EMAS Offshore Pte Ltd v The Ship “APC Aussie 1” (No 2) [2009] FCA 1583

FEDERAL COURT OF AUSTRALIA

EMAS Offshore Pte Ltd v The Ship "APC Aussie 1" (No 2) [2009] FCA 1583

ADMIRALTY –– arrest –– costs of arrest, custody and release of ship –– payment in compliance with demand by Marshal –– plaintiff pays pursuant to an undertaking given under r 41 of the Admiralty Rules 1988 (Cth) –– defendant/relevant person pays money into court as security for the plaintiff's claim, and also pays money demanded by Marshal pursuant to an undertaking given under r 53 in order to obtain release of ship –– ship released after payments and r 53 undertaking by defendant/relevant person –– as a result the amount of the cost of custody of the ship paid twice in compliance with the rr 41 and 53 undertakings –– r 41 undertaking not provide for demand by Marshal for costs of release –– r 53 undertaking not provide for demand by Marshal for costs of arrest –– Admiralty Act 1988 (Cth) s 34 providing limited rights against plaintiff for wrongful arrest Held: The costs and expenses of the arrest be paid out of the amount provided to the Marshal by the plaintiff; the defendant's payment to the Marshal should bear all other costs and expenses of the Marshal, including those in connection with keeping the ship and its release; the equivalent of the amount paid for the costs of the arrest should be added, from money paid to Marshal by defendant/relevant person, to security paid into court Admiralty Act 1988 (Cth) s 34 Admiralty Rules 1988 (Cth) rr 41, 52, 53, 75C Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 cited Patrick Stevedores No 2 Pty Limited v Ship MV "Turakina" (No 2) (1998) 84 FCR 506 considered EMAS OFFSHORE PTE LTD v THE SHIP "APC AUSSIE 1"

NSD 625 of 2009

RARES J

23 DECEMBER 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

in admiralty