LAEMTHONG INTERNATIONAL LINES CO. LTD as the owners of the ship "LAEMTHONG PRIDE" as the surrogate for the vessel "NYANZA" v B.P.S. SHIPPING LTD No. AP 27 of 1995 Number of pages - 17 Maritime law - evidence (1995) 5 NTLR 59

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LAEMTHONG INTERNATIONAL LINES CO. LTD as the owners of the ship "LAEMTHONG      
PRIDE" as the surrogate for the vessel "NYANZA" v B.P.S. SHIPPING LTD
No. AP 27 of 1995
Number of pages - 17
Maritime law - evidence
(1995) 5 NTLR 59
COURT
IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA
ANGEL(1), MILDREN(2) and THOMAS(3) JJ

CWDS
  Maritime law - Admiralty Act 1988 (Cth) ss 4, 21 - words and phrases
'relevant person' - proceedings in rem - surrogate ship.

  Evidence - documents - secondary evidence of documents.

HRNG
DARWIN, 26, 30 October 1995
#DATE 3:11:1995

  Counsel for applicant:       A Wyvill

  Solicitors for applicant:    De Silva Hebron

  Counsel for respondent:      J B Waters

  Solicitors for respondent:   Ward Keller

ORDER
  Appeal dismissed.

JUDGE1
ANGEL J  This is an application pursuant to s53 Supreme Court Act for leave to
appeal from an order of Kearney J on 24 October 1995 for the re-arrest of the
ship "Laemthong Pride" pursuant to s21 of the Admiralty Act 1988 (C'wlth).

2.  Mildren J has explained the circumstances of the application and set out
the relevant provisions of the Admiralty Act.

3.  Upon consideration of the material before the learned primary Judge, I am
of the opinion that no case has been made out to interfere with the order
made, ie, that it has not been shown by the applicant that the order is wrong
or that it has, or must have, been substantially affected by wrongful
application of principle, or misunderstanding or erroneous assessment of the
facts.  Nor does it appear that any injustice results from the order.

4.  I agree with Mildren J that there was evidence before the learned primary
Judge establishing, on the balance of probabilities, first, that the ship
"Laemthong Pride" was within the jurisdiction; secondly, that at the time the
proceedings were commenced, the applicant was the owner of that ship; thirdly,
that the applicant was a "relevant person" in relation of the respondent's
claim; and fourthly, that the applicant was, at the time the alleged cause of
action arose, the owner or charterer of, or in possession and control of, the
ship "Nyanza".

5.  The respondent's claim against the applicant, as is evident from the
amended statement of claim, is a claim of the kind referred to in s4(3)(d) or
(f) of the Admiralty Act 1988 (C'wlth).

6.  It follows, applying The Ship "Shin Kobe Maru" (1994) 181 CLR 404 at 426-7
(which was not brought to the learned primary Judge's attention), that Kearney
J had jurisdiction to make the order he did.  The attack upon jurisdiction
fails.  The applicant, significantly, I think, did not adduce any evidence to
rebut or contradict the respondent's evidence on the matters relevant to
jurisdiction.

7.  There being both jurisdiction and an asserted general maritime claim for
demurrage, dead freight and damages for breach of an implied term of a charter
party, it was not, in the circumstances, incumbent upon the respondent to
adduce evidence to prove its claim before Kearney J.  The applicant does not
suggest, and did not suggest to the learned primary Judge, that the
respondent's claim is vexatious, or lacks bona fides, or some how ought
summarily to be dismissed, or is demurrable, or that there is some
unanswerable defence, eg, payment or a set-off or some statutory time bar.

8.  The applicant has yet to file and serve its defence to the respondent's
claim.

9.  It has not been shown that Kearney J erred in the exercise of his
discretion in refusing to impose conditions with respect to the order he made.

10.  I would grant leave to appeal and dismiss the appeal with costs.

JUDGE2
MILDREN J  This is an application for leave to appeal against an order made by
Kearney J on 24 October 1995 granting an application by the respondent for the
re-arrest of the "Laemthong Pride" pursuant to s21 of the Admiralty Act 1988
(Cth).

2.  The amended grounds of appeal, as set out in the proposed notice of
appeal, are that his Honour erred:-
    "(a)  in holding that he had jurisdiction to make an order
    re-arresting the ship pursuant to s21 of the Admiralty Act
    1988 (Commonwealth);

    (b)  in holding that the respondent had a strong argument
    that it had a general maritime claim pursuant to s4(3) of
    the Admiralty Act 1988 (Commonwealth);

    (c)  in relying upon the material submitted by the
    respondent to conclude that the respondent had a strong
    argument that the respondent was the owner of the ship, that
    there was a charterparty in existence between the appellant
    and the respondent, as to the terms of the charterparty,
    that the appellant was obliged pursuant to an implied term
    of the charterparty to fumigate the cargo, that the
    appellant had breached this obligation, and this breach had
    caused the respondent the loss alleged;

    (d)  in failing to place sufficient weight on the absence of
    an explanation as to why the material provided by the
    respondent on the hearing of the application to re-arrest
    had not been provided to the Court on the original
    application to arrest and the application to set aside that
    arrest;

    (dd)  in finding that the respondent had established a claim
    in respect of demurrage and, further, dead-freight.

    (e)  in failing to place sufficient weight on the fact that
    the respondent had failed to properly disclose to the Court
    at the previous hearing, inter alia, the documents that
    evidenced the charterparty and the manner in which the
    quantum of its claim had been calculated.

    4.  His Honour erred in exercising his discretion in
    ordering the re-arrest of the "Laemthong Pride" without
    requiring the provision of security by the respondent."

3.  The respondent ("BPS") commenced these proceedings against a company
called Laemthong International Lines(S) Pte. Ltd as the owners of the ship
"Laemthong Pride" as the surrogate for the vessel "Nyanza". The action was in
rem.  In paragraph 3 of the original statement of claim it was alleged that at
all material times to date and at present the defendant Laemthong
International Lines(S) Pte. Ltd, (hereinafter called the "Singapore Company")
was and is the registered owner of the "Laemthong Pride".  Pursuant to
paragraph 4 of the statement of claim it was alleged that at all material
times to date and at present B.P.S. was and is the registered owner of the
ship "Nyanza".

4.  By paragraph 5 of the statement of claim it was alleged that B.P.S. and
the Singapore company entered into a charterparty agreement on 12 May 1995
whereby B.P.S. chartered "Nyanza" to carry a cargo of bagged rice from Bangkok
to Nouakchott in Mauritania.  It was pleaded by paragraph 6 that it was an
implied term of the charterparty that the Singapore company as charterer of
the "Nyanza" would undertake proper fumigation of the cargo. Paragraph 7 of
the statement of claim pleaded that the Singapore company failed to comply
with its obligations pursuant to the agreement in that the Singapore company
failed to ensure proper fumigation resulting in infestation of the cargo by a
species of beetle.  By paragraph 8 of the statement of claim it was alleged
that by reason of the Singapore company's failure to comply with its
obligation pursuant to the agreement and the consequent infestation of the
cargo the "Nyanza" was arrested at Nouakchott by the receivers' cargo
insurers.  B.P.S. alleged that by reason of the arrest it had incurred loss
and damage and it claimed damages in the sum of $1,833,285.00,  interest and
costs.  B.P.S. applied for a warrant for the arrest of "Laemthong Pride" based
on an affidavit sworn by the solicitor for B.P.S. on 16 October 1995.  On that
date the registrar issued an arrest warrant.

5.  On 18 October the Singapore company appeared to the writ and applied to
the Court for the release of the ship and the dismissal of the proceedings.
The grounds for the application were that the proceedings had not been
commenced on a general maritime claim; that the defendant was not the owner of
the vessel at the time of the commencement of the proceedings; and that the
proceedings were not able to be brought pursuant to s19 of the Admiralty Act.
That application was supported by an affidavit sworn by the solicitor for the
Singapore company.  The purpose of that affidavit was to show that on or about
3 August 1995 the "Laemthong Pride" was sold to the applicant, a company
incorporated in Thailand.  Further affidavits were filed on both sides.  The
matter was heard before Kearney J on 18 and 19 October.  Counsel appeared for
Singapore company and also for the applicant.  At that stage the applicant had
not entered an appearance to the writ, and was not a party to the action.
Counsel for the Singapore company and for the applicant immediately challenged
the jurisdiction of the Court.  The point of the challenge was a simple one,
namely that B.P.S. had sued the wrong company.  Counsel for the applicant and
for Singapore company also submitted that the material relied upon for the
arrest was absolutely bereft of substance.

6.  On 19 October when the matter resumed counsel for B.P.S. conceded that the
action had been brought against the wrong company as owner and sought leave to
amend the writ by adding the applicant as a defendant and as the owner of the
ship "Laemthong Pride". An amended writ and an amended statement of claim was
prepared in which it was asserted that prior to 13 August the Singapore
company was the registered owner of the ship; that at all material times
subsequent to 13 August the applicant was the registered owner of the ship and
that the charterparty was between the respondent and the applicant.  The
Singapore company remained as a second defendant to the action, although it is
not clear why.  After hearing submissions his Honour ordered that the arrest
warrant of 16 October be discharged and that the "Laemthong Pride" be released
forthwith.  His Honour indicated that B.P.S. might make an application
pursuant to s21 of the Act for the re-arrest of the ship if further supporting
material became available to the respondent.

7.  On 23 October an application was made by summons for the re-arrest of the
vessel forthwith.  Further affidavit material in support of that application
was filed in Court.  After hearing submissions on 23 October his Honour
reserved his decision overnight.  On 24 October his Honour ordered the
re-arrest of the ship.  His Honour gave no reasons for making that order in
view of the urgency of the application.  No complaint is made to this Court
about the absence of reasons.  However his Honour recorded first that he
received all of the affidavit evidence upon which the parties relied, secondly
that the additional material which had been placed before him in the form of
two affidavits sworn 23 October, when read with earlier affidavit material
constituted sufficient reason for the order to be made; and thirdly that the
standard of proof which his Honour held applied was that the plaintiff had to
satisfy the Court that on the material before the Court the plaintiff had a
strong argument for the view that the Court had jurisdiction in rem in respect
of the claims under s4(3) of the Act.  His Honour's brief remarks indicated
that his Honour regarded the remedy to order the re-arrest as discretionary,
that he had considered whether the order should be subject to any conditions
and that he had decided that no conditions should be imposed.  He then invited
the applicant to make an application for bail or for some other security to
enable the ship to be released.  I should record also that during the course
of the application before his Honour on 23 October the respondent was given
leave to amend the writ further.  The effect of that amendment was to plead
two further breaches of the charterparty, namely the failure to pay demurrage
chargeable at the rate of US$5,750 per day and dead-freight charges due on
dead-freight of 5.03.21 metric tonnes.  The total claim for the demurrage and
dead-freight was US$222,301.52.  However the total of all of the claims
remained the same, namely A$1,833,285.  The balance of the claim related to
the alleged breach of contract relating to the failure to ensure proper
fumigation of the cargo.

THE STATUTORY PROVISIONS
8.  Jurisdiction is conferred on this Court in respect of proceedings which
may be commenced as actions in rem by virtue of s10 of the Act.

9.  Section 14 provides that proceedings shall not be commenced as an action
in rem against a ship except as provided by the Act. Section 17 provides that
a proceeding on a claim may be commenced as an action in rem against a ship
where, "in relation to a general maritime claim concerning a ship or other
property, a relevant person:
    (a)  was, when the cause of action arose, the owner or
    charterer of, or in possession or in control of, the ship or
    property; and
    (b)  is, when the proceeding is commenced, the owner of the
    ship or property."

10.  Section 3 defines "relevant person", in relation to a maritime claim, to
mean "a person who would be liable on the claim in a proceeding commenced as
an action in personam".  Section 19 provides as follows:
    "Right to proceed in rem against surrogate ship.

    19.  A proceeding on a general maritime claim concerning a
    ship may be commenced as an action in rem against some other
    ship if:
    (a)  a relevant person in relation to the claim was, when
    the cause of action arose, the owner or charterer of, or in
    possession or control of, the first-mentioned ship; and
    (b)  that the person is, when the proceeding is commenced,
    the owner of the second mentioned ship."

11.  Section 4(3) defines "general maritime claim" to include claims, inter
alia, for "a claim ... arising out of an act or an omission of ... the
charterer of a ship ... being an act or an omission in the ... management of
the ship, including an action or an omission in connection with ... the
carriage of goods ... on the ship" (s4(3)(d)); and "a claim arising out of an
agreement that relates to the carriage of goods or persons by a ship or to the
use or hire of a ship whether by charterparty or otherwise." (s4(3)(f).  It
was not disputed that the claims made were "general maritime claims", i.e.
that a claim for demurrage, a claim for dead-freight or a claim for damages
for breach of the terms of the charterparty as pleaded, were "general maritime
claims".

12.  Section 5(1) provides that the Act applies in relation to all ships
irrespective of the places of residence or domicile of their owners, and all
maritime claims, wherever arising.

The Objection to Jurisdiction
13.  The applicant's submission was that Kearney J did not have jurisdiction
to make the order under s21(1) of the Act as the respondent had not shown a
"strong argument" as to the existence of a general maritime claim within the
meaning of s4(3) of the Act.  In support of this argument counsel for the
applicant relied upon a number of authorities including Empire Shipping
Company Inc v Owners of The Ship "Shin Kobe Maru" (1991) 32 FCR 78 (Gummow J);
1992 (38) FCR 227 (Full Court); (1994) 181 CLR 404 at 426-7 (High Court); Port
of Geelong Authority v "The Bass Reefer" (1992) 37 FCR 374; Devine Shipping
Pty Ltd v The Owners of the Ship "B.P. Melbourne", Supreme Court of Tasmania,
26 July 1994 per Zeeman J (unreported).

14.  I do not consider that the test has been correctly stated by the
applicant.  In Owners of The Ship "Shin Kobe Maru" v Empire Shipping Company
Inc (1994) 181 CLR 404 at 426-7, the High Court in a joint judgment of all
Justices, said:
    "Where jurisdiction depends on particular facts or a
    particular state of affairs, a challenge to jurisdiction can
    only be resisted by establishing the facts on which it
    depends.  And, of course, they must be established on the
    balance of probabilities in the light of all the evidence
    advanced in the proceedings held to determine whether there
    is jurisdiction.

    In this case, Empire asserts jurisdiction on two bases.  So
    far as jurisdiction is asserted by reason of s4(2)(a), it
    does not depend on any factual precondition but, rather, on
    the claim having the legal character required by that
    paragraph, namely, "a claim relating to ... possession of
    (or) ... title to, or ownership, of a ship."  The position
    is somewhat different with s4(2)(b) in that ownership is a
    question of mixed fact and law and there may well be cases
    where facts must be established before a claim can be
    characterized, in terms of that paragraph, as "a claim
    between co-owners".  However the issue in this case, so far
    as s4(2)(b) is concerned, seems not to be whether Empire has
    established facts proving co-ownership, but whether the
    facts give rise to a relationship which is recognized in law
    as co-ownership.  These issues were not fully developed in
    argument and, as earlier indicated, it is not necessary to
    determine whether s4(2)(b) applies in this case.  That being
    so, it is convenient to consider this aspect of Y.S.L.'s
    argument solely be reference to s4(2)(a).

    The question whether Empire's claim bears the legal
    character of a proprietary maritime claim as defined in
    s4(2)(a) of the Act does not depend on findings of fact and,
    thus, cannot involve any consideration of the balance of
    probabilities.  That being so, there is no basis for the
    application of the principle in The Aventicum ((1978) 1
    Lloyds Rep 184) in relation to Empire's claim that there is
    jurisdiction by reason of s4(2)(a)."

THE POWER TO ARREST
15.  The right to arrest the res in an admiralty action in rem goes hand in
hand with a right to proceed in rem:  Meeson, "The Practice and Procedure of
the Admiralty Court", at p15.  Arrest is the means of obtaining security for
the satisfaction of any judgment obtained in the action.  The power of arrest
is conferred by s22(3) of the Act.  An application to arrest a vessel is made
pursuant to rr 39 and 40 of the Admiralty Rules (Cth).  Rule 39(2) requires
that the application be supported by an affidavit of the applicant or of a
solicitor or agent of the applicant in accordance with Form 13.  The
supporting affidavit requires only short particulars of the claim to be set
out (Form 13).  Rule 40(1) provides that "subject to this rule, the Registrar
may issue an arrest warrant".  The wording of r40 is quite different from the
wording of either the English rules discussed in "The Varna" (1993) 2 Lloyd's
Rep 253 at 256-7.  The wording of r40 suggests that the application for the
warrant is an application for a discretionary remedy which it lay in the power
of the registrar to grant or to refuse.  See also r4(2). An application for
release from arrest may be made to the Court in accordance with r52(1).  That
rule requires the application to be made in accordance with Form 19 which
requires the applicant to set out the grounds upon which the application is
made.  There is no specific requirement in that rule for a supporting
affidavit.

16.  It seems to me that an application under r52 might be made on
jurisdictional grounds, or on any other ground.  Alternatively the applicant
could apply to have the plaintiff's claim struck out as an abuse of the
process of the Court or as not constituting a viable cause of action, or as
being demurrable for some other reason in which case the writ in rem could be
set aside and with it would go the warrant of arrest.  Whichever procedure is
adopted, if there is a challenge to jurisdiction it is to be determined in
accordance with the principles enunciated by the High Court in "Shin Kobe
Maru".  In other cases the relevant principles to be applied are those which
apply to summary judgment applications or strike out applications in the
ordinary jurisdiction of the Court.

17.  So far as re-arrest is concerned s21 provides as follows: "Re-arrest
    21.  (1)  A ship or other property arrested in a proceeding
    on a maritime claim may not be re-arrested in a proceeding
    in relation to the claim unless the court so orders, whether
    because default has been made in the performance of a
    guarantee or undertaking given to the procure the release of
    the ship or property from the earlier arrest or for some
    other sufficient reason.

    (2)  An order under subsection (1) may be made subject to
    such conditions as are just."

18.  It is clear that an application for re-arrest is a discretionary remedy.
The Australian Law Reform Commission's Report No. 33 observes (para 211), that
at common law the mere release of a ship from arrest did not itself prevent
re-arrest.  If bail had been given to the value of the claim or of the ship,
however, the basic rule was that the ship was wholly released from the action
and the res may not be re-arrested on that cause of action.

19.  The Commission considered whether it would be better to set out the
circumstances under which the right to re-arrest can be exercised in the Act.
It was decided that it would be better to leave the court with a discretion
whether to permit re-arrest (and to confer the power to impose conditions on
the right to arrest) whilst specifying the most important of the grounds on
which re-arrest is likely to be permitted.

20.  The way the matter was argued in the Court below and before us accepted
that the power to re-arrest under s21 of the act was discretionary.  The
argument proceeded upon the basis that the discretion ought not be exercised
where that Court lacked jurisdiction.  Further it appears to have been common
ground in the Court below that the Court ought not to exercise is discretion
unless the plaintiff satisfies the Court that on the material before it the
plaintiff had a "strong argument" for the view that the Court had jurisdiction
in rem.  His Honour was not referred to the High Court's decision in "Shin
Kobe Maru", supra.

THE PRINCIPLES UPON WHICH LEAVE TO APPEAL WILL BE GRANTED
21.  As this is an appeal from a discretionary judgment the applicant must
show that some error has been made in the exercise of the discretion:  see
generally the well known statement of principle in House v R (1936) 55 CLR 599
at 504-5.  In Victoria it appears that where the appeal is from an
interlocutory order in a matter of practice and procedure it is necessary to
establish that the correctness of the primary judge's decision is attended
with sufficient doubt and also that injustice would be a consequence of
refusing to hear the appeal.  The Victorian approach was discussed by this
Court in Nationwide News Pty Ltd v Bradshaw (1986) 41 NTR 1.  The majority
view of the Court was that there was no two-fold test:  see O'Leary CJ at pps
7-8 and Nader J at pps 13-14.  Asche J (as he was then) followed the Victorian
practice:  see p19.

22.  In the present case it is apparent that his Honour applied the wrong test
per in curiam in relation to the standard of proof required for deciding
whether the Court had jurisdiction as his Honour was not referred to the
decision of the High Court in "Shin Kobe Maru".  I would therefore grant leave
to appeal.

HAS THE RESPONDENT PROVED THAT THE COURT HAS JURISDICTION?
23.  The applicant submitted that in order to establish jurisdiction the
respondent must prove:
    (a)  The existence of the alleged charterparty;
    (b)  That the respondent is the registered owner of the
    "Nyanza";
    (c)  The implication into the charterparty of the implied
    term alleged in paragraph 8 of the amended statement of
    claim and;
    (d)  The breach of the implied term.

24.  The respondent on the other hand submitted that it had a duty to
establish
    (a)  That the vessel was within the jurisdiction
    (b)  That the vessel was owned by the applicant
    (c)  There existed a charterparty agreement between the
    applicant and the respondent
    (d)  That the respondent was entitled to pursue the vessel
    as a surrogate ship and
    (e)  That there was a claim either in terms of s4(3)(d) or
    s4(3)(f) under the Act.

25.  I do not accept the applicant's contentions.  In my opinion the
jurisdictional facts which the respondent was required to establish were:
    (1)  That the ship was in the jurisdiction of the Court at
    the time of the application for rearrest (see s22(2) and
    (3)).

    (2)  That the applicant was a "relevant person" in relation
    to the claim and was, when the cause of action arose, the
    owner or charterer of, or in possession or in control of the
    ship "Nyanza".

    (3)  That at the time when the original proceedings
    commenced the applicant was the owner of the "Laemthong
    Pride".

    (4)  That the claim was a claim of the kind referred to in
    s4(3)(d) or (e).

26.  None of the other matters urged upon us by the applicant are
jurisdictional facts.  It is not necessary for the respondent to be the owner
of the "Nyanza".  It is sufficient, for the respondent to this bring action,
if the respondent is a party to the charterparty, although that is not a
jurisdictional fact either.

27.  There is no dispute that the ship "Laemthong Pride" was within the
jurisdiction of the Court at the relevant time or times.

28.  There is no dispute that the action is an action in rem and that the
nature of the claim was a general maritime claim concerning the vessel
"Nyanza".

29.  It was not in dispute that at the time when the proceeding was commenced
the applicant was the owner of "Laemthong Pride".

30.  Counsel for the applicant submitted, in effect, that the evidence did not
establish that the applicant was a "relevant person" in relation to the claim
and that the applicant was, when the cause of action arose, the charterer of
the "Nyanza".  The principle argument that was advanced before this Court was
that the only evidence of the existence of the charterparty was inadmissible.

31.  The affidavit contemplated by r39(2) of the Admiralty Rules in support of
an application for an arrest may be sworn by the applicant or by a solicitor
or agent of the applicant.  Nether r39 nor the form to which it refers
specifically provides that the affidavit may be sworn on information and
belief.  Rule 90.03 of the Northern Territory Supreme Court Rules provides
that chapters I and II of the Supreme Court Rules with the necessary changes,
and to the extent that they are not inconsistent with the Admiralty Rules,
apply to and in relation to all matters to which those rules apply.  Rule
43.03(2) of the Supreme Court Rules provides that on an interlocutory
application an affidavit may contain a statement of fact based on information
and belief if the grounds are set out.  It was common ground that this rule
applied in the circumstances of this case.  The applicants submitted that the
only evidence that the applicant was the charterer of the "Nyanza" at the time
when the cause of action arose was inadmissible because the affidavit
purported to give secondary evidence of the contents of that document.

32.  The case for the respondent was that the charterparty was evidenced by a
recapitulation contained in a telex from Seatown Shipbroking Pte. Ltd (which
the respondent says was the agent for the applicant) to C F Sharp Chartering
and Shipbrokering (S) Pte. Ltd, the respondent's agent, sent on an unspecified
date on or about 15 May 1995.  The respondent alleged that this telex
contained the specific terms of the charterparty agreement and adopted
(subject to some variations) the general terms of a prior charterparty of a
ship "M V Agate".  The evidence was that the original telex was held by the
respondent's agents.  The affidavit of Miss Creedon sworn 23 October 1995
(AB169) states, upon information and belief, that the terms of the telex were
also to be found in another document, annexure "A" to the same deponent's
affidavit of 23 November 1995 appearing at AB pps 109 to 110.  The terms of
the document at AB 109-110 refer to a charterparty of the "M V Agate"
"logically amended and with the following alterations".  Miss Creedon swears
upon information and belief that exhibit "B" to her earlier affidavit (AB pps
58 to 65) sets out the terms of the "M V Agate" charterparty including the
alterations referred to in the recapitulation.  Miss Creedon's affidavit is
sworn on information that she has received from Mr John Ericson, a shipping
broker resident in Singapore in the employ of C F Sharp Chartering and
Shipbrokering (S) Pte. Ltd, the Singapore agent for the respondent who
negotiated the charterparty with the applicant's agent and who had the
carriage of the matter.

33.  The original document is still in Singapore and in the hands of the
respondent's agents.  It is an established exception to the best evidence rule
that secondary evidence is admissible to prove the contents of a document
which is in the possession of a person not a party who is beyond the
jurisdiction of the court:  see Cross on Evidence paragraph 39055; Gillies Law
of Evidence in Australia 2nd ed., p 578.  Consequently, secondary evidence is
admissible to prove the contents of the charterparty.  As Cross observes, para
39035, as a general rule, there are no degrees of secondary evidence, and oral
evidence may be adduced without accounting for any copies that may be in
existence. Consequently, even if the respondent had been able to persuade its
agent in Singapore to fax to its solicitors in Darwin a copy of the original
telex or telexes, (and other documents needed to be read with those telexes),
those faxes, if annexed to an affidavit, would in themselves have been
secondary evidence.

34.  Rule 43.06 of the Supreme Court Rules provides that a document to be used
in conjunction with an affidavit shall be either annexed to or made an exhibit
to the affidavit.  Rule 43.06(3) permits the relevant portion of a document to
be included in the body of an affidavit, but the document must be produced
when the affidavit is used.  Otherwise r43.06 does not abrogate the best
evidence rule.  In practice, original documents are rarely annexed to, or
exhibited to, affidavits, and photocopies, (often photocopies of photocopies
or of faxed copies) are used without objection, and the original is not
produced.

35.  The provisions of s48 of the Commonwealth Evidence Act 1955 makes a true
photocopy of certain documents admissible in proceedings to which that Act
applies.  However that Act does not apply to these proceedings.  There are no
statutory provisions in the Northern Territory which abrogate the common law
rules.  The time has come when consideration should be given to amending the
Rules of Court to provide more flexibility for the use of secondary evidence
of documents, particularly in interlocutory proceedings.

36.  In Ritz Hotel Ltd v Charles of the Ritz (1988) 15 NSWLR 158 McLelland J
held that secondary evidence of the contents of the document could not be
adduced by affidavit in the absence of an appropriate explanation for the
absence of the document.  It is not clear that that was a case dealing with an
interlocutory application to which the equivalent of r43.03(2) applied.  In
Deputy Commissioner of Taxation v Ahern (No.2) (1988) 2 Qd R 158 the Full
Court of the Supreme Court of Queensland considered the equivalent rule in
that State.  The deponent of an affidavit stated the beliefs that he had
reached concerning the activities of Mr Ahern and the transactions in which he
and a host of other entities had been involved in consequence of a long
investigation which included perusal of a considerable quantity of documentary
material.  Thomas J, with whom the other members of the Court agreed, observed
at p 163:-
    "Such evidence could be received only if properly receivable
    under O.41 r.3.  This involves two requirements - first that
    the source material itself be admissible, and second that
    the source be identified (Savings and Investment Bank Ltd v
    Gasco Investments (Netherlands) B.V.), (supra) at 282G and
    385F respectively) ((1984) 1 All ER 296 at 305).  As to the
    first requirement, in the absence of disclosure of the
    source as it is impossible in the presence case to tell the
    extent to which any given fact is established by the source
    of material - or the extent to which it has been built into
    a fact by an inference drawn by Mr Cowper.  As to the
    second, although Mr Cowper made broad reference to documents
    and sources, this was not in the circumstances a sufficient
    disclosure of the sources of his information and the grounds
    of his belief.  It may be doubted whether it was a
    disclosure of sources at all.  A broad reference to
    "documents I have seen" or "documents in my possession" or
    "enquiries I have made" cannot suffice.  The object of
    disclosure is to provide some specified source which can, if
    necessary, be followed up by the adversary or the court.  In
    a case such as the present a broad reference may suffice
    such as to bundle of documents so long as they are somehow
    identified and can be produced if necessary, or there is a
    proper explanation for their absence."

37.  In this case the relevant affidavits did identify the source of the
deponent's information and belief and it would appear that the source material
itself was admissible.  In addition it was obvious why the original documents
were not able to be produced, particularly as the proceedings were brought on
urgently, as they inevitably must be.

38.  In any event, oral evidence is admissible to prove the existences of the
relationship between the two parties constituted by the charterparty.  This
includes evidence as to the existence of the charterparty, the parties to it,
and the vessel to which it related, although not of its terms:  see Cross,
para 39010; Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66
at 75.

39.  Finally, even if the evidence was inadmissible, I do not consider that
the applicant should now be permitted to raise this issue. Although it is
clear from the transcript of proceedings in the court below that counsel for
the applicant objected to the admissibility of the evidence concerning the
existence of the charterparty, the basis of the objection which he took at the
time was not founded on the best evidence rule.  The objection seems to have
been that there was no evidence of any acceptance of an offer.  A subsidiary
objection was taken concerning the existence of some confusion in the evidence
about whether some of other documents formed part of the contract or not.

40.  I do not think that the applicant should now be permitted to raise in
this Court an objection to the admissibility of the evidence relating to the
charterparty and the evidence led before the Court below as to its terms.  I
do not think that the objection taken before us was clearly stated in the
Court below. Further the proposed grounds of appeal set out in the proposed
notice of appeal do not clearly raise this issue.

41.  In these circumstances I think there was sufficient evidence before the
Court below to establish that the applicant was the charterer of the Nyanza at
the relevant time and would have been liable to an action in personam and so
is a "relevant person" within the meaning of the Act.

42.  So far as jurisdiction is concerned it is clear that by reference to the
pleadings the claims were general maritime claims arising out of an agreement
that relates to the carriage of goods by a ship whether by charterparty or
otherwise within the meaning of s4(3)(f).  It is therefore unnecessary to
consider whether they were also general maritime claims by reference to some
other head of claim referred to in s4(3) of the Act.  In my opinion questions
of the implication of an implied term of the charterparty or matters going to
proof of breach of the implied term are not jurisdictional facts.

43.  The applicant produced no evidence to the Court to rebut any of the
relevant jurisdictional facts.  I therefore conclude that the respondent had
established on the balance of probabilities that the Court had jurisdiction.

THE EXERCISE OF DISCRETION IN GRANTING THE ORDER
44.  In my opinion it is relevant to the exercise of the discretion to order
the re-arrest of the ship to consider whether the applicant has established
that the alleged implied term does not exist.  In my opinion if the applicant
is able to show that the Court would summarily dismiss the respondent's action
in rem, that would be a proper basis for the refusal of the Court to exercise
its discretion.  I cannot think of any other proper basis relevant to the
circumstances of this case.  It was not suggested for example that the
proceedings were vexatious or that there had been material non disclosure.
The applicant did complain about the lack of explanation as to why the
documents identified as constituting the charterparty had changed during the
course of the proceedings.  Whilst no specific explanation was given, an
explanation may be inferred.  Initially the evidence relating to the
charterparty was supplied by the respondent's London solicitor.  When the
respondent's agent, who negotiated the contract was contacted, he identified
the terms of the contract and the documents relating thereto.  Whilst the
documentation is in some respects different, the terms of the critical
provisions are not.  The affidavits were required to be prepared in great
haste from information supplied by persons in overseas countries. I do not
think those circumstances ought to have borne very heavily in the exercise of
his Honour's discretion.

45.  The respondent put its claim for the existence of the implied term on two
bases:
    (1)  A term to be implied based on an alleged custom or
    usage in the particular market in which the parties agents
    were contracting and

    (2)  On the basis of an implied term necessary to give
    business efficacy to the contract.

46.  As to the former, the applicant led no evidence, and was content to
criticise certain evidence led by the respondent on that topic.  It may be
accepted that the evidence so far offered, even if admissible, is deficient,
insofar as the affidavit evidence as to trade usage does not give raise to an
implied term of the kind pleaded in paragraph 8 of the statement of claim.

47.  The term to be implied in order to give business efficacy to the
contract, however, is another matter.  According to the charterparty the law
of the contract is the law of England.  I think it is safe to assume that the
law of England and Australia as to the implication of terms is the same having
regard to the Privy Council's decision in BP Refinery (Westernport) Pty Ltd v
President, Councillors and Ratepayers of Shire of Hastings (1978) 52 ALJR 20
at 26 (applied by the High Court of Australia in Codelfa Construction Pty Ltd
v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347.  Having
regard to the materials available to the Court below I do not think it is so
plainly unarguable that the respondent's claim for the existence of the
implied term could not succeed, that the court's discretion should be
interfered with.  Similarly, I do not consider that the material before the
Court below established that it was plainly unarguable that the respondent had
not breached the implied term, if it existed.

48.  Insofar as the respondent's claim for demurrage rests upon the provisions
of clause 20 of the charter I am not satisfied that the applicant has
established this claim is bound to fail in the light of the evidence
concerning the contract provisions requiring a "full and complete cargo of
bagged rice".  Similarly, I would not consider the evidence establishes that
the respondent's claim for dead-freight charges is clearly not maintainable.

49.  Finally the applicant submitted that his Honour erred in failing to
require the respondent, in the exercise of his discretion, to provide security
for the applicant's likely losses during the period of arrest.  The applicant
likened the situation to that of a foreign plaintiff seeking injunctive
relief.  It was submitted that the deficiencies and other short-comings in the
respondent's material supported the applicant's concern of the lack of merits
in the respondent's claim and the possibility therefore that the applicant may
be left with a judgment under s34 of the Act which could not conveniently be
enforced.

50.  Counsel for the applicant was not able to refer us to any authority
where, as a condition for the granting of an order for the re-arrest of a
ship, the court required security to be given. Indeed there is no practice
that I have been able to ascertain requiring plaintiffs in an action in rem to
give security when the arrest of a ship is sought, merely because the
plaintiff is a foreign company with no assets in the jurisdiction.  It would
appear from the Australian Law Reform Commission's Report No. 33, that there
is no such practice:  see para 197.  It should be pointed out that s34 allows
damages for unjustified arrest where a party "unreasonably and without good
cause" obtains an arrest of a ship.  As the Australian Law Reform Commission's
Report No. 33 at paragraph 302 explains, s34 applies only to arrests which are
made unreasonably as well as without good cause so as to avoid the possibility
of a penalty when the arrest appeared reasonable at the time but turned out to
be unjustified.  In other words, even if the respondent ultimately fails in
its action in rem that does not automatically entitle the applicant to
damages.  Further, there are two other considerations which point towards the
correctness of the decision of Kearney J not to impose conditions.  The first
is the ability of the applicant to mitigate his loss by arranging for the
vessel to be released on bail.  It was suggested to us that the applicant may
not be able to afford the costs associated with a bail bond and that on the
evidence before us it did not have the support of its P and I Club.  Be that
as it may, the evidence would seem to suggest that the applicant has two ships
and that there is nothing to show it does not have the means or ability to
provide the security which no doubt will be required if a bail bond is to be
entered into. Finally there is evidence that the respondent's action is being
brought by its P and I Insurers exercising their rights of subrogations under
a policy granted to the respondent and it would seem unlikely in the extreme
that the insurers would not be able to meet the respondent's costs or any
damages awarded against the respondent under s34 of the Act.  I do not
therefore think that it has been demonstrated that his Honour erred in failing
to attach conditions to the re-arrest of the vessel.

CONCLUSIONS
51.  Accordingly I would grant leave to appeal, but dismiss the appeal with
costs.

JUDGE3
THOMAS J  I have read the draft Reasons for Judgment of Mildren J.  I agree
with his reasons and with his decision.  I would grant the application for
leave to appeal and dismiss the appeal.