Sister Ship Arrest and the Application of the Doctrine of Attachment in Australia: A Jurisdictional Comparative Analysis in the Wake of the 1952 Arrest Convention

• Author: Peter Aaron Glover
• Position: Solicitor, Holman Fenwick & Willan. This article won the Morella Calder Memorial Prize for 2007
• Pages: 99-122

SISTER SHIP ARREST AND THE APPLICATION OF THE

DOCTRINE OF ATTACHMENT IN AUSTRALIA:

A JURISDICTIONAL COMPARATIVE ANALYSIS

IN THE WAKE OF THE 1952 ARREST CONVENTION

Peter Glover*

1 Introduction

The action in rem, once considered the lifeboat of Admiralty jurisdiction, has evolved through the long,

colourful and at times tortuous history of Admiralty law to represent the core of Admiralty jurisdiction.

Following the introduction of the 1952 Arrest Convention, the action in rem against the wrongdoing ship was

extended to include an action against what has come to be known as the ‘sister ship’. Whilst Australia is not a

party to the 1952 Arrest Convention, it is nonetheless the principle of ‘sister ship’ arrest that has been

incorporated into the Admiralty Act 1988 (Cth) as the ‘surrogate ship’ arrest.

However, with recent Australian case law highlighting the ease with which a defendant shipowner can defeat the

principle of ‘sister ship’ or ‘surrogate ship’ arrest, the question then becomes, to what extent is an Australian

plaintiff disadvantaged by such actions when contrasted with the remedies available to a plaintiff in comparable

foreign jurisdictions?

In light of this question, the aim of this paper is twofold. First, this paper will reflect on the origins of Admiralty

jurisdiction, the action in rem, and the introduction of Admiralty law in Australia as a means of illustrating the

basis for a plaintiff to claim against the res. The paper will then explore the concept of ownership of the res and

demonstrate, through recent case law, the limitations of the action in rem when considering ‘surrogate ship’

arrest in Australia.

Second, having identified the ease with which it is possible to defeat the ‘surrogate ship’ arrest provisions under

the Admiralty Act, and in recognition of the international nature of the shipping industry, the paper will then

principally describe, compare and contrast the ‘associated ship’ arrest and attachment remedies available to a

plaintiff in South Africa, and the Rule ‘B’ maritime attachment available in the United States. Having described

the principal differences,1 this paper will then apply the South African and United States remedies to the facts of

the Australian Federal Court decision in Kent v ‘Maria Luisa’ as a means of assessing the measure of a potential

Australian plaintiff’s disadvantage.

The paper will then conclude by positing that, if it is in the interests of potential plaintiffs to have the widest

possible jurisdiction in rem as the 20th anniversary of the Admiralty Act approaches, timely consideration should

be given to the need to strike a new balance which will provide suitable local remedies to potential plaintiffs

frustrated by the judicial and legislative development of the 1952 Arrest Convention, but at the same time do not

unduly make Australia an unattractive destination for foreign shipping.

2 The Development of Admiralty Jurisdiction

2.1 Early Admiralty Jurisdiction

It has been said that for ‘time out of mind, or since sometime prior to the reign of Edward 1, or since the time of

Richard II, the law of England has known the Admiral, through whom the King ensured the collection of the

droits, profits and emoluments of the sea’.2 In addition to this function, the Admiral is also said to have

‘exercised disciplinary powers over the fleet and acted as a court in piracy and maritime causes’.3

* Solicitor, Holman Fenwick & Willan. This article won the Morella Calder Memorial Prize for 2007.

1 Due to size restrictions this paper will neither examine nor compare and contrast the procedural steps connected with ‘associated ship’

arrest or mariti me attachment remedies.

2 Ryan, E, ‘Admiralty Jurisdiction and the Maritime Lien: An Historical Perspective’ (1968) 7 Western Ontario Law Review 173.

3 Ibid.

(2008) 22 A&NZ Mar LJ 99

Whilst the first recorded use of the term ‘Admiral’ in England is in 1300,4 the High Court in Admiralty can

trace its origins to the reign of Edward III.5 Following the establishment of the court6 th e Admirals and their

deputies did not confine themselves to the ‘broad and vague powers, granted by royal patent’7 and began to

‘assert a right to a larger jurisdiction’ including the hearing of civil suits.8 This asserted jurisdiction was soon

felt by the common law courts,9 and with their vested interests,10 carried their grievances to Parliament. As a

result of the ‘unwarranted arrogation of power by the Admiral’,11 the common law courts were successful in

having the Admiralty Court’s jurisdiction restricted to things done upon 12

the sea.

In the years that followed the Admiralty Court was, for its expansionist tendencies, to suffer at the hands of the

courts of common law. By way of the writ of prohibition,13 first exercised in 1528 in the case of Kyrkby c

Barfoote,14 the common law courts ‘effectively blocked the assumption by the High Court of Admiralty of in

personam Jurisdiction’,15 and thus developed the jurisdiction in rem.16 As a consequence, however, of the

restraints in exercise of in personam jurisdiction by the Admiralty Courts, the maritime attachment, which had

‘always been merely an adjunct to an in personam proceeding against the owner’17 fell into disuse in English

Admiralty.18

In The Beldis19 the English Court of Appeal was asked to allow the arrest of any property of the relevant

person.20 This argument was rejected by the president, Sir Boyd Merriman. While justifying his position by

reference to precedent, Sir Merriman also observed that:

In my opinion, arrest of property unconnected with the claim was merely procedural, and the maxim

‘cessante rationis legis cessat ipsa lex,’ applies. I for one am not prepared, to quote LORD ESHER’S

words in R v Judge of the City of London Court (12) ([1892] 1 QB at p 299) to ‘re-open the floodgates

of Admiralty jurisdiction’ upon the public, especially when that public is an international public, and I

can see that the innovation would be disastrous to the prestige of the court.

The action in rem was therefore to become the lifeboat of Admiralty jurisdiction. Whilst various attempts were

made to settle the conflict between the Admiralty Court and the common law courts none were, however,

successful, with the conflict reaching its zenith following the elevation of Sir Edward Coke to Chief Justice.21

After a long period of decline, interest once again began to revive in the court, and following the passage of the

Frauds by Boatman Act in 1813,22 a ‘statutory process began that was to see much of th e court’s former

4 Cumming, C, ‘The English High Court of Admiralty’ (1993) 17 Tulane Maritime Law Journal 209, 219. Cumming identifies Gervase

Alard as being appointed Admiral of the Cinque Ports in 1300.

5 Cremean, D, Admiralty Jurisdiction Law and Practice in Australia and New Zealand (2nd Ed, 2003) 1.

6 Which is suggested to be in 1340 following the battle of Sluys. See ibid, 2.

7 Ryan, above n 2, 173.

8 The Australian Law Reform Commission, Civil Admiralty Jurisdiction, Report No 33 (1986) para. 9. See The Australian Law Reform

Commission, Civil Admiralty Jurisdiction (1986) tlii.edu.au/au/other/alrc/publications/reports/33/ALRC33.html > at 4

February 2007 (‘ALRC Report’).

9 Towards the end of the fourteenth century, the common law courts carried their grievance to Parliament claiming an unwarranted

arrogation of power by the Admiral. The petitions by the common law courts led to two statutes being passed in 1389 and 1391 which

effectively limited the jurisdiction of the Admirals to ‘only such things done upon the sea’ and to the exclusion of ‘all Manner of Contracts,

Pleas and Quarrels … within the Bodies of the Counties, as well by Land as by Water …’. See ALRC Report [9]; Cremean, above n 5, 2;

Ryan, above n 2.

10 Whilst salaried, the judges of the common law courts at this time obtained the greater part of their income from fees and therefore had a

direct financial interest in maintaining and extending the jurisdiction of the Westminster Hall courts. See Ryan, above n 2, 175-6.

11 Ibid, 173.

12 Cremean, above n 5, 2.

13 In addition to the power of statutory interpretation. See Ryan, above n 2, 176.

14 1 Selden Society, Select Pleas in the Court of Admiralty, 27 as reproduced in Ryan, above n 2, 177.

15 Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878, 906 per Lord Steyn. Lord Steyn continued to state that this ‘was done

by writs of prohibition to restrain the expansion of the jurisdiction of the High Court of Admiralty’: ibid, 906-7.

16 Cremean, above n 5, 2-3. The action in rem and the maritime lien ‘constituted the most important characteristics of the pre-1890 English

law and armed the maritime litigant with a far more effective remedy against the ship than he enjoyed under the common law.’ See

Hofmeyr, G, ‘Admiralty Jurisdiction in South Africa’ (1982) 30 Acta Juridica 30, 38.

17 Davies, M, ‘In Defense of Unpopular Virtues: Personification and Ratification’ (2000) 75 Tulane Law Review 337, 343.

18 Tetley, W, ‘Arrest, Attachment, and Related Maritime Law Procedures’ (1999) 73 Tulane Law Review 1895, 1905.

19 [1935] All ER Rep 760.

20 The property was in fact a ‘sister ship’ but the argument was cast in broad terms and attempted to rely on historical works and dicta from

the 19th century cases.

21 ALRC Report, above n 8, [10]. Sir Edward Coke, as a great champion of the common law saw Admiralty, with its civil law roots, as his

natural target. After Sir Edward Coke’s elevation to the bench he unleashed a ‘“torrent of prohibitions,” leaving “little … for the authority of

the Admiral to operate upon …”‘. See Ryan, above n 2, 181-2. See also Cumming, above n 4, 237-8.

22 (53 Geo 111, c 87).

(2008) 22 A&NZ Mar LJ 100