Alpha Oil Company Ltd v Qing Mu (the Ship) [2013] PGNC 220; N5524 (11 September 2013)

N5524

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 917 OF 2013

BETWEEN:

ALPHA OIL COMPANY LTD
Plaintiff

AND:

THE SHIP "QING MU"
Defendant

Waigani: Kariko, J
2013: 4th & 11th September

ADMIRALTY PROCEEDINGS — action in rem— applicable legislation — Colonial Courts of Admiralty Act 1890 and the Admiralty Rules — O21 National Court Rules not in force

ADMIRALTY PROCEEDINGS — practice and procedure — form and procedure under the Admiralty Rules varied where appropriate — application for warrant of arrest — requirements — claim in respect of necessaries — Rule 10(c) Admiralty Rules

Cases cited:

Rush Corporation v Long Line Tuna Ltd (2004) N2559
The Ship "Federal Huron" v Ok Tedi Mining Ltd [1986] PNGLR 5

Counsel:

Ms L Tepu, for the plaintiff

RULING

11th September, 2013

1. KARIKO, J: The plaintiff Alpha Oil Company Limited is incorporated under the laws of the Republic of Korea. Its' business includes selling bunker fuel. In this proceeding, the plaintiff claims that bunker fuel worth US$487,561 was supplied to the vessel "Qing Mu" for which payment remains outstanding.
   
2. The plaintiff filed a notice of motion on 27th August 2013 in which it firstly seeks leave to dispense with the requirements for service, and then asks for various directional orders concerning the form and procedure to apply in commencing and pursuing these proceedings, and for leave for a warrant to be issued for the arrest of the defendant vessel.
   
3. I accept that the admiralty jurisdiction in this country is still based on imperial legislation that are still in force in Papua New Guinea namely the Colonial Courts of Admiralty Act 1890 and the Admiralty Rules promulgated under that Act. The Supreme Court held this to be so in The Ship "Federal Huron" v Ok Tedi Mining Ltd [1986] PNGLR 5. In Rush Corporation v Long Line Tuna Ltd (2004) N2559 the learned judge considered and applied Order 21 of the National Court Rules which deals with admiralty proceedings. However as that Order is yet to come into force, in my view that decision was clearly wrong.
   
4. In filing this proceeding the plaintiff applied the form and procedure provided under the Admiralty Rules, but with slight variations where appropriate. These variations include:
   
   • (a) Amending the title or heading of the court documents from "In the Central Court of the Territory of Papua in Admiralty" to "In the National Court of Justice at Waigani in Admiralty".
     
   • (b) Describing the res in these proceedings as The Ship "Qing Mu".
     
   • (c) Stating in the Warrant of Arrest that it commands "the Marshall of the National Court of Justice in Admiralty" instead of "the Marshall of our Central Court of the Territory of Papua in Admiralty" to arrest the ship.
     
   • (d) Amending the witness provision of the Warrant to be in line with the form currently used in a writ of summons.
     
   • (e) Including a section in the Warrant for the Registrar to endorse the Warrant of Arrest for its issue.
     
   • (f) Adding another section in the Warrant for the Admiralty Marshall's substitute to endorse and certify service of the Warrant.
     
   • (g) Referring to "Papua New Guinea" instead of "the Territory of Papua" for an affidavit required under Rule 10(c) of the Admiralty Rules.
     
5. Given the nature of these variations, and for the avoidance of any doubt, the plaintiff submits that it is necessary that the Court direct that the form of document used to initiate these proceedings sufficiently complies with the Colonial Courts of Admiralty Act 1890 and Admiralty Rules and only has such variations as the nature of the case requires. I consider it proper that I give that direction pursuant to Order 1 Rule 12(1) of the National Court Rules.
   
6. Consequent to that direction it is also appropriate that I order that:
   
   • (1) pursuant to Order 1 Rule 12(2) of the National Court Rules, the proceedings commenced in accordance with the directions of the Court and are well commenced; and
     
   • (2) pursuant to Order 1 Rule 12(3) of the National Court Rules, a step taken by the parties in accordance with the directions of the Court shall be regular and sufficient.
     
7. The plaintiff has also asked for directions as to which persons can affect service of the Writ of Summons and Warrant of Arrest on the defendant. The relevant person under the practice in England is the Marshall and his substitutes. As the defendant vessel is expected to dock at Kokopo, the plaintiff submitted that officials of the National Court and Papua New Guinea Customs based at Kokopo can act as substitutes for the Marshall in the present matter. I accept that submission.
   
8. While the time within which a party may enter an appearance or file a Notice of Intention to Defend in Admiralty proceedings is not clear under the Admiralty Rules, I am persuaded by the plaintiff's submissions that given the need to deal with these types of actions speedily, any party seeking to defend the admiralty proceedings shall file a Notice of Intention to Defend within 14 days of the service of the Writ of Summons on the vessel.
   
9. Having filed the writ of summons, the plaintiff has applied for a warrant of arrest of an admiralty action in rem to be issued. Rule 10 of the Admiralty Rules sets out the procedure for arrest of property in Admiralty actions in rem. With leave of the court, a warrant may be issued after a writ of summons has been filed and an affidavit filed covering certain matters depending on the type of action. The present suit is in respect of necessaries furnished to the defendant vessel. Rule 10(c) then is the relevant provision.
   
10. In support of the application, the plaintiff relies on the affidavit of Pil Jae Lee sworn on 21st August 2013 in which Mr Lee deposes to the best of his belief that:
    
    • (a) The national character of the "Qing Mu" is Chinese and its flag is Hong Kong; and
      
    • (b) The port to which the "Qing Mu" belongs to is Hong Kong; and
      

(c ) No owner or part owner of the ship is domiciled in Papua New Guinea at the commencement of the action.

11. I find the requirements of the affidavit to be provided in accordance with Rule 10(c) of the Admiralty Rules have been complied with, and of course a Writ of Summons has been filed. It is noted that the plaintiff has also undertaken to pay for any expenses incurred by the Marshall or his officer while the defendant vessel is custody pursuant to execution of the warrant.
    
12. The plaintiff is therefore granted leave for a Warrant of Arrest to be issued against the defendant.
    
13. Given all the foregoing, I grant the plaintiff the orders sought in terms of its notice of motion filed 27th August 2013

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Gadens Lawyers: Lawyers for the plaintiff