It is a great honour to be invited to give this address to the annual conference of MLAANZ. I was in my final year of Sydney Law School in 1977 when the first Dethridge Address was delivered by the Rt Hon Sir Ninian Stephen. The address now serves a significant educative function for our two nations’ maritime professionals.
Ships are probably the paradigm examples of the effects of cross-border insolvencies. The commercial failure of a ship on an international voyage had been a well known legal problem for perhaps millennia before the more recent advent of the collapse of a multinational corporation or corporate group.
Ships can incur not only debts but liabilities anywhere they sail. The principles of what we know broadly as maritime law developed over time to deal with the recognition of what claims each forum will recognize as enforceable against a ship when she enters its port.
In this address I want to explore how a maritime lien can be classified and which choice of law rules may be used to ascertain whether a foreign maritime lien could be recognised under Australia law, particularly in light of the High Court’s recent development of Australian private international law rules. I will discuss the Privy Council’s controversial majority decision and dissent in The Halcyon Isle1, concerning the choice of law for recognition of a foreign maritime lien, and the competing theories of whether the private international law doctrine of renvoi may apply in relation to Australian law, maritime liens and contracts. Lest it be thought that this collection of topics sounds like it came from the over excited mind of a professor of law, I must reveal that it is a greatly simplified part of the subject matter of a case that I heard recently which has settled. I do not propose to give any of the answers that I came to but rather I will work through some of the issues that arose in argument.