DR SIMON ALLISON

Associate Lecturer | Curtin Law SchoolPh.D. (Law) (Cantab), B.Ec. (W.Aust.), LL.B. (Hons), M.Phil. (Law), Member of Queens’ College, Cambridge

Published in the Golden Anniversary Issue of Lloyd’s Maritime and Commercial Law Quarterly with the brilliant, Curtin Law School alumnus, Shane Herbst!

Shane Herbst and Simon Allison, 'Breaking the Hague-Visby Rules' silence on choice of law and forum clauses' [2024] 1 Lloyd's Maritime and Commercial Law Quarterly 106.

SSRN Preprint
Curtin espace
LMCLQ website PDF

Shane Herbst, John Minas and Simon Allison, 'Running on Empty: Australian State Fiscal Powers after Vanderstock' (2024) 52 Australian Business Law Review 246.

Monash Research
Informit
PDF

Simon Allison, Submission to the Cth AG, Consultation to inform options for implementing the Model Law on Electronic Transferable Records in Australia (MLETR) (October 2024)

MLETR Conultation
Submission
PDF

Our case note (Simon Allison and John Minas, 'Liability for False Imprisonment and Judicial Immunity in Australia's Federal Court System (2024) 83(1) Cambridge Law Journal 33) is now open access: https://lnkd.in/ghQXdgYr Summary: the Australian case of Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 stemmed from a routine family law property dispute, and resulted in the defendant, a judge of the Federal Circuit and Family Court of Australia (FCFCOA) (Division 2) being held liable for false imprisonment and unable to rely on judicial immunity with respect to the imprisonment of a party to a case before the judge for contempt of court (where that order was infected by jurisdictional error). The case confirmed that at common law, a judge of an inferior court acting without jurisdiction is not afforded judicial immunity. Appeals from case (by Judge Vasta, the State of Queensland and the Commonwealth) are now pending determination by the High Court of Australia after orders made on 8 February 2024 removed those appeals from the Full Court of the Federal Court of Australia.

Simon Allison and John Minas, 'Liability for False Imprisonment and Judicial Immunity in Australia's Federal Court System' (2024) 83(1) Cambridge Law Journal 33.

Cambridge Law Journal
PDF Version
Curtin espace

Simon Allison, Strangers in the Wind: How Private Contract Law is Making Public Law of the Sea Work (Presentation to Cambridge Festival of Ideas, 24 September 2015)

As part of the Cambridge Festival of Ideas, Simon was a member of the panel on "Claiming rights at sea: sovereign and private negotiations” discussing 'recent calamities of migrants at sea have raised the public awareness of inadequacies in the maritime governance framework for international and national responsibilities for safe passage. Experts in maritime history and international relations explore interactions among state and societal actors in providing order and rights for seafarers and innovative diplomatic and legal approaches'.

Simon's presentation examined how the standard form contract GUARDCON has aided in bringing order to the use of private armed guards on commercial ships. While the enforcement of law of the sea norms on an international plane is frustrated by issues concerning state responsibility and dispute settlement, private contract law may be capable of anchoring such norms as binding and enforceable obligations between private parties.

The objective test of non-disclosure in s 21(1)(b) of the Insurance Contracts Act 1984 (Cth) remains elusive in its meaning and operation. Despite the time of assessment being prior to entry into a contract of insurance, disputes over an insured’s non-disclosure inevitably arise after a claim is made, when investigations uncover matters an insurer argues were relevant to its decision to accept the risk of a contract of insurance, and the circumstances on which it does. The test in s 21(1)(b) did away with the common law prudent insurer standard of materiality. Despite this, resolution of questions of non-disclosure can be complex exercises in inference drawing, and courts are reticent to give weight to hindsight evidence of insurers. Complex fact scenarios involving the disclosure of opinions and allegations cases have put into question the practical utility of settled principles on the application of the test. Recent cases demonstrate a move towards a broader consideration of circumstances relevant to s 21(1)(b), providing a more flexible construction to resolve conceptual issues that the legislation is otherwise silent on.

Simon Allison, 'Knowing Me, Knowing You: What’s the Matter with Section 21(1)(b) of the Insurance Contracts Act 1984 (Cth)?' (2023) 32 Insurance Law Journal 128.

SSRN AOM Preprint
Curtin espace
PDF

Had a terrific day Friday speaking and attending the 2023 Australian Insurance Law Association (AILA) Masterclass/Insurance Gangnam style at the Melbourne Hotel, Perth. Excellently organised and well attended event!

Simon Allison, Knowing Me, Knowing You: What’s the Matter with Section 21(1)(b) of the Insurance Contracts Act 1984 (Cth)? (Speech to the 2023 Australian Insurance Law Association Masterclass "Insurance Gangnam Style", Perth).

PDF Slides
Event Information

The embarkation of private armed guards on commercial ships in Somalia has provided a unique opportunity to test the bounds of international law. The phenomenon was new. Until that point shipowners had been reticent to carry weapons or engage the services of those carrying weapons. The legal and practical risks of such carriage or engagement outweighed the potential benefits they offered to defend vessels. Somalia, however, was genuinely peculiar. While shipowners had contended with piracy before, for example in the Straits of Malacca, Somalia represented a potent combination of a failed State with a large, difficult-to-patrol and strategically vulnerable coastline. Shipowners began to engage the services of private maritime security companies (PMSCs) and their privately contracted armed security personnel (PCASP) to safeguard the passage of vessels through the Gulf of Aden, adjacent to Somalia, which is also the second busiest shipping lane in the world. By 2011 it was estimated that up to 50% of vessels sailing through the Gulf of Aden were using the services of armed guards. This new phenomenon gave rise to particular concerns under public international law regarding the law of the sea (and the safety of life at sea in particular) and international human rights protection. These concerns reverberated into private domestic legal concerns as shipowners, marine underwriters and indemnifiers became alarmed at the potential vulnerability of their commercial arrangements on the grounds of illeg- ality and public policy, in addition to their potential liability stemming from the use of force. While international law did have some norms relevant to the embarkation of armed guards, targeted regulation was lacking. Applicable rules had to be distilled from a variety of legal worlds: international and domestic, public and private. Member States of the International Maritime Organization (IMO) were slow to respond to this phenomenon. Many States were reticent to cooperate on regulatory initiatives out of fear that such initiatives would be seen to condone the use of guards. Despite this, shipowners and PMSCs did not stop embarking armed guards due to the lack of regulation. Rather, some PMSCs took advantage of the lack of regulation to cut corners and contract on terms that were arguably a prima facie violation of the law of the sea (in particular the role of the shipmaster). The use of armed guards off the Somali coast has tested the ability of the law of the sea framework enshrined in the United Nations Convention on the Law of the Sea (UNCLOS) to respond to the use of force at sea. A lack of targeted governmental regulation motivated the shipping and insurance industries to develop regulatory initiatives including: the ISO 28007-1:2015 Guidelines for PMSCs Providing PCASP on Board Ships (ISO 28007:2015), the GUARDCON Contract for the Employment of Security Guards on Vessels and the 100 Series Rules as to the Use of Force (100 Series RUF). These instruments incorporate international norms concerning the law of the sea and human rights law into commercial shipping and insurance arrangements. This dissertation examines both the public international law framework and the role of private ordering in this context. The following research questions are addressed: Who is responsible for the acts of PCASP at sea and why? How does private ordering contribute to the governance of PCASP at sea? This dissertation argues that, despite public international law having the substantive norms necessary to address the embarkation of armed guards at sea, it is undermined by the prominent and problematic doctrine of flag State jurisdiction over vessels. The result has been gaps in the enforcement of international law giving rise to a practical impunity being enjoyed by armed guards in terms of their conduct. The industry initiatives have a unique role to play alongside public international law in helping to close these enforcement gaps. Despite this, the potential of these industry initiatives is weakened by the difficultly of measuring their effectiveness given the lack of transparency over how they are enforced in practice. Their potential is further undermined by a lack of dispute resolution options to effectively redress harm caused by armed guards. While industry contributions to regulation have great promise, they would be strengthened through stronger reporting requirements and the adoption of current proposals to allow arbitration of human rights violations committed at sea.

Simon Allison, The Use of Force by Non-State Actors on the High Seas: Public and Private Responses (PhD Disseration, University of Cambridge, Queens' College, 2020), supervised by Prof Christine Gray, Dr Michael Waibel, Prof Eyal Benvenisti (DOI).

Apollo Cambridge Repository
PDF

While the traditional law of salvage was effective in reducing the loss of property at sea the ‘no cure–no pay’ doctrine resulted in perverse outcomes like those seen in the Torrey Canyon incident, where volunteer salvors would protect the marine environment from the catastrophic consequences of would be oil spills, yet be left without remuneration and forced to bear their own costs. The development of the 1989 Salvage Convention and its contractual alternative SCOPIC provided a much needed exception to the longstanding ‘no cure–no pay’ rule by introducing a safety net provision to provide some compensation to cover the salvors expenses where they were not entitled to claim a reward. However, the negotiators of the 1989 Salvage Convention concluded that issues of a public law nature such as access to places of refuge and State interference in salvage operations were best dealt with by a separate convention. This dissertation submits that the public law aspects of salvage law remain unremedied and continue to discourage salvage companies from undertaking a crucial role in protecting the marine environment. As a result, a new convention is required to provide certainty as to the rights and obligations of parties involved in incidents posing a potential threat to the marine environment. Will it take another catastrophe such as the Prestige to prompt decision makers into taking action? UN SDGs This output contributes to the following UN Sustainable Development Goals (SDGs)

Simon Allison, Salvage Companies and Protection of the Marine Environment: Time to Pay the Piper? (MPhil Disseration, University of Western Australia, January 2015), supervised by Prof Erika Techera and A/Prof David Hodgkinson.

Research Gate
UWA PDF
UWA Research Repository

Simon Allison, Salvage Companies and Protection of the Marine Environment: Time to Pay the Piper? (MPhil Disseration, University of Western Australia, 2015), contributes to the UN Sustainable Development Goals (SDGs)

This article considers the varying judicial approaches to the question of incorporation of arbitration agreements by reference to another contract, schedule of terms, or trading rules. In particular, attention is directed to the approach taken by English courts in considering whether a subsequent holder of a bill of lading is bound by an arbitration agreement contained in a charterparty. In that context, English courts required an express reference in a bill of lading to the charterparty arbitration clause before it could be regarded as part of the contract. General words purporting to incorporate the terms and conditions of a charterparty would not be sufficient. This article examines the development of this strict approach to incorporation in the maritime context, its application to contractual disputes outside that context and recent case law signalling a more flexible approach to the question based on the intention of the parties involved.

Simon Allison, Kanaga Dharmananda SC, 'Incorporating Arbitration Clauses: The Sacrifice of Consistency at the Altar of Experience' (2014) 30(2) Arbitration International 265 (Published by Oxford University Press on behalf of the London Court of International Arbitration).

PDF
Oxford Academic
DOI
Informit

The determination of the law governing arbitration agreements has been the subject of recent close attention. The relationship of third parties to arbitration agreements is sensitive to an increasingly unwieldly array of factors, including the subject matter of a dispute, the nature of the purported basis for the transfer of an arbitration agreement, and the wording of the original instrument containing the arbitration clause. A rising question is whether third parties are to be considered parties or non-parties otherwise bound by arbitration agreements. In addition, there is an issue of timing: when are the arbitration agreements or relevant awards to be impugned, and does the third-party issue pertain to the validity or just the scope of an arbitration agreement. This article seeks to address these issues.

Simon Allison, Kanaga Dharmananda, 'Party Crashers: Issues in Identifying Parties and others Bound by Arbitration Agreements' (2022) 38(3) Arbitration International 151 (Published by Oxford University Press on behalf of the London Court of International Arbitration).

PDF
Oxford Academic
DOI
Curtin espace
SSRN Preprint

Since 1904, Australia has sought to protect shippers by prohibiting parties to contracts such as bills of lading from contracting out of Australian law and jurisdiction. Today, this protection lives on in s 11 of the Carriage of Goods by Sea Act 1991 (Cth). This section has recently been in the spotlight following a divergence of authority relating to its scope. This article argues that legislative revision of s 11 is necessary in order to clarify its scope and to ensure that its operation is consistent with the underlying policies justifying its existence, as expressed by the legislature.

Simon Allison,'Choice of Law and Forum Clauses in Shipping Documents - Revising Section 11 of the Carriage of Goods by Sea Act 1991 (Cth)' (2014) 40(3) Monash University Law Review 639.

Austlii PDF
SSRN
Austlii
Curtin espace
Informit

AMTAC Submission (Citation)

H&M Imports v Dateline Transam Ltd [2022] TOSC 53 (Citation).

Can a pilotage indemnity agreement waive a shipowner’s statutory right to limit its liability? If so, how precise must the wording of that indemnity be to achieve this? These questions arise from an unfortunate berthing operation in the Bahamas on 25 May 2012 in The Cape Bari.1 The Cape Bari (owned by the respondents) was berthing at a Freeport terminal facility owned by the appellant, the Bahamas Oil Refining Co International (“BORCO”). The vessel was under compulsory pilotage by an affiliate business of BORCO, the BORCO Towing Co Ltd (“BORTOW”). On behalf of the shipowners, the master signed the “Conditions of Use” as drafted by BORCO.2 Those conditions were subject to the law of the Bahamas. Clause 4 of the Conditions of Use provided: “If in connection with, or by reason of, the use or intended use by any vessel of the terminal facilities or any part thereof, any damage is caused to the terminal facilities or any part thereof from whatsoever cause such damage may arise, and irrespective of weather [sic] or not such damage has been caused or contributed to by the negligence of BORCO or its servants, and irrespective of whether there has been any neglect or default on the part of the vessel or the Owner, in any such event the vessel and the Owner shall hold BORCO harmless from and indemnified against all and any loss, damages, costs and expenses incurred by BORCO in connection therewith. Further, the vessel and her Owner shall hold BORCO harmless and indemnified against all and any claims, damages, cost and expenses arising out of any loss, damage or delay caused to any third party arising directly or indirectly from the use of the terminal facilities …” While berthing, the Cape Bari collided with BORCO’s facility, causing substantial damage. BORCO pursued the shipowners for damages exceeding US$20m. The owners responded by establishing a limitation fund of US$16m. The fund was constituted under the Convention on Limitation of Liability for Maritime Claims 1976 (“LLMC 1976”), which was given force of law in the Bahamas by the Merchant Shipping (Maritime Claims Limitation of Liability) Act 1989 (the “1989 Act”).

Simon Allison, 'Navigating between Freedom of Contract and LLMC 1976: The Cape Bari' [2016] Lloyd's Maritime and Commercial Law Quarterly 495.

Curtin espace
I-law
PDF

About Simon

Simon is an Associate Lecturer within the Curtin Law School. Simon holds a PhD in Law from the University of Cambridge (Queens' College) and an MPhil (Law) and an LLB (Hons) from the University of Western Australia. Prior to academia, Simon explored his strong interest in public policy through work at both State (WA) and Commonwealth government levels. This equipped Simon with a strong understanding of policy development from a political/governmental perspective appreciating the various drivers and processes that lead to, and ultimately influence, legislative change.

Simon has a keen research interest in the relationship between public policy and international commercial arrangements and the consequences for the resolution of disputes through courts and international commercial arbitration. His LLB thesis considered the operation of mandatory rules in the Australian carriage of goods by sea regime to the settlement of disputes. His MPhil (Law) dissertation looked at the role of private maritime salvage law in preventing catastrophic marine pollution. As part of his PhD at Cambridge, Simon investigated the regulation of private security companies involved in safeguarding the transit of commercial vessels. This emphasised the role of contractual networks and shipping insurance arrangements in the transmission and enforcement of public policy related norms concerning human rights and law of the sea.

Simon's teaching experience, research expertise and output related to areas of tort law, insurance law, public and private international law (arbitration and conflict of laws), domestic conflict of laws, applied contract law, legal history, and, underwriting and liability insurance.

Awards

Cambridge Australia Poynton Scholarship (Cambridge Australia Scholarships and the Cambridge Trust October 2014): The Cambridge Australia Poynton Scholarship fund offers scholarships for outstanding Australian students who wish to carry out PhD research at the University of Cambridge.

Queens' College Research Grant (Queens' College, Cambridge (Cambridge, GB).

Australian Postgraduate Award (The University of Western Australia August 2013).

Jean Rogerson Honours Studentship (Faculty of Law, University of Western Australia May 2012): The studentship was established in honour of Miss Jean Rogerson MBE, BSC, ARACI. The studentships are awarded on the recommendation of the Faculty of Law Honours Committee to the students achieving the best qualifying performance for entry to the honours programme.

Thomson Reuters Prize in Contract Law (Faculty of Law, University of Western Australia May 2011): Awarded to the student with the highest aggregate mark in LAWS1101 Contract I and LAWS1102 Contract II, completed in the same calendar year.

UWA Book Prize for International Commercial Arbitration (Faculty of Law, University of Western Australia May 2012): Awarded to the student with the highest aggregate mark in International Commercial Arbitration.

International Maritime Organization Internship

Simon Allison was attached as an intern at the International Maritime Organization (IMO), a specialized agency of the United Nations, from 2 to 27 February 2015 as part of his research on "The Use of Force by Non-State Actors on the High Seas: Public and Private Perspectives", and the work of the IMO in relation to maritime security and the coordination of policy development with respect to the piracy and armed robbery against ships, including the engagement by ships of privately contracted armed security personnel (PCASP). His research focused on how the IMO facilitated discussion between various governmental and industry groups, including flag states, port and coastal states, shipping representatives and other interested intergovernmental and nongovernmental organizations to obtain important policy outcomes in this contentious area.

Dr Allison observed the Sub-Committee on Ship Design and Construction (SDC), 2nd session and the Sub-Committee on Human Element, Training and Watchkeeping (HTW), 2nd session, as well as having access to the IMO Maritime Knowledge Centre, to examine documents and meet members of the Secretariat.