Since Prime Minister Tony Abbott vowed to stop the boats, the humble maritime lawyer has been thrust into the media spotlight to comment on the legality of his government’s attempts to follow through on the promise.

An example is the High Court ruling in January involving 157 Sri Lankan asylum seekers held at sea for nearly a month.

While the High Court found the Abbott government did not break Australian domestic law by detaining the asylum seekers, maritime experts discussed the compatibility of the Maritime Powers Act 2013 with Australia’s human rights obligations.

More recently, another high-profile matter has seen maritime lawyers at the centre of a heated debate, this time in the workplace relations space.

In March the Federal Court ruled that measures to make it easier to employ foreign workers on offshore facilities were invalid, forcing non-Australian citizens who participate in, or support, an Australian offshore resources activity to hold visas.

The case – Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection – was a win for the union, which claimed the government had opened the door to cheap foreign labour; but maritime lawyers warned that the outcome could have significant implications for Australia’s offshore oil and gas sector.

Maurice Thompson, the head of Clyde & Co’s maritime and offshore practice in Australia, agrees the Federal Court “got it right” in this case. However, he adds that the offshore resources sector is already heavily regulated and further “red tape” could cause significant uncertainty for an industry that employs about 70,000 people and is worth $200 billion to the Australian economy.

“The last thing the industry needs is additional red tape to mollify the [union],” Mr Thompson says.

“The challenge for the Australian Government is to create a legislative instrument which does not fall foul of the law or, alternatively, to enact legislation minimising the extent to which non-Australians are prevented from working in Australia’s offshore sector.”

Shifting sands
Mr Thompson advises clients on regulatory, transactional and dispute resolution issues affecting the offshore sector.

He says the past decade has seen a major shift in the focus of his and other maritime practices in Australia.

A trend that is contributing to this shift is more P&I (protection and indemnity) clubs building their in-house teams and retaining insurance and advisory work once performed by external law firms.

P&I clubs are a non-profit mutual insurance association providing cover for shipowner and charterer members against third-party liabilities relating to the use and operation of ships.

Mr Thompson says cargo claims, for example, were once a major source of revenue for law firms, but much of that work is now done in-house.

“The shrinking of that work has led certain firms and persons to diversify their practices so that you are offering unique maritime skill set not only to the vessel owners, but also the charterers of those vessels,” he says.

Targeting charterers is a logical step for maritime practices, particularly as the oil and gas industry draws contractors with a range of legal needs that require shipping expertise. Law firms are acting for contractors using high-end lifting and construction vessels, pipeline vessels and seismic vessels – all of which are involved in large-scale, offshore resources projects like the Gorgon gas project off Western Australia.

“A lot of the work we find ourselves doing now is for contractors in that offshore market,” Mr Thompson says. “Rather than targeting the [ship owners], you’re targeting an entire strata of specialist vessel support players below that.”

Win some, lose some
A significant portion of the lucrative legal work coming out of the oil and gas sector has slowed since the commodity price crash last year. However, subsequent disputes over international sales contracts are providing a pipeline of work for maritime practices.

Joe Hurley, the head of HWL Ebsworth’s shipping and trade practice, says arrest work is on the rise as vessel owners detain ships and cargoes in order to seek security for claims against charterers trying to get out of shipping agreements.

Legal work arising out of challenges caused by weak commodity prices may be growing, but not all maritime practices are equipped to take it on. Mr Thompson says firms must diversify and broaden their maritime practices to secure new streams of work from the sector.

“In Australia you have to have a broader practice, because there isn’t the volume in any one silo of work to keep you in practice,” he says.
“Our lawyers have to have a broad knowledge base in terms of maritime and that’s hard – you have to learn this on the job.”

Fresh blood
Young lawyers with general legal experience, complemented by an interest in maritime law, could accelerate the diversification of shipping practices.
Mr Hurley says he has received several inquiries from graduates who have studied the Law of the Sea or an international law subject keen to join HWL’s shipping practice.

“There is no shortage of people wanting to get into the area,” he says. “It’s interesting, international and an intellectually demanding discipline.”

While there are many eager new lawyers responding to the call of the sea, specialists in a particular area of maritime law are hard to find among the senior ranks of law firms, Mr Thompson says.

“It’s pretty difficult to employ in someone to hit a specialist area – those worth employing all have jobs now,” he says, adding that Clyde & Co’s team of one partner and eight lawyers are all shipping experts, not transport lawyers “masquerading” as shipping lawyers.

“You have to question when some firms count themselves as having large maritime practices, when a lot of the firms here will sell their transport practice as being the same thing.”

Even so, Mr Thompson and Mr Hurley agree that successful maritime lawyers require a range of legal skills that extend beyond purely interpreting maritime law.
There is growing demand for dispute resolution, insurance and workplace relations expertise, for example, and partners are drawing on resources from these practices to help in maritime matters.

It appears once-isolated maritime partners are now calling for “all hands on deck”.