Campus Oil Ltd v Owners of MF/v Avro Hunter

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 27 April 2004
• Neutral Citation: 2004 WJSC-HC 1272
• Court: High Court
• Docket Number: No. 10930P/2003
• Date: 27 April 2004

2004 WJSC-HC 1272

THE HIGH COURT

No. 10930P/2003

CAMPUS OIL LTD v. MF/V AVRO HUNTER

ADMIRALITY

MF/V "AVRO HUNTER"

BETWEEN

CAMPUS OIL LIMITED

PLAINTIFF

AND

THE OWNERS AND ALL PERSONS CLAIMING

AN INTEREST IN

THE MF/V "AVRO HUNTER"

DEFENDANTS

Citations:

BRUSSELS CONVENTION RELATING TO THE ARREST OF SEAGOING SHIPS 1952

JURISDICTION OF COURTS (MARITIME CONVENTIONS) ACT 1989

BRUSSELS CONVENTION RELATING TO THE ARREST OF SEAGOING SHIPS 1952 ART 8(4)

BERLINGIERI ARREST OF SHIPS 3ED PAR 1.66

PACIFIC 1864 10 LT 541

TWO ELLENS 1872 LR 4 PC 161

CELLA 1888 13 PD 82

ST MERRIEL 1963 1 AER 537

MORGAN V CASTLEGATE SS CO 1893 AC 38

UTOPIA (OWNERS) V PRIMULA (OWNERS & MASTER) 1893 AC 492

DRUID 1842 1 WM ROB 391

FOONG TAI & CO V BUCKHEISTER & CO 1908 AC 458

FATHER THAMES 1979 2 LLOYDS REP 364

Abstract:

Maritime law - Maritime lien - Contract - Arrest of vessel - Credit and security - Claim for fuel supplied - Vessel operated by third party - Whether ship could be arrested in respect of debts incurred by third party - Brussels Convention on the Arrest of Seagoing Ships, 1952.

The plaintiff had sought an order of arrest against the vessel, the subject of the proceedings. The plaintiff contended that fuel had been supplied to the vessel which had not been paid and was therefore entitled to seek an order of arrest. The vessel had however been operated by a third party (demise charter) and not by the owner of the vessel. It was contended by the owner of the vessel as no personal liability on the part of the owner was involved the arrest order should not issue.

Held by Finnegan P in declining to make an order of arrest. Although the owner was not the registered owner he was the beneficial owner of the vessel. On the basis of the authorities, if a demise charter was terminated prior to the institution of proceedings, which had occurred in this instance, then the owner not being personally liable no right to arrest could arise.

Reporter: R.F.

Judgment of

Finnegan P.

1 delivered on the 27th day of April 2004.

2 The Plaintiff's claim is for the sum of €53,559.93 in respect of fuel supplied by it to the vessel. On this motion the Plaintiff seeks to arrest the vessel. Unusually the application is on notice to Barry English who while not the registered owner of the vessel is the beneficial owner.

3 Mr. English purchased the vessel in June 2001 from Brendan McGrath. He did so with the aid of a loan from Allied Irish Banks Plc. Mr. English did not procure his registration as owner and the remained registered in the name of Brendan McGrath. Brendan McGrath executed a declaration of trust of the vessel in favour of Mr. English dated 1^st June 2001. Brendan McGrath executed a mortgage of the vessel in favour of Allied Irish Banks Plc to secure the advance to Mr. English. The agreement between Mr. English and Mr. McGrath was that Mr. McGrath should repay the loan made by Allied Irish Banks Plc to Mr. English by making the repayments due on foot thereof. Pursuant to the agreement Brendan McGrath continued to operate the vessel. Brendan McGrath defaulted in making the agreed payments and the arrangements under which he continued to operate the vessel were terminated by Mr. English on 17^th September 2003 and thereafter he took possession of and operated the vessel. The Plenary Summons herein was issued on the 28^th September 2003.

4 The Plaintiff firstly relies upon the Brussels Convention on the Arrest of Seagoing Ships (1952) which was incorporated into Irish law by the Jurisdiction of Courts (Maritime Conventions) Act1989. Such reliance is misconceived. The Convention in Article 8(4) provides as follws —

"Nothing in this Convention shall modify or affect the rules of law in force in the respective contracting states relating to the arrest of any ship within the jurisdiction of the State of her flag by a person who has his habitual residence or principal place of business in that State."

5 The registered office of the Plaintiff is within the State. The vessel is an Irish vessel and it is proposed to arrest her in Ireland. See Berlingieri...