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Rares, Justice Steven --- "Speaking notes for the International Bar Association conference in Sydney" (FCA) [2017] FedJSchol 28

aEURoethe protection given by the orders to a shipping company should not be seen as necessarily defeating proper maritime claims that are lien claims, and the question of the status of any claims that are lien claims (as well as the status of any claims that are aEURoequasi lien claimsaEUR, to which I have referred), would need to be resolved in any litigation unless the matter were agreed. It would be wrong to make orders now that would forestall any vindication by such claimants against the interests of the rehabilitation. Likewise, it would be wrong to prevent the rehabilitation being supported by the Act on the mere possibility of the existence of these claims.aEUR

13. In such situations, a court may have to strike balances between competing public policies reflected in statutes conferring rights to proceed in rem, on the one hand, and, on the other, providing for the orderly administration in another jurisdiction of a debtoraEURtms affairs under the Model Law. There will be cases where, as I suggested in Hur v Samsun Logix Corporation^[4], the interests of justice require that an unpaid shipaEURtms crew be entitled immediately to enforce their maritime lien over her because^[5]:

aEURoeThe fact that they are unpaid and are on a ship from which, if penniless, they cannot escape is a very good reason to ensure that however else the automatic stay in Art 20(2) of the Model Law operates, claims to such maritime liens are protected and immediately enforceable without any requirement for prior leave to be sought. If the stay in Art 20(2) were construed to preclude members of a shipaEURtms unpaid crew from exercising their maritime lien by arresting or attaching the ship when she reached port, the consequence might be the de facto forced labour or enslavement of the crew until the ship finally reached the crewaEURtms or shipaEURtms home port.aEUR

14. In addition, a plaintiff may seek to arrest a ship so as to obtain security for an arbitration or other proceedings. In such cases, it may be appropriate for the maritime court to order that the debtor provide security before releasing a ship from arrest, if the circumstances warrant doing so instead of requiring the plaintiff to prove, such as by filing a proof of debt, the claimed liability in the jurisdiction where the foreign main proceeding is located, so that all creditors in the same class might be treated equally.

The law applicable to maritime liens

15. Despite the efforts of the ComitA(c) Maritime International, it has not been possible for States to agree on the ratification of a convention for the recognition and enforcement of foreign maritime liens. That is because different jurisdictions use maritime liens inconsistently to protect disparate classes of creditors. Thus, each jurisdiction has its own law relating to what claims or classes of claims create, or are to be recognised as, maritime liens.

16. Last year a Full (ie:appeal) Court of five judges of the Federal Court of Australia considered for the first time under the Admiralty Act 1988 (Cth) what maritime liens should be recognised by Australian law, in The Ship aEURoeSam HawkaEUR v Reiter Petroleum Inc^[6]. In substance, the majority of the Court held that Australian law would be likely to recognise only claims to maritime liens for collision, bottomry and salvage, and claims by the master for disbursements made by him or her and for wages of the master and crew. That is the same position as in English law following the decision of the majority of the Privy Council in The Halycon Isle^[7].

17. In particular, the majority of the Full Court indicated that the wider class of maritime liens for supply of necessaries to a ship that the laws of the United States of America, Canada and similar jurisdictions recognise, were not likely to be classified as maritime liens at all under Australian law. Two of the five judges held that this was the law here while two others said that, although it was not necessary for them to decide the question in the appeal, they thought this would be likely to be the position. I said that I thought it likely ( obviously wrongly, as is now known) that Australian law would classify the foreign right as having the substantive effect it had in under the law the place where it arose.

18. Clearly enough, the priority given by the law of the forum to the claimed right will follow from the forumaEURtms characterisation or classification of it. That is why the Federal Court of Australia developed the practice of allowing an Admiralty judge determine whether to allow an arrest to occur as an exception to the general stay under Art 20(1) of the Model Law.

19. One additional issue that has come up in practice is that the foreign representatives do not appear to respect the obligation in Art 18 to inform the court of the forum promptly or at all if the foreign proceeding in his or he home jurisdiction comes to an end. The effect of this is that the stay has remained in place in Australia even though there no longer is a current foreign proceeding to which it relates as occurred recently in 3 cases, including that of the Hanjin colapse^[8].

^[1]In re Aro Ltd [1980] Ch 196; Programmed Total Marine Services Pty Ltd v Ship aEURoeHako EndeavouraEUR [2014] FCAFC 134; (2014) 229 FCR 563 at 569[22] per Allsop CJ, 571[37] per Rares J

^[2] [2013] FCA 680; (2013) 223 FCR 189 Buchanan J

^[3] [2015] FCA 1170; (2015) 333 ALR 513 at 517 [21]

^[4] [2015] FCA 1154; (2015) 238 FCR 4833 at 489 [31]- [33]

^[5] 238 FCR at 489 [33]

^[6] [2016] FCAFC 26; (2016) 246 FCR 337

^[7] [1981] AC 221

^[8] Suk v Hanjin Shipping Co Ltd [2017] FCA 404.