The Ship “Gem of Safaga” v Euroceanica (UK) Ltd [2010] FCAFC 14

FEDERAL COURT OF AUSTRALIA

The Ship "Gem of Safaga" v Euroceanica (UK) Ltd [2010] FCAFC 14

Citation: The Ship "Gem of Safaga" v Euroceanica (UK) Ltd [2010] FCAFC 14

Appeal from: Euroceanica (UK) Ltd v The Ship "Gem of Safaga" [2009] FCA 1467

Parties: THE SHIP "GEM OF SAFAGA" v EUROCEANICA (UK) LTD

File number: NSD 1440 of 2009

Judges: RYAN, BESANKO AND JAGOT JJ

Date of judgment: 26 February 2010

Catchwords: ADMIRALTY – appeal against decision refusing to set aside writ in rem issued against surrogate ship under s 19 of Admiralty Act 1988 (Cth) – where Memorandum of Agreement for purchase of surrogate ship originally included "relevant person" under s 19(a) as sole purchaser, but Addendum to Memorandum of Agreement included relevant person as nine-tenth purchaser and third party as one-tenth purchaser – where purchase price for surrogate ship paid by loan for which both purchasers were jointly and severally liable – whether third party was legal and beneficial owner of one-tenth of surrogate ship – whether definition of "owner" in s 19(b) includes part owner – whether relevant person was "owner" under s 19(b) by reason of law of country in which ship was registered, or by reason of ownership rights conferred on relevant person by Co-ownership Agreement, or by reason of estoppel

Held: appeal allowed – definition of "owner" in s 19(b) does not include part owner – Addendum to Memorandum of Agreement created a new agreement whereby legal and equitable title to one-tenth of surrogate ship passed to third party – no resulting trust in favour of relevant person over one-tenth interest in surrogate ship because both purchasers provided purchase moneys – relevant person does not have power to dispose of its share under Co-ownership Agreement without the consent in writing of the other party.