The Full Court of the Federal Court of Australia has held that a foreign maritime lien for the supply of bunkers cannot exist in Australia.
Further, the Court held that a foreign right will only be characterised as a "maritime lien" in Australia if it is, or is closely analogous to, a maritime lien which would be recognised by Australian law. Historically, Australia only recognises maritime liens where the maritime claim is for salvage remuneration, collision damage caused by a ship, seaman's wages, master's wages and disbursements in the course of a voyage, and claims for bottomry and respondentia (the latter two of which are hardly heard of today).
The Court held that this approach "provides clarity, simplicity and predictability; it preserves the forum's rules of priority; it promotes coherence with other relevant legislation and other maritime rules; and it conforms with the maritime policy reflected in the forum as to what rights should obtain jurisdictional and priority advantage" and is consistent with the construction of the Admiralty Act in Australia and the longstanding historical development of the maritime lien as an exclusive in rem facility.
The judgment upholds the rule identified by Lord Diplock in The 'Halcyon Isle' that "every such creditor whose claim is based on contract or [unjust enrichment] must have known" that, in so far as the legal consequences of his or her claim under its own lex causae included rights to priority over other classes of creditors, "that particular part of the lex causae would be compelled to yield to the lex fori of any foreign court in which the action in rem might be brought".
This matter was on appeal from the first instance decision that held Australian courts should recognise and enforce a maritime lien according to the lex causae, consistent with the minority judgment in The Halcyon Isle. The previous decision had radically changed maritime law in Australia and set it off down a path that directly conflicted with that of current predominant Anglo-Common law jurisprudence. The status quo has now been restored.
What Foreign "Maritime Liens" Are Enforceable In Australia?
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