The majority reasoning in The Halcyon Isle88 was roundly criticized and not followed by Munnik JP in the South African case relied on by ALRC 33 at : Southern Steamship Agency Inc v MV Khalij Sky89. Munnik JP concluded that the law of England in 1891 was as the minority had identified in the result of The Colorado90.
After South Africa amended its Admiralty legislation in 1983 to adopt English law as at that date as the governing law for that jurisdiction, the Supreme Court of South Africa followed The Halcyon Isle91 in the Andrico Unity92. Corbett JA analysed the authorities on the correct basis that a decision of the Privy Council was not a binding precedent on the question of English law because it did not bind English courts, or the Supreme Court of South Africa, although it had persuasive force93. Ultimately, he concluded that the majority in The Halcyon Isle94was correct.
Corbett JA held that the status of a maritime lien was conferred by operation of law and not, for example, as a matter of contract95. He reasoned that the ascertainment of the order of priorities could be “of nightmarish complexity” if the forum had to grapple with the order of recognition of a number of maritime claims from different foreign legal systems with differing legal characteristics. He observed that the right created by a maritime lien was closely connected with the question of priorities. Accordingly, he found persuasive Lord Diplock’s invocation of simplicity in the use of the forum’s classification and priority rules96. Corbett JA considered that the determination of whether a particular maritime lien should have a priority ranking tended to merge the role of the law of the forum into having substantive consequences. That supported using the lex fori for the purposes of both classification and priority97.
But he also reasoned that in claims for a maritime lien based on collision damage the double actionability rule in respect of foreign torts applied: i.e. the principle established in Phillips v Eyre98. Of course, since Regie Nationale des Usines Renault SA v Zhang99 that is not the law in Australia because it now recognises the lex loci delicti as the governing substantive law for tort claims100.
New Zealand courts, being bound by decisions of the Privy Council have followed The Halcyon Isle101: Fournier v The Ship “Margaret Z”102, The Ship “Betty Ott” v General Bills Ltd103 and ABC Shipbrokers v The Ship “Offi Gloria”104.
In Morlines105, Sheppard J followed the majority in The Halcyon Isle106. His Honour noted that it had been followed in the New Zealand and South African cases above and also, he appears to have said in Canada in Marlex Petroleum Inc v The Ship “Hai Rai”107, a decision of the Federal Court of Appeal. However, it may be that his Honour inadvertently omitted the word “not” before “followed” when referring to the more recent Canadian case because that Court had followed the earlier Supreme Court decisions, as it was bound to do108. Sheppard J noted criticisms of the majority reasoning but preferred it.