The Lorena

1) What is different about the title of this case compared with the thousands of other cases you've (pretended to) read during your law degree? Who is the defendant here? What is an action in rem? Have you ever come across this "in rem" concept in another context?

Plaintiff = Charterer of the ship, which was registered in Norway

plaintiff paid the cost of repairing the refrigerating machinery of the ship when that machinery broke down while the ship was at Tema

Writ of $3,945.89 was paid by defendant's bank, mortgagee of the ship

the Charterer (West German Firm) having paid the repair costs, secured the arrest under NZ Court

Issue: Was there Jurisdiction in NZ to arrest the ship in admiralty proceedings? / whether the arrest of the ship Lorena in 1972 would have been within the jurisdiction of the Admiralty Division of the High Court in 1891.

At the time there was Admiralty jurisdiction invoked by Statute at the time in the NZ SC

Any jurisdiction was derived from Colonial Courts of the Admiralty Act 1890(Imp) conferred on the UK admiralty Jurisdiction on all colonial Courts.

Vice Admiralty Courts Act 1863 was repealed, but the court rules of which were preserved per s 16(3) of the Colonial Courts of Admiralty Act, applying to NZ

Was the arrest of the Lorena within the jurisdiction of the Admiralty Divison of the High Court in 1891?

Right of the Creditor of a ship to bring an in rem action, to procure the arrest of the ship and obtain security for his claim

Charterer pleads on grounds of paying for ship repairs, giving rise to a pecuniary claim, but does not at admiralty law create a maritime lien in favour of the claimant, and the act of one who supplied 'necessaries to a ship did not give rise to a maritime lien

SO neither a pecuniary claim by a creditor, nor the claim to provide repairs as necessaries to a ship give rise to a maritime lien

These claims were only actions in personam The Neptune (1835) PC held no jurisdiction in such claims, as they are enforceable by the Courts of common law

In case of repairs, only a person who built or repaired a ship or who supplied necessaries were only left with a possessory common law lien, when they retained possession of the ship

The supplier of necessaries was not left with any security against the ship

1840 Admiralty Courts Act introduced necessaries supplied claim, to foreign ships, whether within the body of a country or on the high seas

The Two Ellens (1872) held that the Act of 1840 created, by clear implication, a statutory right of action in rem in respect of a claim for necessaries supplied to a foreign ship, thus authorizing the arrest of the ship as security for the amount of the claim. However, the 1861 Act had not offered any right of action in rem, for building, equipping or repairing a ship. S4 ' if at the time of the institution of the cause, the ship or the proceeds thereof are under arrest of the Court.

Plaintiff argues: It paid for repairs to the ship, thus is creditor. The act of one who provided necessaries to a ship did not also give rise to a maritime lien, such a claim is only enforceable as actions in personam. Repairers or builders who retained possession of the ship would only be able to gain a possessory lien.

2) What connection does this case have with New Zealand? Why is it being heard here and not in Norway?

3) What are the historical Imperial statutes that shaped New Zealand admiralty law? Is it strange that an Imperial statute would still be regulating maritime law in New Zealand in the 1970s? What might this tell us about the metropolitan power's view of the admiralty jurisdiction?

4) Why the brouhaha over whether the plaintiff had supplied "necessaries" or "materials" to the ship? Why did this matter and what does it tell us about the nature of admiralty jurisdiction and its limits (as opposed to the ordinary civil jurisdiction of the High Court)?

for repairs done to and the equipping of the ship Lorena at the port of Tema, Ghana,

Electricity is necessaries

However, here the writ is worded as equipping and repairing costs. The plaintiff stands or falls on the basis of the endorsement terms of the writ, by which is procured the ship's arrest. Even if that basis was not in issue, whether or not electricity was being supplied for motive power of some part or parts of refrigerating machinery during the repairs being effected, or whether it was required to effectuate the repairs.

On this basis the plaintiff has not proven that there was clearly a claim for necessaries. Thus no part of the total amount of the claim was founded as necessaries furnished in terms of s 6 of the Admiralty Court Act 1840. It is held to be an entire claim for repairs, within the terms of s 4.

The ship was unlawfully arrested.

Pg 33 where it is impracticable to serve the proceeding in the prescribed manner, substituted service within the jurisdiction by taking such steps as the Court may direct to bring the proceeding to the defendants notice, satisfy that requirement. - This doesn't accord with the last case

5) Plaintiff's counsel is partly to blame for losing this case - what do we learn about drafting admiralty pleadings from plaintiff's counsel's mistakes?

6) What do you think happened back in Norway?

LECTURE 2

Service admiralty action where in the act 25.7 and 25.8 ENTITLEMENT TO SERVE actions in rem and in personam

25.7 Notice of proceeding for action in personam

(1) An action in personam is started by a notice of proceeding in form AD 2.

(2) The action must be headed as in form AD 1.

(3) Rules 6.27 to 6.35 apply in relation to service out of the jurisdiction in an action in personam.

This is unhelpful, it doesn't explicitly tell you how to go about it. The Court has said an admiralty action in personam is the same as another action in personam. You serve on the person who is the defendant. If that person is in NZ, you go to the company's office and serve on the receptionist.

If it is a foreign ship-owning company you must follow those rules, which say you can serve out of the jurisdiction, without leave of the court, if you fall within the shopping list. Those are torts having direct connection with NZ. So must show that your action is re a contract or tort, and you can serve on that person without the courts permission. Otherwise you must apply for the Court's leave and it is up to their discretion. In which case, you then issue the documents on their registry, wherever they are based.

25.8 Notice of proceeding for action in rem

(1) An action in rem is started by a notice of proceeding in form AD 4.

(2) The action must be headed as in form AD 3.

(3) No proceedings in rem concerning any claim against the Crown may be brought.

(4) A notice of proceeding in rem may not be served out of the jurisdiction, but a notice of proceeding that is both in rem and in personam may be served out of the jurisdiction in so far as it is in personam.

(5) Rules 6.27 to 6.35 apply to service out of the jurisdiction under subclause (4).

In the act itself it says the act binds the crown, however there's your first caveat, you are not allowed to bring proceedings against a crown vessel.

You cannot serve an in rem action outside of the jurisdiction. Practically, that means that it must be within 12 nordical miles out of NZ waters ie. The vessel must be in port. So there is a weird tension re actions in rem, it's universal in that it applies to foreign ship and foreign causes of aciton, but he SHIP MUST BE IN NZ. - you would have to go to the other country and bring it under that jurisidction.

(4) says that you can serve both vessel and shipowner, and then reiterates 25.7

The Lydia Oldendorff (p 26)

Parties: Cargo Owners, re glass plates and ceramic tiles.

Ship: The Lydia Oldendorff, owned by Mitsui, who is the shipowner and carrier, and is a Japanese registerd company

Facts: Unpack goods and realise that it is damaged. Then cargo owners bring action in rem and in personam. Under the Court rules they said you can do both although the earlier rules didn't say so.

- they sued both the ship and Mitsui, and the local agent is kind of overkill, but Mitsui is a bit overkill. They know how much the glass was worth, it's finite damages, it's not complicated. There was no issue with the in rem claim because it was clear, the ship was here. If they stuck with in rem, they would not have made it to the law reports. However, this now sets out what you need to serve in personam outside the jurisdiction. The Lawyer for Mitsui took a test case, because she was sick of short-circuiting to serve them.

They sued the local agent, Seatrans in Auckland. They contacted Mistui, and said they were being sued.

Mistui's lawyers response said that it was not in the place of business re the companies' ACt, they are a Japanese company, they don't have local business in NZ.

Another argument could have been whether you had to apply to the court for leave to serve outside of the NZ jurisdiction. tTis is bc to Paul it is unclear that there was jruisdiction.

Defendants argue that it is a substitute service, meaning that the local agent is ok. But Mitsui responded that it wasn't what it was meant for and it's not as though you couldn't find me.

The Court findss that you do have to serve notice on Mitsui, and the shortcut is gone.

This is important because in all cases of commercial companies, you have to serve ont eh company, rather than a person.

Pg 27 - Court starts with s 389 -

On the basis of this belief the plaintiff had determined that service could be effected on Mitsui in New Zealand pursuant to s.389(1)(c) of the Act. This section states:

Service of documents on overseas companies in legal proceedings -

(1) A document, including a writ, summons, notice, or order, in any legal proceedings may be served on an overseas company in New Zealand as follows:

(a) By delivery to a person named in the overseas register as a director of the overseas company and who is resident in New Zealand; or

(b) By delivery to a person named in the overseas register as being authorised to accept service in New Zealand of documents on behalf of the overseas company; or

(c) By delivery to an employee of the overseas company at the overseas companys place of business in New Zealand or, if the overseas company has more than 1 place of business in New Zealand, at the overseas companys principal place of business in New Zealand; or

(d) By serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings; or

(e) In accordance with an agreement made with the overseas company.

(2) The methods of service specified in subsection (1) of this section are the only methods by which a document in legal proceeding may be served on an overseas company in New Zealand.

When you look in Companies register, the company will be on there re (a)

(d) is the potential get out of jail clause, bc they are saying the court is allowed to instruct them to do something else.

(e) Wouldn't work, bc Mitsui would have forgiven them and agreed to it, but they woudln't.

They must bring themselves within this section

Mistui argues it's not a company doing business in NZ, therefore aren't on the overseas register. They are saying that s (e)(?)not relevant to them

Court says that the plaintiff hasn't registered itself here when it should have

s332 is the section on which it turns on, as to whether Mitsui should have registered itself

s332 (a)(ii) dealing with property - and whether through its employees or through an agent - it is dealign with property through its agents in NZ

(iv) says you dont' carry business merely because of effecting sale through a property through an independent contractor

Main problem is the customs problem. Bc the reality is that a shipping Co like Mistui drop the goods off, then go through customs with an independent contractor, to drop goods in NZ. So you would come under 322(b)(iv) their argument is that they are not carrying on business in NZ, although it is with NZ

Seatrans acts as agent for all the carriers, so it's not specific to Mitsui. Practically the argument is academic, bc regardless of whether we think they are doing business in NZ is unclear.

Short answer need to say to your clients that in practical reality, they wont be listed in overseas companies register, thus we must treat them as foreign companies, there is no NZ registered place of business, as the Court found.

Can you serve on Seatrans as a substitute for Mitsui?

reasonable efforts - they say that the 'something else' is to serve on Seatrans

This is a bad argument, they've made no attempt. You see this is a substitute service section, here they were lucky Seatrans told them there was an issue, bc there is no obligation on Seatrans to tell them about these things.

What about the idea of the Courts discretion to authorise other methods of service?

The Court take a hardline, and say they wont exercise discretion to allow you to do anything else.

If he said that was fine, it would mean that every NZ agent acting n behalf of a foreign carrier could be served with notice. And under the old law it was the case, but it isn't any longer. They would have been reintroducing a rule that PArliament decided had to go. They went back to general rules of service on the defendant themselves.

Court says that they SHOULD HAVE:

Followed the rules of overseas service 6(3) 625 that you either serve without leave or apply for leave

The court seems to be saying that you should have to apply for leave bc it's a carriage contract

Question of whether Mitsui's contract to drop cargo prior to NZ would be a contract sufficiently close to NZ.

Then the Court says that the HC says a 'persons or parties' so even if a company isn't a person, it's a party the short answer is follow the rules of the HC

HC rules require that you first check whether you need leave, and should do so irrespective, you could try without leave, but if the other party protest then you will have to do it again. You actually have to follow 2 sets of rules:

(1)Service must be effected under the NZ rules, and follow the Companies act, and give it to a director, representative, or employee of the COmpany at their address. So you follow NZ company rules

(2) Then you must follow the Japanese rules.

HC say that you must not do anything conflicting with Japanese rules.

You must follow the NZ rules, and then you must do it under Japanese rules

They have to translate it, get a Jap laywer, and provide the HC rules, - EXPENSIVE, COMPLICATED, TIME CONSUMING

IF it was their full agent, as opposed to Seatrans, - they just basically do freightforwarding, they are there to physically handle the goods and make arrangements. If they drop the goods then there is a close connection. However if you can point to a legal document of being the handler/carrier of goods, then that would be enough. But when they are only doing carriage as an independent contractor .

Lydia Oldendroff says that you cannot presume. You go after the carrier (the ship owner and serve them properly.)

S 11 carriage to NZ, can be served on the local directly and they are then deemed to be the carrier. And if there was a small carriage claim then... Under s 11 they were required by statute.

The beauty of s 11 was that it allowed you a time after the ship had sailed. IT was a NZ specific solution. It was weird as it was never discussed in '94.

In the past they didn't arrest the ship. You could use s11 to go after the agent. Now the advice would be arrest the ship before it leaves.

Corneliter Halm a claim about mouldy onions, it was only a couple of thousand. Under s 11 they would have let the vessel go and sued the agent.

When they discover the damage after the ship has sailed then they have to follow the ship. Small importers wont like this very much.

Which Head/s of jurisdiction were the claimants claiming under?

Loss and damage of goods carried by a ship and (h) Any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship: - there would have been a carriage of goods bill of lading

Cargo is always (g) and (h) and you can use both, should put down as many as you think you can hit because you must come under that to get jurisdiction.

1) What is the cause of action here? - An interlocutory action to set aside an ex parte order for directions as to service. A writ is attempting to be served on a company that is based overseas, and they are arguing that it is a company that is 'registered' as operating in NZ as well, which the Company contends is not the case. Mitsui is held not to be registered but is a body corporate overseas

What head(s) of admiralty jurisdiction would it fall under?

UP TO BOTTOM PG 29

Who is the defendant here?

Mitsui

Why does the court focus only on the in personam side of things?

Because the Court is dealing with a company, and bringing the entity within the jurisdiction, rather than suing the Ship itself. Had there been successful service then the Court could have looked to the ship as an in rem claim.

2) What are Mitsui's arguments for saying that proper service has not been effected on them?

That they have not submitted to the Jurisdiction, and because of this, being a company not operating in NZ they cannot be served by writ in another country according to that countries means of service.

Do you think they have weight?

No, I think that it's clear that they have are doing service with a NZ company, and that the Court should go beyond poor drafting and see that there are only so many ways of being able to deal with a company who is not acting according to law that the other party is bound by, especially in that territory.

3) Do you think Mitsui is carrying on business in New Zealand?

Because it can continue to act in a way that is to it's advantage without any penalty

4) Why does the court reject the plaintiff's arguments regarding substituted service?

The principle underlying the concept of submission to the jurisdiction is that a person who would not otherwise be subject to the jurisdiction of the Court may preclude himself or herself by his or her own conduct from objecting to the jurisdiction and thus giving the Court an authority over that person which, but for that submission, it would not possess (p 310). Accordingly, the onus is on the party seeking to enforce the foreign judgment to establish that the non-resident accepted the jurisdiction of the foreign Court to determine the proceeding. It follows that a person who appears merely to contest the jurisdiction of the Court does not thereby submit:

In order to establish that the defendant has, by his conduct in the proceedings, submitted or waived his objection to the jurisdiction, it must be shown that he has taken some step which is only necessary or only useful if the objection has been waived or never been entertained at all (p 311).

5) What are the practical implications of this decision? Do you think the decision is correct?

No, because it seems heavily based in technicalities of a poorly considered statute ..

6) Until it was repealed by the Maritime Transport Act 1994, s 11 of the Sea Carriage of Goods Act 1940 provided that "The agents in New Zealand of any ship not registered in New Zealand shall be deemed to be the legal representatives of the master and the owner or charterer of the ship after the departure of the ship from the port at which she was discharged for the purpose of receiving and paying claims for short delivery, damage, or pillage of cargo, and the amount of any such claim may be recovered from the agents in any Court of competent jurisdiction:Provided that it shall be lawful for the agents, by notice in writing delivered to the Collector of Customs not later than 24 hours before the departure of any ship, to decline to accept any responsibility under this section in respect of that ship, in which case the master and some other person approved by the Collector shall, before the ship is allowed her clearance, enter into a joint and several bond in a sum not exceeding the value of her cargo, as shown by the ship's papers, for the payment of any sum which, together with costs, may be recovered against the agents of the ship.[(2) No proceedings for the recovery of any claim under this section shall be taken unless notice in writing giving reasonable particulars of the damage or loss is given to the agents and the proceedings commenced within one year after the delivery of the cargo or the date when the cargo should have been delivered.(3) Nothing in this section shall prevent the agents from raising any defence available to their principal ..." What do you think of this provision? Should it have been repealed?

Sembawang Salvage (p 32)

Facts: Sembawang was a big oil ship. They were towing a barge from Whangarei to GoldenBay. The anchor chord snapped and they were drifting. The cargo was being carried as massive cargo on this barge. They had to salvage the barge and the cargo, and they saved both of them. There was significant risk to the salvors. They turned around, and weren't willing to pay their fee for salvage.

Defendants:

1. (Owner of the Barge )

2. The Cargo metal jacket

3. (The Barge)

4. Owner of the Cargo Shell Todd Oil

The first and the 3rd defendant don't matter because there is no problem, there is no contest for the Barge. They have saved it, and the owner owes them in salvage, and it's because it is in NZ waters if it was outside, you couldn't have got salvage anyway. So the reason they don't feature is that there is no problem. The real problem is the cargo there were bits left behind, constituted scrap. The judge said there is no problem with that, but they are not proceeding against the floatation costs bc there's no money in it. But the ..

Difficulty occurs where towage turns into salvage. They towed it and then anchored it in Golden Bay. Court would have looked at to what extent the salvage was their fault.

Metal jacket it was out in the continental shelf, which is outside territorial waters, on the shelf outside NZ, thus outside it's jurisdiction.

Action in rem and in personam 4 actions against the ship, the barge, the cargo owner and the ship owner.

The head of jurisdiction is 'salvage'

they do have subject matter jurisdiction. Under rule 11.6 now new rule 25.12(3) -

25.12 Defendant must enter appearance

(1) A defendant to an action must enter an appearance in person, or by a solicitor, by filing a memorandum in form AD 6 within the time and at the place directed in the notice of proceeding.

(2) If 2 or more defendants to an action enter an appearance by the same solicitor at the same time,

only 1 memorandum need be completed and filed.

(3) A defendant to an action may enter a conditional appearance in the action, but a conditional

appearance has effect as an unconditional appearance unless

(a) a Judge otherwise orders; or

(b) the defendant applies to the court, within the period specified in rule 25.17, for an order under

that rule and the court makes an order under that rule.

Why would the second defendant enter a conditional appearance?

If you are unconditional you are submitting to the jurisdiction. But here they are protesting the jurisdiction thus they enter conditional to say they are protesting the Court's jurisdiction

They are protesting the jurisdiction to say that it's not served correctly.

They want a notice to set aside the service of the notice.

They are saying the notice of proceeding must be struck out bc the notice was not properly affected in rem. Thus the proceedings are void and need to be completely set aside.

Pg 34. the owner of the cargo put in a conditional appearance to have it set aside. There was no challenge made to the writs. They said no writ exists against the Jackets.

They say per s 2 there is a salvage lien, so the salvor has that

They say It is beyond question that a salvor who renders beneficial services to a ship and associated property enjoys a maritime lien on the salved property. In the view of some of the early judges the proceedings in rem against the salved property represented the very foundation of the jurisdiction of the High Court of Admiralty. . Whether the claim for salvage is in rem or in personam the same legal principles are applicable. The maritime lien nonetheless represents the more usual and effective remedy.

If you have a lien you almost always use it. So the salvor here has 3 options:

1. The lien under s 5(1) read with s2

2. Statutory right of action in rem under s 4(1) read with s5(2)

3. In personam (guessed bc of how s4(1) relates to the rest)

The only reason you do ordinary action in rem under s 4, is bc - They are arguing for a lien under s4...

The salvage maritime lien accrues from the moment of the salvage service and thereafter incumbrances the benefited res until it is lawfully discharged.

IMPROTANT maritime liens arise by operation of law. So what happens with salvage is that the act of salvaging the vessel operates the lien. It just happens like Christmas maritime liens just pop up when you meet the requirements.

Famously they talk about the lien sticking to the ship like a barnacle.

..Once it accrues the salvage lien is unaffected by any subsequent change of ownership or possession.

Irrespective of what you do, the maritime lien sticks, (unlike equity).

Nothing exists like this in the common law -

The answer the courts have given is that 'yes' it is potentially unfair, and it's a secret charge following the vessel, and yes that it cuts across 3rd party rights completely, but they say there are few liens, but that salvage is so important that we need it to cut across.

Maritime law cuts across all the things you are taught in personal property and contract law.

The salvage lien attaches to each and every part of a benefited res and where salvage is rendered to an imperilled ship the maritime lien survives to the last plank.

Not so true, bc at some point it does go

With the destruction of the res the maritime lien is lost. . . . A salvage maritime lien incumbrances only the particular res which has benefited from the salvage service.

It is a very invasive security charge, it is intimately involved with that property

With the loss or destruction of the res so also all liens and rights in rem are extinguished. A partial loss or destruction however has no such effect in the case of a maritime lien, for such a lien attaches to each and every part of the res and in the event of only a part or fragment of the original res surviving the maritime lien exists to a similar extent. For a maritime lien to be extinguished the loss or destruction must be irretrievable. Where a res, eg a ship, sinks but is subsequently refloated the temporary loss of the res leaves untouched the existence of the original lien.

So it is indivisible, it attaches to every part of the property

The lien pops up again with the vessel

This is the classic statement about Maritime liens incredibly hard to distinguish

Argued that it's been taken off the ship and attached to the ocean floor, thus it's no longer cargo

They hinted at the fact that you can't have one over cargo, but that's nonsensicle you can have ship and cargo

the judge says he can't see any reason why its bolted to the ocean floor and unclaimable property, then its still clearly idenfitiable cargo.

he question is at what point would it cease to become cargo. You would have to physically change the nature of it. But here, you would have to turn it into something else. Even if you turned it into spoons, if its still definable steel

destruction gets rid of it, if its of an untraceable nature, then perhaps,but the Judge says that its still physically that thing

It adheres to the property its a primitive concept.

If they destroyed the property then you are left with going after them in personam

What is the problem?

It is outside the NZ jurisdiction.

The salvage took place in territorial waters, but they waited till it left the jurisdiction. It's stuck out there more than 12 Nordic miles out. And notice of proceeding in rem cannot happen. The short answer is they face a difficulty in that in the act and the rules, its clear you can't serve outside the jurisdiction. They tried to get around this in 2 different ways.

They attempted service. They gave it to the solicitor for the 4th defendant. They said he was someone who appeared to be incharge of the cargo, so they base it on this whole service of the writ. If you are arresting cargo you normally put it on the cargo

On (e) you give it to a person

their reasoning is (a) WE can't access the metal jacket, so we are going to give it to the solicitor as he is apparently in charge of it.

Problems: (1) He's a solicitor, he's not in charge of the cargo. This section contemplates the cargo owner. (2) Before you can even serve on the person you have to show that you can't get to the cargo. And it is sticking about the water it's the person in charge of the oil rig. However there are other problems, if you fly with a helicopter its a protected area, and exclusive limited zone, so you could argue you can't get to it without breaking the law

The second argument is that it doesn't matter in any event bc of the continental shelving. The continental shelf act extends jurisdiction that the continental shelf act deems it in NZ jurisdiction even though its technically beyond us.

S7 application of criminal and civil law

Continental Shelf Act 1964. Section 7 of that Act is as follows:

7. Application of criminal and civil law - (1) Subject to the provisions of this Act, for the purposes of this Act and of every other enactment (whether passed before or after the passing of this Act) and of every rule of law for the time being in force in New Zealand, -

(a) Every act or omission which takes place on or under or above or about any installation or device (whether permanent or temporary) constructed, erected, placed, or used in, on, or above the continental shelf in connection with the exploration of the continental shelf or the exploitation of its natural resources shall be deemed to take place in New Zealand; and

(b) Every such installation or device shall be deemed to be situated in New Zealand, and for the purposes of jurisdiction shall be deemed to be situated in that part of New Zealand above highwater mark at ordinary spring tides which is nearest to that installation or device; and

(c) Every Court in New Zealand which would have jurisdiction (whether civil or criminal) in respect of that act or omission if it had taken place in New Zealand shall have jurisdiction accordingly; . . ..

under (a) SO when the guys do anything out there in that zone, they say its happened in NZ and thats how you get it

Then 'every instrument or device itself so then they say that it's like pretending they are in NZ -

So bc of the deeming provision of the continental shelf act is not outside nz bc the act is deemed it to be inside territorial waters so you could deal with it in the DC

Judge McKenzie says no. Was the act designed to deal with this scenario? - It turns on every act or omission .

Paul Says that the solicitors argument is circular it had to have taken place there to be covered

The salvage didn't take place in the territorial waters,

it doesn't involve an oil rig

The judge seems to think its the act of actually serving, but that's not what the section was designed to do. The section says an 'act or decision' .. even if act or omission relates to the service, if you get there and serve, you could say you served outside but actually - but they didn't serve on the actual metal jacket and he doesn't think they would be able to anyway

Issue with this argument, bc it isn't a safe precedent.

IF you look at the act or submission that gave rise to the .. it

this SHOUDL HAVE BEEN SET ASIDE

there is a lien attached to the cargo, but they cannot get to it, there's not really anyway, so they're stuck.

Question is who is in charge

You have to show the person showing to be in charge of the cargo.

1) Who are the plaintiffs and defendants here in the actions in rem and in personam?

Second defendant(charterer) is the cargo (jacket deigned), frist defendant is the carrrier (ship owner)

In rem salvage claim as a maritime lien against the ship and its freight and cargo.

What is the cause of action?

Setting aside a writ issued against the second defendant

Which head of jurisdiction does it fall under?

Salvage (??)

2) Why has the defendant entered a conditional appearance here? What would have happened if the defendant had entered an unconditional appearance?

Per Rule 25.17 of the Admiralty rules, it seems that a conditional appearance allows a defendant to apply for orders within 5 working days

3) What is the basis for the defendant's action to strike out the action?

That the cargo, when it was dismantled from the ship/the ship/res stopped working it was no longer cargo

4) What does this decision tell us about the nature of the maritime lien?

It is enduring, and very much attaches to the vessel, on the basis that the intention of the property was initially cargo

5) Why does the court say the plaintiff's maritime lien over the cargo has not been extinguished? Do you agree? Can you think of fact variations where it may have been extinguished?

Because it is still recognised as cargo initially, and that it's not even extinguished when cargo enters the hnad sof a bona fide purchase with notice potentially.

6) Maritime liens can only be enforced by an action in rem. Has the notice of proceeding in rem been properly served on the cargo? Why is it such a problem in this case? Do you agree with the court's reasoning or is it circular?

7) What would you advise the plaintiff to do next time to avoid this situation?

Lloyd v Registrar of Ships(p 37)

1) What was the issue here? 2 Issues, (1) Whether the Surville, in an incompleted state was entitled to registration under the Act at the time it was registered (13 Jan 1986 and 29 Oct 1987). (2) Whethe rhte first defendant had the power to close the registry of the ship in the register book, notwithstanding the fact that 2 years earlier it the defendant had registered the ship in the book with certificate.

Motor Vessel under construction the frame was there but they hadn't put on the motor or the last details, it was in the ship yard and there were bits missing. So it was an advanced stage of construction, and the owner had managed to get it registered on the ship registry.

The Registrar realized that it was incomplete and then decided to cancel

The reason they wanted it was for a registered ship mortgage that is probably what prompted the initial attempt to get the ship registered. In a nutshell, you don't have to register every ship or thing that is there. Most little runabouts aren't registered there is an ongoing debate about whether the NZ maritime laws should stiffen up on this.

You only have to register a vessel if it is over a certain length and if it travelling out of NZ. The reason you have to register is safety, and also a public law element that ships are flagged to particular countries. So in effect if it is registered on the NZ ship register is that it is an NZ ship. Hwoever, it is still a private vessel, but it means that if the crew get into trouble overseas NZ will help them out. Also that ships arriving in different international ports are expected to be registered to a different country. In NZ it is an offense to not be flagged to a specific country. But all you need is a 'shell company' to register a ship.

a) Why did the Registrar think the Surville was not a ship?

What I am asking is on what grounds did you act on recommending that the ship be removed from the ships register? Very basically the vessel was not capable of navigation, it was not completed and it should not have been registered. I made the mistake of registering it.

Thank you, you made the mistake? I made the mistake.

b) Why does it matter?

2) What are the different possible interpretations of "used in navigation"? Which one does Chilwell J plump for? Do you agree with him? He thinks intended used in navigation in conjunction with s2 'used in navigation' means 'actual use'. Thus because the Surville was never actually used in navigation, hwoever that it is obviously still always intended ot be. Chilwell J odesn't want to preclude other shisps in auckland in procedd of building and stored by retailers from being entitled ot registeration under s386 (policy).

He uses the definition from the Shipping Act 1987. the main definitions differ in each statute. In the Admiralty Act there is a definition as does the Marine Transport Act.

When working out whether somehting is a ship START with the context. The Judge starts with limiting liability and that it is broader including anything in construction

(1) The Vessel what is a vessel? - It's something capable of carrying, it is something with a hollow. Is the 'Serville' a vessel? Not in the first stage in a pile of planks, but when she is vessel shaped without holes in the bottom, she is a vessel she is capable of carrying.

(2) Used in Navigation 3 possibilities:

1. Actual use in navigation (Strictest interpretation)

Judge says this doesn't make sense, bc first you have to have launched it, and then pull it back and register it, at which stage damage could already have been done, it's circular. And he gives example of fully functioning vessels that could be used and that they are capable of being used of navigation and doesn't want to cut these out. So it doesn't have to have already been used (nose wet).

2. Intended use in navigation?

Judge Chilwell says you need not have used it, but also floating is too simple. But, a description of vessel.

DESCRIPTION OF VESSEL vessels don't come in one shape or size, there is a vast difference. The intention of a boat is important, and then you see whether the motors are necessary test is whether the reasonable person looking at the Surville would say it's a motor boat?

It gets around the issue of the spectrum of ships, and looks at whether the intention of that ship is close enough to navigable stages.

The consequence of it not being registrable is that it wont be registrable.

3. Does it float?

This is too easy this is not what the legislature intends

You can say it actually has to have been used in navigation, or there is potential for practical use, or if you put it on seawater it will float or sink

3) Given that whether something is a ship always depends on the facts and the statutory definition, which facts are relevant in pointing to a thing being/not being a ship?

The essential part of the definition is whether a vessel is 'sued in navigation', which is not defined.

The Mac was not a propelled ship but towed with men for the purpose of salvage. The Judges held that the definition of ship in context of a salvage claim under s 458 extends to 'boats' as well as 'ships'

The Harlow the barges were not self-propelled but used for navigation in transport of goods, with a rudder managed by its own crew.

Each vessel had been launched and was doing what it had been designed to do

Here the Judge points out that s390 of the 1953 Act relates to declarations of ownership on registry, in subs (1)(B) it refers to a 'ship was built' indicating by its past tense that the vessel must be completed before registration can take place.

For the foregoing reasons I find that if the Surville was a ship she was not entitled to registration on 14 August 1985 when registration was effected or on 13 January 1986 or on 29 October 1987. She had not been sufficiently completed nor properly carved and marked and therefore should not have been registered.

If there has been a clerical error, or something is registered which shouldn't have been then it can be cancelled.

4) Why would the owner have wanted to register the Surville as a ship? Is there any other way the owner and creditors of a ship under construction can protect their interests?

PPSA personal property securities act Allows you to register interests in personal property and it works because personal property need not be a personal ship, it can be anything. So what you would do until the ship is finished is identify it in the personal property register and your client would register its interests under the PPSA.

The other thing is that if you supply building materials for a ship you have a retention of title clause. So you can achieve the same level of security through other means. You can only rely on Maritime Law when you can show that the vessel mets the definition/requirements of a ship.

'Ramalpa' English Case - (??)

5) Note that ship registration and ship mortgages etc is now dealt with under the Ship Registration Act 1992: http://www.legislation.govt.nz/act/public/1992/0089/latest/whole.html - ss 67 and 68 now expressly cover mistakes and inappropriate registrations.

GOVERNING PROVISION RE WHETHER THE DEFENDANTS COULD DE-REGISTER: I think the present situation is governed by s 25(j) of the Acts Interpretation Act 1924 which provides:

Power given to do any act or thing, or to make any appointment, is capable of being exercised as often as is necessary to correct any error or omission in any previous exercise of the power, notwithstanding that the power is not in general capable of being exercised from time to time.

The defendant acted in error by registering the ship (the Registrar) but s 392(1) indicates that it could be corrected by doing as was done, closing the registry:

392. Entry of particulars in register book (1) As soon as the requirements of this Act preliminary to registry have been complied with the Registrar shall enter in the register book the following particulars respecting the ship:

(a) The name of the ship and the name of the port to which she belongs;

(b) The details comprised in the Surveyors tonnage certificate;

(c) The particulars respecting her origin stated in the declaration of ownership; and

(d) The name, address, and occupation of her registered owner or owners, and if there are more owners than one, what share in the ship is held by each owner.

HELD: Plaintiff's no relief Judgement for the defendants with costs of $1500. Registration cancelled and parties discharged from respective undertakings

IS IT A SHIP EXERCISE?

Aircraft Carrier yes but the shape of it, being flat on top is not a traditional design

Small Yatch note that it is on a lake it has a rudder, and although not brilliant, traditionally it has a sail in which case all old ships had a sail. However, there is no engine, and also its on a lake in the photo so that wouldn't be arrestable (contentiously)

Gaelic raft thing it has a vessel shape, it can carry people, it has motive power as there is an oar. Traditionally this would be said to be a boat, but its a ship for legal purposes because of fulfilment of all the requirements.

Black Hoe Dredger It can move on it's own, it's not conventional it's not vessel shaped, but it carries soil cargo and it's motor powered. Per The Mac and Von Rots this would be a ship.

A Floatel It's boat shaped, has an engine, and not permanently attached to anything (which would be like a Platoon). This is a floating hotel, this would be a ship because, although not traditional shaped, its close enough.

A Houseboat It can hold cargo (people as well), it's not a traditional vessel shape, but it has a motor and can be propelled. In Lozman in 2013 the CA decided this, they argued that the houseboat floats so it need not pay taxes. IT whent ot the US supreme Court 3:2 majority said it was a house not a boat, he had the capable for electricity to be a floating house, and it had been there forever. They said not all floating things are ships a plastic dish pan, etc. Even if artificial contrivances as a means of transportation on water. The Court said this Houseboat never navigated and could never navigate and had the supply of power and water.

Jack-up oil rig It's not vessel-y, and its primary purpose is to stay put, and although movable its not designed to travel around.

Permanent Oil Rig No

Oil Rig flotel -

Scottish Case Global Marine Drilling looked at the Black Hoe dredger cases, and they said if that an be a ship, then why can't this thing be a ship. It was an interesting case bc it took on biblical connotations. e.g. Noah's Ark saying it was a ship that could move without any motor propelling.

English Courts said no Clark Inspector of Taxes v Perks RE Jack-up Oil Rig, and said that they don't live in a house but in a ship thus they shouldn't have to pay taxes. The Courts referred to the cases about oil rigs. This was to perform the function of drilling into the Earth's crust. They adopted the test of 'what is it for?', what is its primary purpose?

Grey area -

Jet Skii Steedman (has to be wrong says Paul) says a Jetski is not a vessel bc it can't be used in navigation, which they said was the nortical conduction of navigating a ship 'navigvation or ordered movement of ships on the water' they said that jetskiis were for messing around on boats.

R v Goodman overruled Steedman and says it is a ship, but the wuesitonwas whehter it was a sea-going ship but that it wasn't that. But now they say you can get jetskii's that can go across the channel

Car shaped jetski/car-boat A ship bc it has a motor and capable of carriage

Pool cleaner not a traditional vessel shape, and also that it is preset, and cannot carry anything on it. Also at some point you say that bc it is in a swimming pool, you aren't dealing with Admiralty law. However the 'Onslaw' at Wanaka

Pumpkin raft yes oars and moveable, and can carry people

Kayak Is a ship -

Rubber Dingy thing Our CA and SC says that a rubber inflatable is a ship, and for the windsurfer who was parapelygic it is a light ship.

Water Plane is an aircraft, You could arrest it on the water, but for all other purposes, it's not a ship.

Hovercraft is a ship when it stops it sinks into the water its a vessel shape uses the water to hover. It is an extent of degreee, may have to look at its purposes. If something's amphibious though

Medusa Raft not a vessel, it's an assembly of planks. Want a maritime lien over it. The sail or make shift oars make a difference.

Submarine Underwater, cigar shaped (not traditional vessel), yes a ship bc it is self propelled. Sea planes and submarines extended the definition.

Toy boat can't propel itself and can't navigate it's the context it's not intended to carry people or cargo.

Waka yes power in oars and etc. They usually don't want to wear life jackets and they should, bc it is a ship.

Windsurfing Not navigable not vessel shaped.

WHAT ARE YOU LOOKING FOR:

Vessel Shape as soon as it is flat, or raft like then its questionable

propulsion need some form of propulsion, even muscles are fine this is necessary for the navigation thing. If you are just bobbing in the water, then you aren't as long as you can steer yourself in the direction you want to go then you are ok. But a ship wont stop being a ship bc it is being towed or anything. LOOK AT THE OVERALL DESCRIPTION OR DESIGN what would the reasonable person think about it. Even if you loose your oars you are still fine. What you intended to do is sufficient.

Criminal Law provisions e.g. Bill Hohepa issues

Remote controlled ship controlled offshore but carrying stuff

Primary purpose and use there can be secondary uses as ships, but the primary purpose may not be to navigate (plane-boat)

Danzas v Halli (p 44)

FACTS: Printing press being carried on the aircraft (Jumbo Jet MAS) was damaged.

CLAIMS: In rem and in personam. This was brought under the Warsaw Convention (the convention for international carriage of goods by air) All international transport conventions tend to have very strict limitation periods, as opposed to the normal.

DEFENDANTS: Aircraft, MAS, Danzas (carrier waybill).

Hali Press' Counsel brought an Admiralty Action after 2 years.

They wanted to arrest the ship

They said they have admiralty jurisdiction in rem, and they would have reached that conclusion by looking to s5(1) which says that you can bring a claim in rem against an aircraft, and 5(1) IS ABOTU MARITIME LIENS AND ENFORCING THEM, that you can enforce a maritime lien over a ship or aircraft. The maritime liens are : salvage, seamens wages, damage to a ship none of which are maritime liens.

Under s 5(2) heads of jurisdiction, they could potentially have come under

If it was a SHIP it could have been brought under s 4 (g) or (h)

The only other reference to aircraft is to seaplanes and towage on the sea -

There was no maritime lien jurisdciton, no heads of jurisdiction, and the defintions to seaplanes are not counted either

So there was no admiralty jurisdiction which they worked out after the 2 year period had ellapsed.

So they then tried to claim that they then applied to transfer the admiralty claims across to the civil jurisdiction but the issue is that they didn't have any admiralty jurisdiction

The action in rem was forfeited, but they basically argued that they can proceed against DANZAS and MAS the problem was that they only tracked Dansaz down after the 2 year period.

1) Why was this matter mistakenly brought in admiralty?

Because relief was sought against an aircraft who transported the press

2) Why did Danzas argue the proceedings against it were therefore a nullity?

The aircraft was not a ship for the purposes of the Admiralty Act 1973 (where a claim is made for damage to goods carried in it)

Danzas' response was that they were too late. The Warsaw convention says if you are outside the 2 year period, there is no claim of action. So they said that this was void, and that you never had jurisdiction. And the only valid proceeding under Warsaw was too late.

HC and CA said that they could fix this.

3) What were the CA's grounds for holding that the High Court did have jurisdiction to "transfer" the claim from admiralty? Do you agree with them?

They said that they didn't have in rem jurisdiction, but they did have in personam jurisdiction. So they said essentially you are just transferring your in personam in admiralty to in personam in the general jurisdiction.

They CA said this is 2 different ways it said you did file int eh right court, that the HC has concurrent civil and admiralty jurisdiction. So basically this is just a nicety it was like using the wrong form. They said the HC always has in personam jurisdiction.

Said that there was an admiralty cause of action and a non-admiralty one. This was about non-contractual misrepresentation. They said in Steel Mariner that if you have a mixed Maritime and non-maritime jurisdiction you can hear them together per s 3(2)

[23] Beyond doubt the reference to Court in the Admiralty Act 1973 relates to the High Court (for actions in rem and in personam) and to the District Court for actions only in personam. In terms of the Judicature Act 1908 Court means the High Court of New Zealand. That Court is not divided into divisions (unlike the District Court which, for example, has its own separate Family Court). The jurisdiction of the High Court is that contained in s16 Judicature Act 1908 and apart from its inherent jurisdiction the court has the statutory jurisdiction granted to it by several statutes as well as its wardship, inherent jurisdiction, and equitable jurisdiction.

This is fien says Paul

[24] The High Courts jurisdiction to determine claims for damages arises out of its Civil jurisdiction. All proceedings, other than Criminal, are Civil. Proceedings in Admiralty are Civil. Although there are separate divisions of the English High Court, it is apparent that there is no distinction between a claim

48brought in Admiralty in the English High Court and one brought against a defendant in another Division of that Court. Transfer between Divisions is permitted. It is abundantly clear that in England the High Court has concurrent Civil and Admiralty jurisdiction.

[25] Counsel argued that the position in England however was different because s5(5) Supreme Court Act 1981 (UK) specifically provides that the jurisdiction of the English High Court belongs to all Divisions alike and that there is no statutory equivalent in New Zealand. That may well be simply because the High Court of New Zealand does not comprise of, or sit in, Divisions. The correct position is that an Admiralty claim in personam is essentially no different to a civil claim, and from its inception is able to be commenced in a commercial Court or in the Queens Bench Division.

So the CA says that if you look at England on which we are modeled there are different divisions but they are essentially all the same, and that thus the position should be the same here that you can just shift them across.

Here Admiralty and NZ are different and that the sort of jurisdiction exercised by Admiralty Courts in England was common law jurisdiction. They had had their own forever. They gave us the colonial Courts of Admiralty Act, and that is Statutory and it is given to us Imperially. AS the Judge said in the Lorena, we never had Admiralty, it was given by the UK, until 1975. It is thus really probelmatic to say we are the same, their HC always had inherent admiralty jurisdiction, and that we had inherent civil jurisdiction, but it was separated for Admiralty into an Admiralty Court.

4) Is The Steel Mariner on point? Why/why not?

Sounds circular and contradicting if the court can hear both civil and admiralty actions together, why then go onto say that the Court doesn't have power to give leave to join causes of ation which are not strictly admiralty tina statement of claim.

There they had Admiralty jurisdiction. The could exercise Admiralty AS WELL AS Civil. S3(2) ssays if you have a valid admiralty claim, you can ALSO hear a civil claim, however it is not reversed, it doesn't say that if you have an

In Steel Mariner it was beign argued that there was Admiralty Jurisdiction PLUS. Here it is whethe rthere is admiralty jurisdiction AT ALL.

5) Do you agree with the court's conclusion that, as long as proceedings are filed in the right court (ie the High Court) it does not matter if they were filed in a jurisdiction that is not available? What consequences does this have for the admiralty jurisdiction and the Admiralty Act?

That's not right it should be a completely clean claim potentially. IT will mean that it confuses admiralty (??)

If it is correct that the HC has always had jurisdiction, then to go to the HC that is enough. The CA says that in personam is the same, irrespective if its labelled Admiralty, or Civil - it's a fused High Court.

The problem with this is that there are differences between the admiralty in personam jurisdiction and general jurisdiction. The Court says that the procedure is a separate fight re service. HAlf the confusion is the bad drafting of the Admiralty Act. But The only place where it is spelt out as the extent of the jursdiction is section 4. The head of jurisdiction that gives admiralty jurisdiction in personam doesn't exsist, because here there is no ship. It is dangerous to broadly brush admiralty and civil inpersonam as one. Because then you are saying that s 4 heads of jurisdiction are irrelevant.

Its a bad outcome for statutory jurisdiction, it's not in accordance with what parliament intended.

S12 If the HC is right and the CA is right, and in fact it's totally fused jurisdiction, then why do we hve s 12 that says that we can order somehting in admiralty or have it transferred to civil jurisdiction why would you draft that section if the CA is right and they are completely fused jurisdictions.

There is a separate act and there is that switch to move between them, which you wouldn't need if they were totally fused.

The main problem is that we are now no longer a separate court of admiralty. We know that if you bring an employment claim in the HC they send you to the Employment Statute. Here because it is the same court using 2 different hats then they think they can be the same.

There is a debate as to Admiralty jurisdiction existing at all. The main difference is that s4 requires a close direction to a ship. There are non-jury trials, you can arrest, you can act on public holidays the reasons are largely tenuated. There are dangers in being broad brush.

6) Do you agree that Danzas' argument "is technical and designed to avoid dealing with proceedings on the merits"? Are there other equities at play here?

There is an element of morality they thought Danzas were acting unfairly, bc the consequences for Danzas to succeed would be that they had to pay $900. So Halli would get nothing at all, so they worked around it and called it a technicality Bc the Warsaw convention says if you wait for 2 years and one day, you have no action in anything.

In all areas for transport law, there is strong policy about settling claims as soon as possible. They discovered their printing press was damaged when it arrived. So their lawyers were horrendously negligent. If they instituted an action 6 years later, even if under the Admiralty Act, then they would have still had a year and a half to bring it under a civil/in personam claim. - but they waited till a day before the 2 year cut off under Warsaw, so they gave themselves no time for mistakes.

Apart from sweeping up clause the primary thing with Admiralty is that you must read the statute and that you cannot go beyond it. But here the court is saying that you cannot go beyond that.

Paul can't see how s 12 fits with this, bear in mind the CA says that things are now more fluid. Paul thinks that 'merely procedural' stuff should be done correctly.

LECTURE 5(?)

Doctrine of (FOREIGN) sovereign immunity

Most jurisdictions have codified this a statute in UK and Euro Countries

NZ common law doctrine we follow english rules which have evolved over time.

Buckingham (p 50)

A ship, US Naval vessel, The Southern Cross, was carrying a helicopter The Hughes helicopter.

This was within the Jurisdiction of CH CH HC, both the ship and cargo were within the jurisdiction

Gotlund II this was in West Germany. Was engaged on sceintific discovery/investigation. The vessel is chartered to the German Govt, and they put it's scientists on board to do research in the Antarctic. It was probably a privte vessel but Govt was fundign the expedition. They were using the helicopter to fly over antarctic and do various missions.

The German Govt contacts the US govt and asks them to send the US naval vessel to salvage the ship before it went under

They sent the Southern Cross and Mr Buckingham a kiwi with professional expertise in salvage etc. Mr Buckinghma flew the crew off and saved their lives, then manages to save the helicopter and that gets put on board the Southern Cross, where they discharge the shaken up scientists, and discharge everything else

Buckingham is a salvor and a hero

1) What was the cause of action here? What maritime claim is Buckingham enforcing, and against which res?

His cause of aciton is a maritime lien of salvage over the helicopter, so he claims under s 5(1) and it does allow a lien over aircraft or other property. So he comes under both, so it's clear he has a maritime lien over the helicopter so here the aircraft was correctly arrested in admiralty

If this was not a US naval vessel this case would be closed. Whoever the owner of the helicopter is would appear and pay him for his salvage efforts, or stay away and sell the helicporer as a default judgement in rem.

BUT HERE as soon as the notice of proceedings in rem is served on the helicopter, the US Govt protest the jurisdiction via NZ solciitors.

Issue 1 = procedural. Buckinghma's lawyers say that they followed the wrong process. The process that ought to have been followed/the US govt to this case is third party, bc the defendant is the helicopter, or if they put an appearance the owners of the helicopter, which is not the US Govt here. So the Us Govt is clearly not the defendant. If they were, they should have put in a conditional appearance as defendant to protest. They are not the defendant though, so in such a case, Admiralty allows them to intervene, so they should have formally intervenved in Admiralty, they are not the owner of the helicopter but the defendant, so their interest is 'bailment'/'possesory interest'. Also the other interest would be that they were impeding the process of the US naval vessel.

They didn't do either of these things, they just said 'LET MY PEOPLE GO'.

Hardie Boys says that bc it's urgent and about NAtional relaitonships, they would take a

the admiralty rules are designed for urgency, and knowing this is a tricky and urgent matter, they shouldn't have done things on an informal basis.

Basic doctrine: given the common law rules, the judge must decide whether to exercise his statutory jurisdiction

What is the doctrine of sovereign immunity?

It was originally the rule of ASBOLUTE doctrine of sovereign immunity, so any other ship, vessel etc. of the State was not subject to another country's jurisdiction

This was because we don't want to start rules commity of Nations impeded by exercising civil jurisdiction over other NAtion's property.

Int he past States confined themselves to doing specific state activity. However the issue arose int eh 20th C, that as the State got smaller it also took on more commercial functions, so now the State, or state owned entities (SOE's) and quasi state bodies, now do a whole lot of commercial stuff that we wouldn't have thought was in the role of govt.

Now due to this commercial enteprise of States, it is restrictive theory Juri Imperii meaning that 'soemthing along the lines of state/govt thing 'an act of state' or Juri Estionis Are you doing a public law, state like , govt thing, or something commercial

If it's a sttae like Govt thing, then it is sovereign immunity. But if it's commercial then the vessel can be arrested.

Ie. you are not threatening their power as a Govt. But this is crap, Govts will still feel threatened, but the theory is that they can't get upset 'It's not a threat to the dignity of the State, or it's Sovereign functions' -

Juri Imperii if you go into the market place you must assume you will be sued like another individual

Need to look at the Govt -

Southern Cross only did this between 2 Govts so it's a sign of Juri Imperii and they look at eh nature of it and see it as a humanitarian venture the US aren't being paid, it's research/experimental

This was the case Paul agrees it was an act of State. Any attempt to arrest the US naval vessel had to fail. It is simply there for public purposes. IT's there for rescue or attack

HOWEVER this is the wrong enterprise that we are looking at. - it's the helicopter to Buckingham

The judge doesn't look at the relationship between Buckingham and the helicopter he wants to save it as he has a maritime lien over it.

This is a contract issue, wiethe rhe was contracted ot save it or he didn't need the contract and acted as a volutneer, but irrrespective you need to pay for salvage.

Buckingham is a private individual, he's not a US soldier, he's not a Govt official, he's doing it for money. The helicopter is commercially valuable property - we all miss the point, the relationship should have been on the relaitonship between the palitnfif and defendant the relaitonship between the ship and the helicopter is key.

From B's perspective he's solely concerned with commercial issues.

The Judge should have asked how Buckingham was invovled, and whether he was sent as a representative of NZ Govt THE HELICOPTER COULD HAVE BEEN ARGUED TO BE USED AS PART OF GERMANY'S ACTS OF STATE

It is potentially that what he has saved is that what he has saved was Germany sovereign. They have leased it probably to the German Govt. German Govt could argue that it was for scientific purposes that and it was not a commercial, but a state argument saying it was just for research. It depends if you see scientific research as commercial or public act

Buckingham says he's not interfering in the US sovereignty, but that he just wants the helicopter -

The issue from the US perspective is that the helicopter is not theirs and arrested. In Dolfus the Court said you can have an indirect challenge to sovereign immunity, and bailment bailment may arise out of contract or tort or just be an independent obligation you either do it for nothing (gratuitously) or commercially. But bailment is a tortious standard, you must act by the reaosnable standard

the US argue that they are acting in bailment, and that they are looking after it for the German Govt. The Judge says this is relevant in terms of Dolfus because of indirect interference with the US' possession and control. So they say even though you are not directly interfering with our ship and the cargo you have arrested is not our property, we have possessory rights via bailment with it's owner you are interfering with those bailmetn possessory rights. Ie. The argument is that a mere possessory right is enough to trigger sovereign immunity

In this case we have the assertion in the affidavit that the helicopter is in the possession of the United States Government and I would think it a very clear and proper inference to draw from the circumstances that the owner of the helicopter has no right whatever to demand the immediate return of the helicopter. He has to await the pleasure of the United States Government in the way in which it chooses to transport it and unload it and deal with it in due course. So for those reasons I do not think the Dollfus case really weighs against the submission made by Mr Henry.

If you are looking after someone's bailment and they want their helicopter back then you must relinquish it

you could say it's onboard a naval vessel. But we have a tension between B's maritime lien, which is a secure full proprietary right against the helicopter the US Govt only has limited rights of possessional control. So Paul is not convinced that Dolfus is basis for saying you wont touch the helicopter

Now only things clearly withint eh act of State are protected so does this go too far so the trend is toward narrowing down sovereign immunity the reason we use it as little as possible is bc we are denying justice

He says there is an indirect interference with sovereign control.

He says that they get to decide what happens with the helicopter and that even though acknowledging they only wanted the helicopter, you interfere with it on the indirect level and also that it was holding up the ship to claim the helicopter

PAUL COMPLETELY DISAGREES

they've chosen to treat this as a public law matter and they don't want anyone going on board ot remove the helicopter.

2) What is Buckingham's counsel's procedural objection to the US government's intervention? Do you agree with the informal approach taken by the judge on this point?

3) What is the essence of the US government's sovereign immunity argument? What is the difference between the absolute and restrictive theories of sovereign immunity?

4) Do you agree with the judge's findings as to the nature of the activity being engaged in here by the US?

.. held that sovereign immunity should not be defeated merely because chattels belonging to a State were held by a bailee. For a State, as Lord Porter said at p 585:

. . . must act through servants or agents and often through bailees, and it would destroy the efficacy of the doctrine [of sovereign immunity] if it were strictly confined to personal possession.

No he says earlier that the US are not in actual private or public possession of the helicopter/ship. Thus, it seems that they cannot run the argument that it is outside of NZ jurisidction on the basis of possession.

5) Buckingham only wanted to arrest and proceed in rem against the cargo why did the judge find that was an indirect affront to US sovereignty? Do you agree?

proceed in personam (??) - 43 min

or he could sue for breach of contract

IF he follows it around -

The judge had to request Southern Cross to remove the helicopter and the Judge wouldn't even do that. So if he followed the helicopter and served on it when it was taken off.

SO left with in personam, or a property order he probably remained unpaid and had to pay his lawyers on top of it -

As soon as the words 'HMS' or 'US dont' arrest anything bc sovereign immunity will arise the Courts will exercise discretion not to do this

6) Where does the court's decision leave Mr Buckingham?

In personam against the US or serve on the vessel in the US?

Crown Proceedings Act (p 56)

This concerns NZ vessels

1) What is the effect of s 28?

You cannot arrest, detain, sell any ship or aircraft, or cargo belonging to the crown or Government of New Zealand, or give anyone a lien over the property.

2) How does this differ from the (foreign) sovereign immunity doctrine?

The Sovereign Immunity rule refers to an exemption from Jurisdiction, but not from absolute rights to exercise any in rem claim to a ship, cargo or aircraft. It means that these in rem claims just cannot be done outside of a jurisdiction that that country has consented to be a part of

S 28 is absolute, it is not based on consent of the Sovereign's authority to be sued.

Sovereign Doctrine immunity is the old absolute rule.

On the other hand you can sue the crown in personam. In foreign sovereign immunity, you couldn't sue in personam. This only relates to actions in rem.

This also prohibits maritime lien's over crown property and also prohibits actions in rem. So you would sue the minister.

In s(2) it says the crown can transfer a claim to in personam, or to civil jurisdiction.

3) Any drafting problems here? (hint: plenty)

Issue which drafting is that you can't define what 'crown things are' ships or aircraft, or any other property belonging to her Majesty 'belonging to' is vague it could mean 'in possession' IT's also the NZ Govt and 'Liz' -

NEWA have a scientific vessel, such a vessel is owned by a private person, but it is chartered to them, and that charter must be shown to mean it belongs ot NEWA, and then that NEWA is part of the Govt it's a crown owned company but it depends on the shares in modern sophisticated Govts -

Crown Proceedings Act 1950, section 28

Exclusion of proceedings in rem against the Crown

(1) Nothing in this Act shall authorise proceedings in rem in respect of any claim against the Crown, or the arrest, detention, or sale of any ships or aircraft, or any cargo or other property belonging to [Her Majesty], whether in right of [Her] Government in New Zealand or otherwise, or give to any person any lien on any such ship, aircraft, cargo, or other property.

(2) Where proceedings in rem have been instituted in the [High Court] against any such ship, aircraft, cargo, or other property, the Court may, if satisfied, either on an application by the plaintiff for an order under this subsection or on application by the Crown to set aside the proceedings, that the proceedings were so instituted by the plaintiff in the reasonable belief that the ship, aircraft, cargo, or other property did not belong to the Crown, order that the proceedings shall be treated as if they were in personam duly instituted against the Crown in accordance with the provisions of this Act, or duly instituted against any other person whom the Court regards as the proper person to be sued in the circumstances, and that the proceedings shall continue accordingly. Any such order may be made upon such terms, if any, as the Court thinks just; and, where the Court makes any such order, it may make such consequential orders as the Court thinks expedient.

Statutory right action in rem s4(1)(f) statutory right action in rem damages done by a ship? S5(1) ?

there is a quesiton as to whethe that maritime lien includes personal injury, and that is why we later devleoped the statutory action in rem. So if you are harmd or kille don a ship you should be able to bring an admiralty aciton under s 4(1)(f)

ACC (p 56)

If you have ACC you are barred from bringing an action in admiralty. It is substantive ie. You can't circumvent this by suing overseas. The distinction is between NZ residents and non-residents.

If you are an NZ seafarer and you are injured on an NZ boat you are covered

And if you are an NZ seafarer then you will be covered if you are in AUS

Complication is with NON-residents. They have cover only when they are within NZ that gets tricky bc when they are working off shore it is unclear when they are in NZ

If they have ACC cover they fall under ACC and can't bring an action

What is the definiton of NZ?

all land, all islands, and any installation or drilling rig on the continental shelf (even if outside its deemed to be in

16(3) vessels go out and then come back, the issue is when they leave NZ, and the answer is that if you travel from one place in NZ to another place in NZ, you are still in NZ so long as you don't go beyond the limit of nordical miles outside NZ. If you go away and come back you are deemed to be covered up to 300 Nordical miles out.

On the other hand, if your ship is going from NZ to AUS, you leave NZ 12 Nordical miles out this is specifically designed to cover fishing vessels going ofar out and coming back,

If you plan to come back and there is a storm and you don't come back, you leave NZ when (???) - they don't deal with scenarios where plans change

So if a vessel goes out and comes back they are deemed to have cover

s23 (1)(a) person comes to NZ or leaves NZ -

Cruiseliner a large amercian tourist falls out and snaps hip on the ship, he is not covered

He is covered when he touches land he has to break his hip on the wharf

There are huge issues with boundaries but what they are saying is when you are on your cruise ship you are deemed not to be in NZ they are only covered

SO IF YOU ARIVE ON A CRUISESHIP ITS DEEMED TO BE A FLOATING ISLAND

BUT IF YOU GET ONTO ANOTHER VESSEL THEN YOU ARE COVERED

BUT IF YOU GET BACK ON YOU ARE OUTSIDE AGAIN

IF YOU GET OFF THE CRUISE SHIP AND DECIDE TO FLY HOME YOU ARE COVERED FROM THE BOTTOM OF THE GANGPLANK TO THE TERMINAL

BUT if you flew to NZ

ACC works by saying if you have a accident 12 nordical miles from the shore then you are NZ and covered

but if you are a foreigner and you arrive on a ship you are NOT covered

BUT if you go swimming from the cruise ship

Foreign fishing cruises are usually flown in, work for 28 days and then are flown out again. They seem to be covered, if a fishing crew arrive on the vessel they are working on they are NOT covered, but if they are flown in then THEY ARE COVERED if they come back.

Short answer have full insurance cover -

the cruise swimmer is only covered 12 nordical miles

300 nordical miles only covers the ship that comes from NZ and goes back to NZ

FISHING CRUISE:

they are not covered on the vessel if they sailed here

however thats not how it normally works -

FISHING CRUISES NEED THE COVER AND THATS THE REAL SOCIAL PROBLEM

1) When will a New Zealand seafarer have ACC cover?

(23(1), ) Not when they are on board a ship or aircraft or other means of conveyance described in subsection (2); or(b) is embarking or disembarking from any such ship or aircraft or conveyance.

This covers - as soon as a person is on a gangway, air bridge, or other thing attached to or

laid against a ship, aircraft, or other conveyance and available for use in embarking. And disembarking finishes as soon as a person has left any gangway, air bridge, or other thing attached to or laid against a ship, aircraft, or other conveyance and available for use in disembarking.

It is unclear whether this then means that if they are on board the vessel but within the areas of NZ as set out in s 16 that they will be covered or not

2) When will a foreign seafarer have ACC cover?

When they step into NZ territory - i.e. when they get off their ship

3) What is the effect of having ACC cover on normal admiralty proceedings in NZ? In a foreign court?

If a claim is brought in Admiralty which affects personal injury as covered by the act then the Admiralty jurisdiction is not permitted to award (per s 316. (3)) any compensatory award

4) How does the Act apply to passengers on cruise liners visiting NZ? Fishing crews? What about fishing crews that are flown in and out and work in NZ fisheries waters for the duration of their visas? Drafting problems?

YES it says you are in NZ if you are in the continental shelf of NZ, but then it excludes people who are even in the process of boarding a vessel, in which case it is contradictory. So passengers of a cruise liner and fishing crews would only be covered when they are on land, or in the water not on a vessel.

Mitrofanova (p 58)

The KURSA flagged in Honduras, owned by Hong Kong Company

Mr Mirtofanovsa sufffered and it was on the high seas at the time therefore, outside NZ

they arrested the vesssel under s4(1)(f) the statutory right of in rem, s 5(2) read with s 4(1)(f)

there was a side reference to the damage maritime lien we weren't sure whether the damage maritime lien covered personal injury or death

they were seeking 2M the problem with ACC is we don't have many personal injury so in US not high, but here it's very high new set of lawyers. the Court sided on $250, 000

They are deciding whether the aciton in rem should be struck out, and also the owner of the Kursa says that there is no jurisdiction to hear the case, and also for the plaintiffs to put up security bc it is a vexatious claim if pushed the defendant ship owner would want security bc they have no assets in NZ, and if the court finds against them they need it for that

GENERAL RULE plaintiff need not put up security, seafarers who want their wages, or they are salvors usually all the economic power is weighted towards the defendant it's inherently imblanaced,all the money rests in the ship -

Judge says he doesn't require them to put up security

Should he set aside the notice of proceeding?

No - HE SAYS ACC DOES NOT APPLY AND THEREFORE YOU CAN BRING AN ADMIRALTY ACT ACTION but he doesn't go into why ACC doesn't apply if he did come to NZ on The Kursa, then it should apply

I think it's bc it's outside NZ that the ACC Act doesnt' apply

LAW: Use s 4(1)(f) head of jurisdiction: Any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect, or default of the owners, charterers, or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects, or defaults the owners, charterers, or persons in possession or control of a ship are responsible, being an act, neglect, or default in the navigation or management of the

7ship, in the loading, carriage, or discharge of goods on, in, or from the ship or in the embarkation, carriage, or disembarkation of persons on, in, or from the ship:

Defendant argued that bc he was fishing, it didn't come within s4(1)(F) bc it should be '

Being an act default or neglect - do these words refer to the negligence or the defect as well, does the bit at the end narrow down the defect

HE said that the 'english section' is punctuated differently, so that the bit at the end ay only refer to negligence, but in any case it's about the management of the ship it's not 100% compelling

4(1)(f) is not a generic 'any injury or death occuring near a ship'

you need to re-imagine the fishing as carriage of goods but you can say fishing nets is part of managing your ship.

If we treat this as pesonal injury casuing death, the vicitm is the dead seafarer, so the estate would usually sue in tort. This isn't complicating here, but in a country like Russia, the executor is often not the widow so if you sue, it's normally not the plaintiff. The family who have beeen deprived of the economic benefits of the husband alive are allowed to sue directly - that enabled them to be the direct plaintiffs

(2) why did they say the applicable law may be the law of Honduras bc they were on the high seas what would normally apply to a tort, lex loci delecti but bc here you are on the high seas, there is no domestic thing, so you work with the ship's flag -

If the honduras laws applied then it would disable the Death by accident compensation act so there were many issues that the judge and council didn't cop onto

The parties then settled.

Finally: Winston Peters did this case

1) What was the issue here?

Application to strike out -

Is there Jurisdiction to hear the claim

2) What would the position have been if the deceased seafarer had had ACC cover?

Per s 317(3) The Court could not award any compensation on the matter they would just get whatever they were entitled to under ACC

3) What are the advantages of suing under the Deaths by Accidents Compensation Act 1952?

4) How does the DbACA fit in with the admiralty jurisdiction?

S3(2) of the Admiralty Act entitled the Court to exercise it's statutory jurisdiction as contained in the Deeaths by Accidents Compenation Act 1952 It provides jurisdiction by statute

[(2) In exercising the jurisdiction conferred by this Act, the Court may exercise at the same time any of its other civil jurisdiction, whether statutory or otherwise, and all powers incidental thereto.

before there can be jurisdiction for loss of life or personal injury the act, neglect or default must be in the navigation or management of the ship; in the loading, carriage or discharge of goods on, in or from the ship; on the embarkation, carriage or disembarkation of persons on, in or from the ship.

5) What was the "applicable law" argument here? How might that have affected the final decision?

If I am wrong in this preliminary view of it the authorities seem to be that there is a presumption that the applicable law is the same and that if the relevant law is the Honduran law, being the law of the flag, then it is the same as the New Zealand law until proof to the contrary. No such proof has been put forward nor has it been pleaded. It may be that argument can be raised later if one is to give consideration to what law applies but at the moment in any event, in the absence of evidence that the law is different, the admiralty jurisdiction of this Court remains and New Zealand law applies.

The applicable law may have been Honduran law as that is where the ship, The Kursa is registererd, (or Russian Law as the plaintiff's are Russian). If Honduran law is the applicable law, the differences in that law would change the outcome

Halsbury's points to the law of the flag of the ship being the law to determine wrongs done on the high seas (and only when there isn't a flag then the law of the port)

Honduran law may not have made provision for death by accident by negligence of an employer

SOVEREIGN IMMUNITY REVISION:

What is underneath is that the executive is requesting Judges not to hear cases, a self-imposed limitation through the common law

CROWN PROCEEDINGS ACT SUMMARY:

Absolute rule so no distinction etween state and commercial acts eitehr Lizzie or the Govt, and uses terminology

Problems will be working out where the Govt ends, and that the effect of the CPA is no actions in rem only aciton in personam

this is the diff with Foreigh Sovereing immunity is that to not impugn foreign sovereign power that ..

Parliament has instructed the Courts what to do through s28

ACC BAR

General limitation on the NZ Courts jurisdiction, and that is a statutory bar, in it's own terms it only applies to NZ Courts which raises the issue as to whether you can then claim a foreign court in admiralty, and there is dispute as to whether the bar is procedural or susbtantive so if proceedigns are barred in NZ ..

ACC Act interations

Foreign jurisdiction and arbitration clauses (p 61)

1) What is the effect of these statutory provisions on admiralty proceedings?

S2(10) a provision will be null and void,

Carriage claims from NZ, inc other transport Docs 'if you choose a foreign jurisdiciton cl in your bill of lading we will strike it down'

For inwards carraige of goods, they will not allow a clause that purports to exclude or limit NZ court

2) If you took International Trade and still don't know, please advise so I can fail you retrospectively.

You cannot pick a foreign Jurisdiction as the 'exclusive' jurisdiction

'Any disputes of this bill of lading are limited to XYZ jurisdiction' will be struck down by foreign jurisdictions - s2(10)

s 2 (10) was added for policy reasons so that people stick to their promises the normal approach is that they are upheld unless there is a strong reason why they shouldn't be

In NZ the farmers did not want to be stuck with overseas litigation requirements, it's a limit on foreign courts jurisdiction

All farming countries have this/similar

If there is a lading dispute, and it says its subject to a foreign Court's jurisdiction, the NZ court will strike it down

FOREIGN ARBITRATION CLAUSES

Our arbitration act says if you have a foreign arbitration clause, then NZ proceedings can't be stayed inc in rem and in personam bc we signed up to the convention

If advising a foreign ship owner client you suggest that if they want to be heard in their head quarters then you make them put in their jurisdiction arbitration clause

Abuse of proceedings (p 61)

Courts ability to stay proceedings if there is an abuse of process

WE follow the general HC rules and admiralty r 15.1 = the court will strike out... proceedings you can't put forward a case strict on the merits, someone must loose it's not about the strength of your case other party, its whether it is a reasonably arguable case

Most common unlawful proceedings is unlawful arrest of ships without any basis e.g. commercial vessel would r