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Steamships Trading Company Ltd v Owners of the Ship 'Samarai' [1988-89] PNGLR 80 (28 February 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 80 - Steamships Trading Co Ltd v Owners of the Ship "Samarai" 

[1988-89] PNGLR 80

N713

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

STEAMSHIPS TRADING COMPANY LTD

V

THE OWNERS OF THE SHIP “SAMARAI”

Waigani

Andrew AJ

28 February 1989

ADMIRALTY LAW - Jurisdiction - Supply of goods to domestic ship - No jurisdiction - Administration of Justice Act 1956 (UK), s 1(1) - Colonial Courts of Admiralty Act 1890 (Imp).

Held

The jurisdiction of the National Court in admiralty proceedings does not extend to actions based on supply of goods and materials where the ship is a domestic ship.

Cases Cited

New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek, the owner of the MV “Aya Trigon” [1980] PNGLR 205.

The Ship “Federal Huron” v Ok Tedi Mining Ltd [1986] PNGLR 5.

Wilkinson v Barking Corporation [1948] 1 KB 721; [1948] 1 All ER 564.

Motion

This was an application on notice to strike out a writ of summons as disclosing no reasonable cause of action.

Counsel

D Houseman, for the plaintiff/respondent.

J Shepherd, for the defendant/applicant.

28 February 1989

ANDREW AJ: This is an application by way of notice of motion seeking orders principally that the endorsement on the writ of summons herein discloses no reasonable cause of action recognised by the admiralty jurisdiction of this Court. The principal argument is that the jurisdiction of the National Court in admiralty proceedings does not extend to actions based on supply of goods and materials especially where the ship is a domestic ship and not a foreign one.

In prior proceedings in this matter (WS 42 of 1988) the plaintiffs obtained judgment against Lynnes Pty Ltd for supply of goods and services. That company was the owner of the ship, “Samarai”, as agent and trustee of a company called Northgate Investments Pty Ltd. The balance of the claim against the defendants was K35,000 which was not submitted to by the defendants and remained in dispute. It appears that this amount was not pursued by way of setting down of assessment or otherwise but then, in separate proceedings (that is in this matter, WS 119 of 1989), a warrant for arrest was issued, based on a claim for goods and materials supplied in the sum of K35,900.

Thus, in this application it is asserted that this Court has no jurisdiction in admiralty in relation to a claim of goods and services supplied to a domestic ship.

In the case The Ship “Federal Huron” v Ok Tedi Mining Ltd [1986] PNGLR 5, the conflicting authorities as to admiralty jurisdiction in Papua New Guinea were put to rest. The effect of this decision is that the Courts in Papua New Guinea have, and have had since 16 September 1975, by statute and by development of the law under the Constitution, Sch 2.3 and Sch 2.4, an admiralty jurisdiction for the whole of Papua New Guinea, such jurisdiction being within the parameters and limitations set down in the Colonial Courts of Admiralty Act 1890 (Imp). The Court also held that the expression, “The principles and rules of common law and equity are adopted ... notwithstanding any revision of them by a statute of England ...” in the Constitution, Sch 2.2(3), is to be construed as excluding statutory modifications to the common law.

The defendant submits that the plaintiff’s writ in these proceedings is derived not from the Colonial Courts of Admiralty Act 1890 but is from a statutory modification of prior English statute and common law, being the Administration of Justice Act 1956 (UK). By s 1(1) of that Act the admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims: “(m) any claim in respect of goods or materials supplied to a ship for her operation or maintenance.”

In “Federal Huron”, the Supreme Court said (at 37):

“In the final event, there is by statute and by development of the law under the Constitution, Sch 2.3 and Sch 2.4 an admiralty jurisdiction for the whole of Papua New Guinea within the parameters and limitations set down in the Colonial Courts of Admiralty Act of the United Kingdom. For what was previously the Territory of New Guinea it may be found in the adopted 1890 Act and the two earlier Acts, 3 and 4 Vic, c 65 (1840) and 24 Vic, c 10 (1861) together with the pre-1840 common law. For the Papuan area it comes from a development of the underlying common law from 1840, by analogy to the 1840 and 1861 Imperial statutes through the Colonial Courts of Admiralty Act as adopted into the Territory of New Guinea in 1921. Thus the two areas have one unified coherent system of law, consistent with their political unification as one sovereign State. We can only recommend to the Government of the day that they bring down a new up-to-date admiralty bill as a matter of urgency.”

At 10, the Court said (adopting Wilkinson v Barking Corporation [1948] 1 KB 721 at 725):

“No act of the parties can create in the courts a jurisdiction which Parliament has said shall vest not in the courts, but exclusively in some other body. Nor again can a party submit to, so as to make effective, a jurisdiction which does not exist ...”

The plaintiff’s action is therefore a statutory claim under the 1956 Act. At 19, of the “Federal Huron”, the Court comes to the firm view that:

“it was not the intention of the Constituent Assembly to introduce statute law into this country by means of modification there by to the principles of common law and equity.”

This is reaffirmed at 21. At 22, it said:

“Section 20(3) of the Constitution together with Sch 2.6(1) adopts certain specific statutes of Australia and the United Kingdom. This process could be interpreted as a way of saying ‘these statutes and these statutes only shall we import into our law and none other’.”

The Administration of Justice Act 1956 was not adopted.

It is true that the Admiralty Court Act 1840 (Imp), s 6, created a cause of action for the supply of necessaries for a foreign ship (see New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek, the owner of the MV “Aya Trigon” [1980] PNGLR 205), but that is different to the supply of goods and services to a domestic ship.

In my judgment there is no jurisdiction in admiralty for the supply of goods and services to a domestic ship because this was not introduced until 1956 in England and the Act under which such claims can be made (the Administration of Justice Act 1956) is not part of our jurisdiction.

The plaintiff, of course, still has his action previously commenced in WS 42 of 1988, in which he has already obtained judgment for approximately half of the amount claimed.

The order I make is as follows under O 8, r 27, of the National Court Rules:

ORDER

1.       That the writ of summons in this matter be struck out.

2.       That the warrant of arrest issued herein on 2 February 1989 be set aside.

3.       The plaintiff/respondent pay the applicant’s costs to the date hereof.

Orders accordingly

Lawyer for the defendant/applicant: K Y Kara.

Lawyer for the plaintiff/respondent: D Houseman.