Maritime liens and the conflict of laws in Australia

Pages308-320
DOI10.10520/EJC74142
Published date01 January 2011
Date01 January 2011
308
8 MARITIME LIENS AND THE CONFLICT OF LAWS IN
AuSTRALIA
8.1 Jurisdiction to Adjudicate in Respect of Foreign Maritime
Liens
Pursuant to the provisions of sections 4, 5(1), 9, 10, 11 and 13
of the Admiralty Act 1988, the admiralty courts of Australia have
jurisdiction to hear foreign maritime claims, whether or not they are
similar or dissimilar to Australian maritime liens and claims.1 In
Elbe Shipping South Australia v The Ship “Global Peace”, Allsop
J held that this jurisdiction entails the authority to hear and decide,
or to adjudicate.2 When a challenge is made to the entitlement of
a claimant to commence a proceeding as an action in rem, that is
said to be a challenge to such jurisdiction, because the challenge is
based on a denial of the existence of any relevant maritime claim or
maritime lien, as the case may be.3 Where the challenge involves
a “proceeding on a maritime lien”, the question is whether what is
asserted in the proceeding is recognised in Australian law, including
Australian rules of private international law, as a maritime lien, and
that is part of deciding whether there is authority to commence an
in rem action under section 15 of the Admiralty Act.4
In Empire Shipping Company Inc v Owners of the Ship “Shin Kobe
Maru”5 the Federal Court decided that its jurisdiction over proprietary
maritime claims under section 4(2)(a) and (b) of the Admiralty Act
empowered it to hear and determine, in rem, a claim asserted by a
Panamanian corporation to a benef‌icial co-ownership interest in a
Japanese ship, registered as the property of a Japanese company.
The Court observed that the exercise of this jurisdiction, in some
cases, might require a consideration of foreign law on ownership,
different from Australian law.6 The decision of Gummow J on the
question of jurisdiction at f‌irst instance was upheld by the Full
1 Proceedings may, however, be stayed on the basis of forum non
conveniens if the Australian court is clearly an inappropriate forum
− see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; S
Hetherington and D Bell, “Australia − Conf‌lict of Maritime Laws” in W
Tetley, International Conf‌lict of Laws: Common, Civil and Maritime
(Blais, Montreal, 1994) 874 at 875.
2 (2006) 145 FCR 439 at [55] (The Global Peace).
3 The Global Peace (2006) 154 FCR 439 at [68].
4 The Global Peace (2006) 154 FCR 439 at [133].
5 (1991) 32 FCR 78 (The Shin Kobe Maru).
6 The Shin Kobe Maru (1991) 32 FCR 78 at 86.

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