Published 2019-09-11
Keywords
- Australian Admiralty jurisdiction,
- ship arrest,
- statutory lien,
- statutory right of action in rem,
- general maritime claim
- writ in rem,
- Admiralty Act 1988 (Cth),
- relevant person test,
- ownership,
- transfer of ownership to third party,
- Administration of Justice Act 1956 (UK),
- right of arrest,
- commencement of proceedings ...More
Abstract
In this paper, Justice Stewart discusses the statutory lien, also referred to as the statutory right of action in rem. His Honour talks specifically about maritime claims that do not give rise to maritime liens and are not proprietary claims. His analysis of the beneficial effect of issuing a writ in rem begins with the judgment of Justice Brandon in The Monica S [1968] P 41, with the author acknowledging three main classes of cases identified by Brandon J, in which the time when a statutory right of action becomes effective may be important.
The first of these categories is where there is a transfer of ownership either before or after an action is begun. The second is where the owner of the res goes bankrupt, or, if it is a company, goes into liquidation. the third is not addressed in this paper, but it is where there is another competing right of action in rem, for instance under a mortgage.
Justice Stewart also utilises other relevant case examples throughout, including those from common law jurisdictions other than the UK and Australia.