The Far From Halcyon Isle: Maritime Liens, Renvoi and Conflicts of Law

• Author: The Honourable Justice Steven Rares
• Position: A judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory. The author acknowledges the assistance of his associate, Venetia Brown, and the helpful comments of Professor Nicholas Gaskell of the University of Queensland in the preparation of this paper. The errors are the author's...
• Pages: 1-15

(2014) 28 ANZ Mar LJ

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The 40th Annual MLAANZ Conference

SYDNEY

19 September 2013

Frank Stuart Dethridge Memorial Address

THE FAR FROM HALCYON ISLE:

MARITIME LIENS, RENVOI AND CONFLICTS OF LAW

Justice Steven Rares*

It is a great honour to be inv ited to give this address to the annual conference of MLAANZ. I was in my final

year of Sydney Law School in 1977 when the first Dethridge Address was delivered by the Rt Hon Sir Ninian

Stephen. The address now serves a significant educative function for our two nations’ maritime professionals.

Ships are probably the paradigm examples of the effects of cross-border insolvencies. The commercial failure

of a ship on an international voyage had been a well known legal problem for perhaps millennia before the mor e

recent advent of the collapse of a multinational corporation or corporate group.

Ships can incur not only debts but liabilities anywhere they sail. The principles of what we know broadly as

maritime law developed over time to deal with the recognition of what claims each forum will recognize as

enforceable against a ship when she enters its port.

In this address I want to explore how a maritime lien can be classified and which choice of law rules may be

used to ascertain whether a foreign maritime lien could be recognised under Australian law, particularly in light

of the High Court’s recent development of Australian private international law rules. I will discuss the Privy

Council’s controversial majority decision and dissent in The Halcyon Isle,1 concerning the choice of law for

recognition of a foreign maritime lien, and the competing theories of whether the private international law

doctrine of renvoi may apply in relation to Australian law, maritime liens and contracts. Lest it be thought that

this collection of topics sounds like it came from the over excited mind of a professor of law, I must reveal that

it is a greatly simplified part of the subject ma tter of a case that I heard recently which ha s settled. I do not

propose to give any of the answers that I came to but rather I will work through some of the issues that arose in

argument.

The Problem in the Halcyon Isle

First, I should give a little history from the New Straits Times of 9 September 1974 concerning the arrest of the

17,000 ton oil tanker, Halcyon Isle. She was part of a fleet operated by the London based company, Court Line.

Court Line collapsed in mid August 1974, during the recession caused by the oil price crisis. The ship, which

was registered in London, had been mortgaged the previous year to a British bank. Because Court Line was in

financial trouble, the ship could not take on a full load of provisions when she called at Dubai on 11 August

1974 en route for Singapore. She broke down in the Straits of Malacca just after her owners’ own collapse and

was without her engines or generators for a week until she was towed into Singapore on 5 September 1974.

Earlier, on 28 August 1974, the bank began proceedings in Singapore and obtained a warrant for the ship’s

arrest in support of its claim for over S$14 million. On the same day, Todd Shipyards Corporation, the New

* A judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory. The author

acknowledges the assistance of his associate, Venetia Brown, and the helpful comments of Professor Nicholas Gaskell of the University of

Queensland in the preparation of this paper. The errors are the author’s alone. A paper presented at the 40th Annual MLAANZ Conference

at the Australian National Maritime Museum, Sydney on 19 September 2013.

1 Bankers Trust International Ltd v Todd Shipyards Corporation [1981] AC 221.