Frank stuart dethridge memorial address the far from halcyon isle



Download 222.56 Kb.
Page15/16
Date04.04.2021
Size222.56 Kb.
1   ...   8   9   10   11   12   13   14   15   16

Conclusion


  1. This address has asked more questions than it answered. That is because the settlement of the proceedings which stimulated it, has left me like a dog deprived of a bone. But, I hope that this is a little like the position that confronted FE Smith, the first Lord Birkenhead, when a judge said to him, “I have listened to you for an hour and am none the wiser.” Smith retorted, “Possibly not, my Lord, but far better informed.”`

  2. Nonetheless, the subject matter I have explored is of significance to not only those with an interest in maritime law but more generally to all persons who are engaged in international trade or commerce with Australia. The High Court’s substantial recent initiatives in developing the rules of Australian private international law have opened up large unexplored fields for the application of, first, its new articulation of the difference between substance and procedure in Pfeiffer173 and, secondly, the doctrine of renvoi beyond the law of tort.

  3. Moreover, one day a court here will have to make the intellectually challenging choice as to whether Australian law will accord recognition to a foreign maritime lien that is outside the nature of those liens referred to in s 15(2) of the Admiralty Act. That is an area between the majority and minority opinions in The Halcyon Isle174 that the Australian Law Reform Commission deliberately left open. And this issue will no doubt arise again when a cross-border insolvency is recognised here under the Cross-Border Insolvency Act 2008 (Cth) and it affects the arrest of a ship on a maritime lien.

  4. The adjective “halcyon” means “calm, quiet, peaceful, undisturbed”. The halcyon was a mythical kingfisher that bred around the time of the winter solstice in a nest that floated on the sea. During its breeding season, the bird so charmed the wind and waves that the sea was especially calm. Oh that the Halcyon Isle had lived up to its name.






1*A judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory. The author acknowledges the assistance of his associate, Venetia Brown, and the helpful comments of Prof Nicholas Gaskell of the University of Queensland in the preparation of this paper. The errors are the author’s alone.
A paper presented at the 40th Annual MLAANZ Conference at the Australian National Maritime Museum, Sydney on 19 September 2013.
Bankers Trust International Ltd v Todd Shipyards Corporation [1981] AC 221

2 Todd Shipyards Corporation v The Ship “Ioannis Daskalelis” [1974] SCR 1248; [1974] 1 Lloyd’s Rep 174

3 [1981] AC at 229G-H, 242G

4 i.e. security against the keel for the price of goods and services supplied to a ship by necessaries men outside its home port

5 [1981] AC 232G-233B

6 [1981] AC at 250C-D

7 Harmer v Bell (1851) 7 Moo PC 267 at 284-285; 13 ER 884 at 890-891

8 1 Sumner 78

9 [1946] P 135 at 144-145

10 [1946] P at 145

11 (1872) LR 4 PC 161 at 169

12 The Tolten [1946] P at 145-146

13 (2006) 157 FCR 45 at [128]

14 see too Ship “Hako Endeavour” v Programmed Total Marine Services Pty Ltd (2013) 211 FCR 369 at 395 [92]-[93] per Rares J, Siopis J agreeing at 372 [1]

15 [1938] AC 173 at 186

16 [1946] P at 148

17 (2003) 218 CLR 330 at 337-338 [13]

18 [1972] AC 242 at 290G-291B

19 [1972] AC at 297A-B

20 Elbe Shipping SA v The Ship Global Peace (2006) 154 FCR 439 at 451 [51]

21 Blunden 218 CLR at 337 [12]

22 [1981] AC 221

23 [1981] AC at 230A-B

24 [1981] AC at 230D-G

25 [1981] AC at 230F-H

26 [1981] AC at 234F-H

27 [1981] AC at 235C-D

28 [1974] SCR 1248; 1 Lloyd’s Rep 174

29 [1926] SCR 680; 4 DLR 801

30 [1923] P 102; [1981] AC at 238B-C

31 [1981] AC at 238B

32 [1923] P 102

33 [1923] P 102

34 at [1981] AC at 248H

35 [1946] P 135

36 [1981] AC at 238G-H

37 [1981] AC 246B-D and see also at 242H-243A

38 [1897] P 226 at 242

39 [1981] AC at 242H-243B

40 [1981] AC at 243A-B

41 [1981] AC at 244D-H

42 [1981] AC at 246F-G

43 [1923] P 102

44 [1974] SCR at 1256

45 [1926] SCR at 688

46 Anglin CJC, Duff, Mignault and Rinfret JJ; Idington J dissenting

47 4th ed, s 327 at p 550

48 ALRC 33 at p 64 [94]

49 [1981] AC 221

50 particularly [1981] AC at 238, 244

51 [1981] AC 221

52 ALRC 33 at p 91 [123]: Canada: The Strandhill v W Hodder Inc [1926] SCR 680; Todd Shipyards Corp v Altema Compania Maritime SA: The Ioannis Daskalelis [1974] SCR 1248. “The decision of the Privy Council in The Halcyon Isle has not altered the attitude of Canadian Courts: see eg Marlex Petroleum Inc v The Ship Har Rai [1984] 4 DLR (4th) 739, 744 (FC)”;



Share with your friends:
1   ...   8   9   10   11   12   13   14   15   16




The database is protected by copyright ©essaydocs.org 2020
send message

    Main page