Finding the 'Ship': Guardian Offshore AU PTY LTD V SAAB Seaeye Leopard 1702 Remotely Operated Vehicle [2020] FCA 273

Author:Alan John Sylvain de Rochefort-Reynolds
Position:BA (St John's), M.IR (Melb), JD (Melb), Arbitration Associate to Dr. Michael Pryles AO PBM. All views and errors are my own
(2020) 34 A&NZ Mar LJ 50
Alan JS de Rochefort-Reynolds*
The ‘ship’ is at the centre of Australian admiralty jurisdiction.1 Under the Admiralty Act 1988 (Cth) (‘Act’), a ship
is one of the few res against which in r em proceedings may be brought.2 But, despite its importance, the ‘ship’ is
not exhaustively defined in the Act.3 In most cases, this is a non-issue because it is uncontrover sial4 or an agreed
fact that a particular vessel is a ship.5 However, where a vessel’s status is disputed there is not a clear test for
determining whether that vessel is, or is not, a ship under the Act. 6 At most, the possession of certain phy sical
characteristics which differ between cases may be determinative.7 At the same time, the use of novel vessels
submersibles, m arine remotely operated vehicles (‘ROV’) or autonomous unmanned ships is increasing.8
Many of these vessels lack attributes commonly ascribed to traditional vessels. ROV may not be buoyant.
Unmanned autonomou s ships can be controlled remotely or be wholly autonomo us.9 In light of the rights and
liabilities peculiar to admiralty, greater understanding of the position of novel vessels under the Act is needed.
In Guardian Offshore AU P ty Ltd v Saab Seaeye Leopar d 1702 Remotely Opera ted Vehicle (‘Seaeye’)10 the
Federal Court of Australia considered whether an ROV was a ‘ship’. In finding that it was not,11 Colvin J sets out
a possible Australian approach f or deter mining the status of no vel vessels. Moreover, in formulating a ‘usual
attributes’ approach, his Honour clarifies the mean ing of ‘used in navigation’ . This is an important step in
assessing novel vessels.
1 Facts
Ford Commercial Diving Solutions (‘FCDS’) possessed two Saab Seaeye ROVs ROV 1702 and ROV 1704.12
Each ROV was less than two cubic metres in size. Their design specification s meant that the ROVs had to be
transported to the dive site aboard another ship (‘Main Ship’). When diving, the ROV received its power and
controls from the Main Ship through a physical tethering system. A ship owned by Guardian Offshore transported
ROV 1702 into the Bass Strait where the ROV conducted certain underwater works.13 A dispute then arose.
*BA (St John’s), M.IR (Melb), JD (Melb), Arbitration Associate to Dr Michael Pryles AO PBM. All views and errors are my own.
1 Admiralty Act 1988 (Cth) ss 5(1), 14; Australian Law Reform Commission, Civil Admiralty Jurisdiction (Report No 33, December 1986)
[98]. Several other Commonwealth and state acts also define a ‘ship’ but the definitions vary (eg Shipping Registration Act ss 3(1), 34;
Transport Opera tions (Marine Safety) Act 1994 (Qld) s 10(1) (2)). Some acts only refer to ‘vessels’: Navigation Act 2012 (Cth) s 14;
Marine Safety Act 2010 (Vic) s 3(1).
2 Admiralty Act 1988 (Cth) s 14.
3 This is intentional. The Australian Law Reform Commission, which drafted much of the Act, considered that a prescriptive definition
would be cumbersome and that the courts were best placed to determine, on a case-by-case basis, whether a certain vessel is a ship:
Australian Law Reform Commission (above n 1) [99].
4 See, eg, McRae v Commonwealth Disposals Commission (1951) 84 CLR 377, 389; The Skulptor Vuchetich (1996) 62 FCR 602, 604;
Metall Und Rohstoff Shipping and Holdings BV v Owners of Bunkers on Board the Ship MV Genco Leader (2005) 145 FCR 145
5 See, eg, Tisand Pty Ltd v Owners of the Ship MV Cape Moreton (2005) 143 FCR 43; Laemthong International Lines Co Ltd v BPS
Shipping Ltd (1997) 190 CLR 181.
6 See, eg, Smith v Perese [2006] NSWSC 288, [169] [171]. Australian courts have primarily considered the definition of a ‘ship’ in cases
dealing with whether bunkers or other fixtures are part of a ship. This is a distinct question from whether a vessel is a ship. The leading
Australian case on bunkers is Scandinavian Bunkering AS v The Bunkers on Board the Ship FV Taruman (2006) 151 FCR 126 (‘Taruman’)
which endorsed the definition of ‘ship’ set down in The Silia [1981] 2 Lloyd’s Rep 534. See also The Skulptor Vuchetich (1996) 62 FCR
602. A similar lack of clarity exists under public international law instruments including the United Nations Convention on the Law of the
Sea and International Regulations for Pr eventing Collisions at Sea. See, generally, Craig H Allen, International Law for Seagoing Officers
(Naval Institute Press, 6th ed, 2014) 194 7. The International Maritime Organization (‘IMO’) also conducting a scoping exercise, due to
report in 2020, on how existing IMO instruments apply to autonomous surface ships: ‘Autonomous Shipping’, International Maritime
Organization (Web Page) >.
7 Damien J Cremean, Admiralty Jurisdiction, Law and Pra ctice (Federation Press, 4th ed, 2015) 35 6; Martin Davies and Anthony Dickey,
Shipping Law (Thompson Reuters, 4th ed, 2016) 7 16.
8 On the increased use of autonomous unmanned ships, see generally Sir Bernard Eder, ‘Unmanned Vessels: Challenges Ahead’ [2019] 1
Lloyd’s Maritime and Commercial Law Quarterly 47.
9 See generally Comite Maritime Insertional, Working Group Position Paper on Unmanned Ships and the Internationa l Regulatory
Fra mework (2018).
10 [2020] FCA 273.
11 Guardian Offshore AU Pty Ltd v Saab Seaeye Leopard 1702 Remotely Operated Vehicle [2020] FCA 273, [80] [81] (‘Guardian
12 Ibid [5].
13 Ibid [26].

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