In January 2006, three separate entities - Elbe Shipping SA (Elbe), SQ Marine SA (SQ), and Thor Nereus Shipping Co Ltd (Thor Nereus) - filed writs commencing in rem actions against the ship Global Peace. Elbe was the owner of the ship Medi Vitoria, and SQ of the Nord Stream.

This case concerned only the Elbe proceedings and the SQ proceedings, which were brought in respect of an oil spill from the Global Peace while the Global Peace, the Medi Vitoria and the Nord Stream were all berthed in the port of Gladstone on 24 January 2006. The latter two ships' hulls were fouled with oil when the spill occurred.

The proceedings prior to this case and the conclusions reached in those proceedings were largely the same both for Elbe and SQ, and Allsop J described both parties' cases in the same terms. Most important here were the jurisdictional questions the plaintiff's claims raised.

Elbe's writ claimed relief based on four bases, three of which were founded in the Admiralty Act 1988 (Cth) (the Act): ss 4(3)(a), 4(3)(b), and 4(3)(d). The fourth basis was worded in terms of seeking damages from the Global Peace for negligence and/or nuisance from the oil spill, and liability for damage to the Medi Vitoria's hull, and/or vicarious liability for the acts of the tug Tom Tough that contributed to the spill initially.

Elbe filed an amended writ on 31 January 2006, the same day that the Global Peace was released from initial arrest, security having been provided. Elbe added to the four initial bases a fifth additional basis, which was a claim for a maritime lien under s 15 of the Act. The fourth basis was also adjusted in order to claim damages under s 12 of the Act.

A further amended writ was submitted by Elbe in April 2006. This included a few minor changes to the second and third bases, including specific references to s 4(3)(k) of the Act (pilotage) and s 4(3)(j) (towage).

Held: Allsop J drew attention to s 76(iii) of the Constitution and observed that the Australian Law Reform Commission Report No 33 on Civil Admiralty Jurisdiction, including what would become the list of maritime claims under s 4 of the Act, was not intended to exhaustively describe what claims would come under the 'maritime jurisdiction' in s 76(iii) of the Constitution. Section 76(iii) of the Constitution has a wider scope that has not been conferred onto federal courts or invested in State courts as federal jurisdiction. The maritime claims listed under s 4 of the Act conform with those in the 1952 Arrest Convention.

In its second amended writ, Elbe claimed damages under s 12 of the Act, in respect of the fourth basis of claim. This section concerns what is known as 'associated jurisdiction'. Section 12 of the Act does not approach the issue of bringing an action in rem. It is merely about the widening of a Court's jurisdiction that was not otherwise conferred on or invested in it, in certain circumstances. When s 12 of the Act is triggered, the resulting case would have to be commenced in personam.

Allsop J then proceeded to go through each of the plaintiff's claims from the amended writs, in turn, to address questions of jurisdiction.

Is there a general maritime claim of the legal character described in s 4(3)(a) of the Act?

Yes. This section regards 'damage done by a ship (whether by collision or otherwise)', and Allsop J considered this phrase to have a well-understood and accepted meaning in admiralty practice. The bunker oil spill from the Global Peace allegedly resulted from the negligence of those operating the tug, a failure on the part of the pilot and master on the Global Peace to perform their duties, and a general failure to adequately manoeuvre the ship while berthing. These circumstances fulfilled the criteria of 'damage done by a ship'. Allsop J did not consider the actual merits of this maritime claim and its viability.

Is there a general maritime claim of the legal character described in s 4(3)(j) or (k) of the Act?

Again, the answer to both was 'yes'. Section 4(3)(j) of the Act regards general maritime claims in respect of towage, and s 4(3)(k) regards the same in respect of pilotage. Under s 102 of the Transport Operations (Maritime Safety) Act 1994 (Qld), the owner of the Global Peace was responsible for any fault of the pilot. Allsop J also accepted that this was a claim in respect of the towing of the Global Peace. A further hearing would be needed to determine the exact merits of, and facts relevant to, either claim.

Is there a general maritime claim of the legal character described in s 4(3)(d) of the Act?

This query was answered 'yes'. More specifically, the plaintiff invoked s 4(3)(d)(i) in terms of an act or omission of the owner of the ship and s 4(3)(d)(iii) in terms of the act or omission of a person (here, the person in charge of the tug), for whose wrongful acts or omissions the owner of the Global Peace was liable. To satisfy s 4(3)(d)(i), further, the act or omission by the owner needed to be in respect of the navigation or management of the ship.

A wide reading of s 4(3)(d) would lead to the conclusion that navigation or management meant the movement of the ship from one location to another, and what the ship did in each of those locations. Here, the use of the tugs under the guidance of both the Global Peace's master and the pilot during the berthing of the ship was considered to be planned or ordered movement, and therefore it fell under the banner of navigation or management in general. Section 4(3)(d) was satisfied.

Is there a general maritime claim of the legal character described in s 4(3)(b) of the Act?

The answer to this question was also 'yes'. Both art 3 of the CLC 1969, and the corresponding Protocol of 1992, applied to the Global Peace. Articles 1-6 of the CLC 1992 were law in Australia. Allsop J referred also to the definitions of 'ship' and 'oil' in art 2 of the CLC 1992. A ship needed to fall within the definition of 'ship' in art 2 before it would be liable under art 3.

Further questions about whether the Global Peace was constructed or adapted for carrying oil in bulk, whether it was doing so, and if there was oil residue from a prior voyage, would need to be answered through future deliberations. This was a preliminary hearing on jurisdiction only. Allsop J concluded that s 4(3)(b) of the Act should be read in accordance with the CLC, but the claim under s 4(3)(b) should not be characterised according to the evidence that would determine the viability of a claim under the CLC.

In general, Allsop J doubted the prospects of a general maritime claim brought under s 4(3)(b) of the Act.

Is there a proceeding on a maritime lien in respect of Global Peace for the purposes of s 15 of the Act?

The answer to this was also 'yes'. Section 15 of the Act regards proceedings on maritime liens. As with s 12, it appeared to be the intention of the Australian Law Reform Commission to include the list of bases for maritime liens in s 15 of the Act as a guide. It was not meant to be completely conclusive. The Court has jurisdiction to hear proceedings on maritime liens commenced as actions in rem.