Is the time ripe for reconsideration of The Halcyon Isle in Australia?
One unanswered question that arises from the majority decision is the status that any judicial sale would have where the law of the forum had rejected recognition of a foreign maritime lien. Halcyon Isle appears to have been scrapped soon after she was sold. But what if she had returned to the United States? Could she have been arrested by the necessaries men in exercise of their maritime lien there? If the maritime lien is substantive, at least in the eye of its lex loci or lex causae, does it continue to exist despite a judicial sale by a forum that refused to recognise it? Moreover, why is a ship’s mortgage entered into in a foreign jurisdiction, that after all involves a contract to give security, given a status in the law of a forum applying the majority decision, greater than that of a right to a maritime lien conferred by operation of law in the same jurisdiction in which the mortgage was given?
“Dean Prosser described that subject as a “dismal swamp”110. Professor Cheshire praised it as the topic offering “the freest scope to the mere jurist”, even if he or she could “seldom rest content with the solution” provided111. For Cardozo J, it was “one of the most baffling subjects of legal science”112.”
Lord Diplock said that a complicated kind of partial renvoi would be needed to give effect in the forum to the law of the contract or the law of the cause of action (lex causae)113. The discussion above has demonstrated that the treatment of a foreign maritime lien in Australian law will be influenced by this forum’s conflicts of law rules. Those rules have changed in fundamental respects since the decisions in The Halcyon Isle114 and Morlines115 in respect of foreign torts and, possibly, the overall way in which Australian law now accommodates the effects of foreign law on the substantive rights of parties to litigation here about events that occurred in another country.
The starting point for Australian law would now appear to be what Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Pfeiffer116, namely:
“Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it. A plaintiff cannot ask that a tribunal which does not exist in the forum (but does in the place where a wrong was committed) should be established to deal, in the forum, with the claim that the plaintiff makes. Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum. Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in