Banwell v The Ship The Sydney Sunset [2001] FCA 210

FEDERAL COURT OF AUSTRALIA

Banwell v The Ship "The Sydney Sunset" [2001] FCA 210

maritime law – application for the release of a vessel from arrest – whether monies owed constituted a "general maritime claim" – where some of the monies were paid by the plaintiff in relation to slippage, renovations and repairs, registration and insurance of the vessel – where some monies paid by the plaintiff were in relation to the purchase of the vessel MARITIME LAW - application for the release of a vessel from arrest – whether the debtor was the demise charter of the vessel – where the vessel was being hired out for short cruises by the debtor pending its sale. Admiralty Act 1988 ss 4(3)(m), (n), (o) & (s), s 18 Port of Geelong Authority v The "Bass Reefer" (1992) 37 FCR 374 cited Opal Maritime Agencies Pty Ltd v The Proceed of Sale of the Vessel M V "Skulptor Konenkov" (2000) 98 FCR 519 applied Baumvoll Manufactur von Scheibler v Gilchrest & Co [1892] 1 QB 253 cited Scrutton On Charterparties 20th ed 1996, Art 28 NEVILLE ROSS BANWELL v THE SHIP "THE SYDNEY SUNSET" N 98 OF 2001 TAMBERLIN J SYDNEY 9 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N98 OF 2001

IN ADMIRALTY

BETWEEN: NEVILLE ROSS BANWELL

PLAINTIFF/RESPONDENT

AND: THE SHIP "THE SYDNEY SUNSET"

(formerly "THE LUBS")

DEFENDANT/APPLICANT

JUDGE: TAMBERLIN J

DATE: 9 MARCH 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This application filed by John Wolf (also known as John Veinalds) seeks release of the "The Sydney Sunset" ("the vessel") which was arrested on 2 February 2001 on the application of the plaintiff. The plaintiff in his affidavit in support of the arrest says that his claim against the vessel is in respect of moneys advanced for the purchase of goods, materials, or services supplied to the vessel for its operation and maintenance together with a claim in respect of the alteration, repair or equipping of the vessel. A writ filed by the plaintiff on 2 February 2001 claims "damages" in the sum of $182,529.67. That writ also states that the "relevant person" for the purpose of the Admiralty Act 1988 ("the Act") is Mr Wolf. 2 The application for release and damages for wrongful arrest was filed on 14 February and it raises two grounds. The first is that the claims made by the plaintiff are not within the description of a "general maritime claim". Secondly, it is said that the "relevant person" named in the writ, Mr Wolf, is not and never was the owner of the vessel. 3 On 8 February 2001 Mr Wolf entered an appearance in which his relationship to the vessel is stated to be that of "ex-purchaser and agent of the vessel". An appearance was also filed by Brian Doran in which he is described as the "owner of the vessel." In the course of the hearing it was common ground that Mr Doran was the owner of the vessel at the time the writ was taken out and at the time of the hearing. 4 The application for release is made pursuant to r 52 of the Admiralty Rules ("the Rules") which relevantly provides: "Release from arrest by the Court 52 (1) A party to a proceeding may apply to the court in accordance with Form 19 for the release of a ship or other property that is under arrest in the proceeding. …