Cocks Macnish
Ground Floor
41 Colin Street
West Perth
Western Australia 6005

Phone: +61 (0)8 9321 6676

Latest News

    23 January 14Time for registration of existing interests in the PPSR running out

    The two-year grace period for registering pre-PPSA security interests in the PPSR expires on 31 January 2014.

    Under the Personal Property Securities Act 2009 (Cth), security interests in personal property must be registered in the Personal Property Securities Register (PPSR). The PPSR is a national online register and is the single authoritative record of registered security interests in respect of most personal property, tangible and intangible. Registrations in the PPSR commenced on 1 February 2012.

    Security interests registered in other registries as at 1 February 2012 (known as transitional security interests), such as mortgages over ships in the Australian Shipping Register or fixed and floating charges over company assets in the ASIC Register of Company Charges, ought to have been automatically 'migrated' into the PPSR by now. However, we have noticed that the migration process has been riddled with problems, and so not all interests may have been properly migrated. It will be prudent to double-check to ensure that these transitional interests are now properly recorded in the PPSR.

    There are a range of pre-PPSA security interests that may not have previously required registration previously, but now do. These include interests such as those of an owner under a bareboat charter, purchasers under a shipbuilding contract, suppliers under a ROT or hire-purchase arrangement, or bailors in a long-term bailment.

    If these pre-PPSA interests have been registered in the PPSR (either by way of migration or physical registration) before 31 January 2014, their priority in terms of date is preserved. If not, they risk losing out in priority to subsequently created and registered interests in the same property.

    The failure to have these interests registered in the PPSR can have significant implications.

    We refer you to the relatively recent NSW Supreme Court decision of Maiden Civil (P&E) Pty Ltd v Queensland Excavation Services Pty Ltd [2013] NSWSC 852. In that case, the owner of earthmoving vehicles, QES, leased the vehicles to Maiden, who subsequently went into liquidation. The lease was for more than a year, and therefore, under the PPSA, QES ought to have registered its interest in the vehicles as the holder of an interest under what is known as a PPS lease. One of the questions before the court was whether QES' interest in the vehicles prevailed over that of one Maiden's secured crditors, Fast. Maiden had granted Fast a charge over the vehicles as collateral for a loan. Fast registered its interest. QES had not. The court held that in having failed to register its interest as a lessor of the vehicles under a PPS lease, QES had an unperfected security interest in the vehicles and therefore the registered security interest, held by Fast, prevailed over that of the unregistered interest, held by QES. Therefore, despite QES being owner of the vehicles, Fast, as registered secured creditor of Maiden, was given effectively better title to the vehicles because QES had failed to register its own interest in the vehicles in the PPSR.

     

    For any advice in relation to the PPSR, please contact us directly at comac@cocksmacnish.com.au or +61 8 9321 6676.

     

     

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    19 July 12An Important Decision for Australian Shippers

    An important decision for Australian shippers and voyage charterers of the Federal Court Justice Foster has been handed down recently.

    You are referred to Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd [2012] FCA 696.

    This decision in respect of the Australian Carriage of Goods by Sea ("COGSA") under voyage charters is authority for the proposition that attempts to exclude jurisdiction of Australia Courts may be unenforceable by virtue of Section 11 of COGSA.

    In this case an Arbitration Award obtained pursuant to an Arbitration clause in the Voyage Charter in London was held by His Honour to be unenforceable by virtue of Section 11 of COGSA.

    Section 11 of COGSA reads:

    "Construction and jurisdiction

    (1)    All parties to:

    (a)      a sea carriage document relating to the carriage of goods from any place in Australia to any place outside Australia; or

    (b)      a non‑negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii), relating to such a carriage of goods;
    are taken to have intended to contract according to the laws in force at the place of shipment.
    (2)      An agreement (whether made in Australia or elsewhere) has no effect so far as it purports to:

    (a)      preclude or limit the effect of subsection (1) in respect of a bill of lading or a document mentioned in that subsection; or

    (b)    preclude or limit the jurisdiction of a court of the Commonwealth or of a State or Territory in respect of a bill of lading or a document mentioned in subsection (1); or

    (c)      preclude or limit the jurisdiction of a court of the Commonwealth or of a State or Territory in respect of:

    (i)      a sea carriage document relating to the carriage of goods from any place outside Australia to any place in Australia; or

    (ii)      a non‑negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods.

    (3)      An agreement, or a provision of an agreement, that provides for the resolution of a dispute by arbitration is not made ineffective by subsection (2) (despite the fact that it may preclude or limit the jurisdiction of a court) if, under the agreement or provision, the arbitration must be conducted in Australia."

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    23 January 12International Maritime Solid Bulk Cargoes (IMSBC) Code

    Visitors to this site have their attention drawn to the above Code and the ever increasing number of bulletins and notices which are being issued by various parties including P & I Clubs concerning the dangers of carrying cargoes which are at risk of liquefaction.

    Without wishing to labour the point, in just two months of 2010 (October and November) three vessels sank during the carriage of nickel ore from Indonesia to China with the loss of 44 lives.

    The attention of those involved in the chain of exporting cargoes like nickel ore and iron ore fines and other concentrates is drawn to the importance of understanding the issues around Transportable Moisture Limit (TML).

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    19 January 12Commonwealth Personal Property Securities Act, 2012 (“PPSA”)

    Attention is drawn to the new regime of personal property security under PPSA.

    This introduces significant changes to the current law and practice in relation to personal property securities including the registration of securities in respect of ships.

    Clients involved in lending, hiring or otherwise dealing with personal property including ships need to be aware that they may be affected by this new legislation.

    At the moment the registration commencement time for the Personal Property Securities Act will be Monday 30th January, 2012.

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    19 January 12Offshore Oil & Gas & Project Charter Form

    Lessons learnt from our involvement in printed Charterparty forms in the offshore oil and gas exploration, development and production fields and project infrastructure fields indicate the importance of careful attention in the following particular areas:

    • Mobilisation and demobilisation charges and when the daily time charter hire rate is to commence and finish.
    • Early termination fees and whether early termination right in relatively short term fixtures is appropriate.
    • Oil pollution responsibility when emanating from a vessel not subject of the charter and the scope of charterer's indemnity in such circumstances.
    • Where barges are time chartered with a tug as a single unit and the effect of this under the knock for knock regime.
    • Strict compliance for vessels and their manning with project specific requirements and implication for commencement and suspension of hire.

     

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    19 January 12Bunker spec compliance (MARPOL)

    There is usually a provision in time charters that charterers are responsible for the standard and quality of bunkers.

    In many cases it is a matter of relying upon the Owner's connections to arrange the bunkers without having the opportunity to be involved in this decision and necessary testing.

    MARPOL Annex VI makes it important for charterers to now take a greater responsibility and activity in bunker management to ensure compliance. If there is no compliance and a prosecution results under MARPOL then it may be the case that an indemnity could be sought from the time charterer.

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    19 January 12Force Majeure Clauses – Charterparties

    Recently we have observed, particularly with additional clauses to printed forms of Charterparties the very wide effect of the Force Majeure or similar clauses. This is particularly so with voyage charters with the consequent, usually unintended effect on the Owner/disponent owners ability to claim demurrage. Owners/disponent owners are advised to check these provisions particularly if trading to ports likely to suffer congestion, weather, delays etc.

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    04 March 10High Court Decision in Millennium Inorganic Chemicals and Cotton

    Clients are referred to this important decision concerning causation in asbestosis cases where claimant has a history of smoking together with exposure to asbestos. In a unanimous judgement the High Court ruled that exposure to asbestos dust can cause cancer did not show that it did cause cancer. This authority is supportive of the arguement which shipowner defendants have made in many similar cases in the past.

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    22 February 10Gorgon Gas Project – WA Pilbara Coast

    We have represented various shipowners, charterers and engineering groups in relation to commercial maritime work associated with the $43 Billion Gorgon Gas Project off the Western Australian Pilbara.

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    11 February 10Western Australia Government and Floating Dry Dock

    Completion and Handover of the Western Australian Government Floating Dry Dock on February 10, Australian Marine Complex Henderson Western Australia.

    The firm acted for the state Government body Landcorp in negotiating the ship building contract and supporting performance security and finance documentation.  The Dry Dock was constructed partly in Vietnam and completed after delivery by heavy lift ship to Henderson. It will service the dry dock needs of the Australian Navy fleet of submarines and frigates and be available for local commercial shipping.  The Dry Dock will be a registered Australian Ship and is expected to be extensively used by vessels operating in the states vigorously developing offshore oil and gas fields in our North West and iron ore export ports.

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    18 November 09“LNG Pioneer” / Refugee Rescue Christmas Island

    We represented the owners of the "LNG Pioneer" and their P&I association in matters associated with the rescue at sea of 29 refugee survivors who were subsequently taken to Christmas Island at the direction of the Australian Government.

    Container Ship
    LNG Pioneer

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    09 November 09“Territory Spirit” – AFMA prosecution Darwin

    We represent owners and Master of this vessel in an Australian Fisheries Management prosecution alleging fishing in Indonesian waters.  This involves consideration of UNCLOS as to whether Australian domestic law can rely upon Indonesia law as a basis for a charge.

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