Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156

FEDERAL COURT OF AUSTRALIA

Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156 Citation: Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156

Appeal from: Daebo Shipping Co Ltd v The Ship Go Star [2011] FCA 1015

Parties: DAEBO SHIPPING CO LTD v THE SHIP GO STAR

File number: WAD 373 of 2011

Judges: KEANE CJ, RARES & BESANKO JJ

Date of judgment: 7 November 2012

Catchwords: ADMIRALTY – chain of time charterparties in 1981 Absatime NYPE form – claims in conversion and detinue in respect of ship's bunkers when owners withdrew ship because head charterer failed to pay hire – question of which party had title to bunkers when owners withdrew the ship under head charter – when sub-charter provided for the sub-charterer to take over bunkers on delivery and pay for them, together with the first hire payment, within three banking days of the ship's delivery – where delivery of ship occurs under NYPE form – whether title to the bunkers passed to the sub-charterer at the time of delivery – whether sub-charterer or its disponent owner had title to bunkers when ship withdrawn by owners under head charter. ADMIRALTY – owners' lien for sub-freights under cl 18 of NYPE form charterparty – whether disponent owner's right to receive payment for bunkers on delivery of ship to sub-charterer within owners' lien over sub-freights under cl 18 – whether "subfreights" as used in cl 18 includes "hire". PRIVATE INTERNATIONAL LAW – choice of law – where oral and instantaneous written representations made by owners in Greece to representative of sub-charterer in Singapore about non-payment of hire by charterer and existence of owners' lien over 'sub-freights' – where sub-charterer withholds payments due to its disponent owner under sub-charter caused by owners' representations – law applicable to tort of interference in contractual relations between disponent owner and sub-charterer where ship located in Chinese territorial waters at times of representations and sub-charterer's breaches of sub-charter – whether law of China or Singapore applicable as lex loci delicti. TORT – unlawful interference in contractual relations – where owners urge sub-charterer not to make any payments to disponent owner under sub-charter because owners claim those moneys are "subfreights" within their lien under cl 18 of NYPE form over all moneys payable under sub-charters – where sub-charterer fails to pay disponent owner for hire and value of bunkers on delivery because of owners' assertion of lien – whether owners' reference to existence of lien under cl 18 of head charter interfered with contractual relations of disponent owner and their respective sub-charterers in chain of sub-charters. Held: Appeal allowed. Ship was delivered to sub-charterer when placed at its disposal – sub-charterer then obliged to pay disponent owner hire in advance and value of bunkers on board within three banking days of delivery – owners urging of sub-charterer not to pay any money due under sub-charter, because they were considering exercising lien over sub-freight, occurred in Singapore and interfered with contractual relations in sub-charter causing disponent owner loss of payments by its sub-charterer.