The maritime lien and the present Australian admiralty law

• Date: 01 January 2011
• DOI: 10.10520/EJC74143
• Pages: 274-307
• Published date: 01 January 2011

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7 THE MARITIME LIEN AND THE PRESENT AuSTRALIAN

ADMIRALTy LAW

7.1 Introduction

English law may be regarded as the bedrock of Australian maritime

and admiralty law.1 In The Ship “Terukawa Maru” v Co-operated

Dried Fruit Sales Pty Ltd,2 Menzies J remarked that Australian

admiralty jurisdiction harked back to “the centuries old conf‌lict

between the civilians who were judges of the High Court of Admiralty

and the common law judges”.3 Although English admiralty law had

initially been undoubtedly inf‌luenced by the Civil Law of Continental

Europe,4 its civilian nature was modif‌ied by the common law, with

its jurisdiction-oriented style and conception, after the courts were

1 For discussions about the historical background of Australian maritime

law and admiralty courts, see: The Law Reform Commission, Civil

Admiralty Jurisdiction Report No 33 (Australian Government

Publishing Services, 1986) at 14; CW O’Hare, “Admiralty Jurisdiction

(Part 1)” (1979) 6 Monash University Law Review 91 (O’Hare Part

1); CW O’Hare, “Admiralty Jurisdiction (Part 2)” (1980) 6 Monash

University Law Review 195; BH McPherson, “Admiralty Jurisdiction

and the Federal Court” (1981) 55 The Australian Law Journal 71; J

Crawford, “Admiralty” in JA Riordan (ed), The Laws of Australia Vol

34 (The Law Book Co, Sydney, loose-leaf, 1993) Chapter 2, Part A;

AR Emmett, “Roman Traces in Australian Law” (2001) 20 Australian

Bar Review 205 at 222; HE Zelling, “Constitutional Background and

Jurisdiction of Courts” in MWD White (ed), Australian Maritime Law

(The Federation Press, Sydney, 2000) 1 to 25; FL Stow, “Maritime

Law and Jurisdiction in Australia” (1904-1905) 2 Commonwealth Law

Review 157; DA Ipp, “Maritime Liens and the Action in Rem” (Paper

delivered at a conference on Aspects of Maritime Law and the Admiralty

Jurisdiction of Western Australia, Perth, 11 April 1983) 1; Sir Frederick

Jordan, “The Admiralty Jurisdiction in New South Wales” (paper no

4) in Sir Frederick Jordan Selected Legal Papers (Law School of the

University of Sydney, Sydney, 1937).

2 (1972) 126 CLR 170 at 174. It is interesting to note that even until

1829 there were applications for a prohibition to restrain proceedings

in the Vice-Admiralty Court in New South Wales - see The Schooner

Darling [1829] NSW SupC 94 (29 December 1829).

3 See paragraph 5.4.2. Emmett, op cit n 1, at 221 remarked that the

observations by Brett LJ in The Gaetano and Maria (1882) 7 P 137

at 143 that every court of admiralty is a court of the country in which

it sits and to which it belongs so that the law that is administered in

such a court is the maritime law of that country, is equally applicable to

Australia. However, it is not the ordinary municipal law of the country,

but the law that the court of admiralty, either by Act of Parliament, or

by reiterated decisions and traditions and principles has adopted as

the maritime law of the country.

4 W Tetley, “The General Maritime Law − the Lex Maritima” (1994) 20

Syracuse Journal for International Law and Commerce 105 at 115.

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consolidated in England in 1873.5 Consequently, English law

on maritime liens was essentially non-statutory.6 The statutory

references to maritime liens in English law were mainly in legislation

dealing with jurisdiction. The position was the same in Australia

where the admiralty law differed little from that under English law.7

The position was different in America where there were no longer

any maritime liens under the general maritime law,8 and there was

an effort both to recognise the civilian nature of its admiralty law9

and to codify the American maritime lien law.10 Unlike the Anglo-

Australian legislation, the American legislation specif‌ied what types

of maritime claims gave rise to maritime liens and was, in essence,

a codif‌ication of its maritime lien law.11

In this chapter, I concentrate on the maritime lien in the context

of the current Australian admiralty law. Because of the historical

links to English law, in discussing the Australian law, I have sought

to include references to legislation and jurisprudence in other

jurisdictions the admiralty law of which was also derived from

5 Ibid at 117.

6 Needless to say, the exception is the maritime lien for master’s

disbursements and wages − see the various manifestations of the

Merchant Shipping Act: section 191 (1854), section 167 (1894),

section 18 (1970) and section 41 (1995).

7 SC Derrington and JM Turner, The Law and Practice of Admiralty

Matters (Oxford University Press, Oxford, 2007) 6.

8 See In re Eagle Geophysical Inc 2001 AMC 1808 at 1812 to 1813.

9 See paragraph 6.3.

10 Principally, American law on maritime liens and mortgages is found in

Chapter 313 (“Commercial Instruments and Maritime Liens”) of Title

46 of the United States Code (USC) as well as in case law. See in

general, DE Flint, “Current Developments in United States Maritime

Lien Law” (1996) 8 University of San Francisco Maritime Law Journal

267 et seq; HA Allen, “The Expanding Scope of Federal Maritime

Liens: A Critique of Blair v M/V Blue Spruce” (1975) 9 University of

San Francisco Law Review 665 at 669.

11 W Tetley, “Maritime Law as a Mixed Legal System (with Particular

Reference to the Distinctive Nature of American Maritime Law, Which

Benef‌its from Both Its Civil and Common Law Heritages)” (1999) 23

Tulane Maritime Law Journal 317 at 331.

276

that of England, such as Canada,12 South Africa,13 Singapore,14

12 As a result of Canada not joining the American Revolution in 1776,

Canada, except for Quebec, has continued in the tradition of English,

rather than American, maritime law. For a discussion of the history of

Canadian maritime law and Admiralty Courts, see: Chartwell Shipping

Ltd v QNS Paper Company Ltd [1989] 2 SCR 683; International Terminal

Operators Ltd v Miida Electronics Inc (The Buenos Aires Maru) [1986]

1 SCR 752, W Tetley, Maritime Liens and Claims (Blais, Montreal,

1998) at 41; W Tetley, “A Def‌inition of Canadian Maritime Law” (1996)

30 University of British Columbia Law Review 137; E Gold, A Chircop,

and H Kindred, Maritime Law (Irwin Law Inc, Toronto, 2003) 104 et

seq; AJ Stone, “Canada’s Admiralty Court in the Twentieth Century”

(2002) 47 McGill Law Journal 511; NG Letalik, Canadian Maritime

Liens (unpublished master’s thesis, Dalhousie University, 1980) at 50

to 129; TL McDorman, “The History of Shipping Law in Canada: The

British Dominance” (1987) 7 Dalhousie Law Journal 620; PG Thanos,

Canadian Maritime Liens (Faculty of Law, University of Toronto,

Toronto, 1975); HP Glenn, “Case Note” (1987) 66 The Canadian Bar

Review 360.

13 For a discussion of the history of South African maritime law and

admiralty courts, see: J Hare, Shipping Law and Admiralty Jurisdiction

in South Africa (Juta & Co, Cape Town, 1999) 2 to 3; HR Hahlo and

E Kahn, The South African Legal System and Its Background (Juta

& Co Ltd, Cape Town, 1968) at 571 to 575; DH van Zyl, Geskiedenis

van die Romeins-Hollandse Reg (Butterworths, Durban, 1983) 445

at 449; C Forsyth, “The Conf‌lict Between Modern Roman-Dutch Law

and the Law of Admiralty as administered by South African Courts”

(1982) 99 The South African Law Journal 255; G Hofmeyr, “Admiralty

Jurisdiction in South Africa” [1982] Acta Juridica 30; H Staniland,

A Comparative Analysis of Maritime Liens (unpublished PhD

dissertation, University of Southampton, 1990) 65 to 82; J Sanger,

The Applicable Law on Maritime Liens: A Comparative Analysis of

English, South African and German Law (unpublished minor Master’s

thesis, University of Cape Town, 2000) 9 to 14; M Stiebel, “Section 6

of the Admiralty Jurisdiction Regulation Act 105 of 1983 − An Analysis,

Comparison and Examination of the Case Law: Part 1” (2001) 13 South

African Mercantile Law Journal 226; Advocate, “Farewell Victorian

Admiralty Law” (1983) 13 Businessmen’s Law 84; South African Law

Commission, Report on the Review of the Law of Admiralty Report No

32 (Government Printer, Pretoria, 1982) at [3].

14 See The Halcyon Isle [1981] AC 221 at 229; Attorney-General’s

Chambers: Law Reform and Revision Division, Admiralty Jurisdiction

of the High Court: Arrest of Ships on Demise Charter to Secure the

Obligations of the Demise Charterer (Consultation Paper LRRD

No 1/2003, Singapore, 2003) 5 to 6; M Karthigesu, “Actions in rem

in the Far East” in PKS Kwang (ed), Carriage of Goods by Sea

(Butterworths, Singapore, 1998) 24 at 26; TK Sing, Admiralty Law and

Practice (Butterworths Asia, Singapore, 1998) at 5 to 13. In Ocean

Gain Shipping Pte Ltd v Owner and/or Charterer of Demise of vessel

“The Dong Nai” [1996] 4 MLJ 454 at 463 Abdul Malik Ishak J in the