Visscher v BHP Petroleum Pty Limited & Ors [2002] NSWSC 65

Visscher v BHP Petroleum Pty Limited & Ors [2002] NSWSC 65

The plaintiff was employed by BHP Petroleum Pty Limited and was on board the Griffin Venture at his employer's request to assist with the tank purging and gas freeing operation. His fundamental duty included securing the safety of the vessel. Even if he defied the Master and went to the Field Superintendent, those actions were consistent with duties he was bound to perform and were not voluntary salvage services. His failure to sign the Articles did not alter his status as an employee or turn him into a volunteer salvor. Therefore, by reason of his employment, he could not maintain the action for salvage as presently pleaded.

Jurisdiction
Australia
Judgment Date
21 February 2002
Procedural Posture
Claim for an Award of Salvage / Separate Determination of Questions Pursuant to Pt 31 R 2 of the Supreme Court Rules 1970 (nsw)
Outcome
Question 2 was answered by finding that the plaintiff was employed by BHP Petroleum Pty Limited and, because he was an employee, could not maintain the salvage action as presently pleaded. Final consideration of the first limitation question was deferred pending determination of the plaintiff's application to...
Legal Topics
['salvage Claim' 'extension of Time' 'whether Services Were Rendered as an Employee or as a Volunteer' 'identity of Employer']
['admiralty' 'limitation of Actions' 'employment'] ['salvage Claim' 'extension of Time' 'whether Services Were Rendered as an Employee or as a Volunteer' 'identity of Employer']

Case Brief

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Procedural Posture

Claim for an Award of Salvage / Separate Determination of Questions Pursuant to Pt 31 R 2 of the Supreme Court Rules 1970 (nsw)

Legal Issues

  1. 1 ["Whether the plaintiff's claim for an award of salvage was not maintainable because proceedings were commenced after the expiration of the limitation period in s 396(1) of the Navigation Act 1912 (Cth), s 22(3) of the Limitation Act 1969 (NSW), or s 37 of the Admiralty Act 1988 (Cth)." 'If the claim was not maintainable by reason of limitation provisions, whether time for commencement should be extended.' 'By whom the plaintiff was employed on 29 May 1994.' 'Whether the plaintiff was a volunteer or an employee in respect of the alleged services to the Griffin Venture, and whether his employment precluded a salvage award.']

Ratio Decidendi

The plaintiff was employed by BHP Petroleum Pty Limited and was on board the Griffin Venture at his employer's request to assist with the tank purging and gas freeing operation. His fundamental duty included securing the safety of the vessel. Even if he defied the Master and went to the Field Superintendent, those actions were consistent with duties he was bound to perform and were not voluntary salvage services. His failure to sign the Articles did not alter his status as an employee or turn him into a volunteer salvor. Therefore, by reason of his employment, he could not maintain the action for salvage as presently pleaded.

Court Disposition

Question 2 was answered by finding that the plaintiff was employed by BHP Petroleum Pty Limited and, because he was an employee, could not maintain the salvage action as presently pleaded. Final consideration of the first limitation question was deferred pending determination of the plaintiff's application to...

Orders

  • ['Question 2(a): BHP Petroleum Pty Limited.' 'Question 2(b): By reason of the fact that the plaintiff was an employee, he cannot maintain the action for salvage as presently pleaded.' 'Final consideration of the first question deferred until determination of the application for amendment.']