Legal News & Analysis – Asia Pacific – Australia – Shipping, Maritime & Aviation

Surrogate Ships

Shagang Shipping Co Ltd v Ship “Bulk Peace“(as surrogate for The Ship “Dong-A Astrea“) [2014] FCAFC 48

The case reaffirms the position that ownership means “beneficial ownership” for the purpose of section 19 of the Australian Admiralty Act 1988 (Cth). The right to sell the ship in question and keep the proceeds are elements that must be proven to establish “beneficial ownership”. A right of control of the vessel will be insufficient. Read more

Clearly Inappropriate Forum

CMA CGM SA v Ship ‘Chou Shan’ [2014] FCAFC 90

This decision highlights the importance of a risk of inconsistent findings in parallel proceedings in determining whether an Australia Court is a clearly inappropriate forum. In this case, despite the Court holding that there was a real juridical advantage and that the lex causae was not that of China, it found that Australia was a clearly inappropriate forum. However, the Court raised the possibility that a party may access the juridical advantage (of a higher limitation fund) by seeking a temporary stay of proceedings based on the principles established in Caltex. Read more 

Atlasnavios Navegacao, LDA v The Ship “Xin Tai Hai” (No 2) [2012] FCA 1497

This case confirms that an Australian court must exercise its jurisdiction unless it is established to be a clearly inappropriate forum. The judgment examines the relevant principles and factors to be considered in determining that question.  Moreover, it confirms the disclosure requirements for a party seeking an arrest warrant in the Federal Court of Australia. This case provides good commentary on the clearly inappropriate forum test but must be read in light of the more recent Full Court decision in Chou Shan. Read more

Subrogated Interests

Programmed Total Marine Services Pty Ltd v The Ships Hako Fortress, Hako Endeavour, Hako Excel and Hako Esteem (2013) FCAFC 21

This case confirms that for a claim to fall within the definition of a “general maritime claim” under section 4(3)(m) of the Australian Admiralty Act 1988 (Cth), the claim must be in relation to goods and services which are supplied to a ship. Further, the case confirms that maritime liens are a personal right, not transferable nor able to be revived after they are extinguished. Read more

For further information, please contact:

Maurice Thompson, Partner, Clyde & Co
[email protected]

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