In brief - A look at the recent case Orient Overseas Container Line Limited (OOCL) v ANL Singapore Pte Ltd [2020] FCA 921 

Readers are probably familiar with the fact that a number of containers were lost from the "APL England" on 24 May 2020 off the New South Wales coast. In the case of Orient Overseas Container Line Limited (OOCL) v ANL Singapore Pte Ltd [2020] FCA 921, the slot charterer of the vessel (OOCL) has taken urgent steps in the Federal Court against APL Co Pty Ltd and CMB Ocean 13 Leasing Co Pty Limited, the bareboat charterer and registered owner respectively of the vessel. 

Early interlocutory relief was sought and orders were made by Stewart J in the Federal Court permitting OOCL, by its nominated surveyor expert, to attend on board to inspect, photograph, video record, and measure any areas of the ship concerning with or relating to the ship's main engine and any repairs, and also to be permitted access to and to photograph the on screen display in the ship's engine room alarm log.

The defendants were required to nominate an appropriately acknowledgeable person to accompany OOCL's expert and identify any equipment or machinery that the expert may request. 

There were also further orders made in relation to the early discovery of documents about which the parties were ordered to confer.

The defendants were also ordered to preserve:

  • any damaged components of the main engine removed from the vessel; and 

  • documents from the ship relevant to the voyage, the cause of the engine stoppage, maintenance of the engine and the cargo securing during the voyage in accordance with an annexure that identified particular documentation. 

This judgment contains a commendably succinct summary of the Rules of Court that permits such orders relating to preservation and inspection of property and early discovery, together with decisions of the Court in which such relief has been considered in the past. 

Justice Stewart noted that Rule 14.01 of the Federal Court Rules makes provision for orders for the inspection of property, the taking of samples, the making of observations of property and processes, the trying of experiments on or with any property, and the copying, transcription or production of documents or other material, data or information, but does not go so far as to allow an "investigation" by the surveyor into the cause of the vessel's loss of power during the voyage.

It should be noted that this was not an application for preliminary discovery, nor an application for early discovery under Rule 14.01(1)(a) (vi) but for limited discovery under Rule 20.13 under which the Court may at any stage of the proceeding exercise a power mentioned in the Rules on the application of a party.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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