Admiralty and maritime
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Admiralty
Jurisdiction - Some Basic Considerations and Some Recent Australian Cases
Paper presented to the University of Newcastle Maritime Interest Group, MLAANZ (NSW & ACT Branches) and University of Canberra
18 April 2007
I have sought to
direct this talk both to those who are well familiar with the Admiralty Act
1988 (Cth) and those to whom the Admiralty Act is relatively new.
In particular for the latter, I have enclosed as an attachment copies of the
provisions of the Admiralty Act to which I will be referring.
Admiralty
jurisdiction is a branch of the wider law maritime, nonetheless so because much
has been incorporated into statute: see
Allsop J, 2nd Richard
Cooper Memorial Lecture 2006 and the discussion and references therein, which
can be found on the Federal Court’s Admiralty
website; Jordan, F “Admiralty Jurisdiction
in New South Wales” pp 8 and 21, found in Sir Federick Jordan Select Legal
Papers (Legal Books 1983); The ‘Gaetano and Maria’ [1882] UKLawRpPro 33; (1882) 7
PD 137 at 143; The Gas Float ‘Whitton’ [1895] UKLawRpPro 45; [1896] P 42 at 47-8. Admiralty
jurisdiction is not just a collection of suits found to have been within the
cognisance of, and administered
by, the English Admiralty Court (exemplified by
the action in rem against the ship itself and the capacity to arrest the
ship irrespective of the presence within the jurisdiction of any party said
to
be personally responsible for any claim). It is more than that. It is a body
of law, and the administration of a body of law,
with roots in public
international law, civil law, international commerce, international agreement
and the law of nations. Its
history is rich and its contents are vibrant and
modern. It is only an arcane or obscure branch of the law to those whose legal
thinking is informed exclusively by land-based human activity. Admiralty and
maritime law is a branch of the law central to the
economic life of this
country, being a great trading nation accounting for a significant portion of
the world’s maritime task, both
by volume and by value. It is a branch of the
law of immense public importance to an island continent with claims over, and
responsibility
for, vast marine areas, including Antarctic seas. It is the law
of maritime affairs.
It is well to
remember that the fundamental Constitutional framework under which Admiralty
and maritime jurisdiction operates in Australia
is s 76(iii) of the Commonwealth
Constitution which permits the Commonwealth Parliament to confer upon the High
Court (and through s 77 of the Constitution, other federal courts and courts of
States) Admiralty and maritime jurisdiction. That Constitutional authority is
supplemented by
the authority of the Commonwealth Parliament to deal with
matters concerning interstate and overseas trade and commerce and external
affairs, and other heads of power.
The reach of s
76(iii) was described by the High Court in The ‘Shin Kobe Maru’ (1994) 181
CLR 404 at 424 as follows:
[It] extends
to matters of the kind generally accepted by maritime nations as falling within
a special jurisdiction, sometimes
called Admiralty and sometimes called
maritime jurisdiction, concerned with the resolution of controversies relating
to marine
commerce and navigation.
This swept away
the lingering doubts that the jurisdiction was confined by the dead hand of Australia’s former colonial position.
The Admiralty and
maritime jurisdiction contemplated by s 76(iii) (other than prize jurisdiction)
was domestic or municipal law and not a species of over-riding international or
supra-national law:
Blunden v Commonwealth (2003) 218 CLR 330 at
337-38, adopting The ‘Tojo Maru’ [1972] AC 242 at 290-91. Nevertheless,
it is clear that maritime law has its roots apart from the common law in the
law of nations: See Lord Mansfield
in Luke v Lyde [1759] EngR 18; (1759) 2 Burr 882 at
887[1759] EngR 18; , 97 ER 614 at 617; The ‘Lottawanna’ [1874] USSC 98; 88 US 558 at 573-75 (1875); De
Lovio v Boit 7 F Cas 418 (1815); Moragne v States Marine Lines Inc [1970] USSC 143; 398
US 375 at 386-88, the last case being cited by the High Court in Blunden.
I discussed this question in some detail in the 2nd Richard Cooper
Memorial Lecture 2006.
Modern Australian
Admiralty and maritime jurisdiction in the Admiralty Act is less than 20
years old. One of the great examples of the utility of rigorous and scholarly
law reform was the Australian Law
Reform Commission dealing with Admiralty and
maritime matters. The Law Reform Commission produced the report on civil Admiralty
jurisdiction (Report no 33). It is still compulsory reading for anyone wishing
to understand the operation of Australian Admiralty
and maritime law and
jurisdiction. It gave rise to the Admiralty Act 1988 and Admiralty
Rules 1988.
The Admiralty
Act is a simple, well-drafted and short piece of legislation. Part I,
under the heading “Preliminary”, deals with several fundamental issues. Section
4 deals with the two types of claims dealt with in the Admiralty Act:
the proprietary maritime claim and the general maritime claim. These are the
types of claim chosen by the Law Reform Commission
to constitute the core of federal
jurisdiction in Admiralty and maritime matters. They are not necessarily
exhaustive of the reach
of Admiralty and maritime jurisdiction under s
76(iii). (This is important in considering the potential operation of s 12 of
the Admiralty Act and “associated” jurisdiction.) However, an
examination of them will reveal the essential maritime character of the law
which the
courts administer, even if they are the types of claims which would
ordinarily simply be seen as common law claims. To look at them
as only common
law claims is to risk misunderstanding their maritime character.
It is also
important to understand s 5(1) of the Admiralty Act, which is in the
following terms:
Subject to the succeeding
provisions of this section, this Act applies in relation to:
(a) all ships,
irrespective of the places of residence or domicile of their owners; and
(b) all
maritime claims, wherever arising.
This provision
reflects the international character of the jurisdiction. It makes one realise
that this is not merely a local concern.
The effective limits come from
service rules for in personam proceedings, the requirement for presence
of the ship or other property for service of in rem proceedings and the
doctrine of forum non conveniens. In rem service is dealt with
in Part V of the Act. In personam service ex juris depends on
the rules of the court in which the claim is brought.
Whilst claims can
be stayed on the basis of forum non conveniens, s 29 of the Admiralty
Act permits the commencement of in rem claims and arrest as security
for the foreign proceedings (court or arbitral).
Part II deals with
jurisdiction in Admiralty. This makes clear that there are two types of
jurisdiction being dealt with: in rem and in personam. It is
important to understand the simple clarity of the Admiralty Act in the
distinction between the two. In personam jurisdiction is the
jurisdiction of a court to deal with persons or companies in respect of “maritime
claims” (as that phrase is
defined), as well as a claim for damage done to a
ship.
In rem jurisdiction is the jurisdiction of the court to deal with a claim
against a ship or property.
The distinguishing
feature of Admiralty and maritime jurisdiction is the in rem action.
Part III deals with rights to proceed in Admiralty. This is a central body of
provisions in the Act. The in rem action and the grounds for it are
dealt with in ss 14-19. The in rem claim founds the right to arrest the
ship or other property. This is not an injunction of a “Mareva” character, or
any other equitable
kind. It is a reflection of the right to proceed in rem
and to the claimant’s right of access to the asset. It is an integral aspect
of the enforcement of maritime claims in international
maritime commerce.
Section 17 deals with the right to proceed in rem on so-called owner’s
liabilities. It has the same structure as s 18 dealing with the right to
proceed in rem on demise charterer’s liabilities and s 19 on the right
to proceed in rem against a surrogate ship. Section 17 is in the
following terms:
Where, in relation to a general
maritime claim concerning a ship or other property, a relevant person:
(a) was,
when the cause of action arose, the owner or charterer of, or in possession or
control of, the ship or property;
and
(b) is,
when the proceeding is commenced, the owner of the ship or property;
a proceeding on the claim may be
commenced as an action in rem against the ship or property.
The two limbs are
important. Paragraph (a) identifies the matters which must be identified at
the time the cause of action arose:
there must, at that time, be a certain
kind of relationship between the ship or other property and the relevant person
(being the
person who if successfully sued would be liable to the plaintiff as
the defendant). That relationship is as owner or charterer of
or in possession
or control of the ship or property. However, that is only the first connecting
requirement. The second connecting
requirement, in paragraph (b), must be
satisfied when the proceeding was commenced: at that time, the relevant person
must be the
owner of the ship or other property. In section 18, at that second
point of time, the relevant person must be the demise charterer of the ship.
In relation to surrogate or sister
ship arrest in s 19, the relevant person
must, at that time, be the owner of the second ship.
Thus, in ss 17, 18
and 19 the right to proceed in rem, and so to arrest, is characterised
by some proprietary relationship between the property against which the in rem
action is brought and which can be arrested (ship or other property) and the
person who is said to be personally liable to the plaintiff.
Central to
understanding the types of in rem claims in ss 17, 18 and 19 is the notion
of the “relevant person” defined in s 3(1) of the Admiralty Act as:
"a person who would be liable on the
claim in a proceeding commenced as an action in personam”
The above definition
fits neatly with the use in the Admiralty Act of the word “claim” in ss
4(2) and (3) and 16, 17, 18 and 19. Jurisdiction does not rest upon the
assertions being made good, but being made. The assertions comprise the claim,
whether in
relation to the ship or other property in ss 4(2) and 16, or against
the relevant person in ss 4(3), 17, 18 and 19: see generally The ‘Iran Amanat’ (1999) 196 CLR 130.
Sections 15 and 16
are different. They do not require this personal proprietary link. Also,
though s 16 is based on the notion of “claim” (a proceeding on a proprietary
maritime claim), s 15 is not. Section 15 refers to a proceeding on a maritime
lien, not on a claim for a maritime lien. The importance of this different
wording can be seen
in The ‘Global Peace’ discussed below.
Section 15 provides
for an action in rem, and so arrest, on a maritime lien without the need
for any proprietary connecting factor. The maritime lien is a creature of the
law maritime. It is not based on possession or contract. It is a privilege or
interest attaching to the ship itself – travelling
with the ship wherever she goes
and arising independently and irrespective of ownership or other encumbrance,
from circumstances
concerned with the ship which the law maritime declares to
give rise to this property right. It is perfected, indeed is only enforced,
by
the action in rem. Depending upon the jurisdiction and the governing
substantive law, various claims can give rise to a maritime lien: salvage,
damage
done by a ship, wages of the master or crew, master’s disbursements and
in some jurisdictions (such as the United States) many other
claims, such as
cargo claims. The maritime lien exemplifies elements of the so-called
personification of the vessel: the lien may,
in some circumstances, attach
irrespective of personal fault of the owner (for example salvage); the limit of
the liability is the
value of the ship; and the lien remains indelible,
notwithstanding the sale of the ship. It is a charge on property enforceable
only by proceedings against the property in rem. It attaches
automatically by operation of law upon the occurrence of the relevant events.
It is generally paramount in priority
to other types of claims (though there
are complexities in priorities between different types of liens).
Section 16 also
permits proceedings on a proprietary maritime claim concerning a ship as an
action in rem. Claims on proprietary maritime claims also do not need
the kind of connecting factors requisite in relation to ss 17, 18 and 19. Whilst
not maritime liens, the proprietary maritime claims, by reference to s 4(2),
can be seen to be referable to the ship itself: claims relating to possession,
title, ownership, and mortgaging of the ship; claims
between co-owners; claims
for the satisfaction or enforcement of the judgment against a ship.
The place of
maritime lien and the personification of the vessel is one model or construct for
Admiralty law; the need for a connecting
relationship of ownership between the
ship and the putative defendant is another. Recent cases in Australia on the operation of
the Admiralty Act illuminate this distinction and the
nature of Admiralty and maritime jurisdiction generally.
I propose to deal
with aspects of seven cases: The ‘Cape Moreton’ and The ‘Maria
Luisa’, Comandate Marine v Pan Australia Shipping, The ‘Global Peace’, The ‘Genco
Leader’ and The FV ‘Taruman’, and The ‘Boomerang I’.
The ‘Cape Moreton’ [2005] FCAFC 68; (2005) 143 FCR 43 and The ‘Maria Luisa’ [2002] FCA 1207; (2003)
130 FCR 1 and 12
Many of you will
know the facts of The ‘Cape Moreton’. Cape Moreton (formerly ‘Freya’) a Liberian registered bulk carrier was arrested on
8 June 2004 at Port Kembla. She had previously carried a cargo of zircon sand
from Richards Bay in South Africa to China. It was alleged that there was
damage to cargo on that voyage. A company called Freya
Navigation Ship Holding
Ltd was said to be legally responsible as the carrier for that damage. It was
the “relevant person”. At
the time the cause of action arose Freya Navigation
was the owner of the vessel. At the time the proceeding was commenced, that
is
filed in the Registry on 3 June 2004, Freya Navigation was still on Liberian
Register as owner of the vessel. However, in the
previous month, May 2004, a bona
fide arms’ length sale of the vessel had taken place. Full payment had been
made. A bill of sale
in standard form had been executed and delivered. The
ship had been physically delivered. The question arose whether the word “owner”
or the phrase “the owner” in s 17(b) necessarily encompassed the registered
owner so-called, and, in the circumstances, whether Freya Navigation was still
the owner on
3 June 2004. The Court sitting as a Full Court in the original
jurisdiction decided that Freya Navigation was not “the owner” and
that the
transferee of the ship, Alico Marine, was the owner.
There were a
number of important questions dealt with by the Full Court. Most importantly
for today was the discussion of the importance
of ownership, in a proprietary
sense, in the regime for arrest. Neither party sought to argue that The ‘Maria
Luisa’ was wrongly decided. In that case, a majority of the Full Court analysed the question of ownership under s 19(b) of the Admiralty Act in
a strict proprietary sense. Nevertheless, the argument of the plaintiff in The
‘Cape Moreton’ was to the effect that the phrase “the owner” necessarily
included the registered owner so as to give amplitude and practicality to
the
operation of the in rem provisions and the process of arrest. In
seeking to illuminate the proprietary nature of the phrase the Full Court had recourse to
the ALRC report, the 1952 Arrest Convention and the development
of English and Australian law of arrest under the 19th century Admiralty
Court Acts of 1840 and 1861. The Court examined the action in rem
cases from the mid 19th century (that is those not relying on the
existence of a maritime lien) to illuminate what was implicit in the 1952 Arrest
Convention
being the necessary relationship between ownership in the
proprietary sense and the putative defendant. Particular assistance came
from
the lucid analysis by Mr Justice Brandon (as his Lordship then was) in The
‘Monica S’ [1968] P 741 of The ‘Princess Charlotte’ [1864] 33 LJP
188; The ‘Piève Superiore’ [1874] UKLawRpPC 7; (1873-74) LR 5 PC 482; The ‘Aneroid’ (1876-
77) [1877] UKLawRpPro 25; LR 2 PD 189; The ‘Henrich Björn’ (1885) LR 10 P 44 (Court of Appeal)
and (1885-86) 11 App Cas 270 (House of Lords); The ‘James W Elwell’
[1921] P 351; The ‘Colorado’ [1923] P 102 and The ‘Beldis’ [1936]
P 51, among other cases. This development of the relationship between
ownership and the personal responsibility of the putative defendant
underpinned,
or was an essential characteristic of, the so-called procedural theory of the
arrest regime whereby what was involved
was the action against the asset of the
putative defendant (the relevant person) to persuade it to come to court to
ensure that its
asset was not condemned. If the relevant person came to court,
it became liable for the full amount of the claim, irrespective of
the value of
the ship. If the relevant person did not come to court, the ship (but only to
its value) was condemned for the in rem claim, and any other maritime
claim that came in. The Full Court in both The ‘Cape Moreton’ and The
‘Maria Luisa’ made clear that ownership was ownership in a true proprietary
sense. In The ‘Cape Moreton’ this was classified as not extending to a
party who remained on an international register but which had in fact sold the
vessel.
Neither party in The
‘Cape Moreton’ sought to lead evidence of foreign law. The ship was
registered in Liberia. World-wide shipping registration legislation varies.
It is sometimes a species of title by registration (like Torrens Title
legislation such as the Real Property Act 1900 (NSW)) and sometimes
registration of title (that is title otherwise existing). There was also an
important discussion in the case
about the proper law of dealing with this
question of ownership. While it was not necessary to finally decide it, the
Court expressed
the view that the law of the flag ought to govern the question
of the transfer of rights created or recognised by a shipping registration
statute
of that country. Whilst it was for the forum and its law to decide whether the
consequences of any transfer of rights should
be characterised as “ownership”
within the meaning of the Admiralty Act, questions of title, property
and assignment (subject of course to local statute and public policy) would be
dealt with by the law
of the flag of the ship. Whilst in some cases this may
conceivably impose some complexity, in the ordinary case the presumption
as to
the foreign law being the same as local law will deal with the matter in a
satisfactory way.
The case was one
which reflected the importance in construing the Admiralty Act of
understanding the underpinning procedural theory and the need, with the current
structure of the Admiralty Act, for there to be the required proprietary
relationship for non-lien and non-proprietary maritime claim arrests.
This is to be
contrasted with the wider notion of lien in the United States and other places
where a wider group of claims attaches
to the ship and thus there is a
consequential lack of necessity to prove ownership of the ship at a later point
of time by the putative
defendant and a simpler personified theory of the
responsibility of the ship.
Comandate Marine Corp v Pan Australia Shipping [2006] FCAFC 192
It was unnecessary
in The ‘Cape Moreton’ to deal with the views of the
House of Lords expressed in 1998 in The ‘Indian Grace’. It became
relevant, however, to do so in Comandate Marine Corp v Pan Australia Shipping. In The ‘Indian Grace’ Lord Steyn, with the concurrence of
the balance of the House of Lords, had concluded that the notion of the in
rem claim as distinct from in personam claim was a fiction which had
outlived its usefulness; and the House of Lords, in effect, equated the in
rem claim with the in personam claim. A majority of the Full Court
in Comandate Marine Corp v Pan Australia Shipping (Finkelstein J and
Allsop J, Finn J not deciding) refused to follow the House of Lords’ decision
in The ‘Indian Grace’ and said that it was not the law of Australia and
expressed the view that it was wrong. The ‘Indian Grace’ had concerned
the construction of s 34 of the Civil Jurisdiction and Judgments Act 1982 (UK) which provided as follows:
“No
proceedings may be brought by a person in England and Wales or Northern Ireland
on a cause of action in respect of which a judgment
has been given in his
favour in proceedings between the same parties, or their privies in a court in
another part of the United Kingdom
or in a court of an overseas country, unless
that judgment is not enforceable or entitled to recognition in England or as
the case
may be, in Northern Ireland.”
The case concerned
a cargo of munitions form Sweden to India, part of which was substantially
damaged by water, part of which was jettisoned.
Fire had threatened cargo and
ship. A small claim for short delivery of the part of the cargo jettisoned was
litigated in an in personam claim in Cochin, in India. Later, a sister ship ('Indian Grace') of the carrying vessel was arrested in
England in an action in rem for a substantial claim in relation to the
damaged cargo, other than the modest short delivery claim which had proceeded
to judgment
in Cochin. The Court of Appeal dealt with the matter as a matter of
statutory interpretation. In so doing, the Court of Appeal,
though it reversed
the primary judge, Clarke J (as the Master of the Rolls then was), did not
reject the lucid analysis by his Lordship
of the nature of the in rem
action and its separateness from the in personam action and its character
as a claim against the ship. The House of Lords, however, came to the view
that the nature of the action
against an inanimate object was a fiction which
had outlived its useful life. The action in rem, it was said, should be
recognised for what it was – an action between the plaintiff and (to use the
language of the Admiralty Act) the relevant person. It was said that
this was the position prior to any appearance of the relevant person.
In Comandate
Marine Corp v Pan Australia Shipping, this issue became relevant in
relation to an argument by one side that an arbitration clause between the
parties had been abandoned
or waived by the other side by reason of the
bringing by the latter of an in rem claim against the ship, 'Boomerang
I', demise chartered by the first party. It was argued that by doing so
the plaintiff to the in rem action had sued the other party to the
arbitration clause, in a court, thereby abandoning or waiving the right to
proceed to arbitration.
It became relevant therefore to examine The ‘Indian
Grace’ and whether an action in rem was really only an action
against the relevant person, even before any appearance was filed by the
relevant person. The reasoning
of Lord Steyn was examined and rejected. The Full Court said that the Admiralty Act was founded upon the separateness of the in
rem claim from the in personam claim. Further, though the procedural
theory underpinned English and Australian Admiralty law and practice, the very
utility of the
procedural theory rested upon the ability to proceed against the
ship or other property, and if there was no appearance of the relevant
person,
to have access to the ship or other property without prejudice to the ability
to maintain the in personam action in the future against the relevant
person for the balance of the claim.
In this respect,
it is to be recalled what can occur in an in rem claim. If no one
appears as the relevant person, the plaintiff proceeds against the ship. Assuming
the plaintiff makes out its case,
the ship will be sold (if it has not already
been sold) and the ensuing funds will be available to satisfy that claim. But,
the
ship (and the fund that it produces) is not only available for the
plaintiff’s claim; the existence of a fund will be advertised,
and other
maritime claimants concerning the ship may come in and contest the rights of
the plaintiff to access to the funds. There
may be lienees, mortgagees or
other persons with actions in rem. Even a plaintiff with a good claim
may obtain very little or nothing out of any particular ship if there are other
claimants with
a higher priority to it. If an in rem claim is always in
substance an in personam claim then the plaintiff may have shot its one
bolt. Not only can other claimants come in to share in the fund represented by
the
sale of the ship, there may be other persons, apart from the putatively
responsible relevant person, who may wish to defend the ship,
who have no
responsibility for the damage and whose appearance would not render them liable
to any claim. Mortgagees or banks may
be in this category, as may an owner if
the claim is under s 18 against a demise charterer for its responsibilities.
It is unnecessary
in this lecture to explain in detail the reasons why the Court came to the view
that the House of Lords should not
be followed. Fundamentally, the Court was
of the view that, until the High Court or Parliament said otherwise, the
position was
that until an appearance is filed the action is in rem,
against the ship or other property. That is what the Admiralty Act,
in its context, says. Once an appearance is filed, the action proceeds as if,
but only as if, it was an action in personam. After the appearance the
action continues as an action in rem, but also as if it were an action in
personam against the relevant person: see Caltex Oil v 'The Dredge
Willemstad' [1976] HCA 65; (1976) 136 CLR 529 at 538-39 and the cases there cited.
Thus, The ‘Cape
Moreton’, The ‘Maria Luisa’ and Comandate Marine v Pan Australia
Shipping restate the fundamental architecture of the Admiralty Act
based, in relation to ss 17, 18 and 19, on the procedural theory, recognising,
however, the integral nature of the separateness of the in rem claim as
the central building block to the efficient operation of the procedural theory
based structure.
The ‘Global
Peace’ [2006] FCA 954; (2006) 154 FCR 439
This case contains
an analysis of the operation of the Admiralty Act and how one examines
whether or not the Court has authority to entertain an in rem claim.
Central to the operation of the Act is understanding the definition of maritime
claims in s 4. Section 4(2) contains a definition
of proprietary maritime
claims. Each of paragraphs (a) to (d) commences with the words “a claim”. In
(a) it is “a claim relating
to” certain matters. In (b) it is “a claim between
co-owners of a ship relating to” certain matters. In (c) it is “a claim for
the satisfaction or enforcement of a judgment”. In (d) it is “a claim for
interest in respect of a claim referred to in paragraph
(a), (b) or (c).”
The definition of
a general maritime claim also uses the phrase “a claim”. This phrase commences
each and every paragraph from (a)
to (w).
When one goes to
Part III one needs to recognise the difference in wording between different
provisions of the Act. In s 15 the Act
provides that “a proceeding on a
maritime lien or other charge” may be commenced as an action in rem. The
claim in s 15 is not “a proceeding on a claim to a maritime lien or other
charge” but “a proceeding on a maritime lien or other
charge”. Sections 16,
17, 18 and 19 refer to “a proceeding on” either a proprietary maritime claim, a
general maritime claim or
a maritime claim concerning a ship. The importance
of the difference between these two forms of wording became apparent in The
‘Global Peace’.
In The ‘Global
Peace’, three plaintiffs as owners of three ships (later two, when one
plaintiff withdrew its proceeding) complained about alleged fouling
of the
hulls of their ships by bunkers which escaped from the port deep tank of Global
Peace. This had occurred when a tug had hit the side of Global Peace
when the starboard stern thruster of the tug Tom Tough had suddenly cut
out as it was assisting Global Peace to its berth thereby leading to the
starboard stern side of the tug slamming into the hull of Global Peace,
fracturing the hull plating. Various claims were made by the owners of the
ships whose hulls were said to be fouled. The writs
after amendment claimed a
number of bases for jurisdiction for an in rem claim. They claimed
damages in respect of damage done by Global Peace to the plaintiffs’
vessels caused by oil escaping; they claimed a maritime lien for damage done by
a ship; they claimed damages arising
under the Protection of the Sea (Civil
Liability) Act 1981; they made claims in respect of towage and pilotage;
they made claims arising out of an act or omission of a person for whose
wrongful
acts or omissions the owner was liable being an act or omission in the
navigation or management of Global Peace.
There is a
discussion in the judgment about each of these matters. There is also a
discussion concerning the associated jurisdiction
in s 12 of the Act, which is
in the following terms:
The jurisdiction that a court has
under this Act extends to jurisdiction in respect of a matter of Admiralty and
maritime
jurisdiction not otherwise within its jurisdiction that is associated
with a matter in which the jurisdiction of the court under
this Act is invoked.
It is to be
recalled that there is a defined and closed list of maritime claims in section
4 of the Admiralty Act. This is not the totality of the extent of
Admiralty and maritime jurisdiction under s 76(iii). It was asserted by the
plaintiffs
that there was a commission of a general maritime tort and that
though this is not listed as a maritime claim in s 4, such a claim is within s
76(iii). The resolution of the matter was not essential. However, the Court
said that even if that associated
matter was brought into the jurisdiction of
the Court because of the existence of the one or more heads of existing
jurisdiction
by the existence of claims of the kind referred to by s 4(2) or
(3) that did not mean that one could proceed in rem for any claim other
than a claim of the kind referred to in Part III. There is also some
discussion of the fundamentally international character of the jurisdiction in
a discussion of the scope of s
76(iii) of the Admiralty Act. (As to the
nature of “associated jurisdiction”, which is to be distinguished from “accrued
jurisdiction” see (2002) 23 Aust Bar Rev 29 at 47-49.)
damage done by
ship
There is a
reasonably full discussion of the phrase “damage done by ship” at [79]-[89]. Important
in that discussion is the recognition
that what the Court is doing is ascertaining
the nature and character of the claim, not the strength of the claim. That is,
one
must examine what is asserted as the claim and its elements in order to
assess whether the claim, as put forward, answers the description
in question,
that is whether it bears the legal character of the relevant claim. How the
plaintiff wishes to do that in any particular
case may vary. Evidence could be
relevant to that task to show that there is a claim, and a bona fide one, of
that character. However,
the process of assessing whether the Court has
jurisdiction is not one answered by whether the claim will fail or whether it
should
be summarily disposed of. If it is to be summarily disposed of, that is
an action that the Court takes within jurisdiction, not
in its assessment as to
whether the Court has jurisdiction. Jurisdiction is the authority to
adjudicate. If a claim is weak, it
is dealt with, that is adjudicated upon,
with authority. A conclusion that the Court has no jurisdiction is a
conclusion that it
has no authority to hear the case, even to dismiss it
because it is obviously hopeless.
In a claim for
damage done by a ship, however, it is necessary to understand, with some
precision, what is asserted to have occurred.
The boundary between examining
what is the claim and whether it can be made out can become slightly blurred.
Nevertheless, the distinction
should be borne in mind at all times. When the
Court examined what was asserted here it was found that the claim bore the character
of a claim for damage done by the ship. It was alleged that those in charge of
Global Peace (the pilot and the master) failed in their duties in the
navigation or management of the ship (that is of Global Peace) in
respect of its handling in the berthing operation. It was also alleged that
those in charge of the tug were negligent for which
the owner of Global
Peace was responsible. The propositions put by way of assertion were that Global
Peace was mishandled by, in part, those on board the ship. If those
allegations were made good, the two ships had their hulls fouled by
oil that
escaped from Global Peace by, in part, the faulty navigation or
management of Global Peace in manoeuvring the ship in the berthing
operation. To paraphrase the words of Dixon J in Nagrint v 'The Ship Regis',
the injuries to the two ships were claimed to be the result of the navigation
or management of Global Peace as a moving object in her berthing or some
other operation in her berthing.
a claim in
respect of towage or pilotage of a ship s 4(3)(j) and (k).
The events
occurred in a circumstance of compulsory pilotage. It was argued by the
defendant that s 4(3)(j) and (k) only gave the Court jurisdiction in relation
to a claim concerning the pilotage service in question, either against the pilot
who provided it, or to enforce a claim for the fees for rendering of it. This
was rejected. A broad and liberal interpretation
was given to the phrases in
the two paragraphs in accordance with authority concerning the interpretation
of the Admiralty Act. There was also a useful discussion of the notion
of towage not being restricted to pulling a tow by a tug with a line on board.
It can be seen to include any operation in connection with the holding,
pushing, pulling, moving, escorting or guiding of or standing
by a vessel.
the claim for
an act or omission of the tug.
There was a
discussion of the operation of s 4(3)(d) in particular paragraph (iii) thereof.
The plaintiff said that the claim was one arising out of an act or omission
through the asserted
default of the master of Global Peace. This
invoked s 4(3)(d)(i). This was straightforward. It was said that this was in
the navigation or management of the ship, that is Global Peace. There
was a discussion in this context of both navigation and management.
It was also
claimed that the defendant was responsible for those on the tug by reason of
the operation of the Standard UK Towage Conditions.
Whether or not this will
be successfully made out is not to the point; it could not be denied that that
was the claim.
the claim under
the Protection of the Sea (Civil Liability) Act 1981
Here, the
distinction between the claim being made, thereby giving the Court jurisdiction,
and its weakness, thereby giving the power
to dismiss it summarily within
jurisdiction, was important. The Court found that the claim could be
characterised as one made arising
out of the Convention picked up by the Act.
However, the Court said later in its reasons that whilst the claim was within
jurisdiction,
it was so apparently weak that the plaintiff would have to
justify the claim on the pleading in a summary disposal motion if brought
forward by the defendant.
the maritime lien
Given that the
Court came to the view that there was a claim for damage done by a ship it
could be said that there was also a claim
on a maritime lien. Thus, it was
unnecessary to embark on any detailed discussion as to whether there could be a
maritime lien for
a tort on the high seas.
Importantly for
the operation of the Admiralty Act the Court made the point that it is
not merely a proceeding in which there is a claim for a lien that gives the
Court jurisdiction,
but there must be “a proceeding on a maritime lien”. What
does this mean? Does it mean that the lien has to be made good at the
point of
jurisdiction? The Court said that the answer to this question is, no. One
does not have to make good one’s salvage claim
to be entitled to file an in
rem claim and arrest a ship for salvage. One does not have to make good
the claim for master’s or crew’s wages to begin the in rem action on a
maritime lien so founded. The proceeding must, however, be on a lien, that is,
something that is recognised by Australian
maritime law to give rise to a
lien. One cannot simply assert a novel basis for a lien and say that there is
a claim for lien to
go to hearing. If a novel claim for a lien were to be made
at the jurisdiction stage the Court would need to decide whether or not
such a
lien could exist under Australian law. It was unnecessary to deal with this
issue fully because there was a recognised basis
for a lien: damage done by a
ship. Therefore, the facts, as pleaded, could go to trial.
The case repays
careful reading about the nature of jurisdiction of the Court over in rem
actions, over in personam actions, in respect of the associated
jurisdiction in s 12 which can give jurisdiction over Admiralty and maritime
matters not listed in s 4, but falling within s 76(iii), and in respect of
particular aspects of some of the claims defined in s 4 of the Admiralty Act.
The ‘Genco
Leader’ [2005] FCAFC 162; (2005) 145 FCR 145 and The F V ‘Taruman’
[2006] FCAFC 75; (2006) 151 FCR 126
Both these cases
dealt with the question of arrest of bunkers. The ‘Genco Leader’ only
tangentially and by way of obiter comment, The ‘Taruman’ more
fully.
Before turning to
the question of bunkers, it is necessary to deal with the central questions
raised in The ‘Genco Leader’. Genco Leader was a bulk carrier
due to load wheat in Kwinana. Her bunkers were arrested. The arrest was under
s 17 of the Act. Genco Leader was owned by a party against whom the
plaintiff made no complaint. It was assumed that the bunkers were owned by the
time charterer
of Genco Leader. That time charterer of Genco Leader was
also the previous time charterer of another vessel, Tolmi. The
dispute between the plaintiff and the time charterer of Genco Leader related
to their rights respectively under the earlier time charter of Tolmi. The
bunkers on board Genco Leader of course had nothing whatsoever to do
with the previous time charter of Tolmi or any other rights between the
time charterer and the plaintiff. Rather, they were in effect maritime
property owned by the relevant
person which was being sought to be attached as
security for the claim over the charter of Tolmi. The plaintiff was
seeking to say that under s 17 where one had a maritime claim concerning a ship
(here Tolmi) and a relevant person to that dispute (here the time
charterer of Tolmi who later became time charterer of Genco Leader
and owner of the bunkers on board Genco Leader) was, when the action
arose, the owner of maritime property, a proceeding may be commenced against
that property. There was an entire
disconnection between “the ship or property”
referred to in the chapeau of s 17 and the ship or property in paragraphs
(a) and (b).
The Court rejected this construction which would have allowed a
species of maritime attachment, or “sister property arrest” without
any
specific supporting provision in the Admiralty Act of the kind in s 19
for ships.
A subsidiary
question (but one unnecessary to answer) arose as to whether one could arrest
bunkers separately from the ship. The
Court took the view without any detailed
argument (the matter coming on before a Full Court urgently sitting in the
original jurisdiction)
that the word “property” was wide enough to include
bunkers.
In The ‘F
V Taruman’ the Court looked at the question of arrest of bunkers
separately. It was also obiter dicta. However, it was considered after
full argument. The primary question in the case was whether the word “boat” in
s 106A of the
Fisheries and Management Act 1991 and the forfeiture
provision therein included the bunkers on board a boat or only forfeiture of
the boat itself. After reference
to various cases including The ‘Silia’
in relation to the scope of arrest, the Court came to the view not only that
bunkers were included in the definition of boat, but
also that one could not
separately arrest bunkers on board a ship. The ‘Genco Leader’ was not
followed in that respect.
The ‘Boomerang
I’ (2006) 151 FCR 403
This was another
case in the Pan v Comandate saga. This was the arrest which led to the
argument later that Comandate Marine had abandoned or waived the arbitration.
Pan had
a demise charter of a newbuild vessel Boomerang I. A dispute
had arisen between Comandate Marine and Pan about the ship that Comandate
Marine had time chartered to Pan and which
became known for a short period as Boomerang
II. Boomerang II was certainly not a newbuild vessel. There were serious
allegations about the seaworthiness and structural integrity of Boomerang II,
as well as about the fitness of the crew to engage in coastal shipping for Pan
given that they were foreign nationals without any
visa entitlement to work on
the coastal trade. Each of Pan and Comandate Marine claimed millions of
dollars from the other in relation
to the ill-fated time charter of Boomerang
II. Comandate Marine caused the arrest of Boomerang I (the newbuild
vessel which Pan had demise chartered from a third party) under the surrogate
ship arrest provision, s 19, claiming
that the phrase “the owner” in s 19(b) included
demise charterer. This argument was put forward notwithstanding the fact that s
18 specifically dealt with demise charter arrest. The Court examined the cases
which had preceded the passing of the Admiralty Act about this question
in circumstances where relevant statutes did not have demise charter arrest.
The preponderance of these cases
(on different, though cognate, statutes) was
that the word “owner” or its equivalent part of speech did not incorporate
demise charterer.
The Australian Law Reform Commission discussed these cases
fully and suggested the incorporation of a demise charter provision in
the
proposed Act, which was taken up by the Parliament in s 18. In this context,
it was held that the meaning of the word “owner”
in s 19(b) did not include
demise charterer. The High Court refused special leave.
The above cases
repay careful reading concerning the nature and operation of the Admiralty
Act.
SCHEDULE
s 3(1)
"relevant
person" , in relation to a maritime claim, means a person who
would be liable on the claim in a proceeding commenced as an action in
personam .
s 4
Maritime claims
(1) A
reference in this Act to a maritime claim is a reference to a proprietary maritime
claim or a general maritime claim.
(2) A reference in this Act to
a proprietary maritime claim is a reference to:
(a) a claim relating to:
(i) possession of a ship;
(ii) title to, or ownership
of, a ship or a share in a ship;
(iii) a mortgage of a ship or
of a share in a ship; or
(iv) a mortgage of a ship’s freight;
(b) a claim between co‑owners
of a ship relating to the possession, ownership, operation or earnings of the ship;
(c) a claim for the satisfaction
or enforcement of a judgment given by a court (including a court of a foreign
country)
against a ship or other property in a proceeding in rem in the nature
of a proceeding in Admiralty; or
(d) a claim for interest in
respect of a claim referred to in paragraph (a), (b) or (c).
(3) A reference in this Act to
a general maritime claim is a reference to:
(a) a claim for damage done by
a ship (whether by collision or otherwise);
(b) a claim in respect of the
liability of the owner of a ship arising under Part II or IV of the Protection
of the Sea
(Civil Liability) Act 1981 or under a law of a State or Territory
that makes provision as mentioned in subsection 7(1) of that
Act;
(c) a claim for loss of life,
or for personal injury, sustained in consequence of a defect in a ship or in
the apparel
or equipment of a ship;
(d) a claim (including a claim
for loss of life or personal injury) arising out of an act or omission of:
(i) the owner or charterer of
a ship;
(ii) a person in possession or
control of a ship; or
(iii) a person for whose
wrongful acts or omissions the owner, charterer or person in possession or
control of a ship
is liable;
being an act or omission in the navigation or
management of the ship, including an act or omission in connection with:
(iv) the loading of goods on
to, or the unloading of goods from, the ship;
(v) the embarkation of persons
on to, or the disembarkation of persons from, the ship; and
(vi) the carriage of goods or
persons on the ship;
(e) a claim for loss of, or
damage to, goods carried by a ship;
(f) a claim arising out of an
agreement that relates to the carriage of goods or persons by a ship or to the
use or hire
of a ship, whether by charterparty or otherwise;
(g) a claim relating to
salvage (including life salvage and salvage of cargo or wreck found on land);
(h) a claim in respect of
general average;
(j) a claim in respect of
towage of a ship;
(k) a claim in respect of
pilotage of a ship;
(m) a claim in respect of goods,
materials or services (including stevedoring and lighterage services) supplied
or to be
supplied to a ship for its operation or maintenance;
(n) a claim in respect of the
construction of a ship (including such a claim relating to a vessel before it
was launched);
(o) a claim in respect of the
alteration, repair or equipping of a ship;
(p) a claim in respect of a
liability for port, harbour, canal or light tolls, charges or dues, or tolls,
charges or dues
of a similar kind, in relation to a ship;
(q) a claim in respect of a
levy in relation to a ship, including a shipping levy imposed by the Protection
of the Sea
(Shipping Levy) Act 1981 , being a levy in relation to which a power
to detain the ship is conferred by a law in force in Australia
or in a part of Australia;
(r) a claim by a master, shipper,
charterer or agent in respect of disbursements on account of a ship;
(s) a claim for an insurance
premium, or for a mutual insurance call, in relation to a ship;
(t) a claim by a master, or a
member of the crew, of a ship for:
(i) wages; or
(ii) an amount that a person,
as employer, is under an obligation to pay to a person as employee, whether the
obligation arose out of the contract of employment or by operation of law,
including the operation of the law of a foreign
country;
(u) a claim for the
enforcement of, or a claim arising out of, an arbitral award (including a
foreign award within the
meaning of the Arbitration (Foreign Awards and
Agreements) Act 1974 ) made in respect of a proprietary maritime claim or a
claim referred to in one of the preceding paragraphs;
(w) a claim for interest in
respect of a claim referred to in one of the preceding paragraphs.
s 5
Application
(1) Subject to the
succeeding provisions of this section, this Act applies in relation to:
(a) all ships, irrespective of
the places of residence or domicile of their owners; and
(b) all maritime claims,
wherever arising.
(2) This
Act does not apply in relation to a proceeding commenced before the commencement
of this Act.
(3) This Act does not apply in
relation to a cause of action that arose:
(a) in respect of an inland
waterways vessel; or
(b) in respect of the use or
intended use of a ship on inland waters.
(4) Paragraph (3)(b)
does not have effect in relation to a cause of action if, at the time when the
cause of action arose, the
ship concerned was a foreign ship.
s 9
Admiralty jurisdiction in personam
(1) Jurisdiction is conferred
on the Federal Court, the Federal Magistrates Court and on the courts of the
Territories, and the
courts of the States are invested with federal
jurisdiction, in respect of proceedings commenced as actions in personam:
(a) on a maritime claim; or
(b) on a claim for damage done
to a ship.
(2) Subsection (1)
does not confer on a court other than the Federal Court or a Supreme Court of a
Territory, or invest a court
of a State other than the Supreme Court of a State
with, jurisdiction in respect of limitation proceedings.
s 10
Jurisdiction
of superior courts in respect of Admiralty actions in rem
Jurisdiction is conferred on
the Federal Court and on the Supreme Courts of the Territories, and the Supreme
Courts of the States
are invested with federal jurisdiction, in respect of
proceedings that may, under this Act, be commenced as actions in rem .
s 11
Jurisdiction
of other courts in respect of Admiralty actions in rem
(1) The
Governor‑General may by Proclamation declare a court of a State or of a
Territory to be a court to which this
section applies.
(2) Subject
to any condition or limitation (whether as to locality, subject‑matter or
otherwise) specified in the Proclamation,
a court of a State to which this
section applies is invested with federal jurisdiction, and jurisdiction is
conferred on a court
of a Territory to which this section applies, in respect
of proceedings that may, under this Act, be commenced as actions in rem .
(3) Where
a Proclamation has been varied or rescinded, the variation or rescission does
not deprive a court of jurisdiction
to hear and determine a proceeding that was
pending in the court at the time of the variation or rescission.
s 12
Jurisdiction
in associated matters
The jurisdiction that a court
has under this Act extends to jurisdiction in respect of a matter of Admiralty
and maritime jurisdiction
not otherwise within its jurisdiction that is
associated with a matter in which the jurisdiction of the court under this Act
is invoked.
s 14
Admiralty
actions in rem to be commenced under this Act
In a matter of Admiralty or
maritime jurisdiction, a proceeding shall not be commenced as an action in
rem against a ship or other property except as provided by this Act.
s 15
Right to
proceed in rem on maritime liens etc.
(1) A
proceeding on a maritime lien or other charge in respect of a ship or other
property subject to the lien or charge may
be commenced as an action in rem against
the ship or property.
(2) A reference in
subsection (1) to a maritime lien includes a reference to a lien for:
(a) salvage;
(b) damage done by a ship;
(c) wages of the master, or of
a member of the crew, of a ship; or
(d) master’s disbursements.
s 16
Right to
proceed in rem on proprietary maritime claims
A proceeding on a proprietary maritime
claim concerning a ship or other property may be commenced as an action in
rem against the ship or property.
s 17
Right to proceed in rem on
owner’s liabilities
Where, in relation to a general maritime claim
concerning a ship or other property, a relevant person:
(a) was, when the cause
of action arose, the owner or charterer of, or in possession or control of, the
ship or property;
and
(b) is, when the proceeding is
commenced, the owner of the ship or property;
a proceeding on the claim may be commenced as an action in
rem against the ship or property.
s 18
Right to proceed in rem on demise
charterer’s liabilities
Where, in relation to a maritime
claim concerning a ship, a relevant person:
(a) was, when the cause of
action arose, the owner or charterer, or in possession or control, of the ship;
and
(b) is, when the proceeding is
commenced, a demise charterer of the ship;
a proceeding on the claim may be
commenced as an action in rem against the ship.
s 19
Right to proceed in rem against
surrogate ship
A proceeding on a general maritime claim concerning a ship
may be commenced as an action in rem against some other ship if:
(a) a relevant person in
relation to the claim was, when the cause of action arose, the owner or
charterer of, or in possession
or control of, the first‑mentioned ship;
and
(b) that person is, when the
proceeding is commenced, the owner of the second‑mentioned ship.
s 29
Security in relation to stayed or
dismissed proceedings
(1)
Where:
(a) it appears to the court in
which a proceeding commenced under this Act is pending that the proceeding
should be stayed
or dismissed on the ground that the claim concerned should be
determined by arbitration (whether in Australia or elsewhere) or
by a court of
a foreign country; and
(b) a ship or other property
is under arrest in the proceeding;
the court may order that the proceeding be stayed on
condition that the ship or property be retained by the court as security
for
the satisfaction of any award or judgment that may be made in the arbitration
or in a proceeding in the court of the
foreign country.
(2) Subsection (1) does
not limit any other power of the court.
(3) The power of the court to
stay or dismiss a proceeding includes power to do so on such conditions as are
just, including
a condition:
(a) with respect to the
institution or prosecution of the arbitration or proceeding in the court of the
foreign country;
and
(b) that equivalent security
be provided for the satisfaction of any award or judgment that may be made in
the arbitration
or in the proceeding in the court of the foreign country.
(4) Where a court has made an
order under subsection (1) or (3), the court may make such interim or
supplementary orders as are
appropriate in relation to the ship or property for
the purpose of preserving:
(a) the ship or property; or
(b) the rights of a party or
of a person interested in the ship or property.
(5) Where:
(a) a ship or other property
is under arrest in a proceeding;
(b) an award or judgment as
mentioned in subsection (1) has been made in favour of a party; and
(c) apart from this section,
the award or judgment is enforceable in Australia;
then, in addition to any other proceeding that may be
taken by the party to enforce the award or judgment, the party may apply to
the
court in the stayed proceeding for an appropriate order in relation to the ship
or property to give effect to the award or judgment.
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