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Wasawasa Fisheries Ltd v Admiralty Marshal of Fiji [2002] FJCA 54; ABU0025U.1998S (23 April 2002)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0025 OF 1998S
(High Court Civil Action No. HBG001 of 1996A)

BETWEEN:

WASAWASA FISHERIES LIMITED
THE FIJI FISH COMPANY LIMITED
THE FIJI ICE LIMITED
Appellants

AND:

ADMIRALTY MARSHAL OF FIJI
KARIM’S LIMITED
THE SHIP ‘VENTURER’
Respondents

Coram: Reddy, President
Eichelbaum JA
Davies JA

Hearing: 19 February 2002, Suva

Counsel: Mr. J. Madraiwiwi for the Appellants
Mr. S. Karavaki for the Respondents

Date of Judgment: 23 April, 2002

JUDGMENT OF THE COURT

This is an appeal from an order made by Pathik J. on 23 April 1998.

The Admiralty Marshal of Fiji had, 9 January 1996, acting on a warrant issued on an ex- parte application of the Appellants, who were the plaintiffs below arrested the ship “Venturer.” The request for the warrant included the following undertaking:

“A personal undertaking is hereby given to pay on demand the fees of the Marshal and all expenses incurred by him or on his behalf in respect of the arrest, or endeavours to arrest, the property and the care and custody of it while under arrest.”

The warrant ordered:

“To the Admiralty Marshal of the High Court of Fiji and to all the singular his substitutes, GREETINGS:

YOU ARE HEREBY COMMANDED to arrest the Ship VENTURER now lying at Suva and to keep the same under safe arrest until further order.”

After the arrest, an arrangement was made for Karim Buksh, the owner of the ship, or representative of the owner, to maintain security over the vessel. An affidavit sworn by C D Singh, Senior Court Officer of the High Court, states:

“At the directive of the Admiralty Mr KarimBuksh has security personal on the said vessel since its arrest and he has requested that the costs incurred be reimbursed”

The Court has been informed that the arrangement made with Mr Buksh was an oral one. Mr Buksh himself arranged for Mr.Maliko Tuicaucau, a watchman employed by him, to take care of the vessel.

The schedule to the High Court (Admiralty) (Amendment) Rules 1993 provides for the following fees to be payable to the Admiralty Marshal:

“For executing any warrant or attachment...................$50

For keeping possession of any ship, goods, or ship and
goods (exclusive of any payments necessary for the safe
custody thereof), for each day......................................$20.

Note - No fee shall be allowed to the Marshal for the custody and possession of property under arrest, if it consists of money in a bank, or of goods stored in a bonded warehouse, or if it is in the custody of a Customs Officer or other authorised person.”

By motion dated 22 April 1998, which was returnable the following day, before Pathik J. the Admiralty Marshal sought, amongst other orders, orders that the ship “Venturer” be released from arrest, that the Appellants pay to the Marshal $16,440 being the Marshal’s fee period 19 January 1996 to 13 April 1998, calculated at the rate of $20 per day and that they pay to the Marshal $24, 475.29, being security costs payable to Mr Buksh for that period.

On the return of the motion, counsel for the Appellants sought an adjournment as he wished to file affidavits dealing with the attention or lack of attention given to the vessel by the Marshal and the ship- keeper, Mr Buksh. However, counsel did not deny that the Appellants were liable to pay the $16,440. The learned Judge’s reasons for Judgment record:

“As for claim for $16,440 the Plaintiffs are required to pay under Legal Notice No. 51. The amount is $20.00 per day from the date of arrest.

The Plaintiff’s counsel admits that it is their liability but say that because decision has not been delivered on this action they should not have to pay this sum from the date the hearing concluded and the date of decision which is not set down for till late May.

I see no merit in this argument. They have committed themselves to pay. Admiralty Marshal’s security cost and the statutory fee of $20 per day. This cannot be disputed. In this regard I refer to Plaintiff’s solicitors’ letter of 22.4.98 in which counsel admit that they undertook to pay these charges.

I therefore reject outright Mr Young’s assertion to the effect that because the decision is taking so long the Plaintiff’s should not have to pay the said sum of $16,440.”

Pathik J. ordered that the Appellants pay to the Admiralty Marshal fees totalling $16,440, that the ship “Venturer” be released from the custody of the Admiralty Marshal and that the matter be otherwise adjourned with the parties having leave to file affidavits dealing with the claim for $24,475.29 security costs.

Subsequently, in Donald Pickering and Sons Enterprises Limited and Anor. v. Karim’s Limited and Ors, in which the judgment was given on 24 July 1998, Fatiaki J. held that the fee of $20 per day, for which the schedule provides, relates only to the circumstances where the Marshal had taken possession of a vessel, which is not the case where the Marshal has acted on a warrant for arrest. Fatiaki J. referred to the remarks of Lord Atkin, which whom Lord Thankerton, Lord Russell, Lord MacMillan, Lord Wright agreed, in Government of the Republic of Spain v.S.S.“Aranlzazu Mendi”. [1939] AC 256 where his Lordship said at 266:

“After the consent order the ship-keeper remained on board under a claim for the daily expenses ‘while the ship is in the custody of the Marshal” as expressed in the Supreme Court Fees Order 1930, SIV. B 93...... Founding on this the plaintiffs say that the ship was in the possession of the Marshal and could not therefore be in the possession of the Nationalist Government. This seems to me to be based upon a misapprehension of the position created by the arrest.

The ship arrested does not by the mere face of arrest pass from the possession of its then possessors to a new possession of the Marshal. His right is not possession but custody. Any interference with his custody will be properly punished as a contempt of the Court which ordered arrest, but, subject to his complete control of the custody, all the possessory rights which previously existed continue to exist, including all the remedies which are based on possession.”

Fatiaki J. held that a fee payable to the Admiralty Marshal for executing an arrest warrant and maintaining arrest was not a fee for “keeping possession of any ship” within the meaning of the Schedule to the High Court (Admiralty) (Amendment) Rules 1993. However, his Lordship did not refer to the context in which the fees are specified.

The High Court (Admiralty) Rules, Cap. 13, provide, as Admiralty Rules customarily do, for the issue of a warrant of arrest of a vessel at any time after the writ of summons commencing an action in rem has issued. The warrant may be issued on an ex parte application by the plaintiff or the defendant.

Order II r.1 provides for the issue of the warrant. The rule does not specifically provide for the giving of an undertaking “to pay on demand the fees of the Marshal and all expenses incurred by him or on his behalf in respect of the arrest.” However, Order XV provides that the forms in force and used in the Admiralty Division of the High Court of Judicature in England shall, with such variations as the circumstances may require, be in force and used in admiralty actions in the High Court of Fiji. Order 75 rule 19(3) of the Rules of the United Kingdom provides that a warrant of arrest shall not be executed until an undertaking “to pay on demand the fees of the Marshal and all expenses incurred by him” has been lodged in the Marshal’s office. The form of undertaking given in the present case adopts the terminology used in the United Kingdom.

Order IX r.7 of the Admiralty Rules of this jurisdiction, which deals with the circumstance of the release of a vessel from arrest after the filing of a bail-bond reads:

“7. The release, when obtained, shall be left with a notice with the Marshal or his substitute as the case may be by the barrister and solicitor taking out the same, who shall also at the same time pay all costs, charges and expenses attending the care and custody of the property whilst under arrest; and the property shall thereupon be released.”

Order XVI provides that the fees contained in the schedule shall be taken in admiralty causes. The Schedule is that specified in the High Court (Admiralty)(Amendment) Rules 1993.

It should be noted that the Rules do not refer to the taking of “possession” of a vessel. However, the three factors, - the rule providing for the arrest of a vessel, the practice of requiring an undertaking from the person seeking the issue of the warrant to pay “the fees of the Marshal and all expenses incurred by him” and the promulgation of the fee of $20 per day for “keeping possession of any ship ..... (exclusive of any payments necessary for the safe custody thereof)” show that the fees mentioned in the undertaking are the fees which are specified in the Schedule.

In the third edition of Halsbury’s Laws of England, Vol.1 para. 162, the following is stated:

“After the service of the warrant has been effected, the property arrested, whatever be its value, remains in the custody of the Court until the action is determined or the property is released by a release duly issued from the registry either on the warrant being withdrawn by the plaintiff’s solicitor, which may be done before appearance, or on bail being put in or money paid into court in lieu of a bail. A ship-keeper is put in possession under the authority of the Admiralty Marshal during the time a ship is under arrest, and any person breaking the arrest or interfering with the property whilst under arrest is guilty of a contempt of court and liable to attachment. By the mere arrest of a ship the Marshal gains custody and not possession, subject to his control of the custody all possessory rights which previously existed continue to exist, including all the remedies which are based on possession. The Arantzazu Mendi [1939] AC 256.” (Emphasis added).

It has been common practice for Rules of Court to make provision for fees and expenses to be payable to the Marshal as a result of his arrest of a vessel. In Anantzuzu Mendi at p.266, Lord Atkin noted that practice in the passage cited above.

The term “possession” is sometimes used loosely and it appears from the paragraphs in Halsbury cited above to have been so used to describe the custody taken by a Marshal on the arrest of a ship and by placing a ship-keeper in control of the security of the vessel in accordance with the procedures laid down by Rules of Court. It is so used in the High Court (Admiralty) Rules in the description of the $20 daily fee.

The purpose of the daily fee specified in the Schedule to the High Court (Admiralty) (Amendment) Rules 1993 is therefore, not to deal with the costs and expenses of the taking of possession of a ship under an order of the High court, which order would deal with such costs, but to deal with the costs following the arrest of a ship under a warrant issued on the making of an ex-parte application. The use of the expression “the custody and possession of property under arrest,” which appears in the note, confirms this interpretation.

It follows that the approach taken by Fatiaki J. in Donald Pickering and Sons Enterprises Ltd. v. Karim’s Ltd. should not be followed and that it should be held that the daily fee specified in Schedule to the High Court (Admiralty) (Amendment) Rules 1993 is applicable to the arrest initiated by the Appellants and is a fee encompassed by their undertaking to pay “the fees of the Marshal and all expenses incurred by him or on his behalf in respect of the arrest ...... and the care and custody of it while under arrest.”

Accordingly, Pathik J. was correct in holding that the Plaintiffs were liable to pay to the Marshal at least $20 per day while the arrest was maintained.

Accordingly, the appeal from the order made by Pathik J. on 27 April 1998 that the Plaintiffs pay to the Marshal $16,440, being the daily fee for the period 9 January 1996 to 13 April 1998 must be dismissed. The appellants should pay the Marshal’s costs of the appeal, which are fixed at $1,500.

Hon. Justice J R Reddy
President

Hon. Sir Thomas Eichelbaum
Justice of Appeal

Hon. Justice John Davies
Justice of Appeal

Solicitors:

Howards, Suva for the Appellants
Office of the Attorney General Chambers, Suva for the Respondents