Service of Proceedings In Rem Outside the Territorial Sea

• Author: Christopher John Griggs
• Position: LL.M (Cantab), MA (Massey), LL.B (Well). Barrister in the Wellington chambers of Barristers.Comm, New Zealand, c.griggs@barristerscomm.com
• Pages: 44-47

(2014) 28 ANZ Mar LJ

44

SERVICE OF PROCEEDINGS IN REM OUTSIDE THE TERRITORIAL SEA:

Sembawang Salvage Pte Ltd v Shell Oil Services Ltd [1993] 2 NZLR 97

Christopher Griggs*

In September 1992, Hillyer J decided the leading N ew Zealand case of Sembawang Salvage Pte Ltd v Shell Oil

Services Ltd,378 which dealt with two questions of law. First, whether a maritime lien against cargo is

extinguished once the res in question is no longer cargo. Second, whether a writ379 in rem may be properly

issued and served if the res is outside the jurisdiction. It is the second of these questions which I address in this

paper. Sembawang Salvage is of practical importanc e as part of the body of New Zealand Admiralty law as it

applies to the service of proceedings in rem, because it is cited in The Laws of New Zealand as authority for the

proposition that:380

If the ship or other property is within the territorial sea or in the waters over the Continental Shelf, it will be

within the territorial jurisdiction of the New Zealand Court and will be capable of being served with the

proceedings.

It is not insignificant that Sembawang Salvage was decided two years before the United Nations Convention on

the Law of the Sea came into force,381 and four years before it came into force for New Zealand.382 It follows

that Hillyer J was not called upon to consider the interface between UNCLOS and New Zealand Admiralty law

in this case. With this in mind, the question that this paper addresses is whether Sembawang Salvage still

represents good law two decades later, and whether in fact the commentary indicated above correctly reflects

that law.

The facts

The proceedings in Sembawang Salvage arose from the near loss of a steel space-frame structure or jacket

which was to form part of the Maui B oil and gas drilling and wellhead platform. The jacket was loaded as

cargo (the second defendant) onto a barge (the first defendant) and towed by the salvage and fire-fighting tug

Salvigour from Whangarei to Golden Bay, near Nelson. The Salvigour was owned and operated by the

plaintiff, Sembawang Salvage Pte Ltd.

The Salvigour anchored the barge in Golden Bay on 26 February 1992 and then stood by, awaiting another

vessel and orders to proceed to the Port of Nelson for clearance. At about 2 am the following morning, the

barge dragged its anchor in winds gusting to 40 knots. The Salvigour weighed anchor and commenced a long

and difficult operation to regain control of the barge and prevent it from grounding on nearby rocks, which was

ultimately successful. The plaintiff then claimed salvage, arguing that the barge and cargo would have stranded

and in all probability becom e a total loss, but for its intervention. It is trite law that a claim in the nature of

salvage gives rise to the possibility of an action in rem against the salved vessel and cargo.383

The jacket was subsequently installed as part of the Maui B platform, approximately 24 nautical miles off the

coast of Taranaki.384 The plaintiff then obtained a writ in rem against the first defendant barge and the second

defendant cargo. In the High Court at Auckland sitting in Admiralty, the fourth defendant owner of the jack et,

Shell Todd Oil Services Ltd, moved to have the writ in rem against the second defendant set aside on two

grounds. This paper focuses on the second ground, namely that the res was now situated outside the

jurisdiction.

* LL.M (Cantab), MA (Massey), LL.B (Well). Barrister in the Wellington chambers of Barristers.Comm, New Zealand,

c.griggs@barristerscomm.com.

378 [1993] 2 NZLR 97 (‘Sembawang Salvage’).

379 Now a notice of proceeding under r 25.8 of the High Court Rules (Judicature Act 1908 (NZ), Sch 2).

380 LexisNexis, The Laws of New Zealand (at 16 December 2013) Maritime Law: Admiralty, ‘Part I General Introduction to Admiralty’

[11].

381 1982, 1833 UNTS 3, entered into force 16 November 1994 (‘UNCLOS’ or ‘the Convention’).

382 18 August 1996.

383 Admiralty Act 1973 (NZ), ss 4(1)(i), 5.

384 Sembawang Salvage [1993] 2 NZLR 97, 100.