Capek v The Yacht 'Freja' [1980] PGLawRp 592; [1980] PNGLR 161 (25 July 1980)

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SHIPPING AND NAVIGATION - Admiralty jurisdiction - Law and practice - Jurisdiction of National Court - Claim for necessaries supplied to foreign ship - Law applicable - Constitution of the Independent State of Papua New Guinea, s. 166 and Sch. 2.6 considered.

SHIPPING AND NAVIGATION - Admiralty jurisdiction - Law and practice - Claim for necessaries supplied to foreign ship - Elements of claim - What are �necessaries� - Connexion with use of ship required - Cost of repairs - Monies advanced - Claim not established.

SHERIFF - Wrongful arrest of vessel - Counterclaim for damages in action for necessaries - Elements of claim - Need to prove lack of reasonable cause and lack of malice - What constitutes malice - Mere hostility insufficient - Claim not established.

WORDS AND PHRASES - �Necessaries� - Supplied to ship - Connexion with use of ship required.

In an action for necessaries supplied to a foreign vessel the ship had been arrested pursuant to the National Court Rules, and the defendant cross-claimed for damages for wrongful arrest on the ground that no grounds for an action in rem lay at the time of the arrest or any other time, and for trespass to a vessel and trespass to chattels.

N1>(1)�� The causes of action for necessaries, wrongful arrest, trespass to a vessel, and trespass to chattels, all being causes justiciable at common law, are all justiciable in the National Court, by virtue of the unlimited jurisdiction of the National Court conferred by s. 166 of the Constitution of the Independent State of Papua New Guinea, and regardless of whether the jurisdiction of the court includes the jurisdiction practices and procedures of admiralty courts as they exist or existed in other countries.

N1>(2)�� The National Court has a jurisdiction in admiralty matters similar to that of a colonial court of admiralty established under the Colonial Courts of Admiralty Act 1890 (Imp.); the Colonial Courts of Admiralty Act 1980 (Imp.) extended to Papua New Guinea immediately before Independence through adoption, application and continuation and, was accordingly adopted at Independence by virtue of the combined effect of the Laws Repeal Act 1975, the Papua New Guinea Independence Act 1975 (Aust.), and the Constitution (Sch. 2.6(2)).

N1>(3)�� Semble: Section 166 of the Constitution is to be read as subject to Sch. 2.6 of the Constitution, that is, within the laws applicable to Papua New Guinea by virtue of the Constitution itself, and the court�s jurisdiction is not restricted as to subject-matter or as to remedy.

N1>(4)�� To establish a claim for necessaries, supplied to a foreign ship or sea-going vessel it is essential to prove that the necessaries were provided for the ship by order of the master, what expenses were incurred and why they were necessary.

N1>(5)�� Necessaries� means primarily indispensable repairs; anchors, cables, sails, when immediately necessary, and provisions: it includes whatever is fit and proper for the service on which the vessel is engaged, with no distinction being drawn between necessaries for the ship and necessaries for the voyage.

N1>(6)�� In the circumstances the claim for necessaries had not been established.

N1>(7)�� The cause of action for wrongful arrest of a ship is an action in personam and accordingly need not be brought within the admiralty jurisdiction of the court.

N1>(8)�� To establish a claim for wrongful arrest of a ship, it is essential to prove, not only wrongful arrest, but absence of reasonable cause for the arrest and malice in the sense of gross negligence or improper motive, and not mere hostility, on the part of the person causing the arrest.

N1>(9)�� Wrongful arrest as a result of legal advice may constitute reasonable cause.

N1>(10)�� In the circumstances the counterclaims for wrongful arrest and trespass had not been established.

This was the trial of an action in which the plaintiff claimed for necessaries supplied to a foreign vessel and the defendants counterclaimed for damages for wrongful arrest and trespass.

MILES J.: This was an action in the admiralty jurisdiction, commenced by issue on 5th September, 1979, of a writ in rem against the yacht �Freja�. The writ was endorsed with a statement of claim for necessaries supplied to the vessel at the port of Port Moresby for the period 6th April, 1979, to 21st August, 1979. A defence was delivered by solicitors in which it was denied that the plaintiff supplied any necessaries to the vessel.

The copy pleadings do not indicate the date on which the defence was delivered. On 18th September, 1979, there was filed an affidavit sworn that date by Heinz Rudiger Heck in relation to some interlocutory proceedings in which the deponent swore that he was the owner of the vessel. Mr. Heck has been referred to from time to time in pleadings and in evidence as the defendant, although it transpired during the hearing that the vessel is owned jointly by him and his wife. It is convenient to refer to Mr. Heck as the defendant. I would interpolate that it is now more appropriate for an action in rem in the admiralty jurisdiction to be brought against the owners of the vessel rather than against the vessel itself. This is the modern practice[cclxiii]¹.

In addition to resisting the claim by the plaintiff, the defendant counterclaims for wrongful arrest of the vessel in that no grounds for action in rem lay at the time of the arrest or at any time. It is further claimed in the counterclaim that the plaintiff, his servants and his agents wrongfully boarded the vessel and further that the plaintiff, his servants and agents unlawfully damaged the vessel, its engine and associated items.

Leave was granted during the course of the hearing to deliver a reply and defence to the counterclaim. The defence to the counterclaim was in fact delivered on 7th May, 1980. In essence it alleged that the arrest of the vessel was lawful and took place under proper warrant and that the acts of the plaintiff, his servants and agents complained of were done in pursuance of powers lawfully conferred upon the marshall and his bailiff.

In April 1980 the matter had come before Kapi J. on a preliminary point as to whether the plaintiff had a proper cause of action in rem[cclxiv]². In deciding the preliminary point his Honour considered the question of the National Court�s jurisdiction in admiralty, and the law to be applied in that jurisdiction. On the preliminary point itself his Honour held that the action in rem was proper, being an action for necessaries supplied to a foreign ship.

When the matter came on for hearing before me on the substantive issues raised by the claim and counterclaim, I was urged by Mr. Major, counsel for the defendant, to regard the decision by Kapi J. as in effect a res judicata. With respect to his Honour I declined to do this, a principal reason being that the exact terms of the decision and the reasons for it were not then available to me. Since reserving my judgment, the published reasons of Kapi J. have come to hand. Nevertheless I have felt constrained to come to my own conclusions on the law, such as they are. As I see it, the precise point decided by Kapi J. was whether, on the pleadings as they then stood, it was appropriate for the plaintiff to have commenced an action in rem rather than in personam.

Having regard to the unlimited jurisdiction of the National Court (Constitution, s. 166) this Court has jurisdiction to determine the current disputes between the parties. The claim for necessaries is a claim in contract or possibly quasi-contract. The counterclaim is for wrongful arrest or detention of property, trespass to a vessel and trespass to chattels. All these causes of action are justiciable at common law and therefore in the National Court, regardless of whether the jurisdiction of the court includes the jurisdiction, practices and procedures of admiralty courts as they exist or existed in other countries.

Before considering the exact nature of the jurisdiction as it affects these disputes between the parties, and the law to be applied in resolving them, it is convenient to consider the facts.

[His Honour went on to summarize and comment on the evidence, and to make findings thereon and continued as follows.]

Upon these findings the questions may well be asked: what has it all got to do with the admiralty jurisdiction, and a claim for necessaries supplied to a ship and a counterclaim for wrongful arrest and trespass?

First, the question arises of what jurisdiction in admiralty, if any, is vested in the National Court of Papua New Guinea. I agree with the conclusion of Kapi J. that there is a jurisdiction in this Court which traces back to the Admiralty Court Acts of 1840 and 1861 (Imp.) of the United Kingdom. As I reach this conclusion from slightly different reasons and as I think that my view of the effect of the application of those Acts may be different from that of Kapi J. I shall state my own views as briefly as possible.

According to J. R. Mattes �A Protectorate was proclaimed over British New Guinea on 6th November, 1884 but no law was introduced nor was any legislature established�[cclxv]³. The Protectorate was annexed as �part of Her Majesty�s Dominions� on or about 4th September, 1888[cclxvi]⁴. It appears that both the Protectorate and the Dominion (or Possession as it became known) of British New Guinea were subject to the British Settlements Act 1887, and a Legislative Council was established thereunder.

On 17th September, 1888, there was established by ordinance of the Legislative Council of British New Guinea a court to be called �The Central Court� which was given the like civil jurisdiction as the Supreme Court of Queensland. The Supreme Court of Queensland itself had been constituted a �court of original unlimited civil jurisdiction� by the Supreme Court Act 1867 (Qld.) of that State.

At this stage of colonial history and until 1891 jurisdiction in admiralty in British New Guinea was apparently exercised by the High Admiral in England (The Yuri Maru. The Woron)[cclxvii]⁵. There was a system of vice admiralty courts for particular possessions, each of which was established by instrument under seal of the office of admiralty. In practice a judge of the superior court of the possession was always made judge of the vice admiralty court (The Yuri Maru. The Woron[cclxviii]⁶). I have been unable to ascertain whether the Central Court of British New Guinea was ever commissioned as a vice admiralty court and I assume that it was not.

The effect of the Colonial Courts of Admiralty Act 1890, s. 2, was to constitute the Central Court of British New Guinea (being a court of unlimited civil jurisdiction) a colonial court of admiralty with jurisdiction over the like places, persons, matters and things as the admiralty jurisdiction of the High Court of England and with �power to exercise such jurisdiction in like manner and to as full an extent as the High Court in England�. The term �High Court� here meant the High Court established by the Judicature Acts 1873 and 1875 and not the previous High Court of admiralty which had become incorporated into the High Court in England.

The jurisdiction of the High Court in England in admiralty matters in 1890 was limited by the Admiralty Court Act 1840 and 1861 (The Yuri Maru. The Woron[cclxix]⁷) (Imp.). But, I might add, those Acts are not an end of the matter. Maritime law, the law administered in the admiralty jurisdiction, had developed over a period of 500 years and at least as early as 1840 common concepts between the common law courts and the admiralty court had begun to develop[cclxx]⁸.

The possession of British New Guinea was placed under the authority of the Commonwealth of Australia by letters patent dated 18th March, 1902. By s. 5 of the Papua Act 1905 (Aust.) which came into operation on 1st September, 1906, the possession was accepted by the Commonwealth as a Territory by the name of the Territory of Papua. Under s. 6 (1) it was provided that the laws in force in the possession of British New Guinea at the commencement of the Act shall continue in force in the Territory until other provision is made. Likewise by s. 8 the courts of justice and the jurisdiction practice and procedure thereof continued in the Territory until other provision should be made.

In my view the Colonial Courts of Admiralty Act 1891 ceased to apply of its own force in Papua as at 1st September, 1906. Thereafter the Central Court and its jurisdiction in admiralty existed by virtue of the adoption by the Papua Act, 1905 (Aust.) of the laws of British New Guinea and the continuation of the jurisdiction of the courts of British New Guinea.

The acceptance by the commonwealth of Australia of the League of Nations Mandate in 1921 led to the Laws Repeal and Adopting Act, 1921 (Aust.) of the Commonwealth Parliament, which took effect on 9th May, 1921. By s. 14 of that Act there were adopted as the laws of the Territory of New Guinea, those laws of England which were then in force in the State of Queensland. Such laws included the Colonial Courts of Admiralty Act, 1890: see article by Mr. N. H. Pratt (now Pratt J. of this Court) �Queensland Admiralty Jurisdiction; How much do we have�[cclxxi]⁹.

The Colonial Courts of Admiralty Act, 1890 (Imp.) never applied in the Territory of New Guinea by virtue of its own force. It was adopted into the Territory from Queensland by virtue of the provisions of the Laws Repeal and Adopting Act, 1921.

Civil government was suspended in both Territories on 14th February, 1942 by regulation under the National Security Act, 1939 (Aust.). It was restored by the Papua New Guinea Provisional Administration Act, 1945-1946 (Aust.) which inter alia continued the existing laws in force in each Territory, s. 5.

The Papua and New Guinea Act 1949 (Aust.) (to give it its original title) repealed the 1945 Act and provided for the administrative union of the two Territories, but it went further. It established a Supreme Court, s. 58, and provided for the continuation of all laws in force in either or both Territories, s. 32. The jurisdiction of the courts of the Territories was given to the Supreme Court.

In my view the Supreme Court of Papua New Guinea (as it was originally called) acquired the same jurisdiction as a colonial court of admiralty but it could not be said that the Colonial Courts of Admiralty Act 1890 extended to either of the jointly administered Territories by virtue of its own force.

The stated purpose of this Act (a product of the pre-Independence House of Assembly) was to repeal all the legislation and subordinate legislation of Papua New Guinea and any other country applying to, adopted by or existing in Papua New Guinea immediately prior to Independence. It applied to an Act of Australia or England which was adopted, applied or continued in force as a law of one of the Territories but did not include an Act of Australia or England which extended of its own force to one of the Territories.

The Laws Repeal Act 1975 therefore applied to the Colonial Courts of Admiralty Act 1890 (Imp.), only indirectly in that the 1890 Act had been adopted, applied and continued in force in both Papua and New Guinea as at the time the Laws Repeal Act, 1975, came into operation, that is immediately before the expiry of 15th September, 1975, the day before Independence.

The Colonial Courts of Admiralty Act 1890 (Imp.) had not extended of its own force to Papua beyond 1906 and had never extended of its own force to New Guinea.

By Sch. 2.6(2) of the Constitution of the Independent State of Papua New Guinea all pre-Independence laws (that is to say laws repealed by the Laws Repeal Act 1975) are adopted as Acts of the Parliament of Papua New Guinea to the extent that they applied immediately before repeal by the Laws Repeal Act 1975.

For reasons I have indicated, this means that the Colonial Courts of Admiralty Act 1890 (Imp.) still governs the exercise of jurisdiction in admiralty in Papua New Guinea.

This Act of the Australian Parliament took effect on the expiration of the day preceding Independence Day, that is at the same time as the Laws Repeal Act 1975. It provided inter alia that, at that time, every Act of Australia, and every Imperial Act, extending to the whole or any part of Papua New Guinea as part of the law of Papua New Guinea ceases to so extend.

It may thus be seen that the effect of the Laws Repeal Act 1975, the Papua New Guinea Independence Act 1975 (Aust.) and the Constitution is to notionally repeal all laws of Papua New Guinea as at the moment of Independence and to adopt, at that same moment, all pre-existing laws except those Acts, Australian or Imperial, which had extended to Papua New Guinea not through adoption, application or continuation, but of their own force. If one takes the view (which I do not) that the Colonial Courts of Admiralty Act 1890 (Imp.) extended to Papua New Guinea immediately before Independence of its own force and not through adoption, application or continuance, then the attainment of Independence brought its operation in this country to an end. One would have to seek a basis for admiralty jurisdiction, if any, elsewhere.

My own conclusion therefore is that the National Court has a jurisdiction in admiralty matters similar to that of a colonial court of admiralty established under the 1890 Act. Because of changed circumstances and constitutional development I do not think that it is or ever was a colonial court of admiralty as such. (As to the application of antiquated legislation from other countries see Murphy J. in Bistricic v. Rokov & Others[cclxxii]¹⁰.)

Mr. Major for the defendant argued that the law to be applied was that applicable in England on 1st July, 1891. At that time it is clear that the High Court�s jurisdiction was circumscribed by the Admiralty Acts 1840 and 1861 (Imp.). The significance of the submission is that whilst the 1840 Act created a right of action in rem for necessaries supplied to a foreign ship, it did not apply to a claim for repairs to a ship. This appears to be correct on a literal reading of the 1840 Act and it was so decided in New Zealand in The Lorena[cclxxiii]¹¹. Mr. Major submits that I should follow that decision.

Furthermore the Privy Council in The Yuri Maru. The Woron[cclxxiv]¹²�stated in clear terms that the jurisdiction of a court constituted a colonial court of admiralty by the 1890 Act was not to be enlarged (or reduced) from time to time by subsequent legislation in the United Kingdom affecting the admiralty jurisdiction of the High Court.

If Mr. Major�s submission is correct then it follows that an action for cost of repairs to a ship may not be brought in the admiralty jurisdiction of this Court and that the writ in rem has been wrongly issued.

A contrary submission was put by Mr. Awaita who appeared for the plaintiff until his instructions were terminated during the course of his final address. His interesting and unfortunately incomplete argument was based on s. 166 of the Constitution which provides that the National Court is a court of unlimited jurisdiction. I took him to be submitting that this Court is free to apply whatever laws and grant whatever remedies it thinks fair and just.

There must however be some limit to the jurisdiction of this Court. Section 166 itself provides that it is subject to the Constitution. Without wishing to lay down a definitive interpretation of s. 166, I think s. 166 has to be read subject to Sch. 2.6 of the Constitution, in other words, within the laws applicable to Papua New Guinea by virtue of the Constitution itself. The court�s jurisdiction is not restricted as to subject-matter or as to remedy.

On the other hand I do not hold that the law to be applied in the admiralty jurisdiction of this Court is to be regarded as frozen in the state in which it was in 1891 in England. If that was the view of Mahon J. in The Lorena[cclxxv]¹³, then I disagree. I do not think it was necessarily the view of the Privy Council in The Yuri Maru. The Woron[cclxxvi]¹⁴, who were dealing with a submission that statutory extensions to the jurisdiction of the High Court in England in 1925 applied to the colonial courts of admiralty in Canada.

This Court is bound to apply the rules of common law and equity of England as they existed at 15th September, 1975, except to the extent that they are inconsistent with the Constitution or a statute, inapplicable to the circumstances of the country or inconsistent with adopted custom: Constitution, Sch. 2.2.

The maritime law, the law in admiralty, as it has developed in the English courts is no longer to be distinguished from the common law itself: The Tojo Maru[cclxxvii]¹⁵. It is therefore appropriate to take into account the developments in admiralty law in England and in like jurisdictions since 1890 where such developments have occurred, not as a result of legislation, but as a judicial response to changing times and circumstances. It would be thus appropriate to look for instance at what may be regarded as �necessaries� for a ship in the light of circumstances at the present time, not as they existed in 1890. It would not be appropriate, on the other hand, for this Court to extend the admiralty jurisdiction to include aircraft (as it has been extended by the United Kingdom Parliament).

This approach is in accordance with that of the High Court of Australia in The King against Brislan; Ex parte Williams the Broadcasting case[cclxxviii]¹⁶, and that of Murphy J. in Bistricic v. Rokov & Others[cclxxix]¹⁷�which seems to me appropriate. In the former case a passage from an early American case Pensacola Telegraph Co. v. Western Union Telegraph Co.[cclxxx]¹⁸�was cited with approval. �The powers thus granted ... keep pace with the progress of the country and adapt themselves to the new developments of time and circumstances.�

The vessel in question in the present case is a ketch, fifty-seven feet in length, of twenty-two gross tons. It was constructed in Taiwan in 1977. It has sailed on the high seas in the South China Sea and in the Northern Pacific. It is not registered at any port. It flies the Swedish flag when at sea. It is in my view a �Foreign Ship or Sea-Going Vessel� within the meaning of s. 6 of the Admiralty Court Act 1840 (Imp.).

I would not restrict the scope of a claim for necessaries in the same way as was done by Mahon J. in The Lorena[cclxxxi]¹⁹.

By virtue of s. 6 of the Admiralty Court Act 1840 (Imp.), a colonial court of admiralty had �Jurisdiction to decide all Claims and Demands whatsoever in the Nature of Salvage for Services rendered to or Damage received by any Ship or Sea-going vessel, or in the nature of Towage, or for Necessaries supplied to any Foreign Ship or Sea-going vessel, and to enforce the Payment thereof.�

This jurisdiction was extended by the Admiralty Court Act 1861 (Imp.) to include �any claim for the building, equipping or repairing of any ship if at the time of the institution of the cause the ship or the proceeds thereof are under arrest of the court�.

The Privy Council held in The Two Ellens[cclxxxii]²⁰�that the Act of 1840 created a right of action in rem for necessaries supplied to a foreign ship, thus authorizing the arrest of the ship as security for the amount of the claim. No right of action was created in 1861 arising from the building, equipping or repairing of a ship.

That decision was followed by Mahon J. in The Lorena[cclxxxiii]²¹, in which it was held that the cost of repairs to a vessel could not be recovered in the Supreme Court of New Zealand because that court was exercising jurisdiction by virtue of the Colonial Courts of Admiralty Act 1890 (Imp.), and was confined to the English admiralty law as at 1st July, 1891.

The decision in New Zealand is not binding here and I think with respect that it was wrongly decided on the question of the law applicable. What this Court ought to do is to look at the state of the admiralty law in England as it has developed but exclusive of legislative enactments since 1891. The term �necessaries� is no longer expressly used in the English legislation. The jurisdiction over claims for necessaries in the High Court in England was preserved but not extended by the Supreme Court (Consolidation Act) 1925 (U.K.) and by the effect of s. 1(1) of the Administration of Justice Act 1956 (U.K.): The Queen of the South[cclxxxiv]²². In that case the question was considered whether a claim for mooring services fell within the express terminology of the current English legislation; as it was held that it did, it was unnecessary to determine whether such services were included in a claim for necessaries and that question was left open.

A liberal approach to the definition of necessaries was taken by Sir Robert Phillimore in The Riga[cclxxxv]²³, (a decision which Mahon J. in New Zealand refused to follow). In that case earlier authority was cited and approved to the following effect: �that �necessaries� means primarily indispensable repairs, anchors, cables, sails when immediately necessary; and also provisions�: The Neptune[cclxxxvi]²⁴, that there is no distinction between the cases in which by the common law a master has been holden to bind his owner and suits for necessaries instituted in the admiralty court, and that there is no distinction between necessaries for the ship and necessaries for the voyage. The doctrine laid down in Webster v. Seakamp[cclxxxvii]²⁵�was approved: �whatever is fit and proper for the service on which a vessel is engaged, whatever the owner of the vessel, as a prudent man, would have ordered if present at the time, comes within the meaning of the term �necessaries�, as applied to those repairs done or things provided for the ship by order of the master, for which the owners are liable.�

I accept these statements as providing a proper guide for interpretation of the word �necessaries� in Papua New Guinea. �Necessaries� does not exclude repairs in a case where the repairs are fit and proper for the service on which the vessel is engaged and are provided for the ship by order of the master. I reject the submission for the defendant that the plaintiff�s claim must fail in so far as it is a claim for repairs.

But that does not mean that the claim must succeed. Whatever is claimed as a necessary, be it money or meat, has to be provided �for the ship by order of the master�. It is not enough to say that money was advanced for necessary expenses without showing what those expenses were and why they were necessary, The Riga[cclxxxviii]²⁶. The case of the plaintiff is deficient in these respects. I cannot see how it can be argued that the cost of flying the defendant to Manila and maintaining him there for three weeks had relevance to the ship. Nor does the cost of throwing the K500 party in my view fall within the category of a necessary as something fit and proper for the service in which the vessel was engaged.

The plaintiff�s case was that the K100 advanced each week to the defendant was for the purpose of provisioning the yacht and providing sustenance for Mr. and Mrs. Heck. In a sense this is true, in that it might reasonably be expected that the money advanced would be used for those purposes. But as I have said the real character of those advances was to keep faith with the defendant until such time as a firm business arrangement was entered into. The situation is like that mentioned in The Queen of the South[cclxxxix]²⁷�where �there might be an agreement for services in the course of which there was only some minor and incidental use of a ship which it might be inapppropriate to describe as an agreement relating to the use of a ship�. The plaintiff�s case has hardly anything to do with a ship. It is not an admiralty case at all.

An action is available for wrongful arrest of a ship in the same way as an action for wrongful arrest of a person. As it is an action in personam there is no necessity for it to be brought in the admiralty jurisdiction of the court. It is not on all fours however with an action for wrongful arrest of the person and is more akin to an action for malicious prosecution or abuse of legal process[ccxc]²⁸.

The owner of the vessel arrested has to prove more than the determination of proceedings in his favour. He has further to show not only absence of reasonable cause for the arrest but also malice on the part of the person causing the arrest: The Strathnaver[ccxci]²⁹. There is authority that malice can be implied from gross negligence in admiralty cases (The Evangelismos)[ccxcii]³⁰�although in cases of wrongful arrest of the person, malice is said to be constituted by improper motive[ccxciii]³¹.

As I found on the evidence, the plaintiff did not go to his solicitor to have the �Freja� arrested, but to seek advice on how to recover his money. Whilst the advice of a lawyer does not provide an impenetrable shield, a person who causes an arrest on legal advice is in a strong position[ccxciv]³². Whilst the plaintiff must take responsibility for the arrest on a cause of action which has turned out to be unsuccessful, I am not satisfied that the plaintiff in this case acted without reasonable cause.

It is true that at the time of the arrest of the vessel the plaintiff was in a mood of hostility towards the defendant. The hostility appears to have been mutual. But hostility is not the same as malice. I am not satisfied that the plaintiff was actuated by malice either in the sense of gross negligence or improper motive towards the defendant.

Mr. Major relied on the decision in The Lorena[ccxcv]³³�to support the counterclaim for wrongful arrest. At the end of his judgment in that case, Mahon J. said �the plaintiff�s writ against the ship was not based on a cause of action giving rise to any right of action in rem. Consequently the ship was unlawfully arrested�. I cannot agree with his Honour�s conclusion. It is, with respect, relevant to observe that there was no claim for wrongful arrest in that case and as I see it no argument on the question. The court did not consider the aspects of lack of unreasonable cause and malice. In any event my finding in this case is not that the writ was not based on a cause of action which gives right to a right of action in rem. If the plaintiff had proved his claim for necessaries, there would be no question of a right of action in rem. What has happened is that he has failed to prove that claim. The counterclaim for wrongful arrest fails.

The second part of the counterclaim is for trespass of the vessel by the plaintiff and the members of the boarding party. This trespass was part and parcel of the arrest of the vessel itself. The plaintiff and his assistants boarded the vessel at the request of the marshall�s representative for reasons stated above. The marshall�s representative was acting under lawful warrant and was entitled to enlist assistance. This part of the counterclaim fails.

The remaining part of the counterclaim was for trespass in the sense of damage to the vessel and its equipment and consequent loss due to its immobilization. The immobilization of a vessel is an inevitable result of an arrest until such time as the owner is able to raise bail[ccxcvi]³⁴. The method of immobilization may be another matter. However in the present case the removal of the engine parts and sails was according to Mr. Stearns the usual method used by him and there was no evidence to show that it was in the circumstances existing in Papua New Guinea unreasonable. The situation is not to be compared to the Port of London where a ship can be effectively tied up by a telephone call on behalf of the marshall to customs and harbour authorities.

Some of the damage it is true did not appear to be necessary to the arrest itself�for instance the damage to the hatch cover, the shackles, and the burglar alarm. The plaintiff claimed that the latter belonged to him anyway. There is no evidence that the plaintiff himself damaged the hatch cover or the shackles. I am not convinced that he is responsible for whoever damaged them if they were damaged. I have already rejected the defendant�s claim in respect of the missing money. I take it that there is no claim for the missing rifle. The counterclaim for damage to property fails.

There will be a verdict for the defendant Heinz Rudiger Heck in the plaintiff�s claim. There will be a verdict for the plaintiff Milan Capek in the defendant�s counterclaim. Each party is to pay his own costs.

ack'>[cclxiii] McGuffie and Ors., Admiralty Practice, British Shipping Laws (1964) vol. 1, par. 8.

[cclxiv] Milan Capek v. The yacht �Freja� [1980] P.N.G.L.R. 57.

[cclxv] (1963) 37 A.L.J. 148 at p. 149.

[cclxvi] See preamble to Papua Act 1905 (Aust.). The preamble refers to an Order-in-Council of 17th May. 1888 providing for appeals �from any Court of the Possession of British New Guinea to the Supreme Court of Queensland at Brisbane�. This appears to have pre-dated annexation and is to some extent in conflict with the statement of Mattes.

[cclxvii] [1927] A.C. 906 at p. 912.

[cclxviii] [1927] A.C. 906 at p. 911.

[cclxix] [1927] A.C. 906 at p. 913.

[cclxx] Halsbury, Laws of England (4th ed.) vol. 1, par. 301-par. 303.

[cclxxi] (1978) 4 Qd. Lawyer 127.

[cclxxii] [1976] HCA 54; (1976) 51 A.L.J.R. 163 at p. 168.

[cclxxiii] [1973] 1 N.Z.L.R. 507.

[cclxxiv] [1927] A.C. 906.

[cclxxv] [1973] 1 N.Z.L.R. 507.

[cclxxvi] [1927] A.C. 906.

[cclxxvii] [1972] A.C. 242 at p. 291, per Lord Diplock.

[cclxxviii] (1935) 54 C.L.R. 262.

[cclxxix] [1976] HCA 54; (1976) 51 A.L.J.R. 163 at p. 168.

[cclxxx] (1877) 96 U.S. 9.

[cclxxxi] [1973] 1 N.Z.L.R. 507.

[cclxxxii] [1872] L.R. 4 P.C. 161.

[cclxxxiii] [1973] 1 N.Z.L.R. 507.

[cclxxxiv] [1968] 1 All E.R. 1163 at 1168.

[cclxxxv] [1872] L.R. 3 A.P.E. 516.

[cclxxxvi] (1834) 3 Knapp 94.

[cclxxxvii] (1821) 4 B. & Ald. 352.

[cclxxxviii] (1872) L.R. 3A. & E. 516 at p. 523.

[cclxxxix] [1968] 1 All E.R. 1163 at p. 1169.

[ccxc] See Fleming on The Law of Torts, (5th ed.), Chps. 2, 25, 26.

[ccxci] (1875-76) L.R. 1. A.C. 58.

[ccxcii] [1858] EngR 951; (1858) 12 Moore P.C. 352; E. & E. Digest Replacement Volume 1(1), (1979 reissue) par. 1806 and cases in following paragraphs.

[ccxciii] Fleming on The Law of Torts, (5th ed.) p. 609.

[ccxciv] Fleming on The Law of Torts, (5th ed.) p. 609 and cases cited.

[ccxcv] [1973] 1 N.Z.L.R. 507.

[ccxcvi] See McGuffie and Ors., Admiralty Practice, British Shipping Laws (1964), vol. 1, par. 263.

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Papua New Guinea Law Reports

Capek v The Yacht 'Freja' [1980] PGLawRp 592; [1980] PNGLR 161 (25 July 1980)

Papua New Guinea Law Reports - 1980