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Admiralty Act 1988

Authoritative Version
Act No. 34 of 1988 as amended, taking into account amendments up to Timor Sea Maritime Boundaries Treaty Consequential Amendments Act 2019
An Act relating to Admiralty and maritime jurisdiction
Administered by: Attorney-General's
Registered 03 Sep 2019
Start Date 30 Aug 2019

Commonwealth Coat of Arms of Australia

Admiralty Act 1988

No. 34, 1988

Compilation No. 20

Compilation date:                              30 August 2019

Includes amendments up to:            Act No. 57, 2019

Registered:                                         3 September 2019

 

About this compilation

This compilation

This is a compilation of the Admiralty Act 1988 that shows the text of the law as amended and in force on 30 August 2019 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part I—Preliminary                                                                                                              1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Interpretation....................................................................................... 1

4............ Maritime claims................................................................................... 5

5............ Application.......................................................................................... 8

6............ Certain rights not created or affected................................................... 8

7............ External Territories.............................................................................. 8

8............ Act to bind Crown.............................................................................. 8

Part II—Jurisdiction in Admiralty                                                                            10

9............ Admiralty jurisdiction in personam.................................................. 10

10.......... Jurisdiction of superior courts in respect of Admiralty actions in rem 10

11.......... Jurisdiction of other courts in respect of Admiralty actions in rem... 10

12.......... Jurisdiction in associated matters...................................................... 11

13.......... Restriction to Admiralty and maritime jurisdiction............................ 11

Part III—Rights to proceed in Admiralty                                                             12

14.......... Admiralty actions in rem to be commenced under this Act............... 12

15.......... Right to proceed in rem on maritime liens etc................................... 12

16.......... Right to proceed in rem on proprietary maritime claims.................... 12

17.......... Right to proceed in rem on owner’s liabilities................................... 12

18.......... Right to proceed in rem on demise charterer’s liabilities................... 13

19.......... Right to proceed in rem against surrogate ship................................. 13

20.......... Service on and arrest of only one ship.............................................. 13

21.......... Re‑arrest............................................................................................ 14

22.......... Service and arrest out of jurisdiction................................................. 14

23.......... Service and Execution of Process Act not to apply........................... 15

24.......... Proceeds............................................................................................ 15

25.......... Limitation of liability under Liability Conventions............................ 16

26.......... Proceedings under Civil Liability Convention................................... 16

26A....... Proceedings in accordance with the Bunker Oil Convention............. 17

Part IV—Transfer and remittal of proceedings                                               18

27.......... Transfer............................................................................................. 18

28.......... Remittal............................................................................................. 18

29.......... Security in relation to stayed or dismissed proceedings.................... 20

30.......... Power to deal with ship or other property......................................... 21

Part V—Miscellaneous                                                                                                      22

31.......... Effect of judgment............................................................................. 22

32.......... Powers of Federal Court in relation to register.................................. 22

33.......... Co‑ownership disputes..................................................................... 22

34.......... Damages for unjustified arrest etc..................................................... 23

35.......... Priorities: general maritime claims..................................................... 23

36.......... Statutory powers of detention........................................................... 24

37.......... Limitation periods............................................................................. 24

38.......... Mode of trial..................................................................................... 25

39.......... Jurisdictional limits........................................................................... 25

40.......... Courts to act in aid of each other....................................................... 26

41.......... Rules................................................................................................. 26

42.......... Rules Committee............................................................................... 27

43.......... Regulations....................................................................................... 27

Part VI—Repeals and amendments of Imperial legislation                       28

44.......... Colonial Courts of Admiralty Act..................................................... 28

45.......... Repeal of certain Imperial laws......................................................... 28

46.......... Merchant Shipping Act..................................................................... 29

47.......... Transitional....................................................................................... 29

Endnotes                                                                                                                                    30

Endnote 1—About the endnotes                                                                            30

Endnote 2—Abbreviation key                                                                                32

Endnote 3—Legislation history                                                                             33

Endnote 4—Amendment history                                                                           35

 


An Act relating to Admiralty and maritime jurisdiction

Part IPreliminary

  

1  Short title

                   This Act may be cited as the Admiralty Act 1988.

2  Commencement

                   This Act commences on a day to be fixed by Proclamation.

3  Interpretation

             (1)  In this Act, unless the contrary intention appears:

Australia, when used in a geographical sense, includes each external Territory.

Civil Liability Convention has the same meaning as the Convention has in the Protection of the Sea (Civil Liability) Act 1981.

coastal sea of Australia means:

                     (a)  the territorial sea of Australia; and

                     (b)  the sea on the landward side of the territorial sea of Australia and not within the limits of a State or Territory.

commencement, in relation to a proceeding, has the meaning given by subsection (2).

costs and expenses, in relation to the Marshal, has the meaning given by subsection (5).

entering appearance has the meaning given by subsection (4).

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

foreign ship means a ship that is not registered, and is not permitted to be registered, under the Shipping Registration Act 1981.

freight includes passage money and hire.

goods, in relation to a ship, has the meaning given by subsection (3).

hovercraft means an air‑cushion vehicle, or a similar vehicle, used wholly or principally in navigation by water.

initiating process includes a third party notice.

inland waters means waters within Australia other than waters of the sea.

inland waterways vessel means a vessel used or intended to be used wholly on inland waters.

Liability Convention means:

                     (a)  the Civil Liability Convention;

                     (b)  the Limitation Convention; or

                     (c)  any other international convention that is in force in relation to Australia and makes provision with respect to the limitation of liability in relation to maritime claims.

Limitation Convention has the meaning given to the expression Convention by subsection 3(1) of the Limitation of Liability for Maritime Claims Act 1989.

limitation proceeding means a proceeding under:

                     (a)  section 25 of this Act;

                     (b)  section 9 of the Limitation of Liability for Maritime Claims Act 1989; or

                     (c)  section 10 of the Protection of the Sea (Civil Liability) Act 1981.

maritime claim, general maritime claim and proprietary maritime claim have the meanings given by section 4.

master, in relation to a ship, means a person who has command or charge of the ship.

member of the crew, in relation to a ship, means a person employed or engaged in any capacity on board the ship on the business of the ship, other than:

                     (a)  the master of the ship;

                     (b)  a person who has the conduct of the ship as the pilot of the ship; or

                     (c)  a person temporarily employed on the ship in port.

mortgage, in relation to a ship or a share in a ship, includes a hypothecation or pledge of, and a charge on, the ship or share, whether at law or in equity and whether arising under the law in force in a part of Australia or elsewhere.

off‑shore industry fixed structure means a structure (including a pipeline) that:

                     (a)  is fixed to the seabed and is not able to move or be moved as a structure from one place to another; and

                     (b)  is used or intended for use wholly or primarily in, or in any operations or activities associated with or incidental to, exploring or exploiting the mineral and other non‑living resources of:

                              (i)  the continental shelf of Australia; or

                             (ii)  the seabed of the coastal sea of Australia or the subsoil of that seabed.

off‑shore industry mobile unit means:

                     (a)  a vessel, or a structure other than a vessel that is able to float or be floated and to move or be moved as a structure from one place to another, that is used or intended for use wholly or primarily in, or in any operations or activities associated with or incidental to, exploring or exploiting the mineral and other non‑living resources of:

                              (i)  the continental shelf of Australia; or

                             (ii)  the seabed of the coastal sea of Australia or the subsoil of that seabed;

                            by drilling, or by obtaining substantial quantities of material from, the seabed or its subsoil, with equipment that is on or forms part of the vessel or structure; or

                     (b)  a barge or similar vessel fitted with living quarters for more than 12 persons and used or intended for use wholly or primarily in connection with the construction, maintenance or repair of off‑shore industry fixed structures.

relevant person, in relation to a maritime claim, means a person who would be liable on the claim in a proceeding commenced as an action in personam.

sea includes all waters within the ebb and flow of the tide.

ship means a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved, and includes:

                     (a)  a barge, lighter or other floating vessel;

                     (b)  a hovercraft;

                     (c)  an off‑shore industry mobile unit; and

                     (d)  a vessel that has sunk or is stranded and the remains of such a vessel;

but does not include:

                     (e)  a seaplane;

                      (f)  an inland waterways vessel; or

                     (g)  a vessel under construction that has not been launched.

surrogate ship has the meaning given by subsection (6).

this Act includes the regulations and the Rules made under this Act.

             (2)  A reference in this Act to the time when a proceeding is commenced is a reference to the time when the initiating process in relation to the proceeding is filed in, or issued by, a court.

             (3)  A reference in this Act to goods, in relation to a ship, includes a reference to the baggage and other possessions of a person who is on the ship, being baggage and possessions that are being carried or are to be carried on the ship.

             (4)  A reference in this Act to the entering of appearance includes a reference to any similar procedure.

             (5)  A reference in this Act to the costs and expenses of the Marshal includes a reference to the amounts payable to a person acting in accordance with the Rules as a Marshal of a court.

             (6)  For the purposes of this Act, where:

                     (a)  a proceeding on a maritime claim may be commenced against a ship under a provision of this Act (other than section 19); and

                     (b)  under section 19, a proceeding on the claim may be commenced against some other ship;

the other ship is, in relation to the claim, a surrogate ship.

4  Maritime claims

             (1)  A reference in this Act to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim.

             (2)  A reference in this Act to a proprietary maritime claim is a reference to:

                     (a)  a claim relating to:

                              (i)  possession of a ship;

                             (ii)  title to, or ownership of, a ship or a share in a ship;

                            (iii)  a mortgage of a ship or of a share in a ship; or

                            (iv)  a mortgage of a ship’s freight;

                     (b)  a claim between co‑owners of a ship relating to the possession, ownership, operation or earnings of the ship;

                     (c)  a claim for the satisfaction or enforcement of a judgment given by a court (including a court of a foreign country) against a ship or other property in a proceeding in rem in the nature of a proceeding in Admiralty; or

                     (d)  a claim for interest in respect of a claim referred to in paragraph (a), (b) or (c).

             (3)  A reference in this Act to a general maritime claim is a reference to:

                     (a)  a claim for damage done by a ship (whether by collision or otherwise); or

                     (b)  a claim in respect of the liability of the owner of a ship arising under Part II or IV of the Protection of the Sea (Civil Liability) Act 1981 or under a law of a State or Territory that makes provision as mentioned in subsection 7(1) of that Act; or

                   (ba)  a claim under:

                              (i)  the applied provisions (within the meaning of the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008); or

                             (ii)  a law of a State or Territory of a kind referred to in subsection 10(1) of that Act; or

                     (c)  a claim for loss of life, or for personal injury, sustained in consequence of a defect in a ship or in the apparel or equipment of a ship; or

                     (d)  a claim (including a claim for loss of life or personal injury) arising out of an act or omission of:

                              (i)  the owner or charterer of a ship;

                             (ii)  a person in possession or control of a ship; or

                            (iii)  a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable;

                            being an act or omission in the navigation or management of the ship, including an act or omission in connection with:

                            (iv)  the loading of goods on to, or the unloading of goods from, the ship;

                             (v)  the embarkation of persons on to, or the disembarkation of persons from, the ship; and

                            (vi)  the carriage of goods or persons on the ship; or

                     (e)  a claim for loss of, or damage to, goods carried by a ship; or

                      (f)  a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise; or

                     (g)  a claim relating to salvage (including life salvage and salvage of cargo or wreck found on land); or

                     (h)  a claim in respect of general average; or

                      (j)  a claim in respect of towage of a ship; or

                     (k)  a claim in respect of pilotage of a ship; or

                    (m)  a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance; or

                     (n)  a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched); or

                     (o)  a claim in respect of the alteration, repair or equipping of a ship; or

                     (p)  a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of a similar kind, in relation to a ship; or

                     (q)  a claim in respect of a levy in relation to a ship, including a shipping levy imposed by the Protection of the Sea (Shipping Levy) Act 1981, being a levy in relation to which a power to detain the ship is conferred by a law in force in Australia or in a part of Australia; or

                      (r)  a claim by a master, shipper, charterer or agent in respect of disbursements on account of a ship; or

                      (s)  a claim for an insurance premium, or for a mutual insurance call, in relation to a ship; or

                      (t)  a claim by a master, or a member of the crew, of a ship for:

                              (i)  wages; or

                             (ii)  an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including the operation of the law of a foreign country; or

                     (u)  a claim for the enforcement of, or a claim arising out of, an arbitral award (including a foreign award within the meaning of the International Arbitration Act 1974) made in respect of a proprietary maritime claim or a claim referred to in one of the preceding paragraphs; or

                    (w)  a claim for interest in respect of a claim referred to in one of the preceding paragraphs.

5  Application

             (1)  Subject to the succeeding provisions of this section, this Act applies in relation to:

                     (a)  all ships, irrespective of the places of residence or domicile of their owners; and

                     (b)  all maritime claims, wherever arising.

             (2)  This Act does not apply in relation to a proceeding commenced before the commencement of this Act.

             (3)  This Act does not apply in relation to a cause of action that arose:

                     (a)  in respect of an inland waterways vessel; or

                     (b)  in respect of the use or intended use of a ship on inland waters.

             (4)  Paragraph (3)(b) does not have effect in relation to a cause of action if, at the time when the cause of action arose, the ship concerned was a foreign ship.

6  Certain rights not created or affected

                   The provisions of this Act (other than section 34) do not have effect to create:

                     (a)  a new maritime lien or other charge; or

                     (b)  a cause of action that would not have existed if this Act had not been passed.

7  External Territories

                   This Act extends to each external Territory.

8  Act to bind Crown

             (1)  This Act binds the Crown in all its capacities.

             (2)  This Act does not authorise:

                     (a)  a proceeding to be commenced as an action in rem against a government ship or government property; or

                     (b)  the arrest, detention or sale of a government ship or government property.

             (3)  Where a proceeding has been commenced as an action in rem against a government ship or government property, the court may, if it is satisfied that the proceeding was so commenced in the reasonable belief that the ship was not a government ship, or the property was not government property:

                     (a)  order that the proceeding be treated as though it were a proceeding commenced as an action in personam on the claim against a person specified as defendant in the order; and

                     (b)  make such consequential orders as are necessary.

             (4)  In this section:

government means the Commonwealth, a State or the Northern Territory.

government property means cargo or other property that belongs to a government, but does not include cargo or other property that belongs to a trading corporation that is an agency of a government.

government ship means a ship that belongs, or is for the time being demised or sub‑demised, to a government (including such a ship used by or in connection with a part of the Defence Force), but does not include a ship that belongs, or is for the time being demised or sub‑demised, to a trading corporation that is an agency of a government.

Part IIJurisdiction in Admiralty

  

9  Admiralty jurisdiction in personam

             (1)  Jurisdiction is conferred on the Federal Court, the Federal Circuit Court and on the courts of the Territories, and the courts of the States are invested with federal jurisdiction, in respect of proceedings commenced as actions in personam:

                     (a)  on a maritime claim; or

                     (b)  on a claim for damage done to a ship.

             (2)  Subsection (1) does not confer on a court other than the Federal Court or a Supreme Court of a Territory, or invest a court of a State other than the Supreme Court of a State with, jurisdiction in respect of limitation proceedings.

10  Jurisdiction of superior courts in respect of Admiralty actions in rem

                   Jurisdiction is conferred on the Federal Court and on the Supreme Courts of the Territories, and the Supreme Courts of the States are invested with federal jurisdiction, in respect of proceedings that may, under this Act, be commenced as actions in rem.

11  Jurisdiction of other courts in respect of Admiralty actions in rem

             (1)  The Governor‑General may by Proclamation declare a court of a State or of a Territory to be a court to which this section applies.

             (2)  Subject to any condition or limitation (whether as to locality, subject‑matter or otherwise) specified in the Proclamation, a court of a State to which this section applies is invested with federal jurisdiction, and jurisdiction is conferred on a court of a Territory to which this section applies, in respect of proceedings that may, under this Act, be commenced as actions in rem.

             (3)  Where a Proclamation has been varied or rescinded, the variation or rescission does not deprive a court of jurisdiction to hear and determine a proceeding that was pending in the court at the time of the variation or rescission.

12  Jurisdiction in associated matters

                   The jurisdiction that a court has under this Act extends to jurisdiction in respect of a matter of Admiralty and maritime jurisdiction not otherwise within its jurisdiction that is associated with a matter in which the jurisdiction of the court under this Act is invoked.

13  Restriction to Admiralty and maritime jurisdiction

                   This Act does not confer jurisdiction on a court, or invest a court with jurisdiction, in a matter that is not of a kind mentioned in paragraph 76(ii) or (iii) of the Constitution.

Part IIIRights to proceed in Admiralty

  

14  Admiralty actions in rem to be commenced under this Act

                   In a matter of Admiralty or maritime jurisdiction, a proceeding shall not be commenced as an action in rem against a ship or other property except as provided by this Act.

15  Right to proceed in rem on maritime liens etc.

             (1)  A proceeding on a maritime lien or other charge in respect of a ship or other property subject to the lien or charge may be commenced as an action in rem against the ship or property.

             (2)  A reference in subsection (1) to a maritime lien includes a reference to a lien for:

                     (a)  salvage;

                     (b)  damage done by a ship;

                     (c)  wages of the master, or of a member of the crew, of a ship; or

                     (d)  master’s disbursements.

16  Right to proceed in rem on proprietary maritime claims

                   A proceeding on a proprietary maritime claim concerning a ship or other property may be commenced as an action in rem against the ship or property.

17  Right to proceed in rem on owner’s liabilities

                   Where, in relation to a general maritime claim concerning a ship or other property, a relevant person:

                     (a)  was, when the cause of action arose, the owner or charterer of, or in possession or control of, the ship or property; and

                     (b)  is, when the proceeding is commenced, the owner of the ship or property;

a proceeding on the claim may be commenced as an action in rem against the ship or property.

18  Right to proceed in rem on demise charterer’s liabilities

                   Where, in relation to a maritime claim concerning a ship, a relevant person:

                     (a)  was, when the cause of action arose, the owner or charterer, or in possession or control, of the ship; and

                     (b)  is, when the proceeding is commenced, a demise charterer of the ship;

a proceeding on the claim may be commenced as an action in rem against the ship.

19  Right to proceed in rem against surrogate ship

                   A proceeding on a general maritime claim concerning a ship may be commenced as an action in rem against some other ship if:

                     (a)  a relevant person in relation to the claim was, when the cause of action arose, the owner or charterer of, or in possession or control of, the first‑mentioned ship; and

                     (b)  that person is, when the proceeding is commenced, the owner of the second‑mentioned ship.

20  Service on and arrest of only one ship

             (1)  Where service of initiating process in a proceeding commenced as mentioned in section 15, 17, 18 or 19 has been effected on a ship, service of initiating process in the proceeding shall not be effected on any other ship unless the service on the first‑mentioned ship has been set aside or the proceeding, so far as it relates to that ship, has been discontinued, dismissed or struck out.

             (2)  Where service of initiating process in a proceeding commenced as mentioned in section 15, 17, 18 or 19 has been effected on a ship, service of initiating process in some other proceeding on the same claim commenced as mentioned in any of those sections shall not be effected on any other ship unless the first‑mentioned proceeding has been discontinued, dismissed or struck out.

             (3)  Where a ship has been arrested in a proceeding commenced as mentioned in section 15, 17, 18 or 19, no other ship shall be arrested in the proceeding unless the first‑mentioned ship:

                     (a)  was invalidly arrested and has been released from arrest; or

                     (b)  was unlawfully removed from the custody of the Marshal and the Marshal has not regained custody of the ship.

             (4)  Where:

                     (a)  a person has a claim that is both:

                              (i)  a claim on a maritime lien or other charge; and

                             (ii)  a general maritime claim;

                            in respect of a ship; and

                     (b)  the person has commenced a proceeding under section 19 against a surrogate ship;

subsection (3) does not prevent the arrest of the first‑mentioned ship in a proceeding on the maritime lien or other charge if the amount recovered by the person in the proceeding commenced under section 19 is less than the amount of the claim on the maritime lien or other charge.

21  Re‑arrest

             (1)  A ship or other property arrested in a proceeding on a maritime claim may not be re‑arrested in the proceeding in relation to the claim unless the court so orders, whether because default has been made in the performance of a guarantee or undertaking given to procure the release of the ship or property from the earlier arrest or for some other sufficient reason.

             (2)  An order under subsection (1) may be made subject to such conditions as are just.

22  Service and arrest out of jurisdiction

             (1)  Subject to subsection (4):

                     (a)  initiating process in a proceeding commenced as an action in rem in the Federal Court may be served on a ship or other property; and

                     (b)  a ship or other property may be arrested in such a proceeding;

at any place within Australia, including a place within the limits of the territorial sea of Australia.

             (2)  Subject to subsection (4), initiating process in a proceeding commenced as an action in rem in a court of a State or a Territory may be served on a ship or other property:

                     (a)  if, at a time when the process was effective for service, the ship or property was within the locality within which the court may exercise jurisdiction—at any place within Australia, including a place within the limits of the territorial sea of Australia; or

                     (b)  in any case—at any place within the State or Territory, including a place within the limits of the territorial sea of Australia that is adjacent to the State or Territory.

             (3)  Subject to subsection (4), in a proceeding commenced as an action in rem in a court of a State or Territory, a ship or other property may be arrested at any place within Australia, including a place within the limits of the territorial sea of Australia.

             (4)  Where the arrest of a foreign ship, or of cargo on board a foreign ship, would be inconsistent with a right of innocent passage that is being exercised by the ship, this Act does not authorise the service of process on the ship or the arrest of the ship or cargo.

             (5)  In this section:

innocent passage has the meaning it has under the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.

Note:          For the Convention on the Law of the Sea see Schedule 1 to the Seas and Submerged Lands Act 1973.

23  Service and Execution of Process Act not to apply

                   The Service and Execution of Process Act 1992 does not apply to the service of initiating process on, or the arrest of, a ship or other property under this Act.

24  Proceeds

                   Where, but for the sale of a ship or other property under this Act, a proceeding could have been commenced as an action in rem against the ship or property, the proceeding may be commenced as an action in rem against the proceeds of the sale that have been paid into a court under this Act.

25  Limitation of liability under Liability Conventions

             (1)  A person who apprehends that a claim for compensation under a law (including a law of a State or a Territory) that gives effect to provisions of a Liability Convention may be made against the person by some other person may apply to the Federal Court to determine the question whether the liability of the first‑mentioned person in respect of the claim may be limited under that law.

             (2)  Subsection (1) does not affect the jurisdiction of any other court.

             (3)  On an application under subsection (1), the Federal Court may, in accordance with the law referred to in that subsection:

                     (a)  determine whether the applicant’s liability may be so limited and, if it may be so limited, determine the limit of that liability;

                     (b)  order the constitution of a limitation fund for the payment of claims in respect of which the applicant is entitled to limit his or her liability; and

                     (c)  make such orders as are just with respect to the administration and distribution of that fund.

             (4)  Where a court has jurisdiction under this Act in respect of a proceeding, that jurisdiction extends to entertaining a defence in the proceeding by way of limitation of liability under a law that gives effect to provisions of a Liability Convention.

26  Proceedings under Civil Liability Convention

                   A proceeding under this Act on a maritime claim referred to in paragraph 4(3)(b) shall not be brought otherwise than in accordance with paragraphs 1 and 3 of Article IX of the Civil Liability Convention, whether or not the proceeding also relates to a maritime claim or to a maritime lien or other charge.

26A  Proceedings in accordance with the Bunker Oil Convention

             (1)  A proceeding under this Act on a maritime claim referred to in paragraph 4(3)(ba) must not be brought otherwise than in accordance with paragraphs 1 and 2 of Article 9 of the Bunker Oil Convention, whether or not the proceeding also relates to another maritime claim or to a maritime lien or other charge.

             (2)  In this section:

Bunker Oil Convention has the same meaning as in the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008.

Part IVTransfer and remittal of proceedings

  

27  Transfer

             (1)  Where a proceeding commenced under this Act is pending in the Federal Court, in the Federal Circuit Court, in the Supreme Court of a State or Territory or in a court of a State or Territory exercising jurisdiction under section 11, the court (in this section called the first court) may, at any stage of the proceeding, upon application or on its own motion, by order, transfer the proceeding to some other court that has jurisdiction under this Act with respect to the subject‑matter of the claim (in this section called the second court).

             (2)  Subsection (1) does not authorise the transfer of a proceeding commenced as an action in rem to a court that does not, apart from the operation of subsection 28(7), have jurisdiction in respect of proceedings so commenced.

             (3)  Where a proceeding has been so transferred, the second court shall proceed as if:

                     (a)  the proceeding had been commenced in that court;

                     (b)  the same or similar steps in the proceeding had been taken in that court as were taken in the first court; and

                     (c)  the orders and directions made by the first court in the proceeding had been made by the second court.

28  Remittal

             (1)  Where a proceeding commenced under this Act as an action in rem against a ship or other property is pending in the Federal Court or in the Supreme Court of a State, the court may, at any stage of the proceeding, upon application or on its own motion, remit the proceeding for hearing to:

                    (aa)  the Federal Circuit Court; or

                     (a)  a court of a State; or

                     (b)  if service of the initiating process was effected on the ship or property in a Territory—a court of that Territory;

being a court that would have had jurisdiction in respect of the proceeding if:

                     (c)  the proceeding had been commenced in that court as an action in personam; and

                     (d)  service of initiating process in that proceeding had been effected within the locality within which that court may exercise jurisdiction.

             (2)  Where a proceeding commenced under this Act as an action in rem is pending in the Supreme Court of a Territory, the court may, at any stage of the proceeding, upon application or on its own motion, remit the proceeding for hearing to some other court of the Territory that would have had jurisdiction in respect of the proceeding if:

                     (a)  the proceeding had been commenced in that court as an action in personam; and

                     (b)  service of initiating process in that proceeding had been effected in that Territory.

             (3)  The court from which the proceeding is remitted (in this section called the first court) may give such orders or directions as are appropriate in relation to the further steps to be taken in the proceeding and, subject to any such orders and directions, the court to which the proceeding is remitted (in this section called the  second court) may give orders and directions of a similar kind.

             (4)  Subject to any orders and directions given under subsection (3), the second court shall proceed as if:

                     (a)  the proceeding had been commenced in that court;

                     (b)  the same or similar steps in the proceeding had been taken in the second court as were taken in the first court; and

                     (c)  the orders and directions made by the first court in the proceeding had been made by the second court.

             (5)  The first court shall give effect to a judgment or order given in the proceeding, being a judgment or order that finally disposes of the proceeding, as though that judgment or order were a judgment or order of that court in the proceeding.

             (6)  Subsection (5) does not affect:

                     (a)  a right of appeal that a party to the proceeding has; or

                     (b)  the power of a court to stay execution pending an appeal.

             (7)  The second court is invested with federal jurisdiction, or, if that court is the Federal Circuit Court or a court of a Territory, jurisdiction is conferred on that court, in respect of the proceeding.

29  Security in relation to stayed or dismissed proceedings

             (1)  Where:

                     (a)  it appears to the court in which a proceeding commenced under this Act is pending that the proceeding should be stayed or dismissed on the ground that the claim concerned should be determined by arbitration (whether in Australia or elsewhere) or by a court of a foreign country; and

                     (b)  a ship or other property is under arrest in the proceeding;

the court may order that the proceeding be stayed on condition that the ship or property be retained by the court as security for the satisfaction of any award or judgment that may be made in the arbitration or in a proceeding in the court of the foreign country.

             (2)  Subsection (1) does not limit any other power of the court.

             (3)  The power of the court to stay or dismiss a proceeding includes power to do so on such conditions as are just, including a condition:

                     (a)  with respect to the institution or prosecution of the arbitration or proceeding in the court of the foreign country; and

                     (b)  that equivalent security be provided for the satisfaction of any award or judgment that may be made in the arbitration or in the proceeding in the court of the foreign country.

             (4)  Where a court has made an order under subsection (1) or (3), the court may make such interim or supplementary orders as are appropriate in relation to the ship or property for the purpose of preserving:

                     (a)  the ship or property; or

                     (b)  the rights of a party or of a person interested in the ship or property.

             (5)  Where:

                     (a)  a ship or other property is under arrest in a proceeding;

                     (b)  an award or judgment as mentioned in subsection (1) has been made in favour of a party; and

                     (c)  apart from this section, the award or judgment is enforceable in Australia;

then, in addition to any other proceeding that may be taken by the party to enforce the award or judgment, the party may apply to the court in the stayed proceeding for an appropriate order in relation to the ship or property to give effect to the award or judgment.

30  Power to deal with ship or other property

             (1)  This section applies where:

                     (a)  a proceeding has been transferred or remitted under the preceding provisions of this Part; and

                     (b)  a ship or other property is under arrest in the proceeding.

             (2)  The court from which the proceeding was transferred or remitted:

                     (a)  may deal with the ship or property as though it were under arrest in a proceeding that had not been so transferred or remitted; and

                     (b)  may make such orders as are necessary or convenient for transferring the custody of the ship or property to the court to which the proceeding has been so transferred or remitted.

             (3)  Notwithstanding any other provision of this Act, an order made under subsection (2) has effect according to its tenor.

             (4)  Where a court has made an order under paragraph (2)(b), the court to which the proceeding has been transferred or remitted has the same powers in relation to the ship or property as it has in relation to a ship or other property under arrest in a proceeding commenced in that court.

Part VMiscellaneous

  

31  Effect of judgment

             (1)  Where judgment is given for the plaintiff in a proceeding on a maritime claim commenced as an action in rem against a ship or other property, the extent to which a defendant in the proceeding who has entered an appearance and is a relevant person in relation to the claim is personally liable on the judgment is not limited by the value of the ship or property.

             (2)  Where judgment is given for the plaintiff in a proceeding on a maritime claim commenced as an action in rem against a ship or other property, a defendant in the proceeding who has entered an appearance and is not a relevant person in relation to the claim is not personally liable on the judgment for the payment of money in respect of the claim except so far as the judgment is for costs against that defendant.

             (3)  Subsection (2) does not prevent the sale, under this Act, of a ship or other property that is under arrest in a proceeding.

32  Powers of Federal Court in relation to register

                   In a proceeding in the Federal Court on a proprietary maritime claim, the orders that the court may make include orders of the kind that a court may make under section 59 or 59A of the Shipping Registration Act 1981.

33  Co‑ownership disputes

                   In a proceeding on a maritime claim between co‑owners of a ship relating to the possession, ownership, operation or earnings of the ship, the orders that the court may make include:

                     (a)  orders for the settlement of accounts outstanding and unsettled; and

                     (b)  an order directing that the ship, or a share in the ship, be sold.

34  Damages for unjustified arrest etc.

             (1)  Where, in relation to a proceeding commenced under this Act:

                     (a)  a party unreasonably and without good cause:

                              (i)  demands excessive security in relation to the proceeding; or

                             (ii)  obtains the arrest of a ship or other property under this Act; or

                     (b)  a party or other person unreasonably and without good cause fails to give a consent required under this Act for the release from arrest of a ship or other property;

the party or person is liable in damages to a party to the proceeding, or to a person who has an interest in the ship or property, being a party or person who has suffered loss or damage as a direct result.

             (2)  The jurisdiction of a court in which a proceeding was commenced under this Act extends to determining a claim arising under subsection (1) in relation to the proceeding.

35  Priorities: general maritime claims

             (1)  Where:

                     (a)  a proceeding in respect of a general maritime claim concerning a ship has been commenced under this Act against a surrogate ship; or

                     (b)  in relation to a proceeding commenced under this Act concerning a ship, a surrogate ship has been arrested;

the order in which general maritime claims against both the ships shall be paid out of the proceeds of the sale of the surrogate ship shall be determined as if all the claims were general maritime claims against the surrogate ship.

             (2)  Subsection (1) applies notwithstanding any other law, including a law of a State or Territory.

36  Statutory powers of detention

             (1)  This section applies where:

                     (a)  a law other than this Act (including a law of a State or Territory) confers on a person a power to detain a ship in relation to a civil claim; and

                     (b)  a proceeding on the civil claim may be commenced as an action in rem against the ship.

             (2)  Where the ship is under arrest under this Act, the power to detain the ship shall not be exercised.

             (3)  The exercise of the power to detain the ship does not prevent the arrest of the ship under this Act.

             (4)  Where a ship that has been detained under such a power is arrested under this Act, then, by force of this subsection, the detention is suspended for so long as the ship is under arrest.

             (5)  Where a ship that has been detained, or would, but for subsection (2), be liable to be detained, under such a power is arrested and sold under this Act, the civil claim is, unless the court otherwise directs, payable in priority to any claim against the ship other than the claim of a Marshal for expenses.

37  Limitation periods

             (1)  A proceeding may be brought under this Act on a maritime claim, or on a claim on a maritime lien or other charge, at any time before the end of:

                     (a)  the limitation period that would have been applicable in relation to the claim if a proceeding on the claim had been brought otherwise than under this Act; or

                     (b)  if no proceeding on the claim could have been so brought—a period of 3 years after the cause of action arose.

             (2)  Subsection (1) does not apply if a limitation period is fixed in relation to the claim by an Act, an Imperial Act, an Act of a State or an Act or Ordinance of a Territory, including such an Act or Ordinance in its application in a part of Australia.

             (3)  Where:

                     (a)  but for this subsection, a court would not have power to extend a limitation period in respect of a maritime claim or a claim of a particular kind on a maritime lien or other charge; and

                     (b)  the court has power to extend a limitation period in respect of a claim of the same kind;

then, by force of this subsection, the court has power, exercisable in the same way, and in the same kinds of circumstances, as the power referred to in paragraph (b), to extend the period fixed by subsection (1) in respect of maritime claims, or claims on maritime liens or other charges, of a kind referred to in that subsection.

             (4)  The absence of the ship or property concerned from the locality in which the court may exercise jurisdiction shall not be taken into account in relation to the exercise of the power conferred by subsection (3).

             (5)  The law relating to laches does not apply in relation to a claim brought within a period fixed by or under this section.

38  Mode of trial

                   A proceeding under this Act commenced as an action in rem, a limitation proceeding and a proceeding under this Act that is associated with either shall be tried without a jury.

39  Jurisdictional limits

             (1)  Subject to any Proclamation made under subsection 11(2), where a court of a State is invested with jurisdiction in relation to a proceeding commenced as an action in rem, or such jurisdiction is conferred on a court of a Territory, by or under this Act, then:

                     (a)  in the case of a court of a State—the court is invested with the jurisdiction within the limits of the jurisdiction of that court as to the amount claimed and as to remedies, but not otherwise; and

                     (b)  in the case of a court of a Territory—the jurisdiction is conferred on the court only so far as the Constitution permits and within the limits of the jurisdiction of that court as to the amount claimed, as to locality and as to remedies, but not otherwise.

             (2)  Where a court of a State is invested with jurisdiction in relation to a proceeding commenced under section 9 or such jurisdiction is conferred on a court of a Territory, the jurisdiction is invested or conferred within the limits of the jurisdiction of the court concerned and, in the case of a court of a Territory, only so far as the Constitution permits.

             (3)  Section 15C of the Acts Interpretation Act 1901 does not apply in relation to proceedings to which this section applies.

40  Courts to act in aid of each other

                   All courts having jurisdiction under this Act, the judges of those courts and the officers of or under the control of those courts shall severally act in aid of, and be auxiliary to, each other in all matters arising under this Act.

41  Rules

             (1)  The Governor‑General may make Rules, not inconsistent with this Act, making provision in relation to the practice and procedure to be followed in courts exercising jurisdiction under this Act and matters incidental to such practice and procedure.

             (2)  In particular, the Rules may make provision in relation to:

                     (a)  pleading;

                     (b)  parties;

                     (c)  appearance;

                     (d)  the service and execution of process;

                     (e)  bail;

                      (f)  caveats against arrest or release of ships and other property;

                     (g)  the arrest, custody and sale of ships and other property;

                     (h)  the furnishing of security;

                      (j)  the forms to be used;

                     (k)  records and registers and inspections of those records and registers;

                    (m)  limitation proceedings, including:

                              (i)  the parties to those proceedings; and

                             (ii)  the operation of determinations made in those proceedings;

                     (n)  evidence; and

                     (o)  enforcement and satisfaction of judgments of courts in matters under this Act.

             (3)  The Rules may prescribe penalties for offences against the Rules not exceeding:

                     (a)  if the defendant is a natural person—a fine of $1,000; or

                     (b)  if the defendant is a corporation—a fine of $5,000.

             (4)  Jurisdiction is conferred on the Federal Court, the Federal Circuit Court and on the courts of the Territories, and the courts of the States are invested with federal jurisdiction, in respect of matters arising under the Rules.

42  Rules Committee

             (1)  The Attorney‑General shall constitute a committee consisting of not more than 7 persons to advise the Attorney‑General with respect to the Rules and shall appoint a member of the committee to preside at meetings of the committee.

             (2)  The members of the committee shall include a Judge of the Supreme Court of a State or Territory and a Judge of the Federal Court.

             (3)  Subject to the directions, if any, of the Attorney‑General, the procedure of the committee shall be as the committee determines.

43  Regulations

                   The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Part VIRepeals and amendments of Imperial legislation

  

44  Colonial Courts of Admiralty Act

             (1)  The Imperial Act known as the Colonial Courts of Admiralty Act, 1890, as amended and in force at the date of commencement of this Act, is repealed so far as it is part of the law of the Commonwealth or of an external Territory.

             (2)  The repeal effected by subsection (1) does not affect a proceeding under the Colonial Courts of Admiralty Act, 1890 commenced but not finally determined before the commencement of this Act.

45  Repeal of certain Imperial laws

                   The Imperial Acts specified in the following Table are repealed to the extent set out in the Table so far as they are part of the law of the Commonwealth or of an external Territory:

 

Reign and chapter

Citation or description

Extent of repeal

13 Richard II, Statutes I, chapter 5

Jurisdiction of the Admiral and his Deputy

The whole

15 Richard II, chapter 3

Jurisdiction of the Admiral

The whole

17 Edward II, chapter 13

Prerogativa Regis

The paragraph commencing “Also the King shall have Wreck”

2 Henry IV, chapter 11

Statute of 13 Richard II, Statutes 1, chapter 5 as to the Admiral’s Jurisdiction confirmed

The whole

2 William and Mary, Session 2, chapter 2

Admiralty Act, 1690

The whole

46  Merchant Shipping Act

                   Sections 449 and 472 of the Imperial Act known as the Merchant Shipping Act, 1894, as amended and in force at the date of commencement of this Act, are repealed so far as they are part of the law of the Commonwealth or of an external Territory.

47  Transitional

                   The application of section 8 of the Acts Interpretation Act 1901 extends to an Imperial Act, and a provision of an Imperial Act, repealed by this Part as though it were an Act of the Parliament, or a provision of an Act of the Parliament, repealed by this Part.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

 

Endnote 2—Abbreviation key

 

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

    /sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

    effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

    effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

    cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Act

Number and year

Assent

Commencement

Application, saving and transitional provisions

Admiralty Act 1988

34, 1988

22 May 1988

1 Jan 1989 (s 2 and gaz 1988, No S359)

 

Limitation of Liability for Maritime Claims Act 1989

151, 1989

30 Nov 1989

Sch 2: 30 May 1991 (s 2(2))

Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992

166, 1992

11 Dec 1992

Sch: 10 Apr 1993 (s 2 and gaz 1993, No GN13)

Maritime Legislation Amendment Act 1994

20, 1994

15 Feb 1994

Sch 1: 1 Aug 1994 (s 2(1) and gaz 1994, No S289)

International Maritime Conventions Legislation Amendment Act 2001

149, 2001

1 Oct 2001

Sch 1 (item 1): 13 May 2004 (s 2(2) and gaz 2004, No S157)

Law and Justice Legislation Amendment Act 2004

62, 2004

26 May 2004

Sch 1 (item 5): 27 May 2004 (s 2(1) item 4)

Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006

23, 2006

6 Apr 2006

Sch 3: 4 May 2006 (s 2(1) item 2)

Sch 3 (items 2, 6, 8)

Statute Law Revision Act 2008

73, 2008

3 July 2008

Sch 1 (item 3): 3 July 2008 (s 2(1) item 4)

Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) (Consequential Amendments) Act 2008

77, 2008

12 July 2008

Sch 1 (items 1–4): 16 June 2009 (s 2(1) item 2)

Personal Property Securities (Consequential Amendments) Act 2009

131, 2009

14 Dec 2009

Sch 3 (item 1): 30 Jan 2012 (s 2(1) item 1)

Acts Interpretation Amendment Act 2011

46, 2011

27 June 2011

Sch 2 (item 35) and Sch 3 (items 10, 11): 27 Dec 2011 (s 2(1) items 3, 12)

Sch 3 (items 10, 11)

Navigation (Consequential Amendments) Act 2012

129, 2012

13 Sept 2012

Sch 2 (items 1–5): 1 July 2013 (s 2(1) item 2)

Federal Circuit Court of Australia (Consequential Amendments) Act 2013

13, 2013

14 Mar 2013

Sch 1 (item 25) and Sch 2 (item 1): 12 Apr 2013 (s 2(1) items 2, 3)

Norfolk Island Legislation Amendment Act 2015

59, 2015

26 May 2015

Sch 2 (item 34): 1 July 2016 (s 2(1) item 5)
Sch 2 (items 356–396): 18 June 2015 (s 2(1) item 6)

Sch 2 (items 356–396)

as amended by

 

 

 

 

Territories Legislation Amendment Act 2016

33, 2016

23 Mar 2016

Sch 2: 24 Mar 2016 (s 2(1) item 2)

Timor Sea Maritime Boundaries Treaty Consequential Amendments Act 2019

57, 2019

7 Aug 2019

Sch 1 (item 1): 30 Aug 2019 (s 2(1) item 2)

 

Endnote 4—Amendment history

 

Provision affected

How affected

Part I

 

s 3........................................

am No. 151, 1989; No. 149, 2001; No. 62, 2004; No. 129, 2012; No. 13, 2013

s 4........................................

am Nos. 73 and 77, 2008

s 8........................................

am No 59, 2015

 

ed C19

Part II

 

s 9........................................

am No. 23, 2006; No. 13, 2013

Part III

 

s 22......................................

am No 20, 1994; No 57, 2019

s 23......................................

am No. 166, 1992

s 26A...................................

ad No. 77, 2008

Part IV

 

s 27......................................

am No. 23, 2006; No. 13, 2013

s 28......................................

am No. 23, 2006; No. 13, 2013

Part V

 

s 32......................................

am No. 131, 2009

s 41......................................

am No. 23, 2006; No. 46, 2011; No. 13, 2013

Part VII................................

rep No. 129, 2012

s 48......................................

rep No. 129, 2012

Part VIII...............................

rep No. 129, 2012

s 49......................................

rep No. 129, 2012

s 50......................................

rep No. 129, 2012

s 51......................................

rep No. 129, 2012

s 52......................................

rep No. 129, 2012

s 53......................................

rep No. 129, 2012

s 54......................................

rep No. 129, 2012

s 55......................................

rep No. 129, 2012

s 56......................................

rep No. 129, 2012

s 57......................................

rep No. 129, 2012

Part IX.................................

rep No. 129, 2012

s 58......................................

rep No. 129, 2012

s 59......................................

rep No. 129, 2012