Landmark decision: arrest of the vessel 'Sam Hawk' – foreign maritime lien enforceable in Australia (December 2015)
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Introduction
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In the recent landmark case of Reiter Petroleum Inc v The Ship "Sam Hawk" [2015] FCA 1005, the Federal Court of Australia held that a foreign maritime lien was enforceable in Australia, and capable of founding the arrest of a ship under the Admiralty Act, 1988 (Cwth) (AA). This is despite the underlying claim on which the lien was based not being recognised as a maritime lien under Australian maritime law.
In so finding Justice McKerracher held that the Privy Council decision in the "Halcyon Isle" case no longer represents the law in Australia. "Halcyon Isle" had established that a maritime lien was procedural or remedial in nature (rather than substantive). As such, existence of the lien was determined by the lex fori. While not binding, the Halcyon Isle had been of
persuasive value in Australia - until recently. Had this remained the law in Australia, the Sam Hawk could not have been arrested based on the foreign maritime lien.
