- About Admiralty Marshals
- Marshal's Manual
- Marshals' costs
- Insurance of property arrested under the Admiralty Act
Admiralty Marshals of the Court are appointed by the CEO & Principal Registrar under the Federal Court of Australia Act 1976 (Cth).
The functions and obligations of the Marshal are set out in the Admiralty Rules 1988 (Cth) (Admiralty Rules).
The Court has its own Marshals in every State and Territory. In addition, suitably qualified staff from other agencies (usually the Australian Border Force officers) located around Australia can also be appointed temporarily as a Marshal of the Federal Court. These additional Marshals assist the Court in providing coverage in regional and remote parts of Australia. Such appointments are strictly supervised by the principal Marshal in the relevant Registry of the Court.
A video entitled "The Role of the Admiralty Marshal in the Federal Court of Australia" is available on the Court's website. A transcript of the video is also available.
The Marshal's Manual has been prepared to assist officers of the Court who are directed to perform duties and functions of a Marshal under the Admiralty Act 1988 (Cth) (Admiralty Act). The information in the Manual is not exhaustive or binding and is not a substitute for examining the Admiralty Act, Admiralty Rules, Federal Court Rules 2011 (Cth) (Rules) and other relevant material or seeking legal advice.
Undertaking to the Court
An application for an arrest warrant constitutes an unlimited undertaking to the Court to pay the Marshal, on demand, an amount equal to the costs and expenses of the Marshal in relation to the arrest, including the costs and expenses in relation to the ship or other property while it is under arrest (refer to Rules 41, 49, 69 and 74 of the Admiralty Rules).
Costs & expenses
The Admiralty Rules provide that fees and expenses in connection with an arrest and sale are recoverable from the plaintiff personally or the plaintiff's solicitor pursuant to the undertaking given to the Court.
It should be noted that the Admiralty Rules sometimes refer to "fees and expenses" and sometimes refer to "costs and expenses", while the Admiralty Act refers to "costs and expenses".
The approach of the Court to the Marshal's (staff) costs is to restrict the costs charged to the parties to the direct third party costs involved in the arrest and sale, other than in exceptional cases. An example of this would be where the amount of work necessitates the provision of additional staff or where staff are required to work overtime. If such costs are payable, under the Federal Court and Federal Circuit Court Regulation 2012 (Cth) the fee for a Marshal serving a writ or executing an arrest warrant is an amount equal to the amount of any expenses reasonably incurred by that officer in the service or execution, or attempted service or execution, of the writ or warrant, together with a charge calculated at the hourly rate of salary payable to an officer of the Court who is involved in the service or execution or attempted service or execution.
It is important to be aware that the Marshal's costs and expenses in relation to an arrest can be very significant. Some typical costs and expenses that an arresting party may expect to incur include:
- helicopter hire (should arrest occur at anchor)
- flight, accommodation and vehicle hire costs
- ship movement costs - i.e. from port to port, hiring tugs etc.
- berthing costs
- crew costs
- medical attention for crew
- supply of reasonable victuals, fuel, water, communications
- Marshal's expenses such as in-house Marshal's fees (staff costs) (noting however the Court's approach above) or fees charged by Australian Border Force (ABF) when an ABF Officer undertakes the arrest.
The Marshal's costs and fees under rules 41 and 69 of the Admiralty Rules 1988 payable in respect of the arrest, custody and sale or release of a ship or other property under the Admiralty Act 1988 are covered under Division 81 of A New Tax System Goods and Services Tax Act 1999 (Cth). These fees and charges are included in fees and charges which do not constitute consideration and are therefore excluded from being taxable by provisions 81-15.01(d) and (e) of A New Tax System (Goods and Services Tax) Regulations 1999 (Cth). The effect of these provisions is that GST is not payable on Marshal's costs and expenses nor on any demand made by the Marshal.
Money on account of costs and expenses
Before the arrest, in addition to the undertaking, the Marshal may, if it is considered necessary, demand an amount of money as a deposit to discharge his or her duties effectively in relation to the arrest and while the ship or other property is under arrest (see rule 41(2)).
This amount should be based on an estimate of any travel costs (such as air fares) and other expenses which can be foreseen (such as launch hire), including insurance premiums. In most cases it will be reasonable to ask for an amount of between $5,000 and $10,000.
There is no poundage in the Federal Court. It was abolished in the Federal Court in 2004.
The Admiralty Act provides for the arrest of property (including vessels) by the Marshal in actions in rem. The Marshal will obtain indemnity insurance for the period the vessel is in the custody of the Marshal. The cost of that insurance will be an expense incurred by the Marshal payable by the party issuing the writ for the arrest of the vessel. The Court may require that party to undertake to pay the cost of that insurance at the time the writ is issued.
The Marshal does not at any time during the period of arrest hold commercial insurance for the benefit of any person who has an interest in the arrested property including cargo. Persons with an interest in the arrested property and their lawyers may wish to consider the question of insuring the amount of their interest against consequential risk, including risks occasioned by any movement of the vessel.
To assist practitioners in calculating premium rates, a table is provided below of some examples of premiums under the Marshals' insurance policy for the 2016 calendar year. Practitioners should contact their local Marshal if they require further information about insurance.
|Estimated value of ship||Limit||Rate||Duration of arrest||Premium||Minimum||Stamp Duty based on 10%||Broker's fee incl GST||Total premium|
|1.||$5 mill||$100 mill||1.5%||3 days||$616.44||$1,275.00||$ 127.50||$247.00||$ 1,650.50|
|2.||$5 mill||$100 mill||1.5%||10 days||$2,054.80||n/a||$ 205.48||$247.00||$ 2,507.28|
|3.||$10 mill||$100 mill||1.360%||3 days||$ 1,117.81||$2,045.00||$ 204.50||$247.50||$ 2,497.00|
|4.||$10 mill||$100 mill||1.360%||10 days||$ 3,726.03||n/a||$ 372.60||$247.50||$ 4,346.13|
|5.||$20 mill||$250 mill||1.386%||3 days||$ 2,278.36||$3,690.00||$ 369.00||$247.50||$ 4,306.50|
|6.||$20 mill||$250 mill||1.386%||10 days||$ 7,594.52||n/a||$ 759.45||$247.50||$ 8,601.47|
|7.||$40 mill||$250 mill||1.049%||3 days||$ 3,448.77||$4,645.00||$ 464.50||$247.50||$ 5,357.00|
|8.||$40 mill||$250 mill||1.049%||10 days||$11,495.89||n/a||$1,149.59||$247.50||$12,892.98|
1. Stamp Duty is applied to all premiums as follows:
2. GST does not apply to this class of risk, other than to the broker's fee.