Thor Shipping A/S v Al Duhail [Australia, Federal Court.]

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 05 December 2008
• Date: 05 December 2008

Australia, Federal Court.

(Dowsett J)

Thor Shipping A/S

and

The Ship Al Duhail1

State immunity Head of State immunity Head of State acting in private capacity Scope of immunity Foreign States Immunities Act 1985 (Cth) Diplomatic Privileges and Immunities Act 1967 (Cth) Treatment of Head of State immunity based on approach taken in State Immunity Act 1978 (UK) Decision of House of Lords in Pinochet (No 3) Relevance Australian and United Kingdom Acts virtually identical in practical effect Acts of Head of State in private capacity regulated by Diplomatic Privileges and Immunities Act 1967 (Cth) following United Kingdom example Vienna Convention on Diplomatic Relations, 1961, Articles 31 and 39 Whether exceptions to immunity applicable Whether geographical limitation on diplomatic immunity

Relationship of international law and municipal law Vienna Convention on Diplomatic Relations, 1961 Articles 31 and 39 Diplomatic Privileges and Immunities Act 1967 (Cth) and Diplomatic Privileges Act 1964 (UK) giving legal effect to relevant provisions of Vienna Convention The law of Australia

Summary: The facts:The plaintiff, owner of the vessel Southern Pearl NZ chartered by Amiri Yachts of Doha, Qatar (Amiri Yachts), commenced proceedings against the defendant, the ship Al Duhail (the Ship) seeking damages for breach of the charterparty. The Ship, a fishing vessel built in New Zealand by Sovereign Yachts (NZ) Ltd pursuant to an agreement with Amiri Yachts, failed to be loaded as cargo onto the Southern Pearl NZ in Auckland for discharge in the Seychelles in accordance with the terms of the charterparty. The Ship was then sailed to Brisbane and arrested upon the commencement of proceedings.

The amended writ alleged that Amiri Yachts, or alternatively Amiri Protocol, was charterer as agent for the Head of State of Qatar, His Highness Sheikh Hamad Bin Khalifia Al Thani (the Amir) or on its own behalf. The Amir applied for the Ship's release on the ground inter alia that he had immunity from civil suit and execution. It was common ground that any relevant immunity was that enjoyed by the Amir in his private capacity.

Held:The Amir was immune from civil suit and execution. None of the exceptions in the Foreign States Immunities Act 1985 (Cth) (the States Immunities Act), Diplomatic Privileges and Immunities Act 1967 (Cth) (the Diplomatic Immunities Act) or the Vienna Convention on Diplomatic Relations, 1961 (the Vienna Convention) applied.

(1) The States Immunities Act and the Diplomatic Immunities Act determined the extent to which a foreign Head of State enjoyed immunity from judicial process. The treatment of Head of State immunity was based on the approach taken in the State Immunity Act 1978 (UK) (the UK Immunity Act) (para. 52).

(2) Although Pinochet (No 3)INTL2 concerned the immunity of a former, rather than serving, Head of State, the UK Immunity Act and the broader question were considered by the House of Lords. It seemed that both at common law and pursuant to that Act, Heads of State enjoyed general immunity in connection with acts performed in a public or private capacity (paras. 538).

(3) Although the States Immunities Act appeared different in form from the UK Immunity Act, in practical effect the two Acts were virtually identical. Pursuant to Section 36 of the States Immunities Act, the Diplomatic Immunities Act regulated Head of State immunity with respect to acts done in a private capacity. This followed the United Kingdom example; the UK Immunity Act conferred the same immunity on a Head of State in his private capacity as was enjoyed by the head of a diplomatic mission pursuant to the Vienna Convention on Diplomatic Relations, 1961, as implemented in the United Kingdom by the Diplomatic Privileges Act 1964 (UK) (the UK Diplomatic Privileges Act). Both the Diplomatic Immunities Act and the UK Diplomatic Privileges Act effectively adopted the relevant provisions of the Vienna Convention, giving them legal effect. Articles 31 and 39 of the Vienna Convention3 were pertinent in this case (paras. 5963).

(4) As Head of State, the Amir enjoyed the same immunity, without exception, as conferred upon diplomatic agents by Article 31 of the Vienna Convention, that is, immunity from criminal, civil and administrative jurisdiction, including immunity from execution. There was no evidence of any involvement in any professional or commercial activity within Australia for the exception in Article 31(1)(c) to apply (paras. 634).

(5) There was no geographical limitation upon diplomatic immunity in Article 39 of the Vienna Convention. The geographical references reflected the nature of the diplomatic agent's duties, generally requiring presence in the relevant country. He enjoyed immunity whilst in post, regardless of location. Such immunity was extended to heads of State pursuant to Section 36 of the States Immunities Act. In Pinochet (No 3) the operation of Article 39 was extended to heads of State not in the United Kingdom to reflect the

original intention underlying the UK Immunity Act that they have immunity (paras. 6470)

The following is the text of the judgment of the Court:

INTRODUCTION

1. At all material times, the plaintiff owned the vessel Southern Pearl NZ (Southern Pearl). That vessel was, on 13 May 2008, chartered by Amiri Yachts of Doha, Qatar (Amiri Yachts). The cargo was said to be 1 x sports fisher boat abt 33 metres longweight 105 mts. Otherwise as described earlier. The cargo was, in fact, a fishing vessel which was being built, or had been built, in New Zealand pursuant to an agreement (the agreement) between Amiri Yachts and Sovereign Yachts (NZ) Ltd (Sovereign), the builder. It was eventually launched and named Al Duhail (the Ship). The Ship was to be loaded onto the Southern Pearl at Auckland and discharged at Mah in the Seychelles. It was expected to be ready to load on about 1 June 2008. On 7 June 2008 the Master of the Southern Pearl tendered notice of readiness to load. Lay time expired on 9 June 2008, the Ship not having been loaded. On 11 June 2008 the plaintiff's agent purported to accept the charterer's repudiation of the charterparty. The Ship was sailed from New Zealand to Brisbane.

2. On 20 August 2008 the plaintiff commenced proceedings in this Court against the Ship, seeking damages for breach of the charterparty, together with interest and costs. The Ship was arrested on that date and remains under arrest. The writ initially alleged that either Amiri Yachts or Amiri Protocol was the charterer and had failed to load or pay freight in accordance with the terms of the charterparty. The writ was subsequently amended to allege that Amiri Yachts was the charterer as agent for His Highness Sheikh Hamad Bin Khalifia Al Thani, or on its own behalf or, alternatively, that Amiri Protocol was the charterer on behalf of the Sheikh, or on its own behalf. The Sheikh is, in fact, the Amir of Qatar and is head of state of the State of Qatar. I will refer to His Highness as the Amir. Amiri Yachts and/or Amiri Protocol had originally been shown as relevant persons. At the time of the amendment, the Amir was added as another relevant person. He has appeared in the proceedings. Such appearance is under protest. The Amir now applies for release of the Ship. The first ground of the application is that the Court's admiralty jurisdiction has not been engaged. The second is that in this country, the Amir has immunity from suit and execution.

PROCEEDINGS IN REM PURSUANT TO S. 17 OF THE ADMIRALTY ACT

3. The plaintiff seeks to proceed in rem against the Ship pursuant to s. 17 of the Admiralty Act 1988 (Cth) (the Admiralty Act). Such proceedings may only be commenced if a relevant person:

4. Pursuant to s. 3 of the Admiralty Act, the term relevant person

5. The Amir submits that he has been the owner of the Ship since 21 July 2008. The plaintiff asserts that its cause of action arose on 11 June 2008 when it purported to accept repudiation of the charterparty. I am inclined to think that the cause of action arose on the date of the alleged repudiation, namely 9 June 2008. It probably does not matter whether the cause of action arose on 9 or 11 June 2008. The writ was issued on 20 August 2008 and amended on 29 August 2008. The Amir's case is that he was the owner of the vessel at the time at which proceedings were commenced, but not on the date on which the cause of action allegedly arose. Further, it is submitted that if Amiri Yachts (or possibly Amiri Protocol) owned the vessel on that date, then it did not do so on the date of commencement of proceedings. In other words, none of the three named relevant persons satisfies the requirements of s. 17. It has not been suggested that the requirements of s. 17 would be satisfied if one relevant person satisfied s. 17(a) whilst another satisfied s. 17(b).

Construction of the Ship

6. On 26 November 2007 Amiri Yachtsor nominee (described in the agreement as the Owner) entered into the agreement with Sovereign for the design, building, outfit, launch and sale of a vessel as described in Schedule A thereto. Clause 16 provided:

7. Clause 22 provided:

8. No point has been taken arising out of that clause. The actual price of the Ship and the amounts of the instalments were prescribed by Schedule A to the agreement which provided:

9. The amounts have been obliterated in the exhibit. However they were disclosed during submissions. It is not necessary that they appear in these reasons. The only possibly relevant aspect is that the amount of the third instalment was less than 10% of the total price which was many millions of New Zealand dollars.

10. The reference to an acceptance agreement seems to have been to Schedule D which contained an Acceptance and Delivery Receipt. That receipt was apparently executed by the parties at the time of execution of the agreement. However, the agreed date of possession was left blank. In the receipt the owner acknowledges that the Ship has been...