INTER MARITIME AGENCY CO. LTD. v. THE OWNERS OF THE SHIP OR VESSEL "TEPARAK" (Thai Flag)

IN THE HIGH COURT OF JUSTICE

ADMIRALTY JURISDICTION

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DECISION

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1. This is admiralty action in rem against the vessel "Teparak" which sails under the flag of Thailand. It arises out of a time charterparty in which the plaintiff, the charterer of the vessel, claims ms for, what I think are called, "off-hire charges". The claim exceeds three million Thai baht. The vessel was arrested most recently on 18th July 1984; there had been an earlier occasion when it had been arrested; and it now lies in Hong Kong under the supervision and management of the Admiralty Bailiff. Maintenance expenses are running and so are the claims of the crew members for wages. The Director of Legal Aid on behalf of the crew members has entered a caveat.

2. There were two applications before me. The first to be dealt with, authority apart I would have said, was an application by the owner to stay the action in favour of an arbitration currently progressing in Bangkok, but that was disposed of at the beginning of the hearing yesterday by consent because it was agreed that the application for stay should be dismissed upon certain undertakings and terms which had been committed to writing and formed the substance of an order which I made yesterday. There remained before me a further Notice of Motion by the plaintiff which was to have the vessel appraised and sold pendente lite and for the proceeds of sale to be paid into court and for various other ancillary forms of relief which are included in the Notice of Motion. The basis for the claim may be put quite simply. On the evidence, which is fairly extensive and has been taken as read, the vessel has a value of approximately US$100,000. It may be slightly more, it may be slightly less, only time will tell; but it is not substantially more or substantially less than that. The valuation is on the basis of it not really being a sea-worthy vessel and that its value lies entirely in the scrap. There is no evidence to contradict that and, as I say, the evidence is to the general effect that that is the approximate value of this vessel. It seems that there is unlikely to be any additional value in that vessel by virtue of it being made sea-worthy once again. So, the position is that expenses are continuing to run. In the case of wages, they exceeded some US$30,000 by the end of July and. are running as from that date onwards and until the vessel can be sold and the crew repatriated at the rate, as I accept, of US$400 a day. In addition to that, there are the expenses being incurred by the Bailiff which are not quite on the same scale but already, I believe I am right in saying, over HK$50,000 have accrued. It will readily be seen from that that the whole value of this vessel on the evidence before me is to be eaten away by these continuing charges unless something is done reasonably quickly, the more so, if it is to provide any security for the plaintiff's claim which far exceeds what is left after the priority claim of the crew members and the Bailiff have been met. So, it would seem to me that it was in everybody's best interests, including the owner, for this vessel to be sold and to be sold as quickly as it can be achieved. Mr. Smith who appears for the owner does not really dissent from that proposition but he is in the unfortunate position of being without direct instructions. He hoped yesterday that a representative of the owner would be able to attend upon him in the afternoon and for that reason, I acceded to his application for an adjournment until this morning. Unfortunately, the gentleman who was expected did not arrive, for reasons I am sure beyond his control, and I am not prepared to countenance any further application for an adjournment. Mr. Smith persuasively suggests that there may be some half way house by making an order which would leave it open for the owner to make an application to me to have the vessel released upon an offer or undertaking to provide sufficient security. Well, I have considered that matter and I do not think it would be right for me to make what would be, in effect, a conditional order and could prejudice the sale of vessel by the Bailiff without there being any evidence before me to support the suggestion that such an application is possible or likely in the near future. Indeed, the whole of the evidence before me points in the opposite direction to the effect that it will never be possible for the owner to find the kind of security which would persuade me that it would not be right to make the order asked for. Consequently, I do propose to make an order in the terms of a draft which has been submitted by Mr. Lee for the Bailiff, amended in the following extent: firstly, that the proceeds of sale are to be paid into court and placed in an interest bearing account; secondly, that in an additional paragraph to the order, I intend to include the words "priorities reserved". I do that at the behest of the plaintiff, and I do not think that that would be to the detriment of any other interested party. Costs were provided for in the agreed order on the application for a stay which was dismissed and I need to say nothing further about that so far as costs of the present application are concerned. I think it right that the order for the costs of 16th August 1984 ought to be costs in the cause. Since the adjourned hearing today comes about at the request of Mr. Smith, very properly made if I may say so, but which in the event. has availed nothing, I think it is right that the costs of today ought to be borne by the defendant in any event.