Admirality & Maritime
Admiralty is the law relating to ships and their operation. It is an area of law governed not only by Commonwealth legislation but also by International Law and Convention.
Admiralty and maritime law not only regulate the rights and obligations of ship owners and other interest holders such as mortgagees and financiers but also ship operators themselves as to issues such as accountability for debt, liability or damage.
The Shipping Registration Act 1981 (Commonwealth) governs the registration of ships on the Australian Shipping Register. Not only is this Register a Register of ownership and encumbrance holders, such as mortgagees, it also provides the right, under International Conventions and by-lateral treaties, to operate Australian registered ships in international waters and foreign ports.
All commercial vessels are required to be registered under such Act, other than fishing vessels in respect of which registration is optional.
If you wish to operate a private vessel, say a sailing yacht, in international waters or to sail beyond the territorial waters of Australia to New Zealand or Papua New Guinea or beyond, then it is essential that you obtain registration as an Australian ship in order to lawfully navigate international waters or access foreign ports.
To operate a vessel which is not registered as an Australian ship invites the prospect of seizure of the vessel.
It is an essential condition of being able to register a ship on the Australian Register that the majority ownership is Australian.
Traditionally there are 64 shares in any registered ship and these may be held in any combination provided that the majority is held by Australian citizens or companies incorporated in Australia.
Operation of vessels in Australian waters is governed by the Navigation Act 1912 (Commonwealth) and by State legislation in relation to State waters.
Liability for debts incurred in the operation of a vessel; or damage caused by a vessel; or loss occurring from loss of cargo; or personal injury on a vessel, often involves the Admirality Jurisdiction of the Supreme or Federal Courts of Australia.
The right of action in this Jurisdiction is now governed by the Admiralty Act 1988 (Commonwealth). The right of action in Admiralty provides a unique procedure under which a vessel or ship, being an inanimate object, can be named as a party to a proceedings and may be impounded at the commencement of an action to secure recovery of certain rights or claims.
This type of proceedings is known as an action in “rem” as distinct from actions against individuals or companies who may otherwise be liable defined as actions in “persona”. The right to arrest a vessel is now vested in the Sheriff of the Supreme Court and Federal Court or Marshall of the High Court of Australia and can only be exercised by judicial process. Not all rights involving vessels give right to an action in “rem” against the vessel itself.
The vessel owners or operators can protect the vessel against arrest by filing a bond to cover liability arising in an action or proceedings against a vessel. It is noteworthy that there are strict rules in relation to the priority of interest holders, including claimants, against a vessel by an action in “rem”. Accordingly careful thought and planning is required before any such action is instigated.
How We Can Help
Stephen Woodward, Principal of Woodward Lawyers has extensive experience in prosecuting and defending proceedings involving actions in “rem” against vessels including proceedings against such companies as the Dillingham Navigation Company of England and Shell Oil and in proceedings in the High Court of Australia and Supreme Court of New South Wales and Queensland.
If you would like to discuss your matter, please contact: