Incitec Ltd v Alkimos Shipping Corporation

REASONS FOR JUDGMENT 1 Both these matters were filed in the year 2003. They involve a voyage to Australia by a bulk carrier carrying fertiliser. The difficulty it faced was due to the apparent presence of grain in the hold and/or cargo of the ship, which led to the rejection of the ship by the Australian Quarantine Inspection Service in adherence to strict quarantine requirements in relation to a disease sought to be kept out of Australia known as karnal bunt. The whole cargo of fertiliser was rejected at the port. The ship was required to depart and the cargo was onsold in due course to parties significantly or largely in South Asia. 2 That led to a further arrest and further claims concerning the fate of the cargo and the ship in South Asia. Claims are made by the cargo interests against the carrier interests for various matters including the loss of value of the fertiliser as fertiliser to be imported and in one of the cases there is also the additional claims concerning the arrest of the vessel and the consequential losses that occurred by reason of the arrest. 3 The matter has been complicated by the joinder of the American surveyor who surveyed the cargo and ship in Florida prior to departure. I granted leave to serve that surveyor, Caleb Brett USA Inc, out of the jurisdiction. It is proceeding with its pleadings in NSD 303 of 2003 and has filed a notice of motion seeking orders that the claim against it in the other matter, NSD 304 of 2003 be struck out. 4 The parties have been seeking to mediate this matter in London. The American surveyor has been, in effect, a participant in the proceedings for a considerable number of months now. I have permitted a fairly leisurely timetable since the middle of last year or thereabouts to allow the parties to mediate this matter and to have the American surveyor catch up, as it were. There is and has been for some months a Judge from the Sydney Admiralty and maritime panel in this Court ready and available to hear this matter. I have informed the parties of that. 5 The parties have chosen to mediate the matter in London. That is a matter for them. They have chosen not to mediate the matter before a mediator in Australia or with a Court annexed mediator in this Court or a private mediator. The choice of the mediation is, of course, ultimately and perfectly properly a matter for the parties and nothing that I am saying today should be seen as the slightest criticism of that. 6 However, in making these orders and, in effect, further allowing this case to tread water in this Court, I am doing so only at the request of the parties who wish to mediate the matter in London. The parties, given that they are foreign, may not be aware that this Court has available to it court annexed mediation with experienced skilled mediators, if they so desire to use it. 7 For these reasons, I am prepared to make the orders that I have made and stand the matter over for directions to 6 May 2005. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.