Chandra v Kiribati Shipping Services Ltd [2010] FJHC 43; Admiralty Action 1.2010 (4 February 2010)

IN THE HIGH COURT OF FIJI AT SUVA
ADMIRALTY JURISDICTION

ADMIRALTY ACTION NO: 1 OF 2010

ADMIRALTY ACTION IN REM AGAINST THE MOTOR VESSEL "MOANARAOI KSSL".

BETWEEN:

PRAKASH CHANDRA T/A DOLPHINS MARINE ELECTRICAL COMPANY T/A DOLPHINS ELECTRICAL AND MAINTENANCE WORKS
PLAINTIFF

AND:

KIRIBATI SHIPPING SERVICES LIMITED
FIRST DEFENDANT

AND:

THE MOTOR VESSEL "MOANARAOI KSSL"
SECOND DEFENDANT IN REM

Counsel: Mr. R. J. Singh for the Plaintiff.
No appearance of the defendants.

Date/Place of Hearing: Wednesday, 3rd February, 2010 at Suva.
Date/Place of Hearing: Thursday, 4th February, 2010 at Suva.

Judgment Of: The Hon. Acting Justice Anjala Wati.

JUDGMENT OF THE COURT

ADMIRALTY JURISDICTION – application by the plaintiff for an order for arrest of Motor Vessel " Moanaraoi KSSL" on the grounds that the defendants owe to the plaintiff a substantial sum of money for works done on the ship on the request of the agents of the owners of the ship; the work being also approved by the captain and chief engineer of the ship- the materials placed before the court establishes that there was a request to the plaintiff to carry out maintenance and repair works on the ship and that the plaintiff in fact carried out the works for which he was partially paid but substantial payment is due and owing- an action to recover monies for maintenance and repair works done on a ship is an action classed in rem and the plaintiff is entitled for an order for seizure of the ship --an order for arrest of the motor vessel issued.

Legislation
Administration of Justice Act 1956.
High Court Act, Cap.13.
High Court (Admiralty) Rules, Cap. 13.

Cases referred to
"The Cella" [1888] UKLawRpPro 18; (1989) 13 P.D. 82

The Case Background

1. This is an action under the Admiralty Jurisdiction for an order for an arrest of motor vessel "Moanaraoi KSSL" presently anchored at Suva Wharf in Fiji.

2. The application was brought by an ex-parte motion supported by an affidavit of the plaintiff filed on the 1st day of February, 2010.

3. A writ of summons was also filed on the 1st day of February, 2010 which contains an indorsement of claim to the following effect:-

"The plaintiff claims the sum of $50,900 (Fifty Thousand Nine Hundred dollars) being the balance sum due and owing for electrical repairs and maintenance works executed to the Motor Vessel " Moanaraoi KSSL" during December 2009 at the request of the defendant, together with interest thereon at the rate of 12.5%, sales expenses and cost".

4. On the 4th day of February, 2010 the application was initially heard and refused ex-parte. An order for service of the application was made. It was ordered that the application must be served on the agents of the first defendant, the agent being Williams & Gosling Limited. It was further ordered that the application would be heard inter-partes at 4.00pm on the 4th day of February, 2010.

5. The Court was informed that the vessel was to depart on the 5th day of February, 2010 at a time unknown to the plaintiff.

6. The application was served on the agents but the agents failed to appear in court. The matter was therefore heard in the absence of the defendants.

The Affidavit and the Submissions

7. The plaintiffs counsel relied on the affidavit in support and his oral submissions to seek an order for arrest of the motor vessel.

8. The affidavit in support stated the following:-

a. The plaintiff is the sole proprietor of the business known as Dolphins Marine Electrical Company t/a Dolphins Electrical Maintenance and Mechanical Works.

b. The plaintiff engages inter alia in the business of electrical repairs and maintenance of motor vessels.

c. On or about 16th December, 2009 the plaintiff at the request of the defendants carried out repairs and maintenance works, and supplied necessary materials in the sum of $68,900 to the first defendant's motor vessel.

d. The motor vessel belongs to the first defendant. The repair works were carried out by the order and direction of the servants and agents of the first defendant, namely, Williams and Gosling Ltd.

e. A search caused at the Fiji Registry at the Marine Department confirmed that the motor vessel is a foreign registered motor vessel.

f. There has never been any dispute as to the debt owed for works carried out on the said vessel. There has been clear acknowledgment by the first defendant of high standards and professionalism of the plaintiff company for the works carried out on the said vessel. There is also acceptance of the full amount being due and payable.

g. In early January, 2010 the defendant through its agent Williams and Gosling Limited paid a sum of $10,000. A further sum of $8,000 was paid on the 20th day of January, 2010.

h. After the payments, the balance amount owing to the plaintiff is $50,900.

i. The payment was to be done on C. O. D (Cash on Demand) basis. Several efforts have been made to obtain full payment. Despite promises for payments by the defendant’s there has been failure to make the full payments.

j. Information has been received that the first defendant may be in the process of disposing off its vessel and assets and leaving the jurisdiction of Fiji.

k. If ownership of the vessel changes then no action in rem can be maintained against the motor vessel.

l. The plaintiff company is fearful that the debt may not be paid in full if the assets and vessels of the shipping company are disposed off.

m. The balance debt remains unpaid. Additional legal costs have been incurred and the cost continues.

n. The plaintiff undertakes to arrange for the services of a reputable security company to assist the Admiralty Marshall in the arrest of the motor vessel.

9. In addition to the affidavit evidence, Mr. Singh made the following submissions in support of the application:-

a. The matter was one of urgency. The vessel is foreign owned and due to depart on Friday, the 5th February, 2010. If payment is not secured then the plaintiff will not be able to recover its debt.

b. It is not known whether the first defendant exists in Fiji or not.

c. The presentation of the invoice was itself a demand for payment and that the defendants should have made payments once the invoice was presented. The debt is undisputed.

d. The payments were made by Williams and Gosling Limited and they are agents of the first defendants. It is not proper to sue Williams & Gosling as they are just the agents.

The Consideration

The plaintiff stated in the affidavit that he was ordered and directed by the agents of the first defendant Williams & Gosling to carry out repairs, do maintenance works and supply materials to the vessel. In support of his statement he produced an order for generator repair. The order reads as follows:-

"MV MOANARAOI
KSSL

16-12-09

Capt. Moote Tiara

General Manager

KSSL

Attn: Solo

W & G

From Chief Engineer MV Maharani

Subject: Generator Repair

Please arrange for the following tasks to be repaired by Dolphins Electrical Company 102-suva sty Suva

- If they can fix the following problems for Generator No 1,

- Remove all 3 phase wires.

- Weld plate for lifting generator.

- Remove 2-ton generator.

- Dismantle generator at damage part (rubber coupling)

- Supply and install burnt part.

- Reassemble all part and to be tested.

Thanks

Sad

Kaka Taburimai"

11. The order also bears some writing in ink which indicates that the order for repair was approved by the Master/Captain of the ship.

12. It is clear from the order that the request was made to one Solo from W& G. I take it that W & G meant Williams & Gosling Limited. If Williams & Gosling ordered the plaintiff to carry out the works then it would definitely be the directions to carry out the works in terms of the order.

13. Invoice number 1943, consisting of two pages was presented by the plaintiff to "Kiribati Shipping Services Limited C/- Williams and Gosling Ltd, Suva, Fiji Island Attn: Capt Timwemwe 9086456". It shows the various works that were carried out by the plaintiff on the vessel. It also shows that the cost for the work was in the sum of $68,900.

14. Mr. Singh argued that upon presentation of the invoice the payments became due and owing since the terms of the payments was that payment would be made in cash on demand basis. It was further argued that the Captain and the Chief Engineer of the vessel had approved payment and the approval was via handwriting on the invoice and signed by both of them. There is also evidence of payment in the sum of $8,000.

15. It is clear from the order presented and the invoice raised that there was a request to the plaintiff to carry out maintenance and repair works to the ship and the plaintiff in fact carried out the works. The work was approved by the captain and chief engineer of the ship and payments were also approved but only a sum of $8,000 was paid. The balance amounts remains due and owing and the plaintiff has no option but to look for payment. His only recourse now is to have the ship arrested as the owners of the vessel are not based in Fiji and the Fiji agents have refused and neglected to pay the monies due and owing.

16. I am satisfied that this application is an action in rem and that the plaintiff is entitled to bring it and have it tried. Whether or not their claim turns out to be a good one, they are entitled to assert the claim by proceeding in rem. On the material before me I must say that the plaintiff has established a lawful right to claim the monies due and owing on which an order for arrest could be founded. I must cite one very important case authority and the legislative provisions which allows for seizure of a ship in cases of monies due and owing to the ship-repairers.

17. Lord Esher M.R in "The Cella" [1888] UKLawRpPro 18; (1989) 13 P.D. 82 said at p.86:-

"It is true that in respect of repairs done by the plaintiff there was no maritime lien, but the Admiralty Division, nevertheless has jurisdiction over such a claim as this, and ... that jurisdiction may be exercised by proceedings in rem, as was done in this case. As regards a maritime lien the Admiralty Court, ... enforces it in an action in rem by seizing the ship and it does so in order to enable the person who alleges he has a right against the ship to realise that right. Now the jurisdiction given to the Admiralty Division by the Act in question can, as I have said, be exercised by an action in rem, that is to say, upon the production of a proper affidavit, a warrant of arrest is issued and under it the Marshall may seize the ship, and the Court will adjudicate upon it. Possession is taken by the Marshall in order that the ship may be sold, and that the right of the plaintiff may be satisfied out of the ship. These rights must exist before the ship is seized for the Court adjudicates upon the ship on the ground that it has jurisdiction to seize it and realise it for the plaintiff, on account of something which happened before the seizure, which in this case was repairing her."

18. The in rem jurisdiction of the High Court of Fiji is derived from section 21 of the High Court Act Cap. 13 which reads as follows:-

"The Supreme Court (now High Court) shall be a Colonial Court of Admiralty within the meaning of the Colonial Courts of Admiralty Act, 1890, of the United Kingdom, and shall have and exercise such Admiralty Jurisdiction as is provided under or in pursuance of subsection (2) of section 56 of the Administration of Justice Act, 1956 of the United Kingdom or as may be from time to time be provided by any Act, but otherwise without limitation, territorially or otherwise."

19. Section 1(1) of the Administration of Justice Act provides:-

"The Admiralty Jurisdiction of the High Court of Fiji shall be as follows, that is to say, jurisdiction to hear and determine any of the following ...claims-

(m) any claim in respect of goods or 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 or dues...;"

20. Order 2 Rule 1(a) of the High Court (Admiralty) Rules, Cap.13 states that:-

"In admiralty action in rem a warrant for the arrest of the property may be issued at the instance either of the plaintiff or of the defendant at any time after the writ of summons has been 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;..."

22. The affidavit of the plaintiff complies with Order 2 Rule 1(a) of the High Court (Admiralty) Rules.

23. For the reasons outlined above, the plaintiff's application for issue of warrant must be granted.

Outcome

23. A warrant for arrest of the motor vessel "Moanaraoi KSSL" shall be issued forthwith.

24. All applications including the writ must now be served on the defendant’s. The action shall then take its normal course.

ANJALA WATI
Acting Judge

4.02.2010