Komaria Shipping Corporation v Vostoktransflot Joint Stock Shipping Company [2001] FJHC 258; HBC10.2001 (7 December 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 10 OF 2001

Between:

KOMARIA SHIPPING CORPORATION
Plaintiff

And

VOSTOKTRANSFLOT JOINT STOCK SHIPPING COMPANY
Defendant

Mr. P. Knight for the Plaintiff
No appearance for Defendant - not served
Mr. R. Smith with Ms. G. Phillips for 3rd Party

RULING
(Detailed Reasons later)

On an application ex parte for interlocutory injunction made on behalf of the Plaintiff on 14 November 2001 I made an Order that ‘the defendant whether by itself its servants agents or otherwise be restrained from removing from the jurisdiction or disposing of or dealing in any way with the ship ‘Silver Rain’ until further Order of the Court AND THAT the costs thereof and of this application be costs in the cause’.

Subsequent to the making of the said Order, Mr. Robert Smith on behalf of a Third Party called Baltimore Navigation Limited applied on 21 November 2001 for the discharge of the said injunction. This application was heard by me inter partes on 3 December and I stated that I will give my Ruling on Notice which I hereby do. In view of the shortage of time at my disposal before I proceed on my annual leave it will not be possible to give detailed reasons for the decision which I have come to in this matter. However, I will give detailed reasons later.

At the outset it should be pointed out that although the initial application for injunction was made ex parte under Order 29 of the High Court Rules as a matter of urgency without the Writ and the Order was made at about midnight because the said vessel was leaving the next day, no writ of Summons has been filed at all in this matter. I am of the view that this should have been done subsequent to the Order. No papers have been served on the defendant which is alleged to be the owner or has a right over the vessel for the purposes of this action.

The position therefore is that the defendant has not responded to the application and could not be expected to do so unless the papers in this action are served on it.

Now a Third party thereafter called ‘Baltimore’ has come forward claiming ownership in the vessel and stating to the effect that the defendant had sold the vessel to someone and later it became the owner and has stated in the affidavits filed on its behalf how it has become the owner. It says that the plaintiff has no right whatsoever over the vessel and that it should be released and be allowed to set sail.

I have carefully considered the arguments put forward by both counsel and the affidavits filed by the parties and am satisfied that the Plaintiff cannot hold the vessel any longer for the alleged debt owed to it by the defendant.

On the affidavit evidence before me I find that the ownership of the vessel is not in the defendant to enable the Plaintiff to cling on to the vessel to satisfy its alleged claim. I find that Baltimore has established a strong claim to ownership in itself on the affidavit evidence and on the submissions of Mr. Smith. It is not for me in this application to decide as to who the actual owners are and how Baltimore eventually came to be the owners. As matters stand, Baltimore has a better claim to the vessel than the Plaintiff.

In these circumstances I find that the Plaintiff cannot continue to hold the vessel anymore to satisfy its claim against the defendant.

The injunction is therefore discharged, which means that the vessel is free to sail away from Fiji waters. I award costs of this application against the Plaintiff to be taxed if not agreed.

D. Pathik
Judge

At Suva
7 December 2001