Spamat S.R.L. v The owners and all persons claiming an interest in the M.v Alimirante Storni
| Jurisdiction | Ireland |
| Judge | Mr. Justice McGovern |
| Judgment Date | 09 March 2020 |
| Neutral Citation | [2020] IECA 58 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 2019/297 |
| Date | 09 March 2020 |
M.V. ALIMIRANTE STORNI
[2020] IECA 58
McGovern J.
Haughton J.
Collins J.
Record No. 2019/297
THE COURT OF APPEAL
CIVIL
Debt – Maritime policy – Costs – Appellant seeking to appealed against High Court judgment – Whether the appellant established that it had a “maritime claim” within the meaning of the 1952 Arrest Convention
Facts: The appellant, Spamat S.R.L., in High Court proceedings, claimed the sum of €38,314.07 from the respondents, the owners and all persons claiming an interest in the M.V. Alimirante Storni, in respect of a debt claimed to be due and owing to the appellant in respect of disbursements made by the appellant on behalf of the vessel or her owners in respect of towage, pilotage, master’s disbursements, including disbursements made by shippers, charterers or agents or goods or materials supplied to the ship for her operation or maintenance, at the port of Bari, Italy between 4 March 2018 and 13 March 2018. The trial judge concluded, on the basis of exchanges of e-mails, that the appellant was aware of the distinction between GK Shipping on the one hand and the owners of the vessel on the other. He held that the services had been ordered by GK Shipping and that it had not been established that the owners had a personal liability in respect of the services that were provided. While there was little controversy about the facts, the judgment gave rise to a question of law, namely, whether the appellant was entitled to pursue its claim in rem to the point of having recourse to the vessel to satisfy its claim. The trial judge held that there was no such right as the existence of such a right would require personal liability on behalf of the owner. The High Court judge granted costs to the respondents but deducted 10% on the grounds of a failure to properly comply with directions which he made on an ex parte application before him in Galway. The appellant appealed to the Court of Appeal against the judgment of McDonald J delivered ex tempore on 24 May 2019 and the order of the same date perfected on 29 May 2019 in which the appellant’s claim was dismissed. The appellant made the following argument: (i) the claim comes within Article 1(n) of the International Convention for the Unification of Maritime Law on the Arrest of Sea Going Ships 1952 on the basis that the claim relates to “disbursements made by...agents on behalf of a ship” (the vessel); (ii) the claim is therefore a “maritime claim” for the purposes of the Convention; (iii) the agent was therefore entitled to arrest the vessel under the jurisdiction of Courts Maritime Conventions Act 1989; (iv) it follows that the High court had jurisdiction to hear and determine the agent’s claim under the 1989 Act; (v) the claim is, or is to be taken to be, a claim in rem; and (vi) it follows from the fact that the claim is an in rem claim, that it can be maintained against the ship (and effectively against the owner) independently of any personal liability on the part of the owner (NSC Shipping). The respondents appealed the decision to only grant 90% of its costs.
Held by McGovern J that the High Court judge’s finding that the services of the appellant were ordered by GK Shipping was entirely supported by the evidence; there was no evidence to support the claim made by the appellant that the contract had been ratified by the owners or that GK Shipping were acting as agents for the owners. He held that the High Court judge was correct in determining that the onus of proof was on the appellant to establish that the owners of the vessel (NSC Shipping), had a personal liability in respect of the services that were provided and that they had failed to do so. He held that the appellant did not establish that it had a “maritime claim” within the meaning of the Arrest Convention which would give it a right in rem against the vessel; nor did the appellant establish that it had a maritime lien in respect of its claim which would attach to the vessel. He dismissed the appeal.
McGovern J held that the High Court judge gave a reasoned decision as to why he was only allowing 90% of the respondents’ costs in the High Court and in his view the respondents had failed to establish that the trial judge was in error. He dismissed the counterclaim on the costs issue.
Appeal dismissed.
This is an appeal against a judgment of McDonald J. delivered ex tempore on 24 May 2019 and the order of the same date perfected on 29 May 2019 in which the plaintiff's/appellant's claim was dismissed.
In the High Court proceedings, the appellant claimed the sum of €38,314.07 from the respondent in respect of a debt claimed to be due and owing to the appellant in respect of disbursements made by the appellant on behalf of the ship “Almirante Storni” (“the vessel”) or her owner in respect of towage, pilotage, master's disbursements, including disbursements made by shippers, charterers or agents or goods or materials supplied to the ship for her operation or maintenance, at the port of Bari, Italy between 4 March 2018 and 13 March 2018.
The appellant pleaded that the claim was a “maritime claim” within the meaning of Article 1 of the International Convention for the Unification of Certain Rules Relating to the Arrests of Sea Going Ships done at Brussels on 10 May 1952, (“The Arrest Convention”). The appellant claimed that the court had jurisdiction to hear and determine the claim pursuant to the Jurisdiction of Courts (Maritime Conventions) Act 1989, and pursuant to the Admiralty Courts (Ireland) Acts, 1867-1876.
The services giving rise to the claim were ordered by GK Shipping, a Greek company which was the time charterer of the vessel. The respondent, NSC Atlantic Trading GmbH & Cie.KG is a German Limited liability partnership and at all material times was the bareboat or demise charterers of the vessel under a Bareboat Charter dated 12 February 2018 running from 14 February 2018 to the end of June or July 2021. As such the respondent was at all material times the disponent owner of the vessel.
The respondent entered into a time charter with GK Shipping on 5 February 2018 for an intended period of a minimum three months to a maximum of five months. The time charter terminated on 8 April 2018.
The appellant's appointment as ship's agent for the vessel was made by an e-mail dated 21 February 2018 received from G.K. Shipping. The e-mail stated:
“We, G.K. Shipping, the disponent Owners of M.V. Alimirante Storni, we hereby appoint your good company to act as vessels (sic) agent while calling Bari Port ETA 28-1st March 18'agwwp for discharging 30,000mt wheat. In this respect you are kindly requested to provide yr best proforma D/A.
Please liaise with the Master and provide berthing prospects/required docs etc. Kindly note that our Add/details are as foll and all the correspondence will be addressed to:
GK SHIPPING CO, : (GREECE OFFICE)
ANDROU 5,”
The appellant responded furnishing the information sought and stated that they would send all pre-arrival forms to Bari Port directly to the Master.
Although the original e-mail refers to G.K. Shipping as being “the disponent Owners” that was not, in fact, correct as they were the time charterers.
The following day, 22 February 2018, at 11.36 the appellant received an e-mail from NSC Shipping which stated:-
“Please kindly note that we are managing Owners of the MV “Almirante Storni” which will call Bari on/abt 3.03.2018 agw.
We have a cash to Master request as per below details:…
[10,000 usd in different denominations]
Please so kind and advise estimated costs incl. all bank charges for delivery to our vessel.
Many thanks for your kind assistance.
Best regards,
i.A. Daniel Montalbetti
Chartering Dept.
………………………………… .
as manager and/or agent for and on behalf of the owner only
NSC Shipping Gmbh & Cie.KG”
That was a request for funds to be forwarded to the Master. The bareboat charterer is considered the owner of the vessel during the time of the bareboat charter. The registered owner hands over complete control of the vessel to the bareboat charterer who has to provide a master and crew. The time charterer takes the vessel for the period specified in the charter party with a Master and crew on board who are subject to the directions of the time charterer. Throughout this judgment the bareboat charter will be referred to as “the owner” or “the respondent”, as appropriate.
The trial judge held that the existence of separate e-mails from the time charterers on the one hand and the owner on the other hand put the appellant on notice that from the moment of receipt of the e-mail on 22 February 2018 the appellant -
“… was aware that there were, in fact, two streams of contact being made with it in respect of two separate streams of liability, one by G.K. Shipping and the other by NSC”.
I will come back to this later in the judgment.
The appellant billed G.K. Shipping in respect of the services which it rendered and/or procured at its request. On 7 March 2018 after the vessel had docked and discharged its cargo of wheat the appellant sent an e-mail to G.K. Shipping stating:
“Good morning,
Pls note that the PDA including the Italian anchorage dues is 37,820 euro. We kindly ask you to send us the swift copy of payment.
Many thanks and best regards.”
This was not copied to the owner. When G.K. Shipping reverted to the appellant stating that their company's policy was to remit 80% only, they received a prompt response informing them:
“We are sorry but as per Italian rule law 135, is necessary to receive the 100% of PDA before vessel departure
Eventual balance in your favour once FDA will be...
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