(2019) 33 A&NZ Mar LJ 1
THE SAM HAWK: ANOTHER HALCYON ISLE IN AUSTRALIA?
Ifeoma Obi* and Poomintr Sooksripaisarnkit†
The recognition and enforcement of foreign maritime liens is an area of maritime and Admiralty law that is fraught
with controversies and inconsistencies. The controversies ste m from, among others, the lack of uniformity of the
claims secured by maritime liens in different jurisdictions and the different private international law rules courts
in maritime nations apply to determine fo reign maritime lien claims. Since the decision in Bankers Trust
Interna tional Ltd v Todd Shipyard s Corp,1 courts in some maritime nations have found reasons to align their
positions with either the majority or minority judgment in that case. The reasons are not far-fetched: The Halcyon
Isle expressed the spectrum of two prevalent schools of thought on the nature of the maritime lien for conflict o f
laws purposes — procedural device or substantive right — with far-reaching outcomes on both extremes.2 The
decision of the Full Court of the Federal Court of Australia in Ship Sam Ha wk v Reiter Petr oleum Inc rehashed
some sentiments espoused in The Halcyon Isle and the dissenting judgment also mirrored some reasonings of the
minority in The Halcyon Isle.3 Could this be the outcome wh ich the Australian Law Reform Commission and
indeed Parliament intended when they left the issue of recognition and enforcement of foreign maritime lien open
for the courts to decide?
This paper highlights the similarities between the reasoning in The Sam Hawk and The Halcyon Isle, to ringfence
the real problem of foreign maritime lien recognition and enforcement, which has troubled courts for decades.
This paper argues that since the majority and minority in The Sam Hawk concurred on the substan tive nature of
the maritime lien but disagreed on the en forceability of foreig n maritime liens in Australia, the problem of
recognition and enforcement of foreign maritime liens is not a substance and procedure problem. The problem
stems from the forum court’s pursuit of other considerations, including policy objectives. The paper highlights
some pertinent issues raised in The Sam Hawk, which contributes to the jurisprudence of maritime liens in private
The paper is structured into four parts. In the first part, the authors briefly introduce the maritime lien as generally
perceived. In the second part, the author s review the decisions in The Ha lcyon Isle and The Sam Hawk and
highlight the similarities in the judgements of the majority and minority in both cases. In the third part, the authors
discuss some issues arising from The Sam Hawk and their contribution to the jurisprudence of foreign maritime
liens in private international law. In the fourth part, the authors comment on the dissenting judgment in The Sam
Hawk and conclude the paper.
The classic definition of the maritime lien is ‘a claim or privilege upon a thing to be carried into effect by legal
process’.4 In simple terms, a maritime lien is a right arising from services performed for a ship or dam ages done
by a ship that gives the claimant the right to institute an action to arrest the ship as security for the claim. In the
absence of alternative security, th e court can sell the ship to provide a fund for the satisfaction of the claim. The
essential features of the maritime lien are its enforceability notwithstanding any change of ownership of the vessel,
and the priority status accord ed the maritime lienee vis-à-vis other competing claimants where the sale proceed s
cannot satisfy all the claims. 5 The maritime lien arises by operation of law and does not require possession or
‘antecedent formality’ to be valid. 6 The maritime lien attaches to the ship from the time the event occurred that
gave rise to the maritime lien and travels with the ship wherever it goes until it is discharged one way or another.7
* PhD candidate, University of Tasmania, and barrister and solicitor of the Supreme Court of Nigeria. E-mail: email@example.com
† Lecturer in Maritime Law, University of Tasmania. E-mail: firstname.lastname@example.org
1  AC 221 (‘The Halcyon Isle’).
2 If classified as procedural, the law of the forum will be applied to determine the validity of the foreign acquired right, but if classified as
substantive, the law of the place where the lien arose will be applied to determine the validity of the right. See generally John Pfeiffer Pty
Ltd v Rogerson (2000) 203 CLR 503 (‘John Pfeiffer’).
3 (2016) 246 FCR 337 (‘The Sam Hawk’).
4 The Bold Buccleugh (1851) 7 Moo PCC 267, 284 (Sir John Jervis).
5 The Halcyon Isle (n 1) 234 (Lord Diplock, Lord Elwyn-Jones and Lord Lane); The Andrico Unity  4 SA 325, 338 (Corbett JA); The
Sam Hawk (n 3) 353  (Allsop CJ and Edelman J).
6 The Tolten  P 135, 150 (Scott LJ); The Bold Buccleugh (n 4) 284 (Sir John Jervis).
7 The Two Ellens (1872) LR 4 PC 161, 169 (Privy Council).