Translink Shipping Ltd v Compagnie Wallisienne de Navigation SARL [1991] FijiLawRp 6; [1991] 37 FLR 46 (4 June 1991)

[1991] 37 FLR 46

HIGH COURT OF FIJI

TRANSLINK SHIPPING LIMITED

v

COMPAGNIE WALLISIENNE de NAVIGATION SARL & ANR

[HIGH COURT, 1991 (Byrne J), 4 June]

Civil Jurisdiction

Conflict of laws - admiralty action - whether Fiji or the Wallis Islands the forum conveniens.

Proceedings were commenced in Fiji to recover damages allegedly sustained following an incident in the Wallis Islands between two vessels neither of which was registered in Fiji. On application to discharge an interim injunction the High Court reviewed the law relating to "natural forum" and ordered the release of the applicant's vessel.

Cases cited:

Abidin Daver [1984] A.C. 398
Allen v Jambo Holdings Ltd [1980] 1W.L.R. 1252
American Cyanamid Co. v Ethichon Co. Ltd. [1975] A.C. 396
The Atlantic Star [1974] A.C. 436
Atlantic Star [1978] Q.B. 364
Baroda v Wildenstein [1972] 2 Q.B. 282
Club Mediterranée NZ v. Wendell [1989] 1 NZLR 216
Oceanic Sun Line Special Shipping Co Link v Fay (1988) 62 ALJR 389
Sim v Robinow (1892) 19 R. 665
Spiliada Maritime Corp. Cansulex Ltd [1987] 1 A.C, 460
St. Pierre v South American Stores [1936] 1 K.B. 382

Interlocutory application in the High Court.

J.G. Singh for the Plaintiff
S. Parshotam & S. Lateef for the Defendants

Byrne J.:

On the 31st of May 1991 on an urgent ex parte application made by it I granted the Plaintiff a Mareva Injunction against the First Defendant restraining it by its agents or servants or otherwise from removing from the jurisdiction of this Court or otherwise disposing of or dealing with any of its assets within the jurisdiction including and in particular the ship Moana III save in so far as such assets did not exceed in value the sum of $253,460.00 claimed by a Writ of Summons which had been issued in this Court on the 30th of May 1991.

The Statement of Claim on the basis of which, together with two supporting affidavits the injunction was issued, alleges the following relevant matters:

(1) The Plaintiff is a Shipping Company registered in Vila, Vanuatu and was at all relevant times the charterer of the Danish registered vessel Coral Link.

(2) The First Defendant is a Shipping Company registered in Wallis Island and was at all relevant times the owner of the French registered vessel Moana III.

(3) The Second Defendant Michel Dewas was at all relevant times the Master of Moana III.

(4) On Sunday 26th of May 1991, Coral Link, in the possession of the Plaintiff, was lawfully berthed at the wharf at Mata Utu, Wallis Island.

(5) At about 0730 hours on the 26th of May 1991 the Second Defendant:

(a) Threatened damage to Coral Link;

(b) Threatened physical harm to the complement of Coral Link;

(c) Threatened to board and seize Coral Link by force;

(d) With threats and by force cast off the mooring lines securing Coral Link to the said wharf,

(e) Cut mooring lines to and cast the gangway to Coral Link from the said wharf onto the wharf,

(f) Forcibly ejected Coral Link from her berth.

(6) The Second Defendant then berthed the ship Moana III in the

berth from which Coral Link had just been ejected.

(7) Subsequent to so ejecting Coral Link and berthing Moana III, the Second Defendant

(a) Refused to make room at the said wharf for Coral Link to berth;

(b) Threatened damage to Coral Link and physical injury to her complement in the event of their attempting to berth her at the said wharf.

(8) As a result of the foregoing acts Coral Link had to lie in the roads at Mata Utu until the evening of Tuesday 28 May 1991 and could not complete the discharge of the cargo she carried for Wallis Island nor load the cargo she was to carry from Wallis Island.

Paragraph 9 of the Statement of Claim alleges that the Second Defendant was at all relevant times the servant or agent of the First Defendant and in performing the acts alleged in paragraphs 5, 6 and 7 above was acting on behalf of the First Defendant and with the knowledge of the First Defendant.

It is alleged in paragraph 10 that in carrying out these acts the Defendants were pursuing a course of conduct calculated to create such an advantage for them or either of them of a value which might exceed any disadvantage they might suffer by way of compensation payable to the Plaintiff, thereby allegedly entitling the Plaintiff to an award of exemplary damages.

Paragraph 11 of the Statement of Claim then alleges that as a result of the acts aforesaid by the Defendants the Plaintiff has suffered economic loss and damages and that in all the circumstances is entitled to compensation in the nature of aggravated general damages for the injury to its feelings and dignity.

Various particulars of special damages amounting to $53,460.00 are then given and the Plaintiff then claims the special damages together with the sum of $100,000.00 for general damages and a similar sum for exemplary damages.

It appears from the affidavit material now filed that Moana III is a trading ship which trades on a general route between Wallis Island - Noumea - Fiji and New Zealand and visits Fiji about every two months. The ship is owned by the First Defendant and is registered in the Wallis Island Shipping Registry. The First Defendant is a Company also registered in Wallis Island.

The Plaintiff alleges that the ship has a value of about $1,500,000.00; the Second Defendant believes that its value is far in excess of this sum.

It is common ground between the parties that Moana III arrived in Suva during the afternoon of the 30th May and the effect of the Injunction which I granted on the 31st of May has been to prevent the ship from departing here for Funafuti last Saturday morning, the 1st of June, until such time as I either dissolve the Mareva Injunction or the First Defendant lodges security in this Court in the sum of $253,460.00.

I granted the Injunction at about 10.30 a.m. on the 31st of May but it was not served together with other relevant papers on the Defendants until approximately 4.30 p.m. on the 31st of May.