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COLLISION

Church of Tonga v Pacific Trading Ltd [2002] TOSC 26; C 0259 1999 (12 September 2002)

Collision- It is incumbent upon the defendant to show that the cause of the injury was
unavoidable by the exercise of reasonable care. Preliminary act procedure not necessary
when the plaintiffs vessel is moored at the wharf.

The plaintiffs claim damages in negligence for damage to their vessel which occurred when the
defendants vessel collided with a neighboring vessel while the vessels were moored at the
wharf.
DECISION: Damages awarded to plaintiff
HELD: The collision occurred when the captain of the defendants vessel was unable to
disengage the vessel out of the reverse gear. At the time of the collision the engineer was in the
wheelhouse- the implication being that the engineer should have been at his proper post where he
could have disengaged the gear. The defendant denied negligence but gave no indication as to
why the gear jammed. The Court suggested that the plaintiff should have pleaded res ipsa
loquiter. The undisputed evidence led to a prima facie case of negligence against the defendant,
and it was incumbent upon the defendant to show that the jamming of the gears could not have
been avoided by the exercise of reasonable care. In the result, the court found an unanswerable
claim in negligence. The defendant argued that the preliminary act procedure should have been
followed because the case involved a collision between vessels. The court disagreed- the
procedure was unnecessary where the collision occurred when the plaintiffs vessel was moored
at the wharf.

Dai Wang Sheng v Japan Far Seas Purse Seine Fishing Association [2001] FMSC 65; 10 FSM
Intrm. 112 (Kos. 2001) (28 March 2001)

Collision- Signing a Foreign Fishing Agreement does not confer upon the signatory
Association liability for damages which might be awarded against the members of the
Association in a tort action.

The plaintiffs husband was killed in a collision at sea. The plaintiff sought compensation for loss
and damages. The fishing association, Japan Far Seas Purse Seine Fishing Association, which
had signed a fishing Agreement with the FSM was named as a defendant. The plaintiff relied on
wording in the Agreement. It was claimed that the defendant operators of the vessel which
collided with the plaintiffs husbands boat acted as agents of the Association; and secondly that
the Agreement conferred liability on the Association for damages which might be awarded
against the defendants. The Association filed a motion to dismiss for failure to state a cause of
action.
DECISION: motion to dismiss granted.
HELD: The wording in the Agreement to the effect that the Association shall take the necessary
steps to ensure that their members comply with the Act and the laws of FSM relating to fisheries,
customs and immigration addressed statutory violations, not conduct governed by tort law
principles. The Agreement stated that the Association shall take the necessary steps to facilitate
prompt and adequate settlement of any claim for loss or damage. The court said that facilitate
did not mean to assume liability for claim or loss.

ADMIRALTY JURISDICTION

Ship Federal Huron v Ok Tedi Mining Ltd [1986] PGSC 9; [1986] PNGLR 5 (20 January 1986)

ADMIRALTY jurisdiction of PNG courts since Independence

The plaintiff was the owner and consignee of cargo which was shipped from the United
States to Papua New Guinea. The cargo was damaged on unloading and the plaintiff
sued for damages. The ship was arrested under a warrant of arrest in rem. One of the
grounds of the defence was that the Statement of Claim did not disclose a cause of action
known to the law of Papua New Guinea, and this ground was argued before the trial
judge as a preliminary point. The trial judge decided in favour of the plaintiff holding
that whereas the Colonial Courts of Admiralty Act 1890 (Imp) ceased to operate in Papua
New Guinea in 1975 at Independence, the court was able to formulate a law pursuant to
the Constitution, Sch 2.3(1) allowing the action. The decision was appealed. The
appellant did not contest the finding that there was no longer Admiralty jurisdictions in
Papua New Guinea other than a common law jurisdiction, and appealed the contention
that the action could be based on any statutory right in rem. The respondents case rested
on the statutory right stemming from the Admiralty Court Act 1861 (Imp) through the
Colonial Courts of Admiralty Act, s. 6 which created an in rem action for damage to
goods by the shipper.
DECISION: appeal dismissed. Since Independence the courts of Papua New Guinea
have had an Admiralty jurisdiction within the parameters and limitations set down in the
Colonial Courts of Admiralty Act 1890.
HELD: The Appeal Court makes an exhaustive examination historical analysis of the
jurisdiction of the Admiralty Court in Papua New Guinea. In doing so the Court
discovered that in Papua the 1861 Admiralty Court Acts were not brought into operation
after Independence so that the common law remained unmodified; conversely in the
Mandated Territory of New Guinea the Colonial Courts of Admiralty Act was preserved
after Independence by s. 14 of Laws Repeal and Adopting Act 1921. The anomalous
result was that the Colonial Courts of Admiralty Act was introduced to the new
Independent State for part of the country only. The Court was able to utilize Sch. 2.3 of
the Constitution to make the application of the Act applicable to the whole of Papua New
Guinea. This decision by the Court of Appeal put to rest the conflicting authorities as to
Admiralty jurisdiction that had been created by earlier cases.
Steamships Trading Company Ltd v Owners of the Ship Samarai [1988] PGNC 99;
[1988-89] PNGLR 80 (28 February 1989)

ADMIRALTY- Jurisdiction- Supply of necessaries- no jurisdiction where


supply of goods to domestic ship
This was an application by the ship owners seeking an order that the writ of summons discloses
no reasonable cause of action recognized by the admiralty jurisdiction of the court. The applicant
argued that 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
domestic.
HELD: Writ of summons struck out and arrest warrant set aside.
DECISION: The Admiralty Court Act 1840 created a cause of action for the supply of
necessaries for a foreign ship. The jurisdiction in admiralty for the supply of goods and
services to a domestic ship was not introduced in England until 1956 and that is not part of the
law of PNG.

Weilbacher v Kosrae [1988] FMKSC 10; 3 FSM Intrm. 320 (Kos. S. Ct. Tr. 1988) (19 April
1988)

ADMIRALTY- Jurisdiction- Classification of maritime tort for jurisdictional


purposes
The plaintiff was a passenger on a State owned vessel. She was injured on a voyage on
that vessel and sought compensation claiming that the State was negligent in not
maintaining adequate lighting on the vessel, and in not securing the restroom door. The
plaintiff also claimed that the State had breached its contract with her to provide safe and
seaworthy transportation. Suit was brought in Kosrae state, and the defendant brought a
motion to dismiss for lack of subject matter jurisdiction.
DECISION: Motion to dismiss granted.
HELD: The case would properly be considered a maritime matter within the Supreme
Courts admiralty tort jurisdiction, and therefore the State court is without jurisdiction to
hear this matter. Article XI s. 6(a) of the FSM Constitution provides that the Supreme
Court has original and exclusive jurisdiction in admiralty and maritime cases. There
were a number of bases on which to classify this action as a maritime tort: The injury
occurred on a vessel which was 30 miles out to sea and thus in navigable waters. The
injury occurred during the course of a traditional maritime activity. There may have been
an admiralty contract involved in the contract for passage.
ARREST OF SHIPS AND PRE JUDGMENT
SECURITY
All Engineering (Fiji) Ltd v Owners of Bulou and Barge Pro Dive II [2009] FJHC 262;
Admiralty Action 2 of 2009 (25 November 2009)

ADMIRALTY Action in rem- Availability of remedy- Despite lack of maritime lien

The plaintiff had not been paid for repairs to the vessel. The defendant acknowledged
indebtedness but asked for an extension in time. The defendant made an application for arrest of
the vessel.
DECISION: Application granted.
HELD: The court held that the law is settled in Fiji that a repairer of a vessel has an action in
rem against the vessel despite the lack of a maritime lien, and relied on Donald Pickering & Sons
Enterprises Ltd v Karims Ltd [1997] FJHC 20; [1997] 43 FLR 41 (6 February 1997) and
Baobab Industries Ltd v Owners of the Yacht Jubilant [2009] FJHC 167; Admiralty Action
01.2009L (19 August 2009).

ASD Marine Proprietary Ltd v Pacific Navigation Ltd [1992] FJHC 74; [1992] 38 FLR 4 (24
January 1992)

ADMIRALTY Action in rem- Gratuitous promisee; prior debenture holder

Action in rem for the costs of construction. The boat designer brought a claim against ship
builder for the costs of construction. The boat designer commenced proceedings in rem and
obtained the vessels arrest. Contract for construction was between 1st defendant and designer.
The 1st defendant had transferred ownership of vessel to the builder (2nd defendant). The boat
builder was in receivership, and the receiver was added as a 4th defendant. The receiver filed a
notice of motion to set aside the writ and discharge the warrant of arrest on the vessel.
DECISION: Writ of summons dismissed and warrant of arrest discharged
HELD: The plaintiff had no cause of action against the vessel because the contract for the design
was between the 1st defendant and the plaintiff. The 2nd defendant was the beneficial owner of
the vessel. The plaintiff relied on a promise made by the 2nd defendant to the 1st defendant to
guarantee payment of design fees but the court found that to be an unenforceable gratuitous
promise. The court also observed that as a matter of equity the debenture holder (4th defendant)
had a better equity than the plaintiff being first in time. Therefore the plaintiffs would be obliged
in law to defer to the debenture holder in respect of any judgement they might obtain.
Baobab Industries Ltd v Owners of the Yacht Jubilant [2009] FJHC 167; Admiralty Action
01.2009L (19 August 2009)

ADMIRALTY Acton in rem- Procedure for in rem action where no maritime lien- No
practice where arrest warrants limited in time- Plaintiff must deposit into Court an amount
to cover charges and expenses of Admiralty Marshall for arrest.

The plaintiff alleged that it had done repairs on the yacht and sought payment. The
plaintiffs made an ex parte application under the Admiralty jurisdiction of the High Court
for the arrest of the yacht.
DECISION: order granted for arrest of yacht.
HELD: The plaintiffs have a valid claim for repairs under a contract. The court does not
follow the earlier decision Star Marine Ltd v Nambuk Fisheries Company Ltd. [2002]
FJHC 16 where the arrest warrant was limited to 7 days. The court stated that the
plaintiff must do more than give an undertaking to indemnify the Admiralty Marshall and
must deposit into Court an amount to cover charges and expenses for the arrest.

Best v Owner of the Ship Glenelg No 2 [1982] VUCA 1; [1980-1994] Van LR 48 (14 July
1982)

ADMIRALTY Mareva Injunction- Where res of in rem action no longer exists where
action in rem proceeds as action in personem

Appeal the Order to strike writ of summons and discharge interim injunction.
DECISION: Appeal allowed. The writ of summons was restored and interim injunction made.
HELD: The lower Court erred when it relied on Order 27, Rule 4 to strike the writs. The only
basis to strike pursuant to this rule is where there is no reasonable cause of action. The Court
of Appeal stated that there is a cause of action- namely the failure to pay wages alleged to be due
to the crew who served on the ship. The action lies against the ship by virtue of a maritime lien
and also against any contractually bound person to pay such wages. The cause of action does not
become unreasonable when the vessel leaves the jurisdiction, because the lien on the vessel
travels with her. The subsequent wreck of the vessel affects the enforceability and value of the
judgement, but cannot affect the cause of action. It is not open to the Court to strike out the writs
under Order 27, Rule 4 because the cause of action continues to exist wherever the vessel is and
whatever condition she is in. The Court of Appeal decided that the action could continue in
contract. The writs were headed Admiralty actions in rem but the owner was also named as a
party. The endorsements in the writ made it clear that the action was brought in contract. The
Court of Appeal found these factors to be indicative of a strong in personam element in the
action in rem. The Court of Appeal cites the two leading decisions The Banco (1971) 1 All E.R.
524, C.A., Lord Denning M.R., 531 and Caltex Oil (Australia) Pty Limited -v- Dredge
Willemstad (1975) H.C. 136 C.L.R. 529 Gibbs J. for the rule that where an action is commenced
in rem, the entry of appearance by the defendant enables the plaintiff to continue the actions
against the defendant as if they were actions in personam.
Best v Owner of the Ship Glenelg No 1 [1982] VUSC 9; [1980-1994] Van LR 27 (3 June
1982); reversed on Appeal

ADMIRALTY Where res of in rem action no longer exists

Plaintiff sought an interlocutory injunction whereby the defendant was restrained from disposing
of any of its assets without consent of the plaintiffs or the Court until any judgement against the
defendant was satisfied. The defendant applied for an order to strike out the writ on the grounds
that there was no reasonable cause of action. The applications arose out of the original issue of a
writ of summon in an action in rem for the arrest of a vessel in a claim for wages while the
plaintiff was a member of the crew on that vessel. After the issuance of the original writ, an
appearance was entered by the defendant denying the contract of employment. Before the case
proceeded, the warrant expired on the vessel and the vessel was removed from its anchorage and
was subsequently wrecked on a reef. The defendant contended that the Court now lacked
jurisdiction because the action was in rem and the res no longer existed. The plaintiffs sought
security on the insurance proceeds from the vessel.
DECISION: Defendants application to strike granted and interim injunction discharged.
HELD: The Court looked to the Supreme Court Rules that discourage hybrid claims and held
that an action in personam must be specifically pleaded, and in this case the insurance proceeds
could not be said to replace the res.

BP (South West) Pacific Ltd v The Owners of Motor Vessel Cresta 1 [2003] FJHC 57;
HBG0009.2002 (25 February 2003)

ADMIRALTY Action in rem- Caveator must have in rem interest

The plaintiff filed an Admiralty action in rem for fuel supplied to the defendant vessel. It led to
the arrest of the vessel. The plaintiff and defendant settled and the plaintiff intended to withdraw
the claim and discontinue security for the arrest. The court allowed an intervenor who filed a
caveat against release of the vessel.
DECISION: Order to release to vessel
HELD: The court was not satisfied that the caveator had an interest in rem against the vessel.
Telephone bills and management fees do not constitute claims in rem. A claim for fishing line
dated back to when vessel was licensed for fishing and court declined to lay that at the door of
the defendant now.

CKP Fishing Company Ltd v Owners of Motor Vessel Woo Yang [2000] FJHC 204;
HBG0001J.1998S (20 January 2000)

ADMIRALTY Arrest of Ships- Priority ranking on sale for salvage costs of the vessel

The vessel has been sold by the Admiralty Marshall and an order for the release of the vessel to
the new owners had been made. The vessel had been in custody for 9 months. The Admiralty
Marshall had been responsible for the care, maintenance and custody of the vessel. The second
intervenor (the Applicant) had provided a berth for the vessel. For the first 6 months the vessel
had been berthed at the wharf. The vessel was moved to a dolphin buoy 30 metres off shore for 3
months. A dispute arose over whether berthing charges could be levied while the vessel was
berthed at the dolphin buoy. An application was made pursuant to s. 25 of the Supreme Court
(Admiralty Rules) Order IV Rule 4 for priority in respect of the proceeds of the sale of the vessel
for the cost of docking, wharfing and berthing of the vessel.
DECISION: Claim allowed; limited to time where vessel berthed at the wharf
HELD: There was no dispute that berthing charges were payable at the outset from the proceeds
of the sale of the vessel. However, the court was not satisfied that the Applicant could levy
charges for berthing at the dolphin buoy. There was no agreement between the parties for the
charges at the dolphin buoy and the plaintiff was providing security and insurance at that time.
The claim was limited to the time where the vessel was berthed at the wharf.

Capek v The Yacht Freja [1980] PGNC 53; [1980] PNGLR 57 (23 April 1980)

ADMIRALTY Action in rem- Substance of action to be derived from statement of claim


not affidavit supporting arrest

The plaintiff sued in respect of necessaries supplied to the defendant vessel. The defendant took
a preliminary point as to whether the action in rem was properly based. In the affidavit in support
of the arrest of the vessel the plaintiff stated that the claim was for work done on the yacht. In the
Statement of Claim the plaintiffs claim was based on necessaries supplied to the vessel.
DECISION: The writ is the proper action
HELD: The Admiralty Courts Act 1840, 1861 created a claim of right of action in rem in respect
of a claim of necessaries supplied to a foreign ship. However, the Act does not create a right of
action in rem in relation to repairs and equipping of a ship. The court will look to the particulars
of the Statement of Claim for the substance of the plaintiffs claim, and not to the material
contained in the affidavit filed for arrest of the vessel. (not followed in New Guinea Cocoa
(Export) Co Pty Ltd v Vedbaek, Owner of MV Aya Trigon [1980] PNGLR 205)

Captain & Crew of the MV Voseleai v Owners of the MV Voseleai [1994] FJHC 4;
HBG0006j.1994s (28 October 1994)

ADMIRALTY Action in rem- In rem action for wages of crew- Security for release of
vessel

The vessel was sailed from Honiara to Suva for repairs. 10 months after her arrival the Master
and crew issued an action in rem claiming unpaid wages and allowances. The owner of vessel
issued a motion seeking discharge of the arrest warrant and alleging that actions of crew were
illegal and in breach of Shipping Act.
DECISION: The action by the crew was proper and the court had jurisdiction; there was an
order to release the vessel upon payment of a F$25,000 bond.
HELD: The Court determined that the Supreme Court Rules and British Admiralty precedent
supported an action in rem for the wages of the crew on that vessel. As to the release of the
vessel, the Court found that the res must be released upon receiving security for the plaintiffs
claim. The plaintiff is entitled to demand such an amount as security as would cover his
reasonably best arguable case, and once an application for release of a vessel is made, it is
incumbent on the plaintiff to quantify that amount.
Chandra v Kiribati Shipping Services Ltd [2010] FJHC 43; Admiralty Action 1.2010 (4 February
2010)

ADMIRALTY Action in rem- Procedure for in rem action where no maritime lien

The plaintiff claimed a sum owing for electrical repairs and maintenance to a vessel. The
plaintiffs sought an order for the arrest of the vessel.
DECISION: arrest for vessel issued.
HELD: The court recognized that the claim for repairs could not constitute a maritime lien. The
court cited legislative provisions which allowed the in rem action. The in rem jurisdiction of the
High Court of Fiji is derived from s. 21 of the High Court Act Cap 13. Section 1(1) of the
Administration of Justice Act provides the High Court of Fiji with jurisdiction to decide a claim
in respect of the construction and repair of a vessel. The High Court (Admiralty) Rules set out
the procedure whereby no warrant of arrest is issued until an affidavit has been filed identifying
the parties and the nature of the claim. The Court found that the plaintiff was able to establish a
lawful right to claim the monies due and owing pursuant to a contract, and thus established a
claim on which an order for man arrest could be founded.

Cong Yu Qin v The Owners of the Motor Vessel Ping An 6 [2003] FJHC 59; HBG0002j.2003s
(16 May 2003)

ADMIRALTY Action in rem- Default judgement without arrest in in rem action

Service of the Writ of Summons and Statement of Claim was effected via the Captain of the
vessel and its local agents. The defendants failed to acknowledge service. The plaintiff filed for
leave to enter default judgement. The Plaintiff relied on the rules of Admiralty Proceedings
where if a defendant to an action in rem fails to acknowledge service of the writ within the time
limited for doing so or on the expiration of 14 days after service, then the plaintiff may apply to
the Court for judgement by default. The issue was whether the court had jurisdiction to
pronounce judgement when the vessel was not under arrest.
DECISION: Default judgement granted.
HELD: It is not necessary to arrest the vessel to found jurisdiction. The plaintiff must give
formal notice to the persons interested that a claim is made against them or their property in a
court of competent jurisdiction, and if they do not appear to vindicate their rights, judgement
may be given in their absence. The property need not be in possession of the court or under the
arrest of the court, but must be within the lawful control of the State or under the authority of
which the Court sits.

Donald Pickering & Sons Enterprises Ltd v Karims Ltd [1997] FJHC 20; [1997] 43 FLR 41 (6
February 1997)

ADMIRALTY Actions in rem- Availability of remedy- Maritime lien not necessary for in
rem action

The plaintiffs claimed not to have been paid for work done to 2 vessels and obtained warrants for
their arrest. In response, the defendant owner sought the discharge of the warrants arguing that
the plaintiffs were not entitled to a maritime lien and therefore were not entitled to the arrest of
the vessels.
DECISION: Defendants motion dismissed.
HELD: It is an erroneous belief that where there is no maritime lien the right to proceed in rem
does not exist. An in rem action may be brought against the vessel where the vessels are
beneficially owned by the defendant which requested the work done, and the monies owed by the
debtor relates to maritime debts, even though those debts are incapable of giving rise to
maritime liens. The court relied on common law precedent which has been enshrined in statutory
authority citing the Administration of Justice Act 1956 as applied to the High Court of Fiji which
expressly puts ship repairs in maritime debts properly brought within the purview of the
Admiralty division; and s.3(4) of the Act which provides that in rem actions may be brought
against a ship where the owner of the vessel is the person who would be liable on the claim in an
action in personam.

Donald Pickering & Sons Enterprises Ltd v Karims Ltd [1998] FJHC 221; [1998] 44 FLR 161
(24 July 1998)

ADMIRALTY Action in rem- Fees paid while vessel in custody

The Admiralty Marshall sought payment for keeping possession of vessels which were arrested
by Court Order. The arrest warrant included a personal undertaking of the plaintiffs to pay all
fees and expenses incurred by him in respect of the arrest of the vessel and for the care and
custody of the vessel while under arrest. The vessels were privately berthed after their arrest.
DECISION: Claim disallowed
HELD: The daily fee is solely chargeable for keeping possession of the ship and not so long as
the arrest warrant shall remain undischarged. The custody remained with the Marshall, but
following the arrest, the vessels had remained in the possession of third parties.

Federal Business Development Bank v SS Thorfinn [1989] FMSC 8; 4 FSM Intrm. 057 (Truk
1989) (30 May 1989)

ADMIRALTY Arrest of ships- In FSM ship mortgage does not come within admiralty
jurisdiction

The plaintiff commenced an action to enforce collection of delinquent loans which were secured
by loans over the defendant vessels. An arrest warrant was issued on the vessels on the exparte
application by the plaintiff. The defendant opposed the arrest on the basis that the action on the
ships mortgage did not come within the admiralty jurisdiction.
DECISION: Order of arrest and warrant of arrest vacated.
HELD: The court did not agree with the plaintiffs submission that the US common law was no
longer persuasive. The plaintiff cited US, Canadian and UK legislation that recognized ships
mortgages as maritime liens enforceable in admiralty. The plaintiff argued that these statutes
along with the International Convention for Unification of Certain Rules Relating to Maritime
Liens and Mortgages created a common law that should be adopted in this instance. The court
declined to do so on a number of bases: There was no shipping industry financed in the FSM that
required that protection of admiralty. The case involved a foreign corporations action against a
foreign vessel, a circumstance not within the original purpose of the various Acts. The court
would not selectively select adopt only the jurisdictional aspect of the various statutes to satisfy
the plaintiff. The international convention could not be adopted as the purpose of that document
was the establishment of reciprocal recognition and there was no statute in the FSM for the
registration of ships mortgages.

Federated States of Micronesia v MT HL Achiever (I) [1995] FMSC 37; 7 FSM Intrm. 221 (Chk.
1995) (30 August 1995)

ADMIRALTY Defendant vessel cannot be moved to different venue in in rem action

The defendant vessel was docked in Chuuk and the FSM wanted to move it to Pohnpei on the
basis that the surveillance vessel that was guarding the defendant vessel was in need of repairs,
and ship keepers costs would be lower in Pohnpei. The FSM filed a motion to have Temporary
Restraining Order set aside.
DECISION: Temporary restraining order set aside. FSM not to move the defendant vessel from
Chuuk State without an order from the court.
HELD: The Admiralty statute does not anticipate transfer, and thus the possibility of transfer
does not exist. In an in rem forfeiture of the defendant vessel, jurisdiction and venue are so
interrelated that the effect of a move is unclear.

In re Kuang Hsing No 127 [1995] FMSC 5; 7 FSM Intrm. 81 (Chk. 1995) (8 March 1995)

ADMIRALTY In order to exercise in rem jurisdiction the thing over which jurisdiction is
to be exercised must be physically present in the jurisdiction and under the control of the
court.

The State brought an in rem action for forfeiture of the defendant vessel for fisheries violations.
The defendant vessel was in the FSM but had not been seized, nor had a bond been posted for
security. The owner had not been made party to the action. The defendant filed a motion to
dismiss for lack of in rem jurisdiction.
DECISION: Action dismissed without prejudice.
HELD: The court could not exercise in rem jurisdiction over the vessel that had not been seized.
The owner was not named as a party to the action and the Code allows civil penalty claims to be
brought only against a person. The State may pursue a civil claim in a new action.

Jeyang International Company Ltd v Owners of the Motor Vessel Kao Ya No 1 and Kao Ya No.
137 [2002] FJHC 31; HBG0009J.2001 (30 September 2002)

ADMIRALTY Arrest of Ships- claims giving rise to a maritime lien take priority over
claims under mortgages; crews claim for wages rank in priority to mortgagee

The vessels were arrested and sold with the proceeds paid into the court. The court was asked to
determine the order of priority of the various claimants. The first plaintiff represented the crews
claims for wages and the intervenor seeking priority was the ships mortgagee.
DECISION: If the crews claim is properly established it ranks in priority to the claims of the
mortgagee.
HELD: The court followed English Admiralty law where those claims that give rise to a
maritime lien take priority over claims under mortgages in the distribution of a limited fund by
the court, and the mortgagee ranks in priority to all classes of claims that have not been treated as
giving rise to maritime liens.

Kosrae v MV Voea Lomipeau [2000] FMSC 31; 9 FSM Intrm. 366 (Kos. 2000) (7 April 2000)

<p>ADMIRALTY- In order to exercise in rem jurisdiction the thing over which jurisdiction
is to be exercised must be physically present in the jurisdiction and under the control of the
court.

A Tongan vessel damaged the dock in the State of Kosrae in the FSM. Kosrae brought an
action in rem against the vessel for damages. The vessel was not arrested, nor within the
FSM. Defendant brought motion to dismiss claim.
DECISION: Action dismissed
HELD: The Court could not exercise in rem jurisdiction if the ship was not arrested and
not within the FSM.

Leong v The Ship Ufi Na Tasi [1999] SBHC 38; HC-CC 097 of 1999 (19 April 1999)

ADMIRALTY- Arrest of ships- Warrant of arrest will not be discharged where warrant
granted on ex parte application and the defendant asks for an adjournment in order to
prepare affidavits to challenge arrest.

The ship was sold to the plaintiff and the plaintiff took delivery of the ship. Subsequently
the vendor acquired possession of the ship through a business transaction. The vendor
refused to return the ship to the plaintiff. An arrest warrant was granted on an ex parte
application. After the arrest the defendant asked for an adjournment in order to prepare
affidavits to
oppose the arrest. The plaintiff agreed to an adjournment, and asked that the warrant of
arrest be discharged.
DECISION: 7 day adjournment granted. Discharge of warrant of arrest not ordered.
HELD: Prima facie the plaintiff is the registered owner of the vessel and entitled to
discharge of the warrant. However the court decided that the vessel would remain under
arrest for at least 7 days in order to determine the position of the person who was in
possession of the vessel at the time of the arrest. The court ordered that all persons who
wanted the warrant not discharged must tender security or undertaking as to damages that
the plaintiff may suffer while the ship remained under arrest.

Maruwa Shokai (Guam) Inc v Pyung Hwa 31 [1993] FMSC 1; 6 FSM Intrm. 001 (Pon.
1993) (4 January 1993)

ADMIRALTY Maritime lien- transshipment of fish from vessel to market constitutes a


maritime lien for the purposes of general maritime law. A General agent is not barred from
obtaining maritime lien. A maritime contract cannot be converted into a non-maritime
contract so as to divest Admiralty Court of its jurisdiction.

The plaintiff and defendant entered into an agency contract whereby the defendant was to
supply supplies and services to the defendants three vessels. The defendant did not pay,
and the plaintiff obtained an arrest warrant. The vessels were arrested and the defendant
filed a motion for a order dismissing the action for lack of jurisdiction.
DECISION: defendants motion dismissed.
HELD: The defendant opposed the plaintiffs action on two grounds. The defendant
contended that the transshipment of fish did not give rise to a maritime lien as it did not
qualify as necessaries supplied to the vessel. The court held that the transshipment costs of
getting the fish from the vessel to market were similar to stevedoring expenses which are
considered necessaries, and further, the scope of necessaries has broadened over the years.
The defendant also contended that maritime jurisdiction did not extend to necessaries
furnished pursuant to an agency contract. The court held that it is the nature of the goods
supplied rather than the nature of the contract that determines whether a maritime lien if
available to the plaintiff. As to the defendants contention that the parties did not intend the
agency agreement to be maritime in nature, the court said that the parties cannot by
stipulation convert a maritime contract into a non-maritime one so as to divest the court of
jurisdiction.

Meninzor v MV Caroline Voyager [2007] FMSC 22; 15 FSM Intrm. 97 (Pon. 2007) (15 June
2007)

ADMIRALTY Where maritime lien available under 19 FSMC 326(2)(b); where arrest of
vessel permitted under 19 FSMC 337(1).

The plaintiff was injured in a fall from a state owned vessel. A complaint was filed for
damages, and a motion for arrest of the vessel was also filed. The plaintiffs requested a
review under Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime
Claims which provides that the court shall review the verified complaint to determine
whether conditions exist for an in rem action.
DECISION: Plaintiffs have a claim for personal injuries secured by a maritime lien
pursuant 19 FSMC 326(2)(b). Plaintiff is denied a warrant for the arrest of the vessel
pursuant to 19 FSMC 337(1).
HELD: The relevant sections of the Code allow a maritime lien for injuries suffered on
board the vessel. An order for the arrest of the vessel is only available where there has been
a default in payments secured by the maritime lien, and in this case the claim has yet to be
reduced to judgement

MV Hai Hsiang #36 v Pohnpei [1996] FMSC 56

ADMIRALTY Action in rem- FSM Supreme Court has exclusive jurisdiction over
admiralty and maritime cases- no exception for in rem actions brought as a result of state
fishing violations
The issue considered is whether an in rem civil action for forfeiture of a commercial fishing
vessel for violation of a state fishing law within state waters falls within the original and
exclusive jurisdiction of the FSM Supreme Court.
DECISION: The National Court has exclusive jurisdiction for admiralty and maritime
cases.
HELD: It is recognized that the States do have the sole power to legislate the regulation of
natural resources and navigation and shipping within the 12 mile limit. However, the
Constitution grants exclusive and original jurisdiction to the FSM Supreme Court trial
division, with no exceptions.

New Guinea Cocoa (Export) Co Pty Ltd v Vedbaek, Owner of MV Aya Trigon [1980]
PGNC 64; [1980] PNGLR 205 (29 August 1980)

ADMIRALTY In rem action for necessaries supplied to a vessel abolished by statute on


Independence in PNG

An action in rem for necessaries supplied to the vessel was brought in the Admiralty
jurisdiction of the court. At the outset counsel for the defendant submitted that the
Statement of Claim did not disclose a cause of action known to the law of Papua New
Guinea.
DECISION: Judgement in favour of the defendant
HELD: The cause of action in rem for necessaries supplied to a vessel was abolished by
statute on Independence. The common law of contract and quasi-contract is applicable and
appropriate. As such there is no liability on the owner of the vessel for the purchase of
supplies where the contract was not between owner and supplier. (The court did not agree
with previous decision Milan Capek v The yacht Freja [1980] P.N.G.L.R. 57)

Rush Corporation v Long Line Tuna Ltd [2004] PGNC 219; N2559 (3 June 2004)

ADMIRALTY Debt recovery not an admiralty action- Strict compliance with forms for in
rem action.

There was a written agreement between the plaintiff and the defendant whereby the
plaintiff agreed to lend the defendant funds to finance relocation of the vessel. The money
was not repaid and the plaintiff brought an action in rem to for repayment of the debt and
arrest of the vessel. The defendant filed a motion to dismiss the action.
DECISION: Action dismissed.
HELD: An action for debt recovery cannot be instituted by an action in rem. Order 21 Rule
2(1) of the NCR sets out matters for actions which may be assigned to Admiralty, and debt
recovery is not among those matters. The court also looked to the Halsburys Laws of
England and found that only mortgages as debts will be considered, and the case at hand
was not a mortgage. Further the court stressed that proper documentation must be
followed in actions in rem- the Writ of Summons and Arrest Warrant must be the forms
specifically drafted for the purpose of in rem actions. Otherwise the documents will be
defective in form.
Ship Federal Huron v Ok Tedi Mining Ltd [1986] PGSC 9; [1986] PNGLR 5 (20 January
1986)

ADMIRALTY Action in rem- jurisdiction of PNG courts since Independence

The plaintiff was the owner and consignee of cargo which was shipped from the United
States to Papua New Guinea. The cargo was damaged on unloading and the plaintiff sued
for damages. The ship was arrested under a warrant of arrest in rem. One of the grounds
of the defence was that the Statement of Claim did not disclose a cause of action known to
the law of Papua New Guinea, and this ground was argued before the trial judge as a
preliminary point. The trial judge decided in favour of the plaintiff holding that whereas
the Colonial Courts of Admiralty Act 1890 (Imp) ceased to operate in Papua New Guinea in
1975 at Independence, the court was able to formulate a law pursuant to the Constitution,
Sch 2.3(1) allowing the action. The decision was appealed. The appellant did not contest the
finding that there was no longer Admiralty jurisdictions in Papua New Guinea other than a
common law jurisdiction, and appealed the contention that the action could be based on
any statutory right in rem. The respondents case rested on the statutory right stemming
from the Admiralty Court Act 1861 (Imp) through the Colonial Courts of Admiralty Act, s.
6 which created an in rem action for damage to goods by the shipper.
DECISION: appeal dismissed. Since Independence the courts of Papua New Guinea have
had an Admiralty jurisdiction within the parameters and limitations set down in the
Colonial Courts of Admiralty Act 1890.
HELD: The Appeal Court makes an exhaustive examination historical analysis of the
jurisdiction of the Admiralty Court in Papua New Guinea. In doing so the Court
discovered that in Papua the 1861 Admiralty Court Acts were not brought into operation
after Independence so that the common law remained unmodified; conversely in the
Mandated Territory of New Guinea the Colonial Courts of Admiralty Act was preserved
after Independence by s. 14 of Laws Repeal and Adopting Act 1921. The anomalous result
was that the Colonial Courts of Admiralty Act was introduced to the new Independent
State for part of the country only. The Court was able to utilize Sch. 2.3 of the Constitution
to make the application of the Act applicable to the whole of Papua New Guinea. This
decision by the Court of Appeal put to rest the conflicting authorities as to Admiralty
jurisdiction that had been created by earlier cases.

Steamships Trading Company Ltd v Owners of the Ship Samarai [1989] PGNC 99; [1988-
89] PNGLR 80; N713 (28 February 1989)

ADMIRALTY action in rem- Jurisdiction

The plaintiffs brought an in rem action pursuant to supply of goods and services to a
domestic vessel. The defendants filed an application on notice to strike out a Writ of
Summons as disclosing no reasonable cause of action.
DECISION: Writ of Summons struck out.
HELD: The Court has no jurisdiction in Admiralty in relation to a claim of goods and
services supplied to a domestic ship. The Admiralty jurisdiction of the courts in PNG is
found in the Colonial Courts of Admiralty Act 1890. Jurisdiction in relation to a claim of
goods and services extends only to foreign ships. This purview may have been extended to
include domestic ships by the Administration of Justice Act 1956 in Britain, but this
statutory change has not been adopted in PNG.

Wahono v The Ship MV Yung Yu No 606 [2001] SBHC 102; HC-CC 009 & 010 of 2001 (23
March 2001)

ADMIRALTY Maritime lien- priority of competing liens. Maritime lien attached to


cargo/freight.

The plaintiffs filed a claim for outstanding wages. The action proceeded against the vessel
and a warrant of arrest was executed on the vessel and catch. After the arrest the
Government asserted a claim over the catch as well pursuant to s. 52 of the Fisheries Act
1998. The catch was sold and the monies paid into court . The plaintiff was granted
judgement, and sought an Order to have the monies in court released to them.
DECISION: Order granted. Monies paid to plaintiffs.
HELD: As to the vessel, the plaintiffs claim took priority pursuant to the Shipping Act
1998. The defendant submitted that since the Shipping Act was silent on priorities of
maritime liens over the catch, the case would have to be decided according to common law
and Administration Act 1956 (UK). The court found that at common law a lien may attach
to freight/cargo provided it is enforced in conjunction with the enforcement of the lien
against the vessel. The court was satisfied that in this case the catch had been subjected to
the same lien as against the vessel for the same debt. The court found that at common law a
maritime lien attaches at the date of arrest and has retrospective effect. The Ministry of
Fisheries failed to show that their seizure took effect prior to the plaintiffs lien.

Wasawasa Fisheries Ltd v Karims Ltd No 1 [1998] FJHC 76; HBG0001j.1996s (26 May
1998)

ADMIRALTY Action in rem- Where arrest not pursuant to maritime lien-

Determination of beneficial owner The plaintiffs allege that the defendants owe
compensation for fuel, bait, fishing gear, and crews wages. An action in rem pursuant to
the Administration of Justice Act 1956 was commenced, and a warrant for arrest of the
vessel was issued. There were 3 interlocutory applications. The defendant filed a motion to
set aside the warrant of Arrest until the hearing and determination of the action. The
plaintiff requested that the vessel be released to the custody of the plaintiff or the
Admiralty Marshall for the purpose of appraisal and sale. An intervenor filed a motion
seeking an order for the release of the vessel to him, or a declaration that his claim take
priority over all other claims and an order that the vessel be sold and his claim satisfied
from the proceeds.
DECISION: Vessel to be appraised and sold and proceeds to be deposited in the Court
pending determination of the plaintiffs claim.
HELD: The intervener claimed that he was the beneficial owner of the vessel. The
intervener had entered into an agreement of sale with the defendant but the defendant had
defaulted on payment, and by agreement the defendant was obliged to return possession of
the vessel to the intervener in the event of default. The court found that even though the
defendant had the vessel registered in his name, the intervener was the beneficial owner on
the terms of the agreement. As such, the in rem action of the plaintiff could not be
sustained. The plaintiffs claim depended on the provisions of the Administration of Justice
Act 1956, and pursuant to s. (3)(4) the action could only be sustained where the defendant
is the beneficial owner of the vessel.

Wasawasa Fisheries Ltd v Admiralty Marshal of Fiji [2002] FJCA 54; ABU0025U.98S (23
April 2002)

ADMIRALTY Action in rem- Fees paid while vessel in custody

The request for the arrest warrant included a personal undertaking on behalf of the
plaintiff (appellant) to pay all fees of the Marshall and expenses incurred by him on his
behalf in respect of the arrest, and the care and custody of the vessel while under arrest. On
release of the vessel the Marshall sought the per diem fees which had accrued while the
vessel was in custody. The plaintiff disputed the amount of the fees arguing that the fees
should not accrue after the conclusion of the hearing because the decision took a long time.
The parties filed affidavits as to this issue but prior to the hearing a decision in Donald
Pickering & Sons Enterprises Ltd v Karims Ltd [1998] FJHC 221; [1998] 44 FLR 161 (24
July 1998) held that the fee arrangement provided by the schedule related only to
circumstances where the Marshall had taken possession of a vessel and not where the
Marshall had acted on a warrant for arrest. In this case an agreement had been made
between the Marshall and defendant whereby the defendant provided a watchman for the
vessel for the duration of the arrest. The plaintiffs appealed the order to pay the fees.
DECISION:Appeal dismissed.
HELD: The Pickering decision rested on the courts interpretation of possession. The
court decided not to follow Pickering on the basis that possession must be read in the
context of the applicable Rules.

Westpac Banking Corporation Ltd v The Ship Motunu [2004] SBHC 1; HC-CC 194 of
2004 (23 July 2004)

ADMIRALTY Arrest of ships- Fact of arrest is notice of arrest- Lessor of vessel has
beneficial use under the lease, not ownership

The court had issued an arrest warrant and a subsequent order granting the ship to the
plaintiff. The vessel was moved to Australia. The first intervenor leased the vessel from the
owner, and the 2nd intervenor had a sublease. The interveners applied to have the order for
possession set aside. The 1st intervener argued that no notice of arrest had been given to
them, and also claimed dispossession as owner.
DECISION: Application dismissed.
HELD: As to notice of arrest, the vessel was in the possession of the intervener at the time
of the arrest. The court stated that the fact of the arrest was notice enough. As to the
ownership issue, the court found that the 1st intervenor had beneficial use rather than
ownership of the vessel. The claim arose under a mortgage agreement between the plaintiff
and vessel owner earlier in time to the lease agreement, and there was no evidence that
there was an option to purchase in the lease agreement. The right of the plaintiff to proceed
in rem was based solely on the vessels presence in the country. In the present hearing the
two interveners were Australian entities. Their dispute arose out of the lease of the vessel
coupled with the effect of the arrest and order for possession to the plaintiff. As such the
court directed the interveners to Australia as the forum conviens to settle their dispute.

FORUM NON CONVENIENS/ FORUM CONVIENS

Banner-Smith v Owner of the Fishing Vessel Exocoetus [1994] SBHC 44; HCSI-CC 20 of 1994
(28 January 1994)

Forum conveniens- writ issued outside jurisdiction where breach of contract occurred
within jurisdiction

Banner-Smith (the applicant) sought damages for breach of contract. The contract relied upon
was between the applicant and his employer API. API was duly incorporated in Australia and the
contract was made in Australia. API had chartered a vessel from the vessel owner. The vessel
was sub chartered to a Solomon Islands Company and the applicant was employed by API to be
Master of the vessel. The breaches of the contract occurred after the vessel had left Australia and
was in the jurisdiction of the Solomon Island Courts.
DECISION: Writ of summons amended and refilled for issue.
HELD: The breach of the contract occurred within the jurisdiction. The writ should have been
issued against API as defendant and not the owner of the vessel, as the contract of employment
which is relied upon was between the applicant and API.

Translink Shipping Ltd v Compagnie Wallisienne de Navigation SARL [1991] FJHC 76; [1991]
37 FLR 46 (4 June 1991)

Forum conveniens- Court decides natural forum on balance of convenience

Proceedings were commenced in Fiji to recover damages allegedly sustained following an


incident which occurred in the Wallis Islands. The plaintiff had been granted a Mareva injunction
against the 1st defendant restraining it from moving its vessel from the jurisdiction. The
defendant and been served and the injunction granted when the vessel visited Fiji on its regular
trading route. The plaintiff was a shipping company registered in Vanuatu, and charterer of a
Danish registered vessel. The 1st defendant was a shipping company registered in Wallis Island
and owner of a French registered vessel. The 2nd defendant was the Master of the vessel. An
application was made to stay the proceedings and discharge the interim injunction.
DECISION: Proceedings stayed and injunction dissolved.
HELD: A majority of the witnesses to the incident on Wallis Island are local inhabitants, the 1st
defendant and his vessel are registered in Wallis Island, the law to be applied is French law and
the expense and inconvenience to be incurred if this action were to be tried in Fiji convinced the
court that the proper forum for the litigation would be Wallis Island and not Fiji.

LAW OF THE SEA


I have reviewed the cases under the heading of Law of the Sea in the interns reports and have
found a few more in the PACLII website. There are not many of them but present some points of
interest: The federated states face some different jurisdictional issues given their federal division
of powers. There is an issue of ownership of resources which must be distinguished from
exclusive right to exploit and may carry with it the concomitant duty to preserve and protect.
Custom ownership of resources may give clans and villages standing to sue for damage to reefs.
Environmental concerns are an issue to be addressed. Cases may give an indication of legal
issues that are important to the Pacific Islands. They also may point to a difficulty to interpret
new legislature such as those dealing with the environment, fisheries and boundary delimitation.

CASES

Foreshore development, coastal management, environment-

Browne v Bastien [2002] VUSC 2


Jonah v Kosrae [2000] FMKSC 3- road widening, seawall, foreshore
People of Rull ex rel Ruepong v MV Kyowa Violet [2006] FMSC 53
People of Welroy ex rel v MV CEC Ace [2007] FMSC 28
Damarlane [1995] FMPSC 2 dredging damaging fishing / custom owners have right to
compensation
Tokyo Corp. v Mago Island Estate Ltd. [1992] FJHC 76 foreshore, water and seabed are vested
in the state
ENE Land Grp. Inc. v Fonsen Logging (PNG) Pty. [1998] PNGLR 1- seek charge for
transshipment of logs thru coastal water

Jurisdiction and rights to resources

Chuuk v Secretary of Department of Finance [2000] FMSC 36 claims to resources in EEZ-


clarifies nations claim to resources in EEZ
Fed. States of Micronesia v Oliver [1988] FMSC 29 jurisdictional issue within 12 miles
People of Rull ex rel Ruepong v MV Kyowa Violet [2006] FMSC 53 recognise traditional rights
and ownership of natural resources and areas within the 12 miles from baselinesalso do chiefs
have standing
People of Satawal ex rel Ramoliolug v Mina Maru No. 3 [2001] class action- fishing trips less
productive as result of damage to reef
People of Welroy ex rel v MV CEC Ace [2007] FMSC 28
Pohnpei v KSVI No. 3 [2001] FMSC 58 who owns reef- state or municipality Damarlane [1995]
FMPSC 2 dredging damaging fishing / custom owners have right to compensation
ENE Land Grp. Inc. v Fonsen Logging (PNG) Pty. [1998] PNGLR 1- seek charge for
transshipment of logs thru coastal water
Ulelio v Nelulu Land Group [1998] PGNC 176 no power of authority under laws of PNG to
grant absolute ownership over the high seas

DISCUSSION

The question of who has the rights to the resources of the coastal sea and seabed was considered
in People of Rull ex rel Ruepong v MV Kyowa Violet1. In this case from Micronesia a cargo
vessel was damaged when it collided with a reef while navigating into the harbor. The collision
resulted in damage to the reef as well as an oil spill into the harbor waters. There was a
subsequent ban on fishing and swimming in the harbor. An action for damages for maritime tort
and nuisance was brought by 3 traditional chiefs as representatives of the people of the affected
coastal municipalities. The court decided that the plaintiffs had standing to sue for damages on
the basis of the constitutional provision that recognized the traditional rights and ownership of
natural resources and areas within the marine space of the State within 12 miles from the island
baselines. The court understood the ownership of the resources to mean an exclusive right to
use and exploit the resources of the area. A further constitutional provision preserved existing
private rights for civil damages to coral reefs, seagrass areas and mangroves. The ownership of
the rights to resources was based on membership in a tabinaw. This traditional concept gave its
members exclusive rights to marine resources in particular areas of the lagoon, and importantly,
the court found that the tabinaw included an estate in identifiable land and specific areas of the
fringing reef. The tabinaw concept was again applied in People of Weloy ex rel v MV CEC Ace
where chiefs were allowed to represent the tabinaw and were given requisite standing to seek
damages as a result of a vessel collision on their reef.

Earlier cases from the FSM had muddied the issue. In Pohnpei v KSVI No. 33 the court was asked
to decide whether the State or the Municipality was entitled to damages resulting from the
grounding of a vessel on a reef. The court narrowly interpreted a provision of the Trust Territory
Code4 which provided that all marine areas below the ordinary high water mark belonged to the
State. (At the time of the MV Kyowa Violet grounding case discussed above, the court held that
this provision had been superseded by subsequent legislative provisions and was no longer the
law.) The court also posited that the State should recover because under fisheries legislation the
State bore the costs associated with enforcing State laws related to natural resources. Further, in
spite of wording that preserved traditional rights to fishing, the Court would not allow the
municipality to recover on the grounds that this might have excluded some landowners, clans or
families who had suffered a loss. The court distinguished an earlier decision Damarlane v United
States5 . In this case the court extensively reviewed the applicable customary law to decide
whether the owners of land adjacent to the lagoon had sufficient property rights so as to entitle
them to monetary compensation for damage to fishing structures caused by dredging in their
abutting lagoon. In this case the court found that there were customary rights to maritime
resources, but these rights were not enough to establish a compensable right of recovery for
damages to fishing structures built on the
1
[2006] FMSC 53
2
[2007] FMSC 28
3
[2001] FMSC 58
4
67TTC2
5
[1995] FMPSC 2
reef. Perhaps a tabinaw concept which later decisions defined would have been helpful
here.

There was early recognition by the courts in PNG of the principle that there exist customary
rights to reefs and marine resources,6 and legislation since Independence has preserved
traditional coastal fishing rights. However, the rights to the sea are limited. In ENE Land Grp.
Inc. v Fonsen Logging (PNG)7 land owners sought to enlarge their traditional rights when they
pursued a claim that they were entitled to be paid rental fees for the passage of the defendants
shipping through the coastal area. The defendants ships passed through the coastal area to load
logs from logging activities which were conducted inland. The plaintiffs action failed as the
court was unable to find the requisite possessory title to the sea for the purpose sought. There
was another unusual case out of PNG. In Ulelio v Nelulu Land Group8 the defendant had
obtained a certificate of title through the customary land tenure conversion process to absolute
ownership over 12.5 hectares of the sea. The plaintiffs challenged the validity of the ownership
of the sea and coastal area. The court reviewed the history of common law and customary rights
and concluded that at no time had there been any recognition of any absolute possessory title in
individuals or groups to the sea.

There have been a few reported cases which deal with a private individuals proprietary interest
in the foreshore. In Tokyo Corp. v Mago Island Estate Ltd9 the Fijian High Court decided that
rights to the foreshore, water and seabed are vested in the state. The judgement includes an
interesting historical perspective, but unfortunately the parties decided not to have the rights to
the fisheries issue adjudicated. In the FSM, a resort owner brought a claim against Kosrae State
for damage to his beachfront allegedly caused by state road works.10 The court held that the
private landowner had no standing to sue the state with respect to rocks deposited below the
ordinary high water mark because that is state land. In Browne v Bastien11 a private coastal
property owner sought a declaratory order from the Vanuatu court to have his neighbours
seawall dismantled. The plaintiff was somewhat successful in his nuisance claim; however,
counsel for the plaintiff would have been wiser to have approached the Minister for an order
pursuant to the Foreshore Development Act as the sea wall did not comply with this legislation.

There are a few cases concerning the EEZ and the jurisdiction therein. In Fed. States of
Micronesia v Oliver12 the defendant was charged with killing 5 sea turtles contrary to State law.
The difficulty in this case arose because of the separated state and national jurisdictions in the
FSM. The court found that the legislation under which the charge was laid was State law which
could give the national government jurisdiction outside the 12 mile territorial sea zone. The
prosecution could not prove that the turtles had been killed outside of the 12 mile zone and thus
the case was dismissed as the court had no
6
see Tolain & Os v Administration [1965-66] PNGLR 232,.
7
[1998] PNGLR 1
8
[1998] PGNC 176
9
[1992] FJHC 76
10
Jonah v Kosrae, [2000] FMKSC 3
11
[2002] VUSC 2
12
[1988] FMSC 29
jurisdiction. In Chuuk v Secretary of Finance13 federalism was again at issue along with a
customary rights argument. In this action, the four states of the FSM requested a declaratory
judgement that they were entitled to ownership and control over the living marine resources in
the FSMs EEZ and as such they were entitled to revenues from the sale of fishing licenses
which permitted fishing in the EEZ. At trial the states asserted that traditional and customary
practices of the Micronesian people vested ownership of off-shore fishing resources in the island
community adjacent to those waters. The States claim failed based on language in the
Constitution and the UN Convention on the Law of the Sea which had been ratified by the FSM.
The constitution granted the national government the exclusive right to regulate the exploitation
of the natural resources within the EEZ. There was no ownership of the resources but the
national governments position was consistent with the international treaty obligations that it had
assumed. It is interesting to note that the FSM Constitution requires that of the EEZ generated
revenues, half of the net revenues derived from ocean floor mineral resources be given to the
state governments- there is no such provision as to the living resources.

SUGGESTED FURTHER RESEARCH

Clearly this synopsis of the reported cases gives an incomplete picture of the state of law of the
sea in the region. Up to date analysis of the various international treaties and legislative
enactments in every country as to boundary delimitation, fisheries, and the environment would
definitely be of value.

Other cases

Pohnpei v KSVI No 3 [2001] FMSC 58; 10 FSM Intrm. 53 (Pon. 2001) (16 February 2001)
MARITIME TORTS- State is party to recover for losses suffered as a result of reef
grounding. A vessel grounded on the outside edge of the reef which surrounds Pohnpei. The
state of Pohnpei and the municipality of Kitti filed separate complaints seeking
compensation for damage to the reef, submerged lands and marine resources. The state
filed a motion to dismiss the municipalitys complaint stating that the state was entitled to
damages from the grounding because the state is the owner of the reef,
submerged lands and affected marine resources. The parties requested that the court
determine before trial the legal ownership of the submerged areas allegedly damaged by
the grounding.
DECISION: Pohnpei is the legal owner of the submerged lands and living resources and is
the party entitled to recover for any injury to these resources.
Motion to dismiss not granted because municipality may be able to recover other losses
(such as damaged nets and traps).
HELD: The court looked to the Constitution to decide that the state was the owner of the
submerged reef and marine resources. However the Constitution also guaranteed
traditional rights to fishing and to the use of the marine resources. As such, damages
recovered by the state for injury to this property should be placed in a trust for the people
and the funds are to be used to repair harm done to damaged
13
[1996] FMSC 59 affd [2000] FMSC 36

areas. The municipality failed to define the specific group within a specific area that had
suffered the loss as a result of the grounding. The municipality had no general right to
recovery for damages to the reef whose ownership rested in the state.