Characterisation of a foreign maritime lien by the lex fori

ABSTRACT In The ‘Halcyon Isle’, a bare majority of the Privy Council held that questions as to the recognition of a foreign maritime lien are to be determined by the lex fori. The case divided the common law world. Recently, in The Ship ‘Sam Hawk’ v Reiter Petroleum Inc, the Full Court of the Federal Court of Australia held that The ‘Halcyon Isle’ should apply in Australia. The practical effect of the decision is that it will prevent many creditors, who could assert the existence of a maritime lien under United States law, from proceeding in rem in Australia. The case is also notable for providing a rare discussion of characterisation in a choice-of-law problem. This comment explores what The ‘Sam Hawk’ means for maritime law and private international law more broadly.