s 17
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.
s 18
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.
s 19
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.
62 The legislative command in s 14 is that the identified action - the action in rem against a ship or other property - is not to be ("shall not be") commenced except as provided by this Act. (Section 3(2) of the Act provides that a reference to the time when a proceeding is commenced is a reference to the time when the initiating process is filed in, or issued by, a court.) Sections 15 to 19 contain the extent of the express permission in the Act to commence a proceeding as an action in rem. These sections deal with different types of claims. All, except s 15, deal with "maritime claims", as defined - s 16 with proprietary maritime claims, s 17 with general maritime claims, s 18 with both proprietary and general maritime claims and s 19 with general maritime claims. Section 15 deals with maritime liens or charges in respect of the ship or other property and is defined inclusively: see s 15(2). Also, each section refers to a proceeding on, either a maritime lien or other charge (s 15), or the relevant maritime claim. It is only the proceeding on that claim that can be commenced as an action in rem. It is not the whole controversy or matter which might involve as one element the relevant lien, charge or maritime claim that can be commenced as an action in rem - it is the proceeding on the maritime lien, on the charge or on the relevant maritime claim that can so be commenced. Section 15 to 19 are dealing with the availability of the special Admiralty remedy (the action in rem): see The 'Shin Kobe Maru' (HC) at 420.
63 Section 10 is expressed in terms of conferral (or investiture) of jurisdiction in respect of proceedings that may be commenced as an action in rem. That way of putting the matter may mask a circumstance where the court has jurisdiction over a maritime claim, but the relevant preconditions for the engagement of any of ss 15 to 19 are not present. The court will then have jurisdiction to hear and determine (adjudicate) a claim by reason of s 9, but there is no permission in the Act to commence a proceeding to vindicate the claim as an action in rem, and so the court will not have jurisdiction to hear and determine a claim against the res.
64 This much may be seen as straightforward. If jurisdiction of the court is extended to an associated matter by the operation of s 12, the authority of the court is widened ("extended") to hear such a matter, not otherwise within its jurisdiction (for present purposes I will take this as meaning not otherwise conferred or invested). Section 12 does not deal, in terms, or in subject matter, with the permission to bring a proceeding as an action in rem. It is dealing with the authority of the court to adjudicate, not the statutory permission to commence a proceeding as a certain, and special, type of action. This is so notwithstanding the drafting technique used in s 10 of the Act.
65 Thus, if there is a maritime lien, charge or maritime claim on whicha proceeding is permitted by ss 15 to 19 to be commenced as an action in rem, a matter of Admiralty and maritime jurisdiction that is associated therewith is not thereby made the subject of any statutory permission to be commenced as an action in rem. Though the court has jurisdiction to hear and determine such a matter (by s 12), there is no statutory permission to commence a proceeding in vindication thereof as an action in rem. Such as a matter is to be commenced as an action in personam.
66 The same position obtains in relation to claims that may be seen to be "accrued" to the claim for a lien or charge or maritime claim. If a proceeding on any such claim is not a proceeding on a maritime lien or charge or maritime claim, the Act does not give permission for it to be commenced as an action in rem.
67 There are important procedural consequences to the identification of what can, and what cannot, be commenced as an action in rem. An action in rem cannot be served out of Australia or its territorial sea: s 22 of the Act. A proceeding commenced as an action in personam shall not be commenced by the same initiating process as that by which a proceeding is commenced as an action in rem: Rule 18 of the Admiralty Rules. Thus, if the ship is within Australian waters, but the relevant person is not, the in rem process may be served on the ship, but the in personam process will have to await service on the person, either within Australia, if there is presence in Australia, or outside Australia pursuant to relevant authority from local legislation for service ex juris.
68 When a challenge is made to the entitlement of the plaintiff to commence a proceeding as an action in rem, that is often said to be a challenge to "jurisdiction". In particular given the terms of s 10 of the Act, that can be seen as an apt expression, certainly if, as in The 'Shin Kobe Maru' (and as here), the challenge is based on a denial of the existence of any relevant maritime claim. If the challenge is based not on the absence of a relevant claim, but on the absence of one of the connecting factual circumstances such as the existence of the relationships in paragraphs (a) and (b) of ss 17 , 18 and 19 between the relevant person and the ship or other property, the challenge is to the entitlement or permission to commence the proceedings as an action in rem and, so, upon the jurisdiction conferred (or invested) by s 10, but not by s 9 of the Act. In this case, the phrase "challenge to jurisdiction" is still legitimate, but in that more limited respect.
69 The right to proceed in rem here is said to be based on s 17 of the Act in respect of the asserted maritime claims and on s 15 in respect of the claimed maritime lien. In a challenge to the entitlement to commence proceedings as an action in rem thereunder, it is important to be clear about what needs to be shown and by whom. The High Court in The 'Shin Kobe Maru' (HC) at 426-27 said:
Where jurisdiction depends on particular facts or a particular state of affairs, a challenge to jurisdiction can only be resisted by establishing the facts on which it depends. And, of course, they must be established on the balance of probabilities in the light of all the evidence advanced in the proceedings held to determine whether there is jurisdiction.
In this case, Empire asserts jurisdiction on two bases. So far as jurisdiction is asserted by reason of s 4(2)(a), it does not depend on any factual precondition but, rather, on the claim having the legal character required by that paragraph, namely, "a claim relating to ... possession of [or] ... title to, or ownership of, a ship". The position is somewhat different with s 4(2)(b) in that ownership is a question of mixed fact and law and there may well be cases where facts must be established before a claim can be characterized, in terms of that paragraph, as "a claim between co-owners". However, the issue in this case, so far as s 4(2)(b) is concerned, seems not to be whether Empire has established facts proving co-ownership, but whether the facts give rise to a relationship which is recognized in law as co-ownership. These issues were not fully developed in argument and, as earlier indicated, it is not necessary to determine whether s 4(2)(b) applies in this case. That being so, it is convenient to consider this aspect of YSL's argument solely by reference to s 4(2)(a).
The question whether Empire's claim bears the legal character of a proprietary maritime claim as defined in s 4(2)(a) of the Act does not depend on findings of fact and, thus, cannot involve any consideration of the balance of probabilities. That being so, there is no basis for the application of the principle in The "Aventicum" in relation to Empire's claim that there is jurisdiction by reason of s 4(2)(a).
70 In The 'Shin Kobe Maru' the only "fact" that needed to be shown was the existence of a claim that bore "the legal character" of the kind referred to in s 4(2)(a)(i) and (ii) of the Act. The claim might fail for any number of reasons, but as a claim, that is as a body of assertions, it bore the legal character or answered the description of "a claim relating to possession of, or title to or ownership of a ship".
71 In the passage set out above, the High Court discussed, but did not decide, the question whether in a proceeding based on a claim under s 4(2)(b) of the Act it would be necessary for the plaintiff to prove, in any challenge to the jurisdiction, that the claim relating to the possession, ownership, operation or earnings of the ship was one between parties who were, as a matter of proven fact, co-owners (that is as a particular factual circumstance proof of which was required to establish jurisdiction, or entitlement to proceed as an action in rem).
72 If the question is whether, for the purposes of paragraphs (a) and (b) of s 17 or s 18 or s 19, there is the necessary relationship between the ship or other property and the relevant person, that is whether at the specified times the relevant person was the owner or charterer or in possession or control of the ship or other property, that must be established as a state of affairs or as a fact upon which jurisdiction or authority to commence the proceedings as an action in rem depends: The Owners of the Motor Vessel 'Iran Amanat' v KMP Coastal Oil Pte Limited (1999) 196 CLR 130, 138 and the cases there cited by way of example.
73 This kind of distinction - between a limitation relevant to the jurisdiction of a court which goes to the existence of jurisdiction (that is as a condition which must exist before authority to adjudicate arises) and which goes to the exercise of jurisdiction - was discussed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391 as follows:
It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.
See also The Queen v Gray: Ex parte Marsh (1985) 157 CLR 351 at 374-75 per Mason J (as he then was), and in an Admiralty context, see The 'Tian Sheng No 8' [2000] 2 Lloyd's Rep 430 at 443 per Sir Anthony Mason sitting in the Hong Kong Court of Final Appeal.
74 In Tisand Pty Ltd v the Owners of the Ship MV Cape Moreton (Ex Freya) (2005) 143 FCR 43, the Full Court discussed the approach to interpretation of the Act at [59] to [65]. I need not set out those passages here. To those comments, only two matters need be added for emphasis, for the purposes of this case. First, provisions conferring jurisdiction or granting powers to a court should be interpreted liberally and without imposing limitations not found in the express words: The 'Shin Kobe Maru' (HC)at 421. Secondly, a particular aspect of the importance of the context provided by the ALRC Report (otherwise discussed in The 'Cape Moreton' above) is the consideration referred to by the High Court in The 'Iran Amanat' at 138, as follows:
The Australian legislation having been enacted against the background of English legislation and authority set out above, the definition of "relevant person" should be understood as having the same meaning as the courts had given to the corresponding words in the English statute. When the Parliament has enacted legislation, affecting the subject of international shipping, and followed a statutory precedent from overseas which has by then received a settled construction, there is every reason to construe the statutory language in the same way in this country unless such construction is unreasonable or inapplicable to Australian circumstances.
75 As the High Court said in The 'Shin Kobe Maru' the question is whether a claim made bears a certain legal character. The High Court in that case also said (at 422) that the word "claim":
…would ordinarily be construed as the assertion of a right or interest recognized by the law and carrying an entitlement to relief.
This analysis must be undertaken "by reference to the nature of the plaintiff's case as put forward, without reference to … whether it is likely to succeed or not": The 'Moschanthy' [1971] 1 Lloyd's Rep 37 at 42. See also Baltic Shipping Co Ltd v Pegasus Lines SA [1996] 3 NZLR 641 at 647-48. Statements in some of the cases of the necessity to show some strength in the case before the jurisdiction of the court is attracted (that is before the court is legitimately seized of authority to adjudicate) appear impermissibly to combine the attraction of jurisdiction with its exercise: cf The 'Bass Reefer' (1992) 37 FCR 375. See generally, Toh, KS Admiralty Law and Practice (Butterworths Asia, 1998) p 40 and the cases there discussed.
76 Whether or not a claim bears the requisite legal character in any given case may not be straightforward. In a number of cases the courts have examined the assertions made in, and facts proven in relation to, the writ and accompanying documents to answer the question whether the claim, as made, answers the description of the words of the relevant paragraph as an appropriate enquiry as to the jurisdiction of the court: see, for example, The 'Bass Reefer', The 'Acrux' [1965] P 391; and The 'Antonis P Lemos' [1983] 2 Lloyd's Rep 310. How, in any given case, the plaintiff chooses to discharge the responsibility on it to satisfy the court of the jurisdiction of the court is a matter for it. The plaintiff may choose to lead evidence of the underlying claim. But it should always be borne in mind that it is the claim, that is the relevant assertions, that must bear the requisite legal character. Care should be taken not to invest this task with a function or requirement of proving the claim at some prefatory level or to some preliminary standard of satisfaction. To do so would raise difficulties of a character similar, indeed related to, those that Willmer J saw posed by the defendant's unsuccessful argument in The 'St Elefterio' [1957] P 179 at 185-87.
77 Further discussion of this issue is best left to be undertaken by reference to a specific dispute about a claim being put forward as a maritime claim.