This case involved a dispute between Scandinavian Bunkering AS (SBAS) (the plaintiff), the Australian Fisheries Management Authority (AFMA) and the Commonwealth as to which party was entitled to the FV Taruman's bunkers. The bunkers and the ship were seized following a breach of the Fisheries Management Act 1991 (Cth) (FM Act). The Commonwealth argued that it was entitled to the bunkers under the FM Act, while SBAS's case was founded on a general maritime claim enforceable in rem against the bunkers over the supply of fuel, under the Admiralty Act 1988 (Cth) (Admiralty Act).

Held: The Commonwealth was entitled to the bunkers, and SBAS could not make out a general maritime claim in rem against the bunkers in respect of fuel supply under s 4(3)(m) of the Admiralty Act.

The plaintiff argued that s 108A of the FM Act did not apply to FV Taruman's bunkers because they did not classify as a 'boat' under s 4 of the FM Act for the purposes of seizure and forfeiture. However, bunkers would come under the definition of 'ship' in the Admiralty Act, so an arrest under s 17 should stand.

The Court considered the FM Act's drafting and its context and purpose, and observed that there are no parts of the FM Act directed toward compensating persons whose property is confiscated when a fishing vessel is seized. Forfeiture of a vessel is intended to be a deterrent to illegal fishing and the AFMA's aims must be prioritised. Under s 106A of the FM Act, potential forfeited property includes boats, nets, traps and the catch. While bunkers are not explicitly named, the Court considered that a boat involved with an offence could not function without its fuel and that vessel and bunkers are tied up with one another. It would be nonsensical to separate the bunkers from the vessel when ordering seizure. Nor would it be possible to order an offending ship to go somewhere, as the AFMA may do, if it had its bunkers removed. The definition of 'boat' in the FM Act therefore necessarily included its bunkers.

The Court proceeded to consider whether bunkers could be considered 'property' under s 17 of the Admiralty Act, which was suggested in Metall und Rohstoff Shipping v The Owner of the Bunkers on Board the Ship MV 'Genco Leader' [2005] FCAFC 162 ('Genco Leader') (CMI646). Also relevant was ALRC Report No 33 that led to the Admiralty Act, and the 1952 Arrest Convention, which influenced the Report's creation. An important element of the Arrest Convention was its emphasis on arresting ships, and not any other type of property.

As suggested by the list of general maritime claims in s 4(3) of the Admiralty Act, and the general nature of claims brought in rem, the subject must be a ship. In Genco Leader, the plaintiff's argument that s 17 of the Admiralty Act could be read so as to encompass any property belonging to a relevant person, including bunkers on a ship irrelevant to a general maritime claim, was rejected. It was held that any property being seized had to be the subject of a general maritime claim, to come within s 17. The comments about bunkers in that case were obiter dicta but contemplated discussion of the issue in future.

SBAS's general maritime claim was about the supply of goods and materials to a ship for its operation or maintenance, fitting under s 4(3)(m) of the Admiralty Act. It was concerned with the supply of fuel so that the FV Taruman could function, so any claim it had would be against the ship. The Court questioned the plaintiff's attempt to connect its claim with the fuel and the bunkers when the supply was to the ship itself, and when this fact was what substantiated its claim in the first place.

The plaintiff did not have a claim to the bunkers. A claim in respect of fuel supply did not entitle the plaintiff to have any sort of lien over the bunkers or the right to initiate a claim in rem against them, instead of the ship.