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Admiralty Jurisdiction and Vessel Arrests in Fiji (Article) [2006] JSPL 21; (2006) 10(2) Journal of South Pacific Law

ADMIRALTY JURISDICTION AND VESSEL ARRESTS IN FIJI
MAURICE J. THOMPSON*

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1. INTRODUCTION
   • 1.1 The 2005 Fijian High Court decision of Fiji Fish Marketing Group Ltd. v. Great Pacific Seafood Ltd^[1] provides an object lesson in the intricacies of the law as it relates to admiralty jurisdiction and vessel arrests in Fiji. The issues and fundamental concepts of maritime law raised in the case are not unique to arrest proceedings in Fiji however, and are dealt with on a regular basis by admiralty courts internationally. The same could be said for the underlying issues that arise in any merger and acquisition, or with respect to any banking and finance matter. However, where maritime matters are concerned, the difference is that most of the major maritime law jurisdictions internationally have either adopted particular international conventions with the result that their maritime laws in respect of various subjects are similar, or they have drafted their local legislation to closely reflect such internationally recognised legal principles.
   • 1.2 In that regard, Fiji is no different. Indeed, due to its commonwealth heritage, the country's maritime law was intended, by the English legislature of the 19^th and 20^th centuries at least, to closely reflect (if not mirror) the maritime law in England. In the last 25 years in particular, however, as a result of the development of Fiji as a major power amongst the South Pacific nations and the increased trading activity this has generated, commercial shipping in the South Pacific has steadily been gaining momentum. At the same time, the number of cases filed before the Fijian courts involving maritime related matters has also been on the rise, such that there is now a considerable body of Fijian maritime case law.
   • 1.3 While the possible harmonization of maritime laws amongst island nations in the South Pacific continues to be an issue that is raised in various echelons of government in the region and has been the subject of an academic analysis^[2], perhaps of equal importance to the region is to ensure that the region's maritime law develops in full knowledge of the developments taking place in maritime law in other major maritime law jurisdictions such as England, Australia and USA. For, while independent South Pacific island nations obviously have a sovereign right to develop their own unique maritime laws, it would be naïve to think that the development of the region's maritime laws is not being closely observed by the international maritime law community. Particularly now, with trading to the region steadily increasing.
   • 1.4 Such trade will often depend on internationally flagged and owned vessels, foreign charterers and their respective foreign based P&I (i.e protection and indemnity) and H&M (i.e. hull and machinery) insurers. For example, consider the scenario of two vessels colliding in Fijian waters with a resultant oil spill incident and devastation to local reefs, fisheries and local tourism. If Fiji's maritime laws in respect of collision law, salvage law, oil pollution law and limitation of liability were completely different to the norm in most other major maritime jurisdictions and were considered by owners' interests to be overtly prejudicial to their interests, a foreign vessel owner may decide that the potential liabilities it could incur in the event of a major incident far outweigh the potential commercial gains and decide not to trade the vessel in the region.
   • 1.5 Alternatively, an owner or charterer otherwise willing to trade a vessel in the region may be prevented from doing so because owners are unable to obtain the necessary P&I insurance cover to protect in the event of an oil spill incident. Indeed, many of the International Group of P&I Clubs will not provide P&I cover to vessels in various geographical regions of the South Pacific.
   • 1.6 Alternatively, if a foreign vessel is mortgaged to a foreign bank, the foreign mortgagee bank may decide that, because it considers that a mortgagee's rights are prejudiced in Fiji, it will not permit the mortgagor to trade the mortgaged vessel in the region.
   • 1.7 Such potential decisions by foreign vessel owners, charterers, their insurers and mortgagees have the potential of limiting the number of "first class" vessels and operators trading in the region. As a result, there may be less competition for freight rates or vessel hire due to the lack of options for traders and the fact that larger owning interests with the ability to provide cheaper rates due to their economies of scale are not in the market. At the end of the day, South Pacific traders may therefore pay premium freight rates for services on sub-standard vessels that are not sufficiently insured to respond to claims from local communities that may have suffered losses as a result of an oil pollution incident. And all because either a foreign based vessel owner, charterer, their insurers or a mortgagee decided, from afar, that the legal risks (as they perceive them) associated with trading that vessel in the region outweigh the commercial gains that such trade might bring.
   • 1.8 Accordingly, the development of maritime law in Fiji and the other South Pacific island nations is not taking place in a vacuum and the attention of the international maritime community on such development is ever increasing.
   • 1.9 As a result of Fiji's commonwealth heritage and the basis of its admiralty jurisdiction (discussed below at section 4) and, in no small part, due to the obvious personal interest in maritime law exhibited by a number of the Fijian judiciary, most judgments handed down in admiralty actions in Fiji make reference to key English common law decisions. Australian, New Zealand and Canadian cases are also frequently referred to. While Fijian courts are not bound to follow such foreign judgments (relating to admiralty matters or otherwise), as is the case in other prominent maritime law jurisdictions, English common law decisions in particular that relate to questions of maritime law carry significant persuasive weight.
   • 1.10 Nevertheless, cases such as Fiji Fish Marketing Group Ltd. v. Great Pacific Seafood Ltd

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