Major, for the defendant.

Cur. adv. vult.

23 April 1980

KAPI J.: This matter came on for hearing before me on 14th April, 1980. At the hearing, the defendant raised a preliminary point on whether or not the plaintiff has a proper cause of action in rem. Mr. Major, appearing for the defendant, in making his submissions on this point, does not dispute that this Court has Admiralty jurisdiction. Whilst there is no issue as to the Admiralty jurisdiction of this Court, it may be of assistance to set out the brief history of this jurisdiction up to the time of Independence and thereafter.

THE LAW APPLICABLE DURING THE TIME OF BRITISH NEW GUINEA

The Territory of Papua became a British Protectorate in 1884. It subsequently became a British possession in 1888. By virtue of its status as a British possession, certain Imperial Acts of the United Kingdom applied to it. In relation to the Admiralty jurisdiction, the relevant Act is the Colonial Courts of Admiralty Act 1890 (Imp.). By virtue of s. 2 of this Act, the Colonial Court in British New Guinea acquired jurisdiction over matters and things possessed by the High Court in England in its Admiralty jurisdiction. Under s. 16(2), the Act came into operation in British New Guinea on 1st July, 1891. Therefore the law applicable in British New Guinea was as at 1st July, 1891 in England. (See s. 2(2) of the Colonial Courts of Admiralty Act 1890 (Imp.).) The relevant Imperial Acts applicable in so far as this case is concerned, were the Admiralty Court Act 1840, and the Admiralty Court Act 1861. These two Acts, amongst other things, deal with necessaries supplied to a foreign ship or a sea-going vessel.

In summary, the Admiralty jurisdiction of the Colonial Court in British New Guinea derived its jurisdiction basically from the Colonial Courts of Admiralty Act 1890 (Imp.) and the Admiralty Court Acts of 1840 and 1861 (Imp.).

TERRITORY OF PAPUA, 1902

On 18th March, 1902 the United Kingdom placed British New Guinea under the authority of the Commonwealth of Australia. This arrangement was legislated upon by the legislature of the Commonwealth of Australia in the Papua Act 1905 (Cth). Under s. 6 of the Papua Act 1905 (Cth) all laws in force in British New Guinea at the commencement of the Act continued in force in the Territory. By s. 8 of the same Act the courts of justice in existence in British New Guinea continued to exist as well as their jurisdiction, practice and procedure. British New Guinea became known as the Territory of Papua under the Commonwealth of Australia. (s. 5.) Papua still retained status as a Crown possession. It would therefore appear that the Colonial Courts of Admiralty Act 1890 (Imp.) continued to apply to Papua as a possession by virtue of its own force under s. 2 and by virtue of adoption or continuation as a law of British New Guinea under ss. 6 and 8 of the Papua Act 1905.

TERRITORY OF NEW GUINEA

On 17th December, 1921 the Commonwealth of Australia accepted a mandate from the League of Nations. Up until then German laws applied. The Laws Repeal and Adopting Act 1921 was passed. This law was made by the Governor-General of Australia because he had legislative authority until the establishment of the Legislative Council in 1933 under the provisions of New Guinea Act 1921. Section 4 of this Act provided that all German laws ceased to operate as at commencement of the Act.

Section 14 of the Act made provision for the adoption of laws of England that were in force in the State of Queensland. As far as this case is concerned, the Colonial Courts of Admiralty Act 1890 (Imp.) applied to Queensland. The law applicable in Queensland through the Colonial Courts of Admiralty Act 1890 (Imp.) was the same as in Papua as a possession. Admiralty jurisdiction and laws applicable were the same in both Territories after 1921.

TERRITORIES OF PAPUA AND NEW GUINEA

The position in each Territory continued until the administrative union of the two Territories of Papua and New Guinea. The administrative union of both Territories was provided for in an Act of the Commonwealth of Australia, the Papua and New Guinea Act 1949. Under s. 8 of the Papua and New Guinea Act 1949 the two Territories came under the authority of the Commonwealth of Australia but they continued to be administered separately as Territories, and the identity and status of the Territory of Papua remained as a possession of the Crown, and the Territory of New Guinea as a Trust Territory of the United Nations. The Supreme Court of the Territory of Papua and New Guinea was established under the Papua and New Guinea Act, but the jurisdiction was provided for under the Supreme Court Act, 1949. Section 6 of the Supreme Court Act 1949 adopted the same jurisdictions and powers exercised by the courts of the Territories.

Under s. 32 of the Papua and New Guinea Act 1949, all laws in force in both Territories were adopted. It would therefore appear from this that the Colonial Courts of Admiralty Act 1890 (Imp.) which was in existence in both Territories, continued in force under the new administrative union pursuant to the Papua and New Guinea Act 1949 and the Supreme Court Act 1949. This position continued up to the time of Independence.

IMMEDIATELY BEFORE INDEPENDENCE

Immediately before Independence the pre-Independence House of Assembly passed the Laws Repeal Act 1975. This Act came into operation “immediately before the expiry of 15th September 1975”, which is the day before Independence. This Act repealed all legislative enactments existing or applicable in Papua New Guinea. At the same time the Australian parliament passed the Papua New Guinea Independence Act 1975. This Act provided that on the expiration of the day preceding the Independence day every Act and every Imperial Act existing in Papua New Guinea ceased to exist.

It is necessary to consider the effect of this legislation on the application of the Colonial Courts of Admiralty Act 1890 (Imp.). Under the Laws Repeal Act 1975 and the Papua New Guinea Independence Act 1975 of Australia, the Papua and New Guinea Act 1949 and the Supreme Court Act 1949 were repealed and that destroyed the basis of the application of the Colonial Courts of Admiralty Act 1890 (Imp.) in Papua New Guinea.

It is significant to note that an “enactment” in the Laws Repeal Act 1975 is defined to include, amongst other things, an Act of Australia or legislative enactment made under such Act which applied to or continued in force in Papua New Guinea. The Papua and New Guinea Act 1949 is an Act of Australia which applied to Papua New Guinea, and the Supreme Court Act 1949 is a subordinate legislative enactment by the Governor-General of Australia under the provisions of the Papua and New Guinea Act 1949. These Acts were effectively repealed thereby destroying the basis of adoption of the Colonial Courts of Admiralty Act 1890. It should be noted that the Laws Repeal Act 1975 did not affect “an Act of England which extends of its own force to one of the Territories” which would include the Colonial Courts of Admiralty Act 1890 in its application to the Territory of Papua as a British possession. However this is of little significance since the Papua New Guinea Independence Act 1975, of Australia ceased the operation of all Imperial Acts. Immediately before Independence all statute law was abolished and there was a short period of vacuum in Papua New Guinea.

ADOPTION THROUGH CONSTITUTION

At Independence Sch. 2:6 of the Constitution of the Independent State of Papua New Guinea adopted all pre-Independence laws as Acts of the parliament of the new Independent State of Papua New Guinea. Pre-Independence laws are defined under Sch. 2 to include a law that was repealed by the Laws Repeal Act 1975. The Papua and New Guinea Act 1949 and the Supreme Court Act 1949 were Acts repealed by the Laws Repeal Act 1975 and were therefore laws adopted under Sch. 2:6 of the Constitution. This meant that as far as the Admiralty jurisdiction is concerned, Papua New Guinea at Independence was placed in exactly the same position as it was before the operation of the Laws Repeal Act 1975 and the Papua New Guinea Independence Act 1975. In essence the adoption through the Constitution brought back the operation of the Colonial Courts of Admiralty Act 1890 (Imp.) and the Admiralty Court Acts of 1840 and 1861 (Imp.). In addition to the jurisdiction of this Court under these Acts, the court also has jurisdiction under the Merchant Shipping Act 1894 and the amending Acts adopted by the Constitution which are listed in Sch. 5 of the Constitution.

It should be pointed out that there have been a number of Acts in the United Kingdom since the Colonial Courts of Admiralty Act 1890 and the Admiralty Court Acts 1840 and 1861 (Imp.) which have extended the Admiralty jurisdiction of the High Court of England in its Admiralty jurisdiction. These extensions do not affect the scope of jurisdiction given by the Colonial Courts of Admiralty Act 1890 and the Admiralty Court Acts of 1840 and 1861. As from 1902 when the Territory of Papua came under the authority of Australia, and in the case of the Territory of New Guinea, after 1921, all legislative power for these two Territories was placed under the Commonwealth of Australia and any United Kingdom amendment to the above Acts or extension of Admiralty jurisdiction did not apply to the Territories. A very good discussion of the authorities on the subject appears in an article, Queensland Admiralty Jurisdiction, How much do we have? by Norris Pratt in the Queensland Lawyer Vol. 4 Pt. 6 at p. 127.

It would therefore appear that the jurisdiction of the National Court and the law to be administered in the Admiralty jurisdiction is to be found in the Colonial Courts of Admiralty Act 1890 (Imp.) and the Admiralty Court Acts 1840 and 1861 (Imp.), including the Merchant Shipping Act 1894 (Imp.) which has been expressly adopted in Sch. 5 of the Constitution. Apart from the Admiralty jurisdiction which stems from these Imperial Acts, it is possible to construe s. 166 of the Constitution widely to include Admiralty jurisdiction. However this section was not fully argued.

I now turn to the question of whether the plaintiff in this case has brought his action with the right cause of action, namely action in rem. Before the Admiralty Court Acts 1840 and 1861 (Imp.) necessaries supplied to a ship by any person did not create a maritime lien on the ship, and in the case of The Neptune[lxxxv]¹ it was held by the judicial committee of the Privy Council of the Court of Admiralty that the court had no jurisdiction in such claims and that they were enforceable only in the courts of common law. In the case of The “Two Ellens”[lxxxvi]² it was held by the judicial committee of the Privy Council that a right of action in rem in respect of a claim for necessaries supplied to a foreign ship was created. It was held that s. 6 of the Admiralty Court Act 1840 (Imp.) created a claim of right of action in rem in respect of necessaries supplied to a foreign ship. See also The Lorena[lxxxvii]³. It was also held in The “Two Ellens” case (supra) that the Act of 1861 did not create a right of action in rem in relation to repairs and equipping of a ship. The question is whether action in rem here is properly based. Counsel for the defendant submits that the plaintiff’s claim is to be read in reference to the affidavit leading to the arrest of the ship, particularly par. 3 which reads:

“The Plaintiff has a claim against the yacht, its owners, and any other persons interested in the said yacht in respect of moneys advanced to the Master of the said yacht for work to be carried out on the said yacht within the jurisdiction of Papua New Guinea by me.”

He submits that the plaintiff, in substance, is really suing for work and repairs done to the yacht and counsel submits that this action can only be brought in action in personam and not action in rem, pursuant to the Admiralty Court Acts 1840 and 1861 (Imp.).

With respect, I do not think that the plaintiff’s claim can be based on the affidavit which leads to the arrest of the ship. Under O. 7, r. 11 of the National Court Rules a ship may be arrested in action in rem. The rule provides that a warrant of arrest shall not be issued until an affidavit by the party or his agent, setting forth the particulars prescribed in the rule is filed. In the case of action for necessaries, the rule provides that the affidavit shall state the national character of the ship and that to the best of the defendant’s belief no owner or part-owner of the ship is domiciled in Papua New Guinea at the time of the commencement of the action. That seems to me to be the primary function of the affidavit. In my opinion it is wrong to base the substance of the plaintiff’s claim on the particulars set out in the affidavit. In any action the plaintiff’s claim must be based on the statement of claim. The statement of claim endorsed on the plaintiff’s writ reads as follows:

“The Plaintiff sues the Defendant vessel in respect of necessaries supplied to the vessel at the port of Port Moresby for the period 6th April 1979 to 21st August 1979.”

The plaintiff’s claim is clearly expressed in the statement of claim as a claim for necessaries supplied to the ship. For purposes of determining the question, I only need to look at the statement of claim as to the basis of this claim. In this case it is clearly an expressed action for necessaries supplied to the ship. Since it would appear that the plaintiff’s claim is that for necessaries, the action brought in rem is the proper action to be brought as this is a statutory action for necessaries supplied to a foreign ship created by s. 6 of the Admiralty Court Act 1840 (Imp.).

When the trial is held, whether the plaintiff can prove his case is not a matter for me to decide at this stage, but is a matter for the trial judge to determine after hearing all the evidence which no doubt will include the affidavit leading to the arrest of the ship. It may well be that the evidence upon which the plaintiff bases his claim may not be in the nature of necessaries supplied to the ship but may be in the nature of repairs to the ship. If this is the case, then the plaintiff’s claim may fail in that it has been brought under the wrong action. However this is a matter which cannot be decided at this point, until the trial of the issues.

I would therefore rule that the writ which has been issued here in rem is the proper action in form for necessaries for which the plaintiff claims in his statement of claim.

Ruled accordingly.

Solicitor for the defendant: Richard Major.

[lxxxv] [1835] 12 E.R. 584.

[lxxxvi] [1872] EngR 13; (1872) L.R. 4 P.C. 161 at p. 166.

[lxxxvii] (1973) 1 N.Z.L.R. 507.