Case: Tisand v MV Cape Moreton [2005] FCAFC 68 ; (2005) 143 FCR 43
Outcome: discussed
In order to deal with these submissions I must consider the meaning of the term "the owner" in s 17 of the Admiralty Act . The meaning of the term "owner" was considered, for the purposes of s 19 , by the Full Court in Kent v SS Maria Luisa (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12 and, for the purposes of s 17 , in Tisand v MV Cape Moreton [2005] FCAFC 68 ; (2005) 143 FCR 43. Concerning that question, the majority (Tamberlin and Hely JJ) said in the Maria Luisa at [61]-[66]: 61 The word "owner" cannot be given any general description. But ordinarily the incidents of ownership of a chattel include the right to make physical use of the chattel, the right to the income from it, the power of management, and the right of alienation: ... . In the "Iron Shortland" ... Sheppard J quoted from the decision of the Singapore Court of Appeal ... that the term "owner" means any person who is vested with such ownership as to have the right to sell, dispose of or alienate the ship, and that a beneficial owner of the ship comes within that term ... . 62 The notion of "ownership" carries a connotation of dominance, ultimate control and of ultimate title against the whole world ... . ... 65 A helpful description of "ownership" is formulated by Jordan CJ in Gatwood v Alley ... where his Honour said in relation to a question as to ownership of a car: "A good title to property, in the sense of such ownership as the law allows, consists in having the legal right to exercise with respect to it all such rights, as against all such persons, as by law are capable of being exercised with respect to property of the class in question. A person who has possession of property but not ownership has, as a general rule, the same legal rights as the owner, save to the extent to which those rights are qualified as against the owner ... ." 66 Ownership, whether legal or equitable, therefore involves something greater than beneficial interest. Equitable ownership of property is commensurate with the right to relief in a Court of Equity ... . If a person has contractual rights in relation to a ship which, if performed will result in the person becoming the owner of the ship, then the person will be regarded as the equitable owner of the ship provided that specific performance of the contract would be decreed ... . 38 The decision in the Cape Moreton was more complex, concerning questions of private international law. The Court comprised Ryan and Allsop JJ, the third member, Cooper J, having fallen ill and died following oral argument and prior to decision. A number of propositions emerge from the reasons. At [92] their Honours observed: In our view, the meaning of the phrase "the owner" in ss 17, 18 and 19 of the Act does not necessarily encompass the party entered on any international register of ships. The question is one as to whether the relevant person answers the description of "the owner" in the proprietary sense, in all the circumstances. ... 48 If ownership is to be determined by reference to the law of Qatar, it would seem that Sovereign could not enforce any right to the Ship against the Amir in the absence of registration of such right. There would still be a question as to whether surrounding circumstances (which significantly affected the outcome in the Cape Moreton ) should lead me to conclude that the Amir was not the owner for the purposes of s 17(a) of the Admiralty Act , notwithstanding the operation of Qatari law. However it seems curious that Sovereign should have been deprived of title to the Ship by the unilateral act of the Amir in applying for registration in Qatar, although it may be, as the plaintiff suggests, that Sovereign was a party to the registration. Nonetheless, I am inclined to think that the decision in the Cape Moreton may not necessarily lead to the conclusion that the law of Qatar should be applied in determining ownership for present purposes. This case differs from the Cape Moreton in that the very fact of registration is said to have effected a change of ownership. It seems likely that, according to Australian private international law, the relevant law concerning transfer of title would have been that of New Zealand where the Ship, then unregistered, was located. It may follow that for present purposes, title could only pass in accordance with the law of New Zealand (or, perhaps, the law of England, the law applicable to the contract). Either law would presumably have given effect to the provisions in the agreement relating to the passing of property. If so, registration in Qatar would not have affected ownership of the Ship. The Ship Registration Act 1992 (NZ) may also have been relevant to the question. 51 Although counsel addressed the question of compliance with s 17 in some detail and demonstrated considerable industry in so doing, I am concerned that the question of the passing of title has not been fully ventilated, particularly in so far as concerns the choice of law question. To the extent that the plaintiff relied upon the Cape Moreton as establishing the relevance of Qatar law, it did not address the fact that in that case the vessel was, at all material times, registered in Liberia. In the present case the question is whether the act of registration in Qatar, itself, effected a change in ownership of the Ship in New Zealand. In those circumstances I am reluctant to decide that question. I am inclined to the view that the law of New Zealand (as the lex situs immediately before registration) should be applied to determine whether or not property passed to the Amir as the result of registration. I suspect that the probable answer is that according to New Zealand law, it did not, but that question has not been argued. In any event, as I have formed a view that the Amir is relevantly entitled to head of state immunity, it is not necessary that I finally dispose of that question. 52 The extent to which a foreign head of state enjoys immunity from judicial process in this country is determined by reference to the Foreign States Immunities Act 1985 (Cth) (the "States Immunities Act") and the Diplomatic Privileges and Immunities Act 1967 (Cth) (the "Diplomatic Immunities Act"). The Explanatory Memorandum which accompanied the Foreign States Immunities Bill 1985 (Cth) into the House of Representatives indicated that the proposed legislation was based upon a report by the Law Reform Commission, "ALRC 24, Foreign State Immunity (1984)" ("ALRC 24"). Paragraph 163 of that report stated that the proposed treatment of head of state immunity was based upon the approach taken in the State Immunity Act 1978 (UK) (the "UK Immunity Act"). As much also appears from the Second Reading Speech of the then Attorney-General which is reported in the Parliamentary Debates (House of Representatives) for 21 August 1985 at pp 141-143. Concerning head of state immunity, the Attorney-General said (at 143): An additional matter covered is the immunity of a head of state acting in a private capacity. The position at common law is unclear. The legislation provides that a foreign head of state acting in a private capacity has the same immunities as a head of a diplomatic mission similarly acting. These immunities extend to the spouse of the head of state. This is the approach of the United Kingdom legislation and has the advantage of bringing a rarely litigated issue under a well-developed body of law which has been specifically developed to satisfy the needs of both the sending state and the receiving state. 53 In ALRC 24, the Law Reform Commission addressed the question of foreign state immunity in considerable detail. However the immunity of heads of state was addressed quite shortly. Paragraph 70 dealt with that question in connection with acts performed in a public capacity, asserting that a head of state was, according to existing law and practice, entitled to the same immunity as that extended to foreign states. As to acts performed in a private capacity, it was suggested (at para 163) that the current position concerning that matter was unclear. That statement was presumably the source of the Attorney-General's comment to similar effect which is mentioned above. ALRC 24 continued: Of all the overseas models on foreign state immunity only the State Immunity Act 1978 (UK) deals with the point. It does so by applying the provisions of the Diplomatic Privileges Act 1964 (UK) with respect to a head of mission, his family and servants, to a sovereign or other head of state, members of his family forming part of his household, and his private servant. The 1964 Act, like the similar Australian legislation, largely incorporates into municipal law the terms of the Vienna Convention on Diplomatic Relations 1961.