This was an interlocutory application for summary judgment or default judgment against the defendant ship MY Island Escape. The ship was arrested on 19 August 2022 in Broome, Western Australia. The ship was later moved to Fremantle and sold by the Marshal under orders of the Court. The proceeds of the sale were then paid into Court.

The plaintiff argued that:

1. The Court has in rem jurisdiction in respect of the plaintiff's claim, on the ground that it is a general maritime claim;
2. The writ and particulars set out in it, together with the evidence available, demonstrate that Island Escape Cruises (NZ) Ltd (IEC) is indebted to the plaintiff in the sum of AUD 231,976.43;
3. For the purposes of summary judgment, IEC has no reasonably arguable defence to the plaintiff’s claim; alternatively
4. For the purposes of default judgment, IEC is in default and it is appropriate for the Court to exercise its discretion to grant judgment in default in circumstances in which IEC has not evinced any intention to participate in the proceedings or defend the plaintiff’s claims.

Held: Summary judgment in favour of the plaintiff.

There is no difficulty in a party requesting both summary judgment and default judgment. If the requirements for one or both forms of judgment are met, it is to be expected that judgment, if ordered, will be granted on the basis considered most appropriate by the Court in the circumstances of the case: Malayan Banking Bhd v Proceeds of the Sale of The Ship 'Lauren Hansen' [2021] FCA 286 [7].

Notwithstanding the absence of any appearance on behalf of the ship or the relevant person identified in the writ and of any apparent challenge to the admiralty jurisdiction, the Court must be satisfied that is has such jurisdiction. In order to establish an entitlement to judgment in these proceedings, the plaintiff must establish that the Court has jurisdiction in rem. Here, the Court has jurisdiction for the following reasons.

The Court has jurisdiction conferred upon it under s 10 of the Admiralty Act in respect of proceedings commenced as actions in rem. A party may only proceed in rem as provided in s 14 of the Admiralty Act. Section 18 of the Admiralty Act provides, relevantly, that where, in relation to a maritime claim concerning a ship, a relevant person is, when the proceeding is commenced, a demise charterer of the ship, a proceeding on the claim may be commenced as an action in rem against the ship. A reference in the Admiralty Act to a 'maritime claim' is, among other things, a reference to 'a general maritime claim' which includes 'a claim in respect of goods, material or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation and maintenance': ss 4(1), 4(3)(m) Admiralty Act.

In the context of admiralty jurisdiction invoked on a proprietary maritime claim, the Court may be satisfied as to jurisdiction if the claim as set out and particularised has the legal character required in s 4(2)(a) of the Admiralty Act: Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54, (1994) 181 CLR 404, 426-427 (CMI2030). The same reasoning applies, by analogy, to a claim set out and particularised with the legal character required in s 4(3)(m) of the Admiralty Act.

The plaintiff’s claim, as set out and particularised in the writ, relates to the supply of goods or materials to a ship for its operation and maintenance and the relevant person is a demise charterer. It follows that the Court has in rem jurisdiction over the claim under s 18 of the Admiralty Act.

In any event, on the basis of the facts set out earlier in these reasons, the plaintiff’s claim is manifestly a general maritime claim and, thereby, a maritime claim within the meaning of s 18 of the Admiralty Act. Further, IEC was, at the time the writ was issued, the demise charterer of the ship.

The expression 'demise charterer' is not defined in the Admiralty Act, but, as commonly understood in admiralty jurisprudence, a demise charter is a contract of hire of a ship, under which possession of the ship passes to the charterer, the master of the ship being the employee of the charterer and not of the owner: The I Congresso del Partido [1978] QB 500 at 539; Patrick Stevedores No 2 Pty Ltd v MV 'Turakina' [1998] FCA 495, (1998) 154 ALR 666, 671. While a demise charter contemplates an agreement between the owner and demise charterer, the concept is not limited to a relationship created by contract and extends to a person (charterer) who has possession of the ship with the consent of the owner and who both manages and employs the crew on that person’s own account: CMC (Australia) Pty Ltd v Ship 'Socofl Stream' [1999] FCA 1419, (1999) 95 FCR 403 [28]; The 'Guiseppe di Vittorio' [1998] 1 Lloyd's Rep 136, 143.

There is no evidence as to the owner of the ship or as to the existence of an agreement between the owner and IEC by which the ship was hired to IEC. However, the Court infers from the invoices rendered to IEC and the acknowledgment of the goods received by a person evidently in the employ of that company that IEC was, at least, in possession of the ship with the consent of the owner.

IEC has had ample notice of the plaintiff's claim and its intention to apply for judgment. IEC has not entered an appearance or taken any steps to defend the proceedings against the ship or the application. Putting the non-appearance to one side, there is no evidence before the Court of any factual or evidentiary dispute that may be raised in defence of the plaintiff's claim. The plaintiff is entitled to summary judgment.

Where despite being notified of the claim, an owner (or other relevant person) fails to appear in an in rem proceeding within the time stipulated in the Admiralty Rules, and there is otherwise nothing to suggest that the relevant person has any defence to the claim, the plaintiff’s application is also a suitable candidate for default judgment: Norddeutsche Landesbank Girozentrale v The Ship 'Beluga Notification' (No 2) [2011] FCA 665 [21]; Bank of Kuwait and the Middle East v The Ship MV 'Mawahi Al Gasseem' (No 2) [2007] FCA 815, (2007) 240 ALR 120 [8]-[9].

In the circumstances of this case, the relevant person (IEC) is in default and had not evinced any intention to participate in or defend the proceedings. There is little or no risk of injustice to IEC. It has had more than adequate notice of the claim against it and the application for judgment. The plaintiff has demonstrated that judgment in default would be appropriate in this case.

In this case, the Court considers that summary judgment is the more appropriate mechanism for judgment. The plaintiff's claim is a routine claim in debt for the supply and acceptance of goods. There is no hint of a defence to it.