Chapter 1: Introduction
This Manual has been prepared to assist officers of the Federal Court who are directed to perform the duties and functions of a Marshal under the Admiralty Act 1988 (Cth) (Admiralty Act) and the Admiralty Rules 1988 (the Rules). It is also a useful reference for District Registrars and other staff who may be involved in the arrest, custody, release or sale of a ship or property.
The information in the Manual is not exhaustive or binding and is not a substitute for examining the Admiralty Act, Admiralty Rules, Federal Court Rules 2011 and other relevant material or seeking legal advice.
The Federal Court’s admiralty jurisdiction is conferred by the Admiralty Act. Under the Admiralty Act, the Federal Court may hear and determine ‘proprietary’ and ‘general’ maritime claims, as well as claims for damage done to a ship. The Admiralty Act defines the types of matters that are ‘proprietary’ maritime claims and ‘general’ maritime claims.
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) a proprietary maritime claim; or
(b) 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;
(c) 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
(d) 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.
The general procedure for the conduct of matters under the Admiralty Act is set out in the Admiralty Rules. As the Admiralty Rules do not provide a comprehensive code, the Federal Court Rules will apply to areas where there is no coverage. Where there is any inconsistency between these rules, the Admiralty Rules will apply.
In the Federal Court a national arrangement has been established whereby nominated Judges in each Registry undertake the Admiralty and maritime work of the Court at first instance and, as far as practicable, on appeal. They are assisted in undertaking the work by nominated Registrars, skilled Registry officers and Admiralty Marshals. These Registrars and Registry officers assist the Federal Circuit and Family Court of Australia in its handling of in personam matters. A National Convening Judge and Registry Convening Judges co-ordinate the work and harmonise practice and procedure.
For more details see the Court's website at the Admiralty & Maritime practice area page. This page has links to information on the National and Registry Admiralty Coordinating Judges and the Admiralty & Maritime Practice Note A&M-1.
The Court’s intranet has information for marshals which includes important/useful contacts, forms precedents and this Manual.
The maritime transport security regime that commenced on 1 July 2004 may impact on the work of the Court’s Marshals under the Admiralty Act.
A copy of an information sheet entitled ‘Information for Marshals on the Maritime Transport Security Regime’ is Annexure 1A. The information sheet should be read in conjunction with this Manual.
This regime includes a requirement that all persons working within the secure areas of a port, ship or offshore oil and gas facility and who require unmonitored access to these areas must obtain and display a maritime security identification card (MSIC). Further details on MSIC can be found in [3.19].