The Australian Law Reform Commission drafted what became in substance the Admiralty Act 1988 (Cth) in preparing its excellent report Civil Admiralty Jurisdiction: Report No 33 (ALRC 33). The Commission remarked that there was what it called “a conspicuous lack of uniformity on maritime law even between Western countries”48. It cited in support what both the majority and minority in The Halcyon Isle49had agreed was the lack of uniformity in the international treatment of maritime liens50.
The Commission noted that the position in other common law jurisdictions was different to that declared by the “bare majority” in The Halcyon Isle51citing Canadian and South African cases52. The position in South Africa is now different since its Supreme Court decided Transol Bunker BV v MV Andrico Unity53. However, that result followed because in 1983 South Africa amended its statutory Admiralty jurisdiction from requiring its courts to apply English law as administered by the English High Court in exercise of its Admiralty jurisdiction as it existed in 1891 to that which the English Courts would have applied on 1 November 198354.
The Commission recorded that the dominant view expressed to it favoured the minority view and the Canadian and the then South African approach. It observed that there was no international consensus and that one consequence of adopting the minority position could be that a foreign maritime lien that was not within any class of in remclaims enforceable under the Brussels Arrest Convention of 1952, would take priority over a local claim55.
On balance, the Commission concluded that the question of which maritime liens should be recognised under Australian law should be resolved by an international convention and that, in the absence of that clarification, it said that “the question is best left to the courts to resolve, taking into account developments in other jurisdictions”56.
That explains why s 6(a) of the Admiralty Act 1988 (Cth) provides that the provisions of the Act do not have effect to create a new maritime lien or other charge and why s 15 is expressed circumspectly as follows:
“15 Right to proceed in rem on maritime liens etc. (1) A proceeding on a maritime lien or other charge in respect of a ship or other property subject to the lien or charge may be commenced as an action in rem against the ship or property.
(2) A reference in subsection (1) to a maritime lien includes a reference to a lien for:
Thus, s 15 leaves open whether Australian Courts should follow the majority or minority in The Halcyon Isle57. However, as Allsop J noted in Comandate58 there are constraints on the expansion of maritime liens by judicial exposition. The maritime lien for a bottomry bond has fallen into desuetude59. Ironically, a bottomry bond was a security usually offered by the master or owners of a ship to necessaries men in foreign ports in order to procure supplies or services needed for her to undertake or continue a voyage. It may be that the United States took a policy decision that the formality of execution of a bottomry bond was not essential. On the other hand, it is not clear why necessaries men gave up demanding bottomry bonds to secure their provision of credit. Perhaps it was attributable to the same the aggressive late 19th century assertion by shipowners of their economic power that ultimately led first, to the Harter Act 1893 (US) and its analogues in the initial Australian, New Zealand and Canadian Carriage of Goods by Sea Acts in the early 20th century and, secondly, the Hague Rules to protect shippers’ interests.