Lloyd's Maritime and Commercial Law Quarterly
WHEN IS AN OWNER NOT AN OWNER?
The Cape Moreton
The question for determination for the Full Court of the Federal Court of Australia in Tisand (Pty) Ltd
v. The Owners of the Ship mv Cape Moreton (ex Freya)
1
was whether as a matter of construction of the Admiralty Act 1988, s 17, the word “owner” includes “registered owner”.
The owner of the vessel at the time of its arrest, Alico Marine Ltd (“Alico”), was successful in persuading the court to set aside the writ in rem
on the basis that the previous owner, Freya Navigation Ship Holding Ltd (“Freya”), was the person liable on the cargo claim and, in compliance with the Admiralty Act, s 17, was the owner of the vessel at the time the cause of action arose, but, contrary to s 17, was not the owner at the commencement of the proceedings, as the vessel had since been sold by Freya to Alico, even though Freya remained recorded in the relevant Register of Ships in Liberia as the owner.
The plaintiff submitted that the word “owner” should be given a broad construction and not restricted by notions of municipal property law. It relied for its interpretation of the word “owner” as meaning “registered owner” on what Lord Donaldson MR had said in relation to s 21(4) of the Supreme Court Act 1981 (UK) in The Evpo Agnic
.2
In relation to international Registers, his Lordship said:3
These registers are of fundamental importance as establishing the flag of the vessel, thereby making it for some purposes part of the floating territory of that country and subjecting it to the laws of that country. I would therefore regard the concept of a registered owner as being a nominal owner as a contradiction. Third, the convention clearly looks to ownership and registered ownership as one and
CASE AND COMMENT
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