Part Iv Admiralty Rules

PART IV ADMIRALTY RULES

Division I – Preliminary.

1–(1) Subject to the rules contained in this Part, the Supreme Court Rules 2000, shall so far as the same are applicable to admiralty actions, apply to and regulate the procedure and practice of the Court in the exercise of its jurisdiction in admiralty.

(2) The rules contained in this Part shall be read and construed subject to the provisions of subsection (5) of section 9 of the Act.

Division II – Form and commencement of action.

2–(1)All actions in the admiralty jurisdiction of the Court which, previously to the commencement of the Act, were commenced by an action in rem or in personam shall continue to be instituted by a writ of summons, and every proceeding so instituted shall continue to be called an action, but every such action shall be instituted and conducted in accordance with the rules contained or incorporated in this Part.

(2) An action in the admiralty jurisdiction of the Court is hereinafter referred to as an "admiralty action".

3 Subject to the provisions of any Imperial Act and any Commonwealth Act, all actions for the condemnation of any ship, vessel, boat, cargo, proceeds, slaves, or effects, or for the recovery of any pecuniary forfeiture or penalty recoverable in the admiralty jurisdiction of the Court shall be instituted in the name of Her Majesty.

Division III–Writ of summons.

4 The writ of summons in every admiralty action shall be in accordance with one of the forms Nos. 4, 5, and 6 in section I of Appendix Q, with such variations as circumstances may require.

Division IV–Warrants of arrest.

5 In admiralty actions in rem, a warrant for the arrest of property (which warrant shall be in accordance with form No. 8 in Appendix Q, with such variation as circumstances may require) may be issued, at the instance either of the plaintiff or of the defendant, at any time after the writ of summons has been issued, but no warrant of arrest shall be issued until an affidavit by the party or his agent (including the solicitor of the party or the solicitor's clerk) has been filed and the following provisions complied with: –

(a)The affidavit shall state the name and description of the party at whose instance the warrant is to be issued, the nature of the claim or counter-claim, the name and nature of the property to be arrested, and that the claim or counter-claim has not been satisfied, and that the aid of the Court is required to enforce it;

(b)The affidavit to lead the warrant may be in accordance with form No. 7 in section I or in such of the forms in section III of Appendix Q as may be applicable;

(c)In an action for wages or of possession, the affidavit small state the national character of the vessel proceeded against, and, if against a foreign vessel, that notice of the commencement of the action has been given to the consul, or consular representative or agent of the State to which the vessel belongs, if there be one resident in the place of the registry in which the writ of summons is issued, and a copy of the notice shall be annexed to the affidavit.

(d)In an action for necessaries, the affidavit shall state the national character of the vessel, and, to the best of the deponent's belief, the port to which the vessel belongs, and that, to the best of the deponent's belief, no owner or part owner of the vessel is domiciled in Tasmania;

(e)In an action between co-owners relating to the ownership, possession, employment, or earnings of any vessel registered in the State of Tasmania, the affidavit shall state the port at which the vessel is registered and the number of shares in the ship owned by the party proceeding; and

(f)In an action of bottomry, the bottomry bond, and, if in a foreign language, also a notarial translation thereof, shall be produced for the inspection and perusal of the Registrar, and a copy of the bond or of the translation thereof certified to be correct shall be annexed to the affidavit.

6 The Registrar may, if he think fit, allow the warrant to issue, although the affidavit required by rule 5 may not contain all the required particulars, and, in an action for wages, although the notice mentioned in paragraph (c) of rule 5 has not been served, and, in an action of bottomry, although the bond has not been produced, or he may refuse to issue the warrant without an order of a judge.

Division V–Service of writ of summons and warrant of arrest.

7 In admiralty actions in rem, service of a writ of summons or warrant of arrest shall not be required in any case in which the solicitor of the defendant agrees to accept service and to enter an appearance and put in bail or to pay money into Court in lieu of bail.

8 In admiralty actions in rem, the warrant of arrest shall be served by the Marshal or his substitute or officer wheresoever within the jurisdiction of the Court the property to be arrested may be, and the solicitor issuing. the warrant shall, within six days from the service thereof, file the same in the Registry.

9 In an admiralty action in rem, service of the writ of summons or warrant of arrest shall be effected–

(a)upon a vessel or upon freight, cargo, or other property if the cargo or other property is on board a vessel, by nailing or affixing the writ or warrant for a short time to the mainmast or the single mast or to some other conspicuous part of the vessel, and on taking off the writ or warrant leaving a copy of it nailed or affixed in its place;

(b)upon cargo, freight, or other property if the cargo or other property is not on board a vessel, by placing the writ or warrant for a short time on such cargo or property, and on taking off the writ or warrant leaving a copy upon it;

(c)upon freight in the hands of any person, by showing the writ or warrant to him and by leaving with him a copy thereof; and

(d)upon proceeds in Court, by showing the writ or warrant to the Registrar, and by leaving with him a copy thereof, which service shall be a sufficient arrest of the proceeds.

10 If access cannot be obtained to the property on which the writ or warrant is to be served, the writ or warrant may be served by showing it to any person appearing to be in charge of such property, and by leaving with him a copy of the writ or warrant, but in any such case a copy of the writ or warrant shall be published forthwith after such service in some public newspaper ordinarily circulating in the locality where the property is.

Division VI–Appearance and bail.

11 Whenever bail is required to be given in an admiralty action, it shall be given by filing one or more bail bonds, each of which shall be signed by two sureties, unless a judge shall, on special cause shown, order that one surety shall suffice.

12 Sureties may attend to sign a bond, either separately or together.

13 A solicitor not entering an appearance or putting in bail or paying money into Court in lieu of bail in admiralty actions in rem in pursuance of his written undertaking so to do shall be liable to an attachment.

14 In admiralty actions in rem, bail may be taken before the Registrar or any district registrar or a commissioner of the Court, and in every case the sureties shall justify by affidavit.

15 A bail bond shall not, unless by consent, be filed until after the expiration of forty-eight hours from the time when a notice containing the names and addresses of the sureties, and of the commissioner before whom the bail was taken, shall have been served upon the adverse solicitor, and a copy of the notice verified by affidavit shall be filed with the bail bond.

16– (1) If the adverse party is not satisfied with the sufficiency of any surety, he may file a notice in the Registry objecting to such surety, and thereupon the Registrar shall give the party objecting an appointment for the surety objected to to be cross-examined on his affidavit before the Registrar, and the party objecting shall serve notice of such appointment on the solicitor for the party on whose behalf the bail is required to be given at least twenty-four hours before the time appointed for the examination, and the Registrar shall, at the time appointed for the examination or at any adjournment, take the cross-examination of the proposed surety, and shall determine the sufficiency of the surety objected to.

(2) The bail bond shall not be filed until the Registrar has determined that the surety is sufficient.

(3 ) If the Registrar determines that the surety is sufficient, the costs of and incidental to the cross-examination shall be paid by the party objecting to the sufficiency of the surety.

17 Every bail bond shall be deemed without any express condition in the bond to cover and apply to an agreement to compromise or settle the action and to an admission of liability therein and to any amount of salvage, damages, interest, and costs agreed to be paid in the action or assessed on a reference after an admission of liability or compromise or settlement.

18 No commissioner shall take bail on behalf of any person for whom he, or any person in partnership with him, is acting as solicitor or agent

19 A commission or fee paid to a person becoming surety to a bail bond or otherwise giving security may be recovered on taxation, provided that the amount of such commission or fee shall not in the aggregate exceed one dollar per centum on the amount in which bail is given.

20 In an admiralty action in rem, any person not named in the writ of summons may intervene and appear as heretofore on filing an affidavit showing that he is interested in the res under arrest or in the fund in the Registry.

Division VII–Default of appearance.

21 In admiralty actions in rem, if the defendant does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service and of a statement of claim, the action may, on the expiration of twenty-one days from the service of the writ of summons, be set. down for judgment by default.

22 The Court or a judge may, in any case in which the writ of summons contains sufficient particulars of the claim, dispense with the filing of a statement of claim.

23 In admiralty actions in rem, upon default of appearance, if when the action comes before him the judge is satisfied that the plaintiff's claim is well founded, he may pronounce for the claim with or without a reference to the Registrar, either alone or assisted by one or more merchants or other assessor or assessors, and may, at the same time, order the property to be appraised. and sold, with or without previous notice, and the proceeds to be paid into Court, or may make such order as he shall think fit.

Division VIII–Parties and joinder of causes of action.

24 The provisions of Division 12 of Part 7 of the Supreme Court Rules 2000 shall be so construed as to permit several plaintiffs having separate causes of action in the admiralty jurisdiction of the Court to sue collectively in all cases in which several or a number of persons might have so sued before the commencement of the Act.

25 The Court or judge may order any person who is interested in the action, though not named in the writ of summons, to come in either as plaintiff or defendant. An underwriter and an insurer shall be deemed to be a person interested in the action for the purposes of this rule.

26 The Court or a judge may order upon what terms any person shall come in, and what notices and documents, if any, shall be given to and served upon him, and may give such directions in the matter as to it or him shall seem fit

Division IX–Statement of claim.

27 In admiralty actions in rem, the plaintiff shall, subject to any order of the Court or a judge, within twelve days from the appearance of the defendant, deliver his statement of claim.

Division X–Tenders

28 A party desiring to make a tender in satisfaction of the whole or any part of the adverse party's claim shall pay into Court the amount tendered by him, and shall file a notice of the terms on which the tender is made, and shall, on the same day, serve a copy of the notice on the adverse party.

29 Within seven days from the filing of the notice, the adverse party shall file a notice stating whether he accepts or rejects the tender, and shall, on the same day, serve a copy of the notice on the party who made the tender, and, if he shall not do so, he shall be held to have rejected the tender.

30 Pending the acceptance or rejection of a tender the proceedings in the action shall be suspended.

Division XI–Payment into and out of Court

31 A party to an admiralty action may pay money into Court by way of satisfaction pursuant to Part 8 of the Supreme Court Rules 2000.

32 Money paid into Court in an admiralty action shall not be paid out of Court except in pursuance of an order of the Court or a judge.

33 A solicitor desiring to prevent the payment of money out of Court in an admiralty action shall file a notice, and thereupon a caveat shall be entered in a book in the Registry called the "Caveat Payment Book".

Division XII–Default of pleading

34 In admiralty actions in rem, if the defendant makes default in delivering a defence, the plaintiff may, on the expiration of fourteen days from the delivery of the statement of claim, and on filing an affidavit of non-delivery of a defence, set down the action for judgment by default, and the provisions of rule 23 shall be applicable to such action.

35 In admiralty actions in rem, if the plaintiff make default in delivering a defence to a counter-claim, the defendant may, on the expiration of fourteen days from the delivery of the counter-claim, and on filing an affidavit of non-delivery of a defence to the counter-claim, set down the counter-claim for judgment by default, and the provisions of rule 23 shall be applicable to such action.

Division XIII–Caveats and releases

36 Property arrested by warrant shall only be released under the authority of an instrument issued from the Registry to be called a release.

37–(1)A release may be issued by the Registrar, unless there is a caveat outstanding against the release of the property–

(a)on payment into the Registry of the amount claimed (including costs), or of the appraised value of the property arrested;

(b)where cargo is arrested for freight only, by filing an affidavit as to the value of the freight and by paying into the Registry the amount of the freight;

(c) on one or more bail bonds being filed for the amount claimed (including costs), or for the appraised value of the property arrested, and on proof that forty-eight hours' notice of the names and addresses of the sureties has been previously served on the party at whose instance the property has been arrested;

(d)on the application, before an appearance has been entered, of the party at whose instance the property has been arrested, by filing a notice that he withdraws the warrant;

(e) on a consent in writing being filed signed by the party at whose instance the property has been arrested; or

(f)on the discontinuance or dismissal of the action in which the property has been arrested.

(2) The Registrar may refuse to issue a release without the order of a judge.

38 A judge may order the release of cargo arrested for freight only, if he is satisfied that the freight has been paid

39–(1)Notwithstanding anything contained in rule 37, property which has been arrested for salvage shall not be released unless–

(a)the action in which the property has been arrested is discontinued or dismissed;

(b)the value of the property arrested has been agreed upon or appraised or determined by a judge; or

(c)an affidavit of the value of the property arrested has been filed in the Registry, and forty-eight hours' notice of the filing thereof has been given to the solicitor of the party at whose instance the property was arrested, and no notice disputing the value stated in the affidavit has been filed in the Registry on behalf of such party.

(2) Service of the notice required by this rule shall be proved by affidavit, and such affidavit shall be filed in the Registry before the property is released.

40 In any case in which an affidavit of value and a notice objecting to the value stated in such affidavit have been filed pursuant to rule 39, either party shall be entitled to apply to the Court or a judge for an order for appraisement, and in any such case the costs of the application and the appraisement shall be reserved to abide the result of the appraisement.

41 The release, when obtained, shall be left with the Marshal by the solicitor taking out the same, who shall also at the same time pay all costs, charges, and expenses attending the care and custody of the property whilst under arrest; and the property shall thereupon be released.

42 A solicitor in an action, desiring to prevent the release of any property under arrest, shall file in the Registry a notice, and thereupon a caveat against the release of the property shall be entered in a book to be kept in the Principal Registry called the "Caveat Release Book".

43 When an action is proceeding in a district registry, the district registrar shall, before authorizing a release, ascertain by telegraph, or otherwise, from the Registry whether or not any caveat has been entered there.

44 A party delaying the release of any property by the entry of a caveat shall be liable to be condemned in costs and damages, unless he shall show to the satisfaction of the Court or a judge good and sufficient reason for having so done.