Thursday, June 11, 2015

Admiralty Jurisdiction of the Federal Court

An Introduction

The Federal Court's admiralty and maritime jurisdiction arises under or by reference to the following legislation:
The jurisdiction includes:
  • applications under the Administrative Decisions (Judicial Review) Act 1977 for review of decisions made under these Acts;
  • appeals from decisions of the Administrative Appeals Tribunal in relation to applications to that Tribunal for reviews of decisions made under these Acts; and 
  • matters arising under a provision of these Acts for the purposes of paragraph 39B(1A)(c) of the Judiciary Act 1903.

Jurisdiction under the Admiralty Act 1988

Of particular importance is the Court's jurisdiction under the Admiralty Act 1988 (Cth) ("the Admiralty Act"). Under the Admiralty Act, the Court may hear and determine 'proprietary' and 'general' maritime claims, as well as claims for damage done to a ship.
Proprietary maritime claims are defined in the Admiralty Act as including:
  • a claim relating to possession of a ship; title to or ownership of a ship or a share in a ship; a mortgage of a ship or a share in a ship; or a mortgage of a ship's freight;
  • a claim between co-owners of a ship relating to the possession, ownership, operation or earnings of the ship;
  • a claim for the satisfaction or enforcement of a judgment given by a Court (including a court of a foreign country) against a ship or other property in a proceeding in rem in the nature of a proceeding in Admiralty; or
  • a claim for interest in respect of a claim referred to in the previous three dot points.
General maritime claims are defined as including:
  • a claim for damage done by a ship (whether by collision or otherwise);
  • a claim in respect of the liability of the owner of a ship arising under Part II or IV of the Protection of the Sea (Civil Liability) Act 1981 or under a law of a State or Territory that makes provision as mentioned in subsection 7(1) of that Act;
  • a claim for loss of life, or for personal injury, sustained in consequence of a defect in a ship or in the apparel or equipment of a ship;
  • a claim (including a claim for loss of life or personal injury) arising out of an act or omission of the owner or charterer of a ship; a person in possession or control of a ship; or a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable. The act or omission must occur in the navigation or management of the ship, including an act or omission in connection with the loading of goods on to, or the unloading of goods from, the ship; the embarkation of persons on to, or the disembarkation of persons from, the ship; and the carriage of goods or persons on the ship.
  • a claim for loss of, or damage to, goods carried by a ship;
  • a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charter party or otherwise;
  • a claim relating to salvage (including life salvage and salvage of cargo or wreck found on land);
  • a claim in respect of general average;
  • a claim in respect of towage of a ship;
  • a claim in respect of pilotage of a ship;
  • a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance;
  • a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched);
  • a claim in respect of the alteration, repair or equipping of a ship;
  • a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of a similar kind, in relation to a ship;
  • a claim in respect of a levy in relation to a ship, including a shipping levy imposed by the Protection of the Sea (Shipping Levy) Act 1981, being a levy in relation to which a power to detain the ship is conferred by a law in force in Australia or in a part of Australia;
  • a claim by a master, shipper, charterer or agent in respect of disbursements on account of a ship;
  • a claim for an insurance premium, or for a mutual insurance call, in relation to a ship;
  • a claim by a master, or a member of the crew, of a ship for wages; or an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including the operation of the law of a foreign country;
  • a claim for the enforcement of, or a claim arising out of, an arbitral award (including a foreign award within the meaning of the International Arbitration Act 1974 (previously known as the Arbitration (Foreign Awards and Agreements) Act 1974 ) made in respect of a proprietary maritime claim or a claim referred to in one of the preceding paragraphs;
  • a claim for interest in respect of a claim referred to in one of the preceding paragraphs.
The Court is also able to determine any matter of admiralty or maritime jurisdiction not otherwise within its jurisdiction that is associated with a matter in which the jurisdiction of the Court under the Admiralty Act is invoked.
For the purposes of the Admiralty Act, a ship is a vessel of any kind used or constructed for use in navigation by water however it is propelled or moved and includes a barge, a lighter or other floating vessel, a hovercraft, an offshore industry mobile unit within the meaning of the Navigation Act 2012 (Cth) and a vessel that has sunk or is stranded and the remains of such vessel. A ship does not include a seaplane, inland waterway vessel or a vessel under construction that has not been launched.
Proceedings under the Admiralty Act are commenced as either an action in rem or an action in personam.
An action in rem is an action against a ship or cargo or other property on, or related to, the ship. In such an action, a ship coming into Australian waters may be arrested for the purpose of providing security for money claimed from the ship owner and operator. If security is not provided, a judge may order the sale of the ship to provide funds to pay the claims.
An action in personam is a proceeding against a person, including an organisation.
An action in rem may be commenced against a ship or other property on the basis of:
  • a proprietary maritime claim; or
  • a maritime lien or other charge in respect of the ship or other property (a maritime lien is defined in the Admiralty Act as including a lien for salvage, a lien for damage done by a ship, a lien for the wages of a master or crew member, and a lien for a master's disbursements)
  • a general maritime claim where the owner of the ship or property when the action is commenced was the owner or charterer or was in possession or control of the ship or property when the cause of action arose, and such person would be also liable on the claim if commenced as an action in personam; and
  • a general maritime claim where the demise charterer (being a person who has full possession and control of a ship pursuant to a lease) of the ship when the action is commenced was the owner or charterer or was in possession or control of the ship when the cause of action arose, and such person would be also liable on the claim if commenced as an action in personam.
A proceeding in respect of a general maritime claim against a ship ('the first ship') may also be commenced as an action in rem against some other ship ('the surrogate ship') where the owner of the surrogate ship when the action is commenced was the owner or charterer or was in possession or control of the first ship when the cause of action arose, and such person would be also liable on the claim if commenced as an action in personam. The right to proceed against a surrogate ship does not arise in relation to a proprietary maritime claim.

Procedural rules for matters under the Admiralty Act

The general procedure for the conduct of matters under the Admiralty Act is set out in the Admiralty Rules 1988 (Cth). As the Admiralty Rules do not provide a comprehensive code, the Federal Court Rules 2011 also apply except to the extent of any inconsistency.

Commencing a proceeding under the Admiralty Act

A proceeding which is an action in rem under the Admiralty Act is commenced by filing a writ in the Court and paying the relevant fees. Details of the procedure to be followed and the forms to be used are set out in the Admiralty Rules.
The Admiralty Rules do not provide for how an action in personam is to be commenced, other than to state that such an action can not be commenced by the same initiating process as the process initiating an action in rem. In the Federal Court the usual practice is for an action in personam to be commenced by filing the application form (Form 15) prescribed by the Federal Court Rules 2011 and paying the relevant fees.
If a genuine steps statement is required by section 6 of the Civil Dispute Resolution Act 2011, a Federal Court Form 16 must be filed with the originating application.
Documents may be filed in accordance with Division 2.3 of the Federal Court Rules 2011, which provides that a document may be presented to a Registry when the Registry is open for business; or sent by post to a Registry; or sent by document exchange to the Federal Court of Australia at its box at the Australian Document Exchange; or sent by facsimile transmission to a Registry in accordance with rule 2.22; or sent by electronic communication to a Registry in accordance with rule 2.23.
Where the proceeding is an action in rem against a ship or other property on the ship, the Admiralty Rules provide that service is effected by securely affixing a sealed copy of the writ to a mast or some other conspicuous part of the ship. Where the action in rem is against property that is not at the time of service on board the ship, service is effected by securely affixing a sealed copy of the writ to the property or to a package or container containing the property. The Admiralty Rules also provide for service where it is not possible to gain access to the ship or property, or where the action in rem is against the proceeds of the sale of the ship or property that has been paid into the Court. Substituted service is not possible in an action in rem.
Where the proceeding is an action in personam, service of a sealed copy of the application must be carried out in the usual way. That is, service must be effected in accordance with the Federal Court Rules 2011.

Arrest of a vessel under the Admiralty Act

Immediately after an action in rem is commenced, an application supported by an affidavit may be made for an arrest warrant to be issued in respect of the ship or property concerned. The application constitutes an undertaking to the Court to pay on demand the fees and expenses incurred by the Marshal in relation to the arrest.
An arrest warrant is executed in the same way as a writ is served. It may be executed at the same time as the writ is served, or at some later time. The Court is able to execute an arrest warrant anywhere in Australia.
An applicant for a warrant may ask that it not be executed. It is also possible for an interested person in relation to a ship or property that is the subject of a warrant to apply to the Court for the warrant to be discharged, not to be executed at all or not to be executed within a specified time.
The ship or property specified in a warrant is under arrest from the time the warrant is executed until the ship or property is lawfully released from arrest or sold by order of the Court. Any person removing the ship or property, without leave to do so, may be in contempt of Court.
The Court may make orders at any stage of a proceeding in relation to the preservation, management or control of a ship or property, including the loading and unloading of cargo, that is under arrest. The Marshal or a party may apply at any time for directions with respect to the ship or property.

Caveats against arrest

A caveat against the arrest of a ship or property may be filed in the registry of the Federal Court. The caveat constitutes an undertaking by the person lodging the caveat to enter an appearance in any action in rem started against the ship or property specified in the caveat. In certain situations the caveat also operates as an undertaking to pay into the Court, unless otherwise agreed, within three days of being served with a writ, either the amount claimed in the writ or the amount specified in the caveat (whichever is the less) or to enter a bail bond in that amount.
The register of caveats against arrest can be searched at any registry of the Federal Court.
A list of the current caveats against arrest on the Register is available on the Court's web site through the Federal Law Search facility.

Release of an arrested vessel

A ship or property may be released from arrest where:
  • the party who obtained the arrest consents in writing to the release and makes an application to the Registrar; or
  • the Court orders release on just terms, or where the proceeding is discontinued or dismissed; or
  • a bail bond in the required amount is filed in the Court; or
  • the required amount is paid into the Court.
The ship or property will only be released if satisfactory arrangements have been made for the payment of the fees and expenses incurred in connection with its custody while under arrest.

Caveats against release

A caveat against release may be filed in the Court by which the arrest warrant was issued. Where a caveat against release is in force, the person who lodged the caveat must be given a copy of any application to the Court for an order to release the ship or property under arrest. In addition, the Registrar is not able to order the release of the ship or property unless the Court so orders. The caveat may be withdrawn by the person who lodged it, or the caveat may be wholly or partly set aside by the Court.
The register of caveats against release filed in the Federal Court can be searched at any registry of the Court.
A list of the current caveats against release on the Register is available on the Court's web site through the Federal Law Search facility.

Ref: http://www.fedcourt.gov.au/law-and-practice/areas-of-law/admiralty/jurisdiction

PLEASE NOTE: The validity of law is put aside

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