• appeals from decisions of the Administrative
Appeals Tribunal in relation to applications to that
Tribunal for reviews of decisions made under these Acts;
and
• matters arising under a provision of these
Acts for the purposes of paragraph 39B(1A)(c) of the Judiciary
Act 1903.
Jurisdiction under the Admiralty Act 1988
Of particular importance is the Court's jurisdiction
under the Admiralty
Act 1988 (Cth) ("the Admiralty Act").
Under the Admiralty Act, the Court may hear and determine
'proprietary' and 'general' maritime claims, as well
as claims for damage done to a ship.
Proprietary maritime claims are defined in the Admiralty
Act as including:
a claim relating to possession of a ship; title to
or ownership of a ship or a share in a ship; a mortgage
of a ship or a share in a ship; or a mortgage of a
ship's freight;
a claim between co-owners of a ship relating to the
possession, ownership, operation or earnings of the
ship;
a claim for the satisfaction or enforcement of a
judgment given by a Court (including a court of a foreign
country) against a ship or other property in a proceeding
in rem in the nature of a proceeding in Admiralty;
or
a claim for interest in respect of a claim referred
to in the previous three dot points.
General maritime claims are defined as including:
a claim for damage done by a ship (whether by collision
or otherwise);
a claim in respect of the liability of the owner
of a ship arising under Part II or IV of the Protection
of the Sea (Civil Liability) Act 1981 or
under a law of a State or Territory that makes provision
as mentioned in subsection 7(1) of that Act;
a claim for loss of life, or for personal injury,
sustained in consequence of a defect in a ship or in
the apparel or equipment of a ship;
a claim (including a claim for loss of life or personal
injury) arising out of an act or omission of the owner
or charterer of a ship; a person in possession or control
of a ship; or a person for whose wrongful acts or omissions
the owner, charterer or person in possession or control
of a ship is liable. The act or omission must occur
in the navigation or management of the ship, including
an act or omission in connection with the loading of
goods on to, or the unloading of goods from, the ship;
the embarkation of persons on to, or the disembarkation
of persons from, the ship; and the carriage of goods
or persons on the ship.
a claim for loss of, or damage to, goods carried
by a ship;
a claim arising out of an agreement that relates
to the carriage of goods or persons by a ship or to
the use or hire of a ship, whether by charter party
or otherwise;
a claim relating to salvage (including life salvage
and salvage of cargo or wreck found on land);
a claim in respect of general average;
a claim in respect of towage of a ship;
a claim in respect of pilotage of a ship;
a claim in respect of goods, materials or services
(including stevedoring and lighterage services) supplied
or to be supplied to a ship for its operation or maintenance;
a claim in respect of the construction of a ship
(including such a claim relating to a vessel before
it was launched);
a claim in respect of the alteration, repair or equipping
of a ship;
a claim in respect of a liability for port, harbour,
canal or light tolls, charges or dues, or tolls, charges
or dues of a similar kind, in relation to a ship;
a claim in respect of a levy in relation to a ship,
including a shipping levy imposed by the Protection
of the Sea (Shipping Levy) Act 1981 , being
a levy in relation to which a power to detain the ship
is conferred by a law in force in Australia or in a
part of Australia;
a claim by a master, shipper, charterer or agent
in respect of disbursements on account of a ship;
a claim for an insurance premium, or for a mutual
insurance call, in relation to a ship;
a claim by a master, or a member of the crew, of
a ship for wages; or an amount that a person, as employer,
is under an obligation to pay to a person as employee,
whether the obligation arose out of the contract of
employment or by operation of law, including the operation
of the law of a foreign country;
a claim for the enforcement of, or a claim arising
out of, an arbitral award (including a foreign award
within the meaning of the International
Arbitration Act 1974 (previously known as
the Arbitration (Foreign Awards and Agreements) Act
1974 ) made in respect of a proprietary maritime claim
or a claim referred to in one of the preceding paragraphs;
a claim for interest in respect of a claim referred
to in one of the preceding paragraphs.
The Court is also able to determine any matter of admiralty
or maritime jurisdiction not otherwise within its jurisdiction
that is associated with a matter in which the jurisdiction
of the Court under the Admiralty Act is invoked.
For the purposes of the Admiralty Act, a ship is a vessel
of any kind used or constructed for use in navigation
by water however it is propelled or moved and includes
a barge, a lighter or other floating vessel, a hovercraft,
an offshore industry mobile unit within the meaning of
the Navigation
Act 1912 (Cth) and a vessel that has sunk or
is stranded and the remains of such vessel. A ship does
not include a seaplane, inland waterway vessel or a vessel
under construction that has not been launched.
Proceedings under the Admiralty Act are commenced as
either an action in rem or an action in personam.
An action in rem is an action against a ship or cargo
or other property on, or related to, the ship. In such
an action, a ship coming into Australian waters may be
arrested for the purpose of providing security for money
claimed from the ship owner and operator. If security
is not provided, a judge may order the sale of the ship
to provide funds to pay the claims.
An action in personam is a proceeding against a person,
including an organisation.
An action in rem may be commenced against a ship or
other property on the basis of:
a proprietary maritime claim; or
a maritime lien or other charge in respect of the
ship or other property (a maritime lien is defined
in the Admiralty Act as including a lien for salvage,
a lien for damage done by a ship, a lien for the wages
of a master or crew member, and a lien for a master's
disbursements)
a general maritime claim where the owner of the ship
or property when the action is commenced was the owner
or charterer or was in possession or control of the
ship or property when the cause of action arose, and
such person would be also liable on the claim if commenced
as an action in personam; and
a general maritime claim where the demise charterer
(being a person who has full possession and control
of a ship pursuant to a lease) of the ship when the
action is commenced was the owner or charterer or was
in possession or control of the ship when the cause
of action arose, and such person would be also liable
on the claim if commenced as an action in personam.
A proceeding in respect of a general maritime claim
against a ship ('the first ship') may also be commenced
as an action in rem against some other ship ('the surrogate
ship') where the owner of the surrogate ship when the
action is commenced was the owner or charterer or was
in possession or control of the first ship when the cause
of action arose, and such person would be also liable
on the claim if commenced as an action in personam. The
right to proceed against a surrogate ship does not arise
in relation to a proprietary maritime claim.
Procedural rules for matters under the Admiralty Act
The general procedure for the conduct of matters under
the Admiralty Act is set out in the Admiralty
Rules 1988 (Cth). As the Admiralty Rules do not provide
a comprehensive code, the Federal
Court Rules also apply except to the extent of any
inconsistency.
Commencing a proceeding under the Admiralty Act
A proceeding which is an action in rem under the Admiralty
Act is commenced by filing a writ in the Court and paying
the relevant fees. Details of the procedure to be followed
and the forms to be used are set out in the Admiralty
Rules.
The Admiralty Rules do not provide for how an action
in personam is to be commenced, other than to state that
such an action can not be commenced by the same initiating
process as the process initiating an action in rem. In
the Federal Court the usual practice is for an action
in personam to be commenced by filing the application
form (Form 5) prescribed by the Federal Court Rules and
paying the relevant fees.
Documents may be filed in accordance with Order
1 rule 5A of the Federal
Court Rules , which provides
that a document may be presented to a Registry when
the Registry is open for business; or sent by post
to a Registry; or sent by document exchange to the
Federal Court of Australia at its box at the Australian
Document Exchange; or sent by facsimile transmission
to a Registry in accordance with rule
5AB; or sent by electronic communication to a
Registry in accordance with rule
5AC.
Where the proceeding is an action in rem against a ship
or other property on the ship, the Admiralty Rules provide
that service is effected by securely affixing a sealed
copy of the writ to a mast or some other conspicuous
part of the ship. Where the action in rem is against
property that is not at the time of service on board
the ship, service is effected by securely affixing a
sealed copy of the writ to the property or to a package
or container containing the property. The Admiralty Rules
also provide for service where it is not possible to
gain access to the ship or property, or where the action
in rem is against the proceeds of the sale of the ship
or property that has been paid into the Court. Substituted
service is not possible in an action in rem.
Where the proceeding is an action in personam, service
of a sealed copy of the application must be carried out
in the usual way. That is, service must be effected in
accordance with the Federal Court Rules.
Arrest of a vessel under the Admiralty Act
Immediately after an action in rem is commenced, an
application supported by an affidavit may be made for
an arrest warrant to be issued in respect of the ship
or property concerned. The application constitutes an
undertaking to the Court to pay on demand the fees and
expenses incurred by the Marshal in relation to the arrest.
An arrest warrant is executed in the same way as a writ
is served. It may be executed at the same time as the
writ is served, or at some later time. The Court is able
to execute an arrest warrant anywhere in Australia.
An applicant for a warrant may ask that it not be executed.
It is also possible for an interested person in relation
to a ship or property that is the subject of a warrant
to apply to the Court for the warrant to be discharged,
not to be executed at all or not to be executed within
a specified time.
The ship or property specified in a warrant is under
arrest from the time the warrant is executed until the
ship or property is lawfully released from arrest or
sold by order of the Court. Any person removing the ship
or property, without leave to do so, may be in contempt
of Court.
The Court may make orders at any stage of a proceeding
in relation to the preservation, management or control
of a ship or property, including the loading and unloading
of cargo, that is under arrest. The Marshal or a party
may apply at any time for directions with respect to
the ship or property.
Caveats against arrest
A caveat against the arrest of a ship or property may
be filed in the registry of the Federal Court. The caveat
constitutes an undertaking by the person lodging the
caveat to enter an appearance in any action in rem started
against the ship or property specified in the caveat.
In certain situations the caveat also operates as an
undertaking to pay into the Court, unless otherwise agreed,
within three days of being served with a writ, either
the amount claimed in the writ or the amount specified
in the caveat (whichever is the less) or to enter a bail
bond in that amount.
The register of caveats against arrest can be searched
at any registry of the Federal Court.
A list of the current caveats against arrest on the
Register is available on the Court's web site through
the eSearch
facility.
Release of an arrested vessel
A ship or property may be released from arrest where:
the party who obtained the arrest consents in writing
to the release; or
the Court orders release on just terms, or where
the proceeding is discontinued or dismissed; or
a bail bond in the required amount is filed in the
Court; or
the required amount is paid into the Court.
The ship or property will only be released if satisfactory
arrangements have been made for the payment of the fees
and expenses incurred in connection with its custody
while under arrest.
Caveats against release
A caveat against release may be filed in the Court by
which the arrest warrant was issued. Where a caveat against
release is in force, the person who lodged the caveat
must be given a copy of any application to the Court
for an order to release the ship or property under arrest.
In addition, the Registrar is not able to order the release
of the ship or property unless the Court so orders. The
caveat may be withdrawn by the person who lodged it,
or the caveat may be wholly or partly set aside by the
Court.
The register of caveats against release filed in the
Federal Court can be searched at any registry of the
Court.
A list of the current caveats against release on the
Register is available on the Court's web site through
the eSearch facility.
