FEDERAL COURT OF AUSTRALIA
Reiter Petroleum Inc v The Ship “Sam Hawk” [2015] FCA 1005
Citation: Reiter Petroleum Inc v The Ship “Sam Hawk” [2015] FCA 1005 Parties: REITER PETROLEUM INC v THE SHIP “SAM HAWK” File number: NSD 1136 of 2014 Judge: MCKERRACHER J Date of judgment: 11 September 2015 Catchwords: ADMIRALTY – jurisdiction – whether the plaintiff’s writ ought to be set aside for want of jurisdiction and the action dismissed on the basis that the plaintiff’s claims do not satisfy the requirements of s 15 or s 17 of the Admiralty Act 1988 (Cth) (Act) – whether the Court has jurisdiction in respect of the asserted maritime lien, in rem, under s 15 of the Act – whether the plaintiff’s claim is a proceeding on a maritime lien which is of a character recognised by Australian law, including Australian rules of private international law – whether a foreign maritime lien, such as that alleged to have arisen pursuant to the alleged bunker supply contract and the law of Canada or the United States, is a maritime lien for the purposes of s 15 of the Act even though the supply of necessaries to a ship, including bunkers, does not give rise to a maritime lien under Australian law – whether the Privy Council decision of Halcyon Isle, which is authority for the proposition that questions as to the existence of an asserted maritime lien are procedural or remedial in nature and are therefore to be determined in accordance with the law of the forum, should be followed in Australia – whether the decision of the High Court of Australia in John Pfeiffer dictates that a claim based on a maritime lien is a substantive claim as to the existence, extent or enforceability of the rights or duties of the parties, not merely a procedural claim directed to governing or regulating the mode or conduct of court proceedings
ADMIRALTY – jurisdiction – whether the Court has jurisdiction in respect of a general maritime claim under s 17 of the Act – whether the owner is ‘a relevant person’ within the meaning of s 3 of the Act with respect to the claim under s 17 of the Act – whether the jurisdiction claim under s 17 goes to the merits of the dispute or jurisdiction
ADMIRALTY – application for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or rule 26.01(1)(a) of the Federal Court Rules 2011 (Cth) – whether the plaintiff has a reasonable prospect of successfully prosecuting the proceeding under s 15 – choice of law – whether the law of Canada, United States, Hong Kong or Turkey is the proper law of the alleged bunker supply contract – whether in the circumstances United States law would recognise a maritime lien
ADMIRALTY – application for summary judgment – whether the plaintiff has a reasonable prospect of successfully prosecuting the proceeding under s 17 – whether the…
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- Case
- [2015] FCA 1005
- Decision Date
CaseChat Overview and Summary
The Court examined whether the plaintiff's claims satisfied the jurisdictional requirements of sections 15 or 17 of the Admiralty Act. It assessed whether the asserted maritime lien was a proceeding on a maritime lien recognised by Australian law, including Australian rules of private international law. The Court considered the applicability of foreign maritime law and whether a maritime lien under Canadian or United States law would be recognised in Australia. Furthermore, it deliberated on whether the decision in Halcyon Isle, which supports the application of the law of the forum to determine the existence of a maritime lien, should be followed in Australia. The Court also examined if the decision in John Pfeiffer indicated that a maritime lien claim is substantive in nature, affecting the rights and duties of the parties, rather than procedural.
The Court found that the plaintiff had not established a reasonable prospect of successfully prosecuting the proceeding under section 15 of the Admiralty Act. It concluded that the asserted maritime lien did not meet the criteria for recognition under Australian law. The Court held that questions concerning the existence of a maritime lien are substantive and go to the merits of the dispute rather than merely procedural. It also determined that the plaintiff had not demonstrated a reasonable prospect of establishing the existence of an enforceable bunker supply contract that would entitle it to a maritime lien under section 17 of the Act. Consequently, the Court dismissed the application for summary judgment and reserved costs.
1. The application be dismissed.
2. Costs of the application be reserved.
Orders
Orders of the court
1. The application be dismissed.
2. Costs of the application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The above are simply possibilities, and in the end it is unnecessary to make a determinative finding on this point to resolve the jurisdictional application because Reiter Petroleum bears the onus of establishing jurisdiction. Its argument is that jurisdiction arises because this Court should apply either United States or Canadian law to the question of the existence of a maritime lien ‘as such law governs the Bunker Supply Contract’. In doing so, it contends, that Halcyon Isle should not be followed. Consideration of the challenge to jurisdiction – s 15 of the Admiralty Act In his paper ‘The law of maritime liens and conflict of laws and customs’ (2003) 9(6) JIML 545, Dr PK Mukherjee notes (at 547) that first and foremost, the maritime lien is a species of maritime claims enjoying priority ranking as against other claims which are not recognised as maritime liens. The author goes on to discuss the other characteristics of the maritime lien in the following terms (at 547-548) (footnotes omitted):The second characteristic of the maritime lien is that it is a charge or encumbrance against maritime property and in that sense it is a proprietary interest similar to a maritime mortgage or hypothèque which is also a charge against the res. Maritime property has been jurisprudentially defined as basically comprising ship, cargo and freight. Generally speaking, only the particular res, can be encumbranced, and the property represents a security for the claim. The third characteristic of the maritime lien is that it accrues from the moment the event which triggered the claim actually occurred. A maritime lien could arise in respect of a service rendered to, or damage done by, the maritime property in question. Thus, maritime liens can be said to be ex contractu (for example, the wages lien), or ex delicto (for example, the collision lien), or quasi ex contractu (for example, the salvage lien). Perhaps the most unique attribute of the maritime lien is that having accrued, it travels with the res secretively and unconditionally. In other words, it is attached to the res and is not affected by change of possession or ownership. It does not require any form of notice or registration to subsist. Since the maritime lien is a secret encumbrance which travels with the res unconditionally, it has often been described as ‘indelible’. In practice this is not entirely correct. There are usually time limitations imposed by statute or Convention within which the ship must be arrested or seized for the claim to subsist. In common law jurisdictions, a maritime lien can be extinguished by the application of the equitable doctrine of laches which requires a lien holder to exercise reasonable diligence in the execution of his lien, especially where third-party rights are involved. It is also an inchoate right, at least in terms of English law; that is to say, it is incomplete or, to be more precise, dormant, until it is crystallised by the commencement of an action in rem. The inverse-order ranking of priorities between certain classes of maritime liens is another unique trait. The underlying rationale is that it is to the exertion of the claimant later in time that the res is preserved for the benefit of one whose claim accrued earlier. Therefore, the last in time is first in right. This is often referred to as the ‘beneficial service’ theory and is typical of salvage liens, whether inter se or vis-à-vis other classes of maritime liens. The principle of inverse order ranking is also sometimes rationalised by the so-called ‘proprietary interest’ theory which deems a prior lienholder to be, in a sense, a part-owner, with the attendant responsibility of protecting his interest against the risk of accrual of subsequent liens by exercising his right in a timely manner.Despite the fact that by and large, all of the abovementioned characteristics are universally recognised, substantial differences continue to remain in the way maritime claims are treated under various legal systems.