The Full Court of the Federal Court of Australia has held that a
foreign maritime lien for the supply of bunkers cannot exist in
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
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
The Australian High Court was recently given an opportunity to consider the reach of the Damage by Aircraft Act 1999 (Cth) in the cases of ACQ Pty Limited v Cook and Aircare Moree Pty Limited v Cook (both of which were heard together).
Given the importance on both contracts and terms of consignment under the HVNL, the safest way is to put it in writing.
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