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

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

The costs and expenses of the actual arrest were to be paid from EMAS' r 41 payment, with the balance returned to EMAS. All other Marshal's costs and expenses, including custody and release of the barge, were to be paid from APC's r 53 payment. APC's construction, under which EMAS would bear all Marshal's costs while APC's payment operated only as security, was inconsistent with rr 52 and 53, form 19, and the limited liability for wrongful arrest in s 34 of the Admiralty Act 1988 (Cth).

Jurisdiction
Australia
Judgment Date
23 December 2009
Procedural Posture
Admiralty Proceeding Concerning Costs and Expenses of Arrest, Custody and Release of a Ship / Notice of Motion After Release of the Ship, Concerning Allocation and Repayment of Money Paid to the Marshal
Outcome
The plaintiff obtained partial release of its payment to the Marshal; the actual arrest costs were allocated to the plaintiff's payment, custody and release costs to the defendant/relevant person's payment, and an equivalent amount for arrest costs was to be added to the security paid into court.
Legal Topics
['ship Arrest' 'release From Arrest' "marshal's Costs and Expenses" 'security Paid Into Court' 'undertakings Under Admiralty Rules 1988 (cth) Rr 41 and 53' 'wrongful Arrest Under Admiralty Act 1988 (cth) S 34']
['admiralty'] ['ship Arrest' 'release From Arrest' "marshal's Costs and Expenses" 'security Paid Into Court' 'undertakings Under Admiralty Rules 1988 (cth) Rr 41 and 53' 'wrongful Arrest Under Admiralty Act 1988 (cth) S 34']

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Procedural Posture

Admiralty Proceeding Concerning Costs and Expenses of Arrest, Custody and Release of a Ship / Notice of Motion After Release of the Ship, Concerning Allocation and Repayment of Money Paid to the Marshal

Legal Issues

  1. 1 ["How to allocate double payments made to the Marshal by the plaintiff under r 41 and by the owner/relevant person under r 53 for the Marshal's costs and expenses." "Whether the plaintiff's r 41 undertaking required it to bear costs of custody and release where the defendant/relevant person paid money to secure release." "Whether the defendant/relevant person's r 53 payment could be treated merely as security for amounts the plaintiff had already paid to the Marshal." 'Whether the costs of actual arrest should be distinguished from costs of custody and release.']

Ratio Decidendi

The costs and expenses of the actual arrest were to be paid from EMAS' r 41 payment, with the balance returned to EMAS. All other Marshal's costs and expenses, including custody and release of the barge, were to be paid from APC's r 53 payment. APC's construction, under which EMAS would bear all Marshal's costs while APC's payment operated only as security, was inconsistent with rr 52 and 53, form 19, and the limited liability for wrongful arrest in s 34 of the Admiralty Act 1988 (Cth).

Court Disposition

The plaintiff obtained partial release of its payment to the Marshal; the actual arrest costs were allocated to the plaintiff's payment, custody and release costs to the defendant/relevant person's payment, and an equivalent amount for arrest costs was to be added to the security paid into court.

Orders

  • ['$95,000 of the money paid to the Marshal by the plaintiff be released to the plaintiff.' "The defendant pay the plaintiff's costs of the notice of motion filed on 27 August 2009 and re-filed on 17 November 2009." 'The Marshal prepare a statement identifying the total costs and expenses of the arrest and of the...