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[2013] FCA 1427
Federal Court of Australia
2013-12-06
Rares J
Original judgment source is linked above.
REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 These proceedings commenced with the filing of an originating application and statement of claim on 5 September 2013 seeking damages based on a general maritime claim under s 4(3) of the Admiralty Act 1988 (Cth) against three defendants associated with the conduct of a business operating under the name of "Celebrity Cruises". 2 The first defendant, RCL Cruises Limited, has been served in Australia, and has appeared in the proceedings. Each of the second defendant, Celebrity Cruises Inc (Cruises), and the third defendant, Celebrity Silhouette Inc (Silhouette), is a corporation incorporated in the Republic of Liberia. Cruises is the manager of the vessel Celebrity Silhouette and Silhouette is the registered owner of the vessel.
Background 3 The plaintiffs have had difficulty in effecting service on Cruises and Silhouette. This is an application for leave to serve those two corporations in Liberia, and in the case of Cruises, on it at what appears to be its principal place of business in Miami in the State of Florida in the United States of America. The plaintiffs rely on two affidavits of David Jeffrey Boyall, affirmed 15 November 2013 and 4 December 2013, which set out the factual basis for the application to serve outside the jurisdiction. I have taken what follows from those affidavits to outline the way in which the plaintiffs seek to establish a prima facie case to support an order for service out of the jurisdiction. I do not, and do not intend, to express any view as to whether this evidence would be admissible or accepted at a final hearing or if it were what consequences would flow. 4 The plaintiffs are residents of Victoria. On about 4 September 2012 they say they boarded Celebrity Silhouette at Venice in Italy for a 13 day cruise around the Adriatic Sea. While the vessel was in the port of Split in Croatia, on 6 September 2013, Mrs Thompson fell while attempting to disembark from the vessel into a tender that had no gangplank between it and the ship, so that she was injured in the course of attempting to cross between the ship and the tender in choppy seas. Mrs Thompson alleged that the crew or agents of either Cruises or Silhouette failed to provide adequate assistance to her for her safe disembarkation from the vessel in the prevailing sea conditions, failed to give her any warning or instruction about disembarkation in those conditions, and required her to step or cross about half a metre from the vessel into the tender vessel in choppy seas. She alleges that she suffered loss and damage as particularised in the amended statement of claim. Among other things, Mrs Thompson alleged that she suffered significant fractures to one of her ankles that required initially surgery in Dubrovnik in Croatia and subsequently remedial surgery in Australia, and she continues to suffer severe pain, loss of function, and that she took time convalescing here. She also claimed to have suffered psychological injury as a result, as well as the understandable loss of enjoyment of the further sea cruise holiday that she and her husband had planned. 5 Mr Thompson alleged that he suffered psychological injury, and, among others, the expenses of attending to Mrs Thompson during her convalescence here. 6 The statement of claim makes various claims against the three defendants. In brief those are, first, as against RCL Cruises, the plaintiffs allege that they made a contract with RCL Cruises on about 5 December 2011 to carry them as passengers in the cruise. They alleged that the contract was made for valuable consideration and contained implied terms that RCL Cruises would exercise reasonable care and skill in providing carriage to them, and in assisting them while embarking on and disembarking from the vessel, and that as a result of RCL Cruises' breaches of those contract, they suffered loss and damage. Secondly, the plaintiffs allege that each of the defendants is liable to him and her in tort based on the substantive law of Croatia, based on Arts 1045, 1049, 1063 and 1064 of its Civil Obligations Act. Relevantly, they alleged that those Articles created a duty of care in situations where a person had caused damage to another or in which damage resulted from dangerous activity. 7 Mr Boyall conducted a search of the vessel Celebrity Silhouette with DNV Exchange on 11 November 2013. The search indicated that Silhouette was the owner, and Cruises was the manager, of Celebrity Silhouette. Mr Boyall conducted a further search at the Florida Department of State Division of Corporations and obtained results that recorded Cruises as a foreign profit corporation with a number of officers, namely its registered agent, Bradley H Stein, its chief executive officer, Richard D Fain, and a number of other senior officers including a president, chief financial officer and the like, who all had their address as 1050 Caribbean Way, Miami, Florida.
Consideration 8 The United States of America is a party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 known as the Hague Convention. Accordingly, Cruises can be served at its principal place of business in Florida under the Hague Convention and pursuant to Div 10.6 of the Federal Court Rules 2011 (Cth). 9 Liberia is not a party to the Hague Convention. Mr Boyall did a search at the Corporations Registry of Liberia. He was directed to a site that contained some excerpts of Liberian codes of law. That website provided a link to laws relating to the service of a corporation in Liberia, including Ch 3 of Title 5 of the Associations Law. That provided that every domestic corporation in Liberia must designate a registered agent in Liberia on whom service may be made and that such service can be effected in the manner provided by law as if the registered agent were a defendant. Mr Boyall also found other parts of Liberia's Civil Procedure Law on another website including Subchapter B of that Law. That provided in s 3.38(6) that personal service can be made on a domestic or foreign corporation by reading and personally delivering a summons within Liberia to an officer, or managing or general agent or to any other agent authorised by appointment or by statute to receive service of process, and if the summons is delivered to a statutory agent by, in addition, mailing a copy of it to the defendant. In addition, s 3.36, which may perhaps only apply to service of process authorised by courts in Liberia, suggests that an officer of the issuing court must serve the process or appoint a person to do so to the extent necessary for the purposes of compliance with Liberian law. It appears to be possible for the plaintiffs to appoint an appropriate person to serve the originating application in accordance with the law of Liberia. 10 The Court has jurisdiction to order service on a person in a foreign country in a proceeding which is based on, or seeks the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission wherever occurring as provided in the table in r 10.42, item 5 of the Federal Court Rules 2011 (Cth). 11 I am satisfied by Mr Boyall's evidence of the matters required by r 10.43(3) and (4) that it is appropriate to make orders providing for the service of each of Cruises and Silhouette in Liberia and Cruises in Florida and that, in the case of Liberia, service be attempted in accordance with the law of Liberia in the manner I have described and in the United States through the Hague Convention. I am satisfied that the Court has jurisdiction in the proceeding based on the claim for damage having been partly suffered in the jurisdiction by each of Mr and Mrs Thompson based on a tort that occurred in Croatia and that the proceedings fall within item 5 of the table in r 10.42. I am also satisfied on the evidence that each of Mr and Mrs Thompson has a prima facie case for relief. 12 The requirements for establishing the matters in r 10.43(4)(b) and (c) are analogous to those required under the repealed Federal Court Rules 1979 (Cth) O 8, r 3(2)(b) and (c). Those requirements were summarised by Finn, Weinberg JJ and myself in Ho v Akai Pty Ltd (in liquidation) (2006) 24 ACLC 1526 [10]; see too Beluga Shipping GmbH & Co KS "Beluga Fantastic" v Headway Shipping Limited & Ors (No 2) (2008) 251 ALR 620 at 628 [32] in the following terms: 'As has been observed on many occasions, the prima facie case requirement has to be met at the outset, usually on an ex parte basis, and without the advantage of discovery and other procedural aids to the making out of a case: see e.g. Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 at 390. It "should not call for a substantial inquiry": WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. For present purposes it is sufficient to say that a prima facie case for relief is made out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110. Or, to put the matter more prosaically as Lee J did in Century Insurance (in provisional liquidation) v New Zealand Guardian Trust [1996] FCA 376: "What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified."' 13 Moreover, I am also satisfied that the Court has jurisdiction under ss 4(3)(c), (d) and (f) of the Admiralty Act 1988 (Cth). Those provisions relate to general maritime claims arising for, among other things, personal injury sustained in consequence of a defect in a ship, or in the apparel or equipment of a ship, personal injury arising out of an act or omission of the owner or charterer of a ship, a person in possession or control of a ship or a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of the ship is liable, being an act or omission in connection with the disembarkation of persons from the ship, (see s 4(3)(d)(v)) and a claim arising out of an agreement that relates to the carriage of persons by a ship. 14 Accordingly, the Court has jurisdiction over the owner of the vessel here, Celebrity Silhouette. Additionally, under s 12 of the Admiralty Act, the Court, arguably, has associated jurisdiction over the other defendants. 15 For these reasons, I am satisfied that it is appropriate to make orders providing for service out of the jurisdiction as claimed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Thompson
RCL Cruises
(2008) 251 ALR 620
(1991) 28 FCR 387
(1992) 39 FCR 472
(1996) 68 FCR 539
(1991) 30 FCR 102