i-law

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

184

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.

Copyright © 2024 Maritime Insights & Intelligence Limited. Maritime Insights & Intelligence Limited is registered in England and Wales with company number 13831625 and address 5th Floor, 10 St Bride Street, London, EC4A 4AD, United Kingdom. Lloyd's List Intelligence is a trading name of Maritime Insights & Intelligence Limited.

Lloyd's is the registered trademark of the Society Incorporated by the Lloyd's Act 1871 by the name of Lloyd's.