Lloyd's Maritime and Commercial Law Quarterly
MARITIME LIENS, RENVOI AND CONFLICTS OF LAW: THE FAR FROM HALCYON ISLE
Steven Rares*
Two English choice of law rules are examined. The first is the controversial 1981 majority decision of the Privy Council in The Halcyon Isle that the forum will only recognise a foreign maritime lien if it could have been maintained in an action in rem. The second is the lack of applicability of the doctrine of renvoi in contract. Whether each rule is justified is considered in the light of common law authorities, academic commentaries and the recent decision of the High Court of Australia in Neilson applying renvoi in a tort case.
It is a great honour to be invited 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 more 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 recognise 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 Australia 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
* A judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory. This paper was originally delivered, as the Frank Stuart Dethridge Memorial Address, at the 40th Annual MLAANZ Conference at the Australian National Maritime Museum, Sydney on 19 September 2013. 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.
1. Bankers Trust International Ltd v Todd Shipyards Corp (The Halcyon Isle) [1981] AC 221.
184