Amarantos Shipping Co Ltd v the State of South Australia No. Scciv-01-1492

[2004] SASC 57

AMARANTOS SHIPPING CO LTD v THE STATE OF SOUTH AUSTRALIA
[2004] SASC 57

Civil

1. DEBELLE J           On 10 April 2000 the motor vessel Amarantos, a Panamax bulk carrier of 64,957 tonnes dead weight, collided with the jetty in the harbour at Wallaroo causing damage to the jetty and facilities on the jetty including conveyors and other facilities for loading grain.  The Amarantos is owned by the plaintiff Amarantos Shipping Co Ltd (“Amarantos Shipping”) and is registered in Malta.  In this action, Amarantos Shipping claims damages for the losses it suffered in consequence of the collision.

2. The Amarantos was berthing at the jetty for the purpose of loading a cargo of wheat for carriage to Iraq.  It was under compulsory pilotage at the time of the collision.  The pilot was Mr Morley.  He was a licensed pilot employed by South Australian Ports Corporation (“Ports Corp”).

3. In April 2000 Ports Corp managed and administered the harbour and harbour facilities at Wallaroo. Ports Corp has since been dissolved. By virtue of s 15(5) of the South Australian Ports (Disposal of Maritime Assets) Act 2000, any remaining assets and liabilities of Ports Corp vested in the State of South Australia. For that reason the State of South Australia is the defendant in this action.

4. The collision has resulted in a number of actions being instituted in this Court and one in the District Court of South Australia.  In this action, Amarantos Shipping makes two claims.  In the first claim it seeks to recover damages from the State of South Australia for the damage caused to the vessel, grounding its claim on two causes of action.  The first cause of action is in negligence.  Broadly stated, Amarantos Shipping says that Ports Corp was negligent in that it failed to provide tugs of sufficient power to assist the Amarantos into its berth, it provided a pilot for the Amarantos notwithstanding the limited capacity of the tugs, and it failed to warn of the limited capacity of the tugs.  The second cause of action is in misrepresentation.  Amarantos Shipping pleads that Ports Corp misrepresented that the harbour facilities at Wallaroo were suitable for vessels as large as the Amarantos, that the power and capacity of the tugs were adequate for Panamax vessels, and that the area and depth of water at Wallaroo was suitable for Panamax vessels.

5. In its defence, the State of South Australia denies that Ports Corp was negligent and asserts that the collision resulted from the negligence of the crew of the Amarantos.  It also denies making the alleged misrepresentations.  It pleads a number of statutory defences.  For present purposes, it is unnecessary to refer to them.

6. The State of South Australia has also made a counterclaim against Amarantos Shipping. It pleads that by reason of s 24 of the South Australian Ports Corporation Act 1994 or, in the alternative, s 21 of the Harbors and Navigation Act 1993, Amarantos Shipping is strictly liable in respect of any loss or damage caused by the Amarantos to the property of Ports Corp or any property for which Ports Corp was responsible.  In addition, it pleads that the crew of the Amarantos were negligent in their navigation and management of the Amarantos.

7. In its reply and defence to the counterclaim Amarantos Shipping relies on a number of statutory provisions.  For present purposes it is sufficient to note that, in answer to the counterclaim, it pleads s 1 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (“the 1900 Act”) which, if it applies, would limit the liability of Amarantos Shipping to eight pounds sterling per tonne of the registered tonnage of the Amarantos together with interest on the resulting amount at the rate prescribed.

8. The second part of the claim by Amarantos Shipping in this action is that it is entitled to be indemnified by the State of South Australia in respect of claims made against Amarantos Shipping in other actions.  The plaintiff in those other actions are persons other than Ports Corp who have suffered loss and damage in consequence of the Amarantos colliding with the jetty.  In all of these actions Amarantos Shipping is the defendant.  In each of these actions the plaintiff claims that Amarantos Shipping is vicariously liable for the negligence of the master and crew of the Amarantos and, in some of those actions, the plaintiff relies on either s 410B(2) of the Navigation Act 1912 (Cth) or s 36 of the Harbors and Navigation Act and claims that Amarantos Shipping is vicariously liable for the negligence of the pilot.  One of those plaintiffs commenced its action in the District Court of South Australia.  In the interests of proper case management of all of the actions stemming from the collision of the Amarantos with the jetty at Wallaroo, the action instituted in the District Court has been transferred to this Court.  I list the actions in addition to this action which arise out of the collision.

   1350/01            Centre State Exports Pty Ltd v Amarantos Shipping Co Ltd

   1308/02            ABB Grain Ltd v Amarantos Shipping Co Ltd

   332/03               AWB Ltd v Amarantos Shipping Co Ltd

   1523/03            Ausbulk Ltd v Amarantos Shipping Co Ltd

   1784/03Noble Grain Australia Pty Ltd v Amarantos Shipping Co Ltd

   The claims of the plaintiffs in these actions total in excess of $3,000,000.

9. I have been charged with the management of all of these actions.  In the course of that management, it has become apparent that there are a number of questions of statutory construction which will have a material bearing on the outcome of these actions.  An early determination of those questions is likely to assist the parties in each action in reducing the issues to be canvassed at the trial.  Among those questions is what, if any, legislation limiting the liability of Amarantos Shipping was in operation at the date of the collision.  An early determination of questions as to whether there are statutory limitations on the liability of Amarantos Shipping may assist the parties in both this action and in the other actions to agree a negotiated settlement of each action.  For example, if as Amarantos Shipping contends, its liability is limited by Imperial legislation, its liability will be capped at a figure of approximately $713,000.  If its liability is limited by Commonwealth legislation, it will be substantially higher.  There is also a question whether by reason of the South Australian legislation Amarantos Shipping is strictly liable for the collision.  The determination of that question will have a real bearing on what must be proved.

10. The parties to this action have, therefore, agreed certain facts and identified a number of questions of law to be determined before proceeding to a trial of the facts.  On 16 December 2003, I ordered, pursuant to Rule 75.02, a preliminary determination of those questions of law.  On the same day the plaintiffs in the actions listed above were granted leave to intervene and to be heard on the argument of those questions.  On the hearing of those questions, Mr Nell appeared for Centre State Exports Pty Ltd, Ausbulk Ltd and Noble Grain Australia Pty Ltd.  ABB Grain Ltd and AWB Ltd informed the Court that they would abide its order.

11. I set out the agreed facts and the questions for determination.

    Agreed Facts

    1.On 10 April 2000 the motor vessel Amarantos, a Panamax bulk carrier of 64,957 tonnes dead weight owned by Amarantos Shipping Co (“Amarantos Shipping”) and registered in Malta, collided with the jetty in the harbour at Wallaroo, South Australia (“the collision”).

    2.The Amarantos was berthing at Wallaroo in order to load a cargo of wheat for carriage out of Australia to Iraq.

    3.The Amarantos was under compulsory pilotage at the time of the collision.

    4.The collision caused damage to harbour facilities at Wallaroo, namely, a jetty and facilities on the jetty (“the harbour facilities”).

    5.South Australian Ports Corporation was in April 2000 responsible for the harbour and the harbour facilities at Wallaroo and was the owner of the harbour facilities other than grain loading equipment on the jetty that was owned by AusBulk Limited.

    6.The pilot engaged to pilot the Amarantos was a licensed pilot employed by Ports Corp.  The pilot was Mr Morley.

    7.On 5 September 2002 Ports Corp was dissolved. By virtue of s 15(5) of the South Australian Ports (Disposal of Maritime Assets) Act 2000, any remaining assets and liabilities of Ports Corp vest in the State of South Australia.

    8.The State of South Australia claims $116,222.55 damages for the loss and damage to the harbour facilities caused by the collision.  Amarantos Shipping denies liability.

    9.For the purpose of prosecuting its claim for the loss and damage to the harbour facilities, the State of South Australia relies on s 24 of the South Australian Ports Corporation Act 1994 (“the 1994 Act”) and s 21 of the Harbors and Navigation Act 1993 (“the 1993 Act”).

    10.Amarantos Shipping pleads that any liability it may have is limited by reason of the terms of s 1 of the Merchant Shipping (Liability of Ship Owners & Ors) Act 1900 (Imp) (“the 1900 Act”).

    11.The State of South Australia contends that s 1 of the 1900 Act does not in its terms provide for any limitation of liability.

    12.The State of South Australia further pleads that, by reason of the repeal of Part VIII of the Merchant Shipping Act, 1894 by s 104 of the Navigation Amendment Act 1979 (Cth), or by s 4 of the Statute Stocktake Act 1999 (Cth), any limitation of liability contained in s 1 of the 1900 Act is of no force and effect in South Australia.

    13.The State of South Australia further pleads that limitation of liability in respect of the collision is regulated by the Limitation of Liability for Maritime Claims Act 1989 (Cth) (“the 1989 Act”).

    14.Australia is a party to the 1976 Limitation Convention referred to in the 1989 Act but Malta is not.

    15.Claims have been made against Amarantos Shipping for loss and damage caused as a consequence of the damage to the harbour facilities.

    16.In this action, Amarantos Shipping Co seeks to be indemnified by the State of South Australia in respect of the claims described in paragraph 15 hereof.

    17.There is an issue whether Ports Corp is the Crown or an instrumentality or agency of the Crown in right of the State of South Australia.

    18.In this action, Amarantos Shipping contends

    (a)that s 24 of the 1994 Act and s 21 of the 1993 Act are inconsistent with s 410B of the Navigation Act 1912 (Cth) and are inoperative; and

    (b)that s 24 of the 1994 Act and s 21 of the 1993 Act do not take effect to the extent that they repeal or amend the 1900 Act as in force in the State of South Australia because they have not been confirmed by Her Majesty in Council pursuant to s 735 of the Merchant Shipping Act, 1894 (Imp).

    19.In this action, the State of South Australia also pleads that any liability it may have to Amarantos Shipping in respect of the collision is limited by s 2 of the 1900 Act.

    Questions of Law

    1.Do the provisions of s 24 of the South Australian Ports Corporation Act 1994 and s 21 of the Harbors and Navigation Act 1993 render Amarantos Shipping strictly liable to the State of South Australia in respect of the damage to the harbour facilities?

    2.At the date of the collision, were the provisions of Pt VIII, and in particular s 503 and s 504 of the Merchant Shipping Act, 1894 (Imp) (“the 1894 Act”), operative in the State of South Australia?

    3.At the date of the collision, were the provisions of s 1 and s 2 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (Imp) (“the 1900 Act”), operative in South Australia?

    4.Does s 1 of the 1900 Act provide for a limitation of liability which may be available to Amarantos Shipping in respect of the collision, as part of the law of South Australia?

    5.Does s 2 of the 1900 Act provide for a limitation of liability which may be available to the State in respect of the collision as part of the law of South Australia?

    6.Does s 1 of the 1900 Act bind the Crown in right of the State of South Australia?

    7.Is the liability (if any) of Amarantos Shipping arising from the collision with the wharf facilities limited by the Limitation of Liability for Maritime Claims Act 1989 (Cth)?

    8.If the answer to question 3 is yes, is s 1 of the 1900 Act inconsistent with the Limitation of Liability for Maritime Claims Act 1989 (Cth)? If yes, which Act prevails?

    9.Has the 1900 Act been repealed by the 1979 Act, the Statute Stocktake Act 1999 or any other legislation enacted by the Parliament of the Commonwealth of Australia and, if so, is such repeal valid?

    10.Are s 735 and s 736 of the 1894 Act part of the law of the State of South Australia?

    11.Are s 21 and s 36 of the Harbors and Navigation Act inconsistent with s 410B of the Navigation Act 1912 and therefore inoperative to the extent of the inconsistency?

    12.Is s 24 of the South Australian Ports Corporation Act 1994 inconsistent with s 410B of the Navigation Act 1912 and therefore inoperative to the extent of the inconsistency?

    Notice to Attorneys-General

12. It will have been noticed that some of these questions give rise to matters arising under the Constitution or involving its interpretation and, in particular, issues arising under s 109 of the Commonwealth Constitution. Pursuant to s 78B of the Judiciary Act 1903 (Cth) notice was given on 17 December 2003 to the Attorneys-General of the Commonwealth and of the States and Territories of the fact that there will be a preliminary determination of these questions. The Attorneys-General of the Commonwealth and of all of the States and Territories save the Attorney-General for the Australian Capital Territory have responded to the effect that they do not wish to intervene at this stage. A reasonable time has elapsed since giving those notices for consideration by the Attorneys‑General of the question whether they should intervene in these proceedings or seek to remove this action to the High Court. It must be added that notices pursuant to s 78B had been sent to all of the Attorneys-General on 5 August 2003 informing them of the issues in this action which, of course, include the issues in the questions listed above. All, including the Attorney-General for the Australian Capital Territory, responded that they did not wish to intervene. It is, therefore, appropriate to proceed to hear and determine those questions notwithstanding the failure of the Attorney-General of the Australian Capital Territory to respond to the notice dated 17 December 2003.

13. The most convenient method of dealing with the questions is first to examine the history of legislation operating in this country which limited the liability of ship owners for loss and damage caused by their ships. Consideration can then be given to the questions arising under s 410B of the Navigation Act, s 21 and s 36 of the Harbors and Navigation Act and s 24 of the South Australian Ports Corporation Act.

    Limitation of Liability

14. As the High Court noted in Victrawl Pty Ltd v Telstra Corporation Limited (1995) 183 CLR 595 at 609, the principle of the limitation of liability of shipowners to an amount calculated by reference to the tonnage of the ship which had caused the loss or damage (as distinct from the total value of the loss) had become firmly established in British law pursuant to Imperial statutes well before 1897 when the first of the Brussels Conferences aimed at formulating standard International laws limiting liability was convened. Part VIII of the Merchant Shipping Act, 1894 (Imp.) (“the 1894 Act”) was the culmination of this legislation.  Examples of legislation limiting liability enacted by the Imperial Parliament at Westminster which were codified in the 1894 Act were the Merchant Shipping Act, 1854 and the Merchant Shipping Act Amendment Act 1862.  The first English statute limiting liability was enacted in 1734.  (The history of legislation limiting liability in the United Kingdom and in this country is noted by Dr Michael White in a paper entitled “Limitation of Liability” in a work edited by Dr White, Australian Maritime Law (2^nd ed.) (2000).  I acknowledge the assistance I have gained from his paper.)

15. Part VIII of the 1894 Act included s 503 and s 504.  Section 503 limited the liability of shipowners, be they British or foreign, where death or injury was caused to a person on board the vessel or on another vessel or where damage was caused to goods or other things on board the vessel or on another vessel.  Section 503 was in these terms:

    “503.—(1.)  The owners of a ship, British or foreign, shall not, where all or any of the following occurrences take place without their actual fault or privity; (that is to say,)

    (a.)Where any loss of life or personal injury is caused to any person being carried in the ship;

    (b.)Where any damage or loss is caused to any goods, merchandise, or other things whatsoever on board the ship;

    (c.)Where any loss of life or personal injury is caused to any person carried in any other vessel by reason of the improper navigation of the ship;

    (d.)Where any loss or damage is caused to any other vessel, or to any goods, merchandise, or other things whatsoever on board any other vessel, by reason of the improper navigation of the ship;

    be liable to damages beyond the following amounts; ...”

    Section 503 goes on to provide the amount of the limitation by reference to tonnage and the means of assessing tonnage.  It will be noticed that the limitation was confined to loss on the vessel itself or on another vessel.

16. Section 504 operated where there was more than one claim and empowered courts to consolidate claims and distribute the amount of the owner’s liability rateably among the several claimants.  It provided:

    “       504.  Where any liability is alleged to have been incurred by the owner of a British or foreign ship in respect of loss of life, personal injury, or loss of or damage to vessels or goods, and several claims are made or apprehended in respect of that liability, then, the owner may apply in England and Ireland to the High Court, or in Scotland to the Court of Session, or in a British possession to any competent court, and that court may determine the amount of the owner’s liability and may distribute that amount rateably among the several claimants, and may stay any proceedings pending in any other court in relation to the same matter, and may proceed in such manner and subject to such regulations as to making persons interested parties to the proceedings, and as to the exclusion of any claimants who do not come in within a certain time, and as to requiring security from the owner, and as to payment of any costs, as the court thinks just.”

    Section 509 of the 1894 Act expressly provided that Part VIII of that Act extended to the whole of “Her Majesty’s dominions”.  In 1894 Part VIII, therefore, applied to all of the Australian colonies.

17. In 1900 the limitation of liability in s 503 of the 1894 Act was extended to the liability for loss or damage to property not on the vessel or another vessel.  Section 1 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (Imp) extended the limitation to apply to all cases where any loss or damage was caused to property or rights of any kind whether on land or on water, by reason of the improper navigation or management of the ship.  It was in these terms:

    “       1.     The limitation of the liability of the owners of any ship set by section five hundred and three of the Merchant Shipping Act 1894, in respect of loss of or damage to vessels, goods, merchandise or other things, shall extend and apply to all cases where (without their actual fault or privity) any loss or damage is caused to property or rights of any kind, whether on land or on water, or whether fixed or moveable, by reason of the improper navigation or management of the ship.”

    Section 5 of the Act provided that the Act “shall be construed as one with the Merchant Shipping Act, 1894”.  Thus, the operation of s 503 was extended to (and applied in) the Australian colonies.

1. Section 2 of the 1900 Act also provided a limitation of liability for harbour authorities.  The relevant part of s 2 was in these terms:

   “       2.—(1.)     The owners of any dock or canal, or a harbour authority or a conservancy authority, as defined by the Merchant Shipping Act, 1894, shall not, where without their actual fault or privity any loss or damage is caused to any vessel or vessels, or to any goods, merchandise, or other things whatsoever on board any vessel or vessels, be liable to damages beyond an aggregate amount not exceeding eight pounds for each ton of the tonnage of the largest registered British ship which, at the time of such loss or damage occurring, is, or within the period of five years previous thereto has been, within the area over which such dock or canal owner, harbour authority, or conservancy authority, performs any duty or exercises any power.”

   The State of South Australia contends that s 2 is part of the law of South Australia.  I will return to this question.

2. From 1894 until 1979, no Act of Parliament of the Commonwealth of Australia or of the Parliament of any of the States or Territories of the Commonwealth limited liability of shipowners save for s 161 of the Navigation Act 1958 (Cth) which amended the Navigation Act 1912 (Cth) to insert Part VIII into the Navigation Act 1912 (Cth). Part VIII included s 330 which extended the limitation of liability in the 1894 Act (and any act amending the 1894 Act) to government ships. In the same year, 1958, the United Kingdom Parliament passed the Merchant Shipping (Liability of Shipowners and Others) Act which brought into effect, with some minor alterations, the International Convention Relating to the Limitation of the Liability of Shipowners signed at Brussels on 10 October 1957 (“the 1957 Convention”).  That Act removed the limitation of liability in the case of death or personal injury.  It also increased the amount of the cap upon liability.  In Bistricic v Rokov (1976) 135 CLR 552, the High Court held that the 1958 Act did not form part of the law of Australia on the ground that a statute of the Parliament of the United Kingdom does not apply to an Australian State unless it is so expressed to apply and the Act was not so expressed. Shipowners liable for loss or damage caused by their ships in Australia were, therefore, able to rely on the limitation of liability provided by the 1894 Act and the 1900 Act. The unfortunate position was, therefore, reached that the low limitation amounts of the 1894 Act continued to apply notwithstanding the increases in the 1957 Convention.

3. The fact that the 1894 Act and the 1900 Act regulated limitation of liability in Australia was affirmed by the High Court in China Ocean Shipping Co v The State of South Australia (1979) 145 CLR 172. In October 1977, a vessel owned by the China Ocean Shipping Co had collided with the jetty at Wallaroo causing damage to the jetty and associated facilities. The Minister of Marine in South Australia brought actions in this Court for damages against the owner, agent and master of the ship pursuant to s 124(1) of the Harbors Act, 1936 (SA) and against the ship in rem for damages for negligence.  Section 124(1) provided:

   “       124.  (1)   Where an injury is done by a vessel or any part of the equipment thereof, or by any floating timber or material, or by any person employed about the same, to any of the works or property of or vested in the Minister–

   (a)the owner or agent of the vessel, floating timber, or material; and

   (b)in case the injury is caused through the act or negligence of the master of the vessel, or of the person having charge of the timber or material, the owner or agent and also the master or person,

   shall be liable in damages to the Minister for the injury.”

   The defendant shipowner sought to limit its liability under s 503 and s 504 of the Merchant Shipping Act, 1894 as extended by s 1 of the 1900 Act.  A number of issues fell for determination.  For present purposes it is necessary to note only three of the questions decided by the High Court.  They were:

   (1)That s 503 and s 504 of the 1894 Act and s 1 of the 1900 Act applied in the States of Australia.

   (2)That Section 503 and s 504 of the 1894 Act did not entitle the owners of a ship to limit liability for damage caused to property of the Crown.

   (3)That Section 124 of the Harbors Act 1936 (SA) was not repugnant to the provisions of Part VIII of the 1894 or 1900 Act.

   The 1979 Act

4. The Commonwealth Parliament legislated to remedy the effect of Bistricic v Rokov and China Ocean Shipping Co (supra) by enacting the Navigation Amendment Act 1979 (“the 1979 Act”). That Act contained what for present purposes were two important provisions. The first was s 65 which repealed Part VIII of the Navigation Act and replaced it with new provisions limiting the liability of shipowners.  It did so by providing in s 333 that the provisions of the 1957 Convention had the force of law as part of the law of the Commonwealth.  Section 333 was in these terms:

   “       333.  The provisions of the Convention, other than sub-paragraph (1)(c) of Article 1 of that Convention, have the force of law as part of the law of the Commonwealth.”

   The plaintiff relies on the exclusion of sub-paragraph (1)(c) of Article 1 of the Convention and says that the 1979 Act did not repeal the 1900 Act.  I will return to that argument.

5. The second important provision in the 1979 Act was s 104(3) which repealed Part VIII of the Merchant Shipping Act, 1894 (Imp). It is necessary for present purposes to consider both s 103 and s 104(1) to (3) of the 1979 Act.

   “       103.  In this Part, ‘Merchant Shipping Act’ means the Imperial Act known as the Merchant Shipping Act, 1894, as amended, or otherwise affected in its operation, by the provisions of any other Imperial Act or of any Act, in so far as that Act as so amended, or otherwise affected in its operation, is part of the law of the Commonwealth.

   104.  (1)    In this section, ‘Convention’ means the International Convention relating to the limitation of the liability of owners of sea-going ships signed at Brussels on 10 October 1957.

   (2)    Approval is given to the ratification by Australian of the Convention subject to a reservation, in pursuance of sub-paragraph 2(a) of the Protocol of Signature to the Convention, excluding the application of sub-paragraph (1)(c) of Article 1 of the Convention.

   (3)    Part VIII of the Merchant Shipping Act is repealed.”

   In Kirmani v Captain Cook Cruises Pty Ltd (No. 1) (1985) 159 CLR 351 the High Court, by a majority, held that s 104(3) validly repealed s 503(1) of the 1894 Act in its application to all ships whether sea-going or not. Thus, s 503 and s 504 of the 1894 Act were repealed by s 104(3). It will have been noticed that the 1979 amendment did not expressly repeal s 1 of the 1900 Act. The plaintiff relies on that fact. Thus, the intent of the 1979 Act was that the provisions of the 1957 Convention governed limitation of liability for shipowners throughout Australia.

6. The decision in Kirmani concerned injury to a passenger on a vessel owned by the respondent. The respondent alleged that the vessel was used only to carry passengers on cruises wholly within the waters of Sydney Harbour so that it was not a sea-going vessel within the meaning of the 1957 Convention. It pleaded that it was entitled to limit its liability pursuant to s 503 of the 1894 Act. The appellant had applied to strike out that defence. The respondent replied that the Commonwealth Parliament had no power to repeal the 1894 Act insofar as it operated in New South Wales. The accident which had caused the injury occurred within Sydney Harbour. It was necessary, therefore, for the High Court to consider, among other issues, the validity of s 104(3) as it applied to ships in internal waters and the meaning of the expression “part of the law of the Commonwealth” in s 333. Other issues concerned the meaning and operation of s 2(2) and s 9(1) of the Statute of Westminster 1931 (Imp.). By a majority, the Court held that s 104(3) had validly repealed Part VIII of the 1894 Act. There was no clear majority on all the steps that led to that conclusion. For present purposes, it is not necessary to consider in detail the reasoning of the High Court. It is sufficient to note that a majority held:

   (1)That the expression “part of the law of the Commonwealth” in s 103 of the 1979 Act meant the law in force in the Commonwealth and not laws within the competence of the Commonwealth Parliament, that is to say, it meant a law in force in the geographical area constituting the Commonwealth of Australia and not a law within the legislative power of the Commonwealth Parliament: see Gibbs CJ at 362 – 363.  The majority on this issue comprised Gibbs CJ, Mason, Brennan and Deane JJ.

   (2)Mason, Brennan and Deane JJ held that s 2(2) of the Statute of Westminster confers on the Parliament of a Dominion a power, in addition to its legislative powers, to repeal or amend an Imperial statute. Thus, the Commonwealth Parliament had legislative competence to repeal or amend an Imperial statute. A majority comprising Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ held that that proposition was qualified by s 9(1) of the Statute of Westminster in a case where the repeal or amendment of an Imperial statute was beyond the legislative powers of the Commonwealth Parliament under the Constitution but within the power of the States so that the power conferred by s 2(2) does not bring the repeal or amendment within the authority of the Commonwealth Parliament. That qualification has no application in the particular circumstances of this case which concerns a ship engaged in overseas trade and the Commonwealth Parliament has legislative power in respect of such ships.

   (3)That s 104(3) validly repealed s 503 of the 1894 Act. The majority comprised Mason, Murphy, Brennan and Deane JJ. As Deane J explained (at 424), s 103 and s 104(3) should be construed as repealing the provisions of Part VIII of the 1894 Act insofar as the provisions of Part VIII constituted part of the law, federal or State. In reaching that conclusion, Mason, Murphy and Deane JJ held that the repeal of the 1894 Act was a law with respect to external affairs because it brought to an end the operation in Australia of a law enacted by the United Kingdom Parliament at Westminster. On his approach, Brennan J did not have to consider the extent of the external affairs power. It was not, of course, necessary for the Justices of the High Court to examine the validity of s 104(3) in relation to a ship engaged in interstate and overseas trade. For the reasons in the next paragraph, I respectfully suggest that had that been the issue, the Court would have held, after deciding the issues which arose under the Statute of Westminster as they did, that s 104(3) was a law with respect to interstate and overseas shipping and by virtue of s 51(i) and s 98 of the Constitution it was a valid enactment of the Commonwealth Parliament.

7. The question whether the Commonwealth Parliament had power to enact s 65 and s 104(3) of the 1979 Act in respect of a ship engaged in interstate and overseas trade turns on s 51(i) and s 98 of the Constitution. Section 51(i) invests the Commonwealth Parliament with power to make laws with respect to trade and commerce with other countries and among the States. Section 98 extends that power to navigation and shipping. Section 98 is not an independent grant of power but a provision explanatory of the power to legislate with respect to trade and commerce with other countries or among the States. The combination of s 51(i) with s 98 gives the widest power to deal with the whole subject matter of navigation and shipping in relation to trade and commerce with other countries and among the States. Dixon CJ restated those principles in Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46 at 54 in these terms:

   “Section 98 has been construed not as an independent grant of power but as a provision explanatory of the power to legislate with respect to trade and commerce with other countries or among the States: cf. Owners of s.s. Kalibia v. Wilson; Australian Steamships Ltd. v. Malcolm. In other words, it means that in relation to inter-State and overseas trade, the Parliament may legislate as to navigation and shipping. Section 51 (xxxix) authorizes the Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament and this has been treated (somewhat unnecessarily or superfluously, as I think, see Le Mesurier v. Connor) as including not only what attends, or arises in, the exercise of legislative power but also what is incidental to the subject matter of each of the powers conferred by the other paragraphs of s. 51. The description of the subject matter of those powers is of course brief, but independently of par. (xxxix) the description would be interpreted as including all matters that are incidental thereto. The remaining parts of par. (xxxix) relate to powers vested by the Constitution in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth and do not appear to touch this case. There can, however, be no doubt that the combination of s. 51 (i) with s. 98 gives the widest power to deal with the whole subject matter of navigation and shipping in relation to trade and commerce with other countries and among the States: Morgan v. The Commonwealth; Australian Steamships Ltd. v. Malcolm.”  (Citations omitted.)

   The combined effect of s 51(i) and s 98 of the Constitution, therefore, invests the Commonwealth Parliament with power to enact those provisions in the 1979 Act.

8. Mr Street SC, who appeared for Amarantos Shipping, submitted that s 104(3) did not repeal s 1 of the 1900 Act. That, he said, was a consequence of two facts. The first was that the terms of s 104(3) refer only to Part VIII of the 1894 Act. The second was the fact that both s 333 and s 104(2) exclude the application of sub-paragraph (1)(c) of Article 1 of the 1957 Convention which is in these terms:

   “ARTICLE 1.

   (1)The owner of a sea-going ship may limit his liability in accordance with Article 3 of this Convention in respect of claims arising from any of the following occurrences, unless the occurrence giving rise to the claim resulted from the actual fault or privity of the owner:

   (a)    loss of life of, or personal injury to, any person being carried in the ship, and loss of, or damage to, any property on board the ship;

   (b)    loss of life of, or personal injury to, any other person, whether on land or on water, loss of or damage to any other property or infringement of any rights caused by the act, neglect or default of any person on board the ship for whose act, neglect or default the owner is responsible or any person not on board the ship for whose act, neglect or default the owner is responsible: Provided however that in regard to the act, neglect or default of this last class of person, the owner shall only be entitled to limit his liability when the act, neglect or default is one which occurs in the navigation or the management of the ship or in the loading, carriage or discharge of its cargo or in the embarkation, carriage or disembarkation of its passengers;

   (c)    any obligation or liability imposed by any law relating to the removal of wreck and arising from or in connection with the raising, removal or destruction of any ship which is sunk, stranded or abandoned (including anything which may be on board such ship) and any obligation or liability arising out of damage caused to harbour works, basins and navigable waterways.”

   The first argument must fail by reason of the terms of s 103 which defines what is meant by the expression “Merchant Shipping Act”. It will have been noticed that what is defined by s 103 is not the Merchant Shipping Act, 1894 but the expression “Merchant Shipping Act”. The fact that the definition provides that “Merchant Shipping Act” is not simply the 1894 Act but the 1894 Act “as amended, or otherwise affected in its operation, by the provisions of any other Imperial Act” has the consequence that the expression “Part VIII of the Merchant Shipping Act” in s 104(3) means the 1894 Act and any other Imperial Act amending or affecting that part. The 1900 Act was an Imperial Act. It amended the operation of the 1894 Act or, at least, affected its operation to extend the limitation of liability in s 503 to loss or damage to property not on a ship. In my view, the definition is expressed in terms which are intended to include those provisions in the 1900 Act which amended or affected Part VIII of the 1894 Act.

9. The second argument involves competing considerations. On the one hand, although Article 1(1)(c) refers to the limitation of liability arising out of damage caused to harbour works, the limitation of liability in Article 1(1)(b) is expressed in terms wide enough to catch such a liability. On the other, Article 1(1)(c) expressly refers to damage to harbour works. On balance, I do not think that the exclusion of Article 1(1)(c) can govern the true meaning and operation of s 104(3).

10. The reasoning on the first of Mr Street’s arguments might lead to the conclusion that s 2 of the 1900 Act was also repealed by s 104(3). However, s 2 has quite a different operation and, in particular, it incorporates s 504 of the 1894 Act. It is unnecessary to consider the issue further because, for the reasons to be given in a moment, I believe s 2 was repealed by implication by the Limitation of Liability for Maritime Claims Act, 1989 (Cth).

11. Mr Street SC also submitted that s 5 of the 1900 Act provided that it was to be incorporated with the 1894 Act so that the repeal of the 1894 Act did not result in a repeal of the 1900 Act.  The material parts of s 5 provide:

    “       5.     This Act shall be construed as one with the Merchant Shipping Act, 1894, and that Act and the [other Merchant Shipping Acts as listed] may be cited together as the Merchant Shipping Acts, 1894 to 1900.”

    It is well established that, when a prior Act or part of a prior Act is incorporated with a subsequent Act, it is the same as if the words of the first Act had been repeated in the second Act.  It is also well established a repeal of the first Act will not take away the effect of the words that are so repeated in the second Act by incorporation.  These principles were affirmed in The Queen v Smith (1873) LR 8 QB 146 at 149. The principle will apply only if s 1 of the 1900 Act incorporates the terms of s 503 of the Merchant Shipping Act, 1894.

12. Section 1 does not, I think, incorporate s 503.  Instead, it extends the operation of s 503 to apply to all cases named in the section.  It is to be noted that s 1 expressly states that the Act “shall extend and apply to all cases” named in s 1.  Thus, it is not an incorporation of s 503 but, instead, an extension of it.  It might be said that the effect of s 5 of the 1900 Act is that the 1894 Act is deemed to incorporate the 1900 Act.  This has the consequence that, if s 503 should be repealed, s 1 can have no operation.  In other words, once s 503 has been repealed, nothing remains which can be extended.  This is not simply a pedantic use of language.  As a matter of logic, it follows that, if the limitation of liability provided in s 503 is repealed, there is nothing on which s 1 can operate.

13. Another submission made by Mr Street SC was that, to the extent that a majority of the Court in Kirmani held that the expression “law of the Commonwealth” in s 103 means a law in force in the geographical area constituting the Commonwealth of Australia and so included an Imperial Act in force in South Australia, the reasoning is inconsistent with other decisions of the Court, including R v Bernasconi (1915) 19 CLR 629, Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 431, Smith v ANL Ltd (2000) 204 CLR 493 at 503, and Blunden v Commonwealth (2003) 203 ALR 189. He contended that the more recent decisions of the High Court should be followed. I do not agree. The expression “law of the Commonwealth” is ambiguous and its meaning will vary according to the context in which it is used. The possible meanings are conveniently listed by Gibbs CJ in Kirmani at 362. As the majority reasoning in Kirmani indicated, the context in which the law of the Commonwealth was used in s 103 has the consequence that it refers to the law in force within the geographic area known as Australia.  I respectfully agree with the reasoning of the majority in Kirmani.  Nothing is to be gained by repeating it.  The later decisions to which Mr Street referred are but examples of the expression “the law of the Commonwealth” being used in other contexts.  This argument must fail.

1. For all of these reasons, the 1979 Act repealed the 1894 Act and s 1 of the 1900 Act.

   The 1989 Act

2. Section 333 of the Navigation Act remained in operation until 1989 when it was repealed by s 13 of the Limitation of Liability for Maritime Claims Act 1989 (Cth) (“the 1989 Act”). The 1957 Convention had been replaced by the Convention on Limitation of Liability for Maritime Claims done in London in 1976 (“the 1976 Convention”).  Australia did not accede to the 1976 Convention until 20 February 1991.  As the High Court noted in Victrawl at 610, under Article 17.3, the Convention entered into force for Australia on 1 June 1991, that being the first day of the month following the expiration of 90 days after the deposit of Australia’s instrument of accession. On the same day the Limitation of Liability for Maritime Claims Act 1989 commenced operation: see s 2(2) of that Act and Victrawl at 610. Section 6 of the 1989 Act provides that, subject to the Act, the provisions of the 1976 Convention have the force of law in Australia other than paragraphs 1(d) and (e) of Article 2. Those nominated paragraphs have no application in respect of the issues in this action and may be put to one side. The 1976 Convention is set out in Schedule 1 to the 1989 Act. The terms of s 6 clearly express an intention that the 1989 Act is to apply throughout Australia, that is to say, to apply in each of the States and internal Territories of Australia. The Act also applies by s 4 to external Territories.

3. The 1989 Act does not apply to a ship to the extent that a law of a State or of the Northern Territory provides that effect shall be given to the 1976 Convention in relation to that ship: s 5.  There is no law of the State of South Australia which gives effect to the 1976 Convention.  The 1989 Act is, therefore, in full force and effect in relation to the liability of shipowners for loss or damage to property which occurs in South Australia.  For the reasons already expressed, the 1989 Act is a valid law of the Commonwealth in respect of interstate and overseas shipping.

4. Even if s 1 of the 1900 Act was not repealed by the 1979 Act, for the reasons which follow, it was impliedly repealed by the 1989 Act at least insofar as it applied to ships engaged in interstate or overseas trade.  The implied repeal is a consequence of the operation of s 6 of the 1989 Act and of the terms of the Convention.  It is convenient to repeat s 6:

   “Subject to this Act the provisions of the Convention, other than paragraphs 1(d) and (e) of Article 2, have the force of law in Australia.”

   Thus, with the stated exceptions, the Convention has the force of law throughout Australia.  As already mentioned, the stated exceptions have no relevance to the facts of this case.  The provisions of the 1976 Convention are so inconsistent with the terms of s 1 of the 1900 Act that they cannot stand together.  For example, the 1976 Convention increases the cap on the limitation of liability above that prescribed in the 1894 Act.  Importantly, the 1976 Convention prescribed a limitation of liability in respect of claims for damages to property including damage to harbour works, basins and waterways, and aids to navigation occurring in connection with the operation of the ship: see Article 2(1)(a).  Effect could not, therefore, be given to both s 1 of the 1900 Act and the provisions of the 1976 Convention.  In the result, there is an implied repeal: see Goodwin v Phillips (1908) 7 CLR 1 at 7 and 10. As Dixon J put it in Ffrost v Stevenson (1937) 58 CLR 528 at 572, the co-existence of the two sets of provisions would produce an antinomy inadmissible in any coherent system of law. That test was cited with approval in Yougarla v Western Australia (2001) 207 CLR 344 at 355. In adopting the 1976 Convention, the 1989 Act introduces a régime to supplant or stand in place of the régime existing under the Merchant Shipping Acts in the United Kingdom and, in particular, s 1 of the 1900 Act.

5. I turn to the question whether s 2 of the 1900 Act remains in force in Australia. The 1976 Convention makes no express reference to a limitation of liability of the kind provided for in s 2 of the 1900 Act. However, it covers many aspects of limitation for liability for damage to or by ships. In particular, Article 2(1)(a) states that the Convention creates a limitation of liability for claims, whatever the basis of liability might be, in respect of loss or damage to property occurring in direct connection with the operation of a ship or with salvage operations and consequential loss resulting therefrom. So widely is Article 2 expressed that I think it is intended to be an exhaustive statement of the circumstances in which liability will be limited. The absence from Article 2 of a limitation of the kind provided in s 2 of the 1900 Act is, I think, an expression of the intention that the liability will not continue to exist. I therefore think that s 2 is impliedly repealed by the 1989 Act which gives the force of law in Australia to the 1976 Convention. The Commonwealth Parliament had legislative power in 1989 to repeal an Act of the United Kingdom Parliament in respect of shipping engaged in interstate or overseas trade: s 2(2) of the Statute of Westminster.

6. It is necessary also to note that s 104(3) of the 1979 Act continues in operation, that is to say, nothing has affected the repeal by the 1979 Act of both s 503 of the 1894 Act and s 1 of the 1900 Act.

   The Australia Act 1986 and Sections 735 and 736 of the 1894 Act

7. To complete this review of the legislation involved in the questions in this case, it is necessary to refer to two further sets of legislation.  The first set concerns the repeal of s 735 and s 736 of the 1894 Act, which vested legislative power in the Parliaments of the colonies to make laws repealing or amending the 1894 Act, subject to approval of the monarch in Council.  They provided:

   “       735.—(1.) The legislature of any British possession may by any Act or Ordinance, confirmed by Her Majesty in Council, repeal, wholly or in part, any provisions of this Act (other than those of the Third Part thereof which relate to emigrant ships), relating to ships registered in that possession; but any such Act or Ordinance shall not take effect until the approval of Her Majesty has been proclaimed in the possession, or until such time thereafter as may be fixed by the Act or Ordinance for the purpose.

   (2.)   Where any Act or Ordinance of the legislature of a British possession has repealed in whole or in part as respects that possession any provision of the Acts repealed by this Act, that Act or Ordinance shall have the same effect in relation to the corresponding provisions of this Act as it had in relation to the provision repealed by this Act.

   736.  The legislature of a British possession, may, by any Act or Ordinance, regulate the coasting trade of that British possession, subject in every case to the following conditions:–  ...”

   For present purposes, it is not necessary to recite the conditions.  It is sufficient to note that the consent of the Queen was a condition of validity.

8. Those sections were repealed in 1986 by two enactments. The first was s 4 of the Australia Act 1986 enacted by the Commonwealth Parliament. The second was the Australia Act 1986 enacted by the United Kingdom Parliament. Section 4 of the Australia Act 1986 (Cth) repeals s 735 and s 736 of the 1894 Act insofar as they are part of the law of a State. Section 4 of the Commonwealth Act provided:

   “4.    Sections 735 and 736 of the Act of the Parliament of the United Kingdom known as the Merchant Shipping Act 1894, in so far as they are part of the law of a State, are hereby repealed.”

   The Australia Act 1986 (UK) was in the same terms.  Both enactments came into operation on 3 March 1986 at 5.00am Greenwich Mean Time.

9. Mr Street SC submitted that these Acts did not validly repeal s 735 and s 736.  He submitted that the Australia Act 1986 (Cth) did not comply with the requirements of s 51(xxxviii) of the Constitution or of s 735 of the 1894 Act. It is necessary, therefore, to consider the events leading to the enactment of each of those statutes.

10. Section 51 (xxxviii) of the Constitution invests the Commonwealth Parliament with legislative power to make laws with respect to:

    “The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:”

    Before the Constitution commenced operation in 1901, the States could not repeal the 1894 Act. Only the Parliament of the United Kingdom had legislative power to repeal that Act. It was, therefore, necessary for the Commonwealth Parliament to comply with s 51 (xxxviii).

11. As far as I can ascertain, the purpose and effect of s 51 (xxxviii) has not been the subject of any judicial consideration. I do not understand it to qualify the operation of a legislative power expressly provided by the Constitution. Thus, it would not qualify the combined effect of s 51(i) and s 98 with respect to ships engaged in interstate and overseas trade. However, as s 735 and s 736 invest legislative power in State Parliaments and it was intended to repeal those provisions entirely, it appears to be necessary for the Commonwealth Parliament to comply with s 51 (xxxviii). As will be seen, steps were taken to do so.

12. In 1985, the Parliament in South Australia had enacted the Australia Acts (Request) Act 1985 (“the Requests Act”). The preamble to that Act sets out the events which led to its enactment:

    “WHEREAS the Prime Minister of the Commonwealth and the Premiers of the States at conferences held in Canberra on 24 and 25 June 1982 and 21 June 1984 agreed on the taking of certain measures to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation:

    AND WHEREAS it has been agreed that the Parliament of the Commonwealth at the request of the Parliaments of the States in pursuance of section 51 (xxxviii) of the Constitution of the Commonwealth of Australia should enact an Act in the terms in the first schedule:

    AND WHEREAS it has been agreed that each State should request and consent to the enactment by the Parliament of the United Kingdom of an Act in the terms of the Schedule to the Act contained in the second schedule:

    AND WHEREAS it has been agreed that the Parliament of the Commonwealth with the concurrence of all the States should enact an Act requesting and consenting to the enactment by the Parliament of the United Kingdom of an Act in the terms of the Schedule to the Act contained in the second schedule:”

    The preamble makes it quite clear that the States of Australia and the Commonwealth of Australia had agreed to the enactment by the Commonwealth Parliament of legislation to effect certain constitutional measures and that the States and the Commonwealth would request the Parliament of the United Kingdom to enact corresponding legislation.

13. Sections 2, 3 and 4 of the Requests Act expressed three requests of the Parliament of South Australia.  The first was contained in s 2.  It requested the enactment by the Commonwealth Parliament of an Act in the terms of or substantially in the terms of what is now the Australia Act 1986. Sections 3 and 4 requested the enactment of an Act in terms of or substantially in terms of what is now the Australia Act 1986 (UK).  That request was made in this way.  By s 4, a request was made for the enactment of an Act in terms or substantially in terms of what is now the Australia (Request and Consent) Act 1985 of the Parliament of the Commonwealth of Australia. Section 3 expressed a request for the enactment by the United Kingdom Parliament of an Act in the terms of or substantially in the terms of what is now the Australia Act 1986 (UK).  All of the States enacted like legislation.

14. It is also necessary to note s 3 of the Australia (Request and Consent) Act (Cth) which provides:

    “3.    It is hereby declared that the Parliament and Government of the Commonwealth, with the concurrence of all the States, request and consent to the enactment by the Parliament of the United Kingdom of an Act in the terms set out in the Schedule.”

    The Act in the Schedule is the Australia Act 1986 (UK).

15. Both the long title and the preamble to the Australia Act 1986 (UK) mirror the terms of s 3 of the Australia (Request and Consent) Act 1985 (Cth). The long title to the United Kingdom Act is in these terms:

    “An Act to give effect to a request by the Parliament and Government of the Commonwealth of Australia.”

    The preamble states:

    “WHEREAS the Parliament and Government of the Commonwealth of Australia have, with the concurrence of the States of Australia, requested and consented to the enactment of an Act of the Parliament of the United Kingdom in the terms hereinafter set forth ...”

16. The reason for the request and consent of the States and of the Commonwealth is to be found in s 4 of the Statute of Westminster which provides:

    “4.    No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.”

    The reasoning in Kirmani demonstrates that the expression “part of the law of the Dominion” has the same meaning as in s 2(2) of the Statute of Westminster. Thus, s 4 means the law in force in the geographical area constituting the Dominions: Kirmani per Mason J at 374 – 377, per Brennan J at 403 – 404 and per Deane J at 420 – 424.

17. The effect of the combined operation of the Requests Act of the States was to invest the Commonwealth Parliament with legislative power to repeal s 735 and s 736 in compliance with s 51 (xxxviii). The Commonwealth Parliament, therefore, had legislative power to repeal those provisions. The purpose of the combined operation of the requests of the State Parliaments and of the Commonwealth Parliament as expressed in s 3 of the Australia (Request and Consent) Act 1985 (Cth) was to express the request and consent of the States and of the Commonwealth in compliance with s 4 of the Statute of Westminser and so invest the United Kingdom Parliament at Westminster the legislative competence to repeal s 735 and s 736 insofar as those provisions were part of the law of each of the States. As has been observed, “whatever doubts there may have been about the capacity of any one of the participating Parliaments to terminate the States’ residual links with Britain, the doubt was eradicated by legislation at every possible level”: Blackshield and Williams, Australian Constitutional Law and Theory (3^rd ed.) p 167.

18. Section 4 of the Australia Act 1986 (UK) was repealed by the Merchant Shipping Act 1995 (UK) which was a major review and consolidation of the Merchant Shipping Acts 1894 to 1994 and other enactments relating to merchant shipping.  The 1995 Act did not reinstate s 735 and s 736.

19. For these reasons, s 735 and s 736 were repealed in 1986 and are no longer part of the law of South Australia.

    The Statute Stocktake Act 1999

20. The final statute which must be noted is the Statute Stocktake Act 1999 (Cth). Section 4 of the Act repealed the Merchant Shipping Act, 1894 insofar as it forms part of the law of the Commonwealth and of an external Territory.  Section 4 is in these terms:

    “4  (1) So far as the Imperial Act known as the Merchant Shipping Act, 1894 (as amended or affected by any other Imperial Act or Act of the Commonwealth) forms part of the law of the Commonwealth or of an external Territory, it is repealed.

    (2)Section 8 of the Acts Interpreation Act 1901 applies in relation to the repeal as if the Imperial Act had been an Act of the Parliament.”

    I do not think that this Act has any material bearing on the issues in this action given that s 503 and s 504 of the 1894 Act and s 1 of the 1900 Act had already been repealed before the Statute Stocktake Act was enacted in 1999. It is sufficient to state that, by virtue of s 2(2) of the Statute of Westminster, the Commonwealth Parliament could repeal an Act of the United Kingdom Parliament insofar as it applied to Australia. That power is subject to s 9(1) of the Statute of Westminster which provides that the Commonwealth Parliament cannot make a law on any matter within the authority of the States which is not a matter where the Commonwealth Parliament has legislative power. The Commonwealth Parliament, therefore, has power to repeal the Merchant Shipping Act, 1894 at least so far as it applies to ships engaged in interstate or overseas trade.  In addition, for the reasons already given, the expression “part of the law of the Commonwealth” means part of the Territory which constitutes the geographical area of the Commonwealth of Australia.  It therefore operates as part of the law of the State of each of the States.

21. Thus, even if neither the 1979 Act nor the 1989 Act repealed the 1894 Act, it was effectively repealed by the Statute Stocktake Act 1999.

22. For the reasons above, I make the following conclusions which bear upon the questions in this case.

    1.Section 503 and s 504 of the Merchant Shipping Act, 1894 (Imp) were repealed by s 104(3) of the Navigation Amendment Act 1979 (Cth), which was a valid law of the Commonwealth: Kirmani v Captain Cook Cruises Pty Ltd (No 1) (supra). Section 104(3) remains in full force and effect.

    2.Section 1 and s 2 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (Imp) was repealed by s 104(3) of the Navigation Amendment Act 1979 (Cth).

    3.The Limitation of Liability for Maritime Claims Act, 1989 (Cth) limits liability of shipowners in accordance with the terms of the 1976 Convention which is Schedule 1 to that Act.

    4.Section 4 of the Australia Act 1986 (UK) and s 4 of the Australia Act (Cth) validly repealed s 735 and 736 of the Merchant Shipping Act, 1894.

    5.Section 4 of the Statute Stocktake Act 1999 (Cth) repealed the Merchant Shipping Act, 1894 (Imp.) in so far as it formed part of the law of the Commonwealth.

    The South Australian Legislation

23. I turn to examine the effect and operation of s 21 and s 36 of the Harbors and Navigation Act and s 24 of the South Australian Ports Corporation Act. I will then examine whether any of those provisions are inconsistent with s 410B of the Navigation Act.

24. Section 21 of the Harbors and Navigation Act 1993 provides:

    “       21. (1) If property of the Crown or the Minister is damaged by a vessel, the owner of the vessel is liable to the Minister for the amount of the damage.

    (2) If property in private ownership consisting of harbor facilities or a navigational aid is damaged by a vessel, the owner of the vessel is liable to the owner of the property for the amount of the damage.

    (3) The liability may be enforced by action against the owner or by action against the vessel (or both).

    (4) This section creates a strict liability that exists irrespective of fault and irrespective of whether the vessel is under compulsory pilotage at the time the damage is caused.

    [The Parliament in South Australia follows the usage in the United States of America and omits the letter “u” when spelling “harbour”.] Section 24 of the South Australian Ports Corporation Act 1994 is in somewhat similar terms.  It reads:

    “       24. (1) If property of the Corporation is damaged by a vessel, the owner of the vessel is liable to the Corporation for the amount of the damage.

    (2) The liability may be enforced by action against the owner or by action against the vessel (or both).

    (3) This section creates a strict liability that exists irrespective of fault and irrespective of whether the vessel is under compulsory pilotage at the time the damage is caused.”

    It will be seen that the only material difference between these two provisions is subsection (2) of s 21 which has no counterpart in s 24.

1. The objects of the Harbors and Navigation Act are set out in s 3 of that Act.  It is sufficient for present purposes to refer to s 3(a) of that Act which provides that the objects of the Act are:

   “(a) to provide for the efficient and effective administration and management of South Australian harbors and harbor facilities for the purpose of maximising their use and promoting trade.”

   The object of the South Australian Ports Corporation Act is to establish a statutory corporation with the principal responsibilities of -

   “(a)Managing the public commercial ports in the State vested in the Corporation under this Act as a business enterprise; and

   (b)Promoting and facilitating the development of commercially viable trade through the use of those ports.”

   That object is reinforced by the short title of the Act which is in these terms:

   “An Act to provide for the management of public commercial ports in the State; to establish the South Australian Ports Corporation; and for other purposes.”

   Thus, the Harbors and Navigation Act contains provisions of general operation affecting the administration and management of harbours in South Australia while the South Australian Ports Corporation Act especially provides for the management of public commercial ports and for a corporate body to manage them as a business enterprise. Nothing appears to turn on the fact that there are these two separate statutes or on the fact that s 21 of the Harbors and Navigation Act and s 24 of the South Australian Ports Corporation Act each deal with liability for damage to harbours and harbour facilities.

2. It is quite apparent from the terms of s 21(4) and s 24(3) that each Act creates a strict liability and that strict liability exists irrespective of fault and irrespective of whether the vessel is under compulsory pilotage at the time when the damage is caused.

3. As I understood his submissions, Mr Street SC, for Amarantos Shipping, submitted that the strict liability created by s 21 and s 24 is inconsistent with the limitation of liability in the 1894 Act. I have already held that both s 503 of the 1894 Act and s 1 of the 1900 Act are no longer in operation in South Australia. However, even if they were in force, neither provision would alter the effect of either s 21 or s 24. It is necessary to distinguish between the creation of a liability and a limitation of that liability. Sections 21 and 24 impose a strict liability upon shipowners whose ships cause loss or damage to harbour facilities. If they were in force, s 503 of the 1894 Act, when read with s 1 of the 1900 Act, limits the amount of that liability. Expressed another way, s 503 of the 1894 Act and s 1 of the 1900 Act both pre‑suppose the existence of liability and limit that liability: c.f. Barwick CJ in China Ocean Shipping Co (supra) at 186 ‑ 187. That conclusion is not in any way affected by the fact that both s 21 and s 24 provide that the shipowner is liable “for the amount of the damage”. The intent of that expression is no different from providing that the shipowner is liable for the damage. In my view, there is no inconsistency or repugnancy between s 21 and s 24 on the one hand and s 503 of the 1894 Act and s 1 of the 1900 Act on the other hand. The two enactments of the South Australian Parliament can stand together with the Imperial legislation if the Imperial legislation were in force. Those two provisions are, of course, by reason of the Limitation of Liability for Maritime Claims Act 1979 (Cth), subject to the liability provided in the 1976 Convention.

   Inconsistency under s 109 of the Constitution?

4. Section 109 of the Commonwealth Constitution provides for the event of inconsistency between State and federal laws. I turn to examine whether there is any inconsistency between s 21 and s 36 of the Harbors and Navigation Act on the one hand and s 410B of the Navigation Act on the other as well as whether there is an inconsistency between s 24 of the Ports Corporation Act and s 410B of the Navigation Act.  If there is an inconsistency, the Navigation Act will prevail and the State legislation will be invalid to the extent of the inconsistency: s 109 of the Commonwealth Constitution. (In this part of these reasons, I will refer to the Merchant Shipping Act, 1894 by that short title.)

5. Broadly speaking, there are three tests for determining whether a State law is inconsistent with a law of the Commonwealth.  The first is whether there is direct inconsistency.  One form of a direct inconsistency exists when it is not possible simultaneously to obey both laws.  An example is The King v The Licensing Court of Brisbane; ex parte Daniell (1920) 28 CLR 23, where a local option poll in Queensland taken pursuant to legislation enacted by the Queensland Parliament was invalid because it was taken on a polling day for a federal election contrary to a provision of the Electoral Act 1918 (Cth) which provided that, on a polling day fixed for a federal election, no other referendum or vote of electors should be held.  In Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 at 76, this kind of direct inconsistency was described as arising “where one law requires what the other forbids”.

6. The second test is another form of direct inconsistency.  It is often described as “operational inconsistency”.  It exists where a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament.  In such a case, the State law is to that extent invalid: Victoria v The Commonwealth (1937) 58 CLR 618 per Dixon J at 630. There may also be an operational inconsistency if the State law, if valid, would impose an obligation greater than that for which the federal law has provided: Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258 – 259, 270, and 272. See also Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399 at 406; Dao v Australian Postal Commission (1987) 162 CLR 317 at 335 and 338 – 339.

7. The third test, usually called the “covering the field test”, was described in Victoria v The Commonwealth (supra) at 630 by Dixon J, as he then was, in these terms:

   “... if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.”

   Some seven years earlier, Dixon J had spelled out the covering the field test in Ex parte McLean (1930) 43 CLR 472 at 483 in these terms:

   “When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and s 109 applies ... But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.”

   Thus, where State and federal laws co-exist, there will not be an inconsistency unless the federal law discloses an intention to express completely, exhaustively, or exclusively what shall be the law governing the particular conduct or matter to which its attention is directed.  When determining whether an inconsistency exists between a Commonwealth law and a State law, it may be necessary to employ more than one of these tests.  In Telstra Corporation Ltd v Worthing (supra) at 76 – 77, the High Court pointed out that the covering the field test may apply in a given case although there is no operational inconsistency and, if there is an operational inconsistency, then s 109 operates and it is unnecessary to consider whether the Commonwealth law covers the field.

8. I examine first whether there is any direct inconsistency between s 410B and s 36.

9. Section 410B of the Navigation Act provides:

   “       410B.   (1)    A pilot who has the conduct of a ship is subject to the authority of the master of the ship and the master is not relieved from responsibility for the conduct and navigation of the ship by reason only of the ship being under pilotage.

   (2)    Notwithstanding anything contained in an Act or State Act, the owner or master of a ship navigating under circumstances in which pilotage is compulsory under a law of a State or Territory is answerable for any loss or damage caused by the ship, or by a fault of the navigation of the ship, in the same manner as he would if pilotage were not compulsory.”

   The effect of s 410B(1) is that, although the ship may be under pilotage, the pilot is subject to the authority of the master and the master is not relieved from liability by reason of the fact that the ship is under pilotage. The expression “under pilotage” plainly applies to both voluntary and compulsory pilotage. The effect of s 410B(2) is that the owner or master of a ship under compulsory pilotage is answerable for any loss or damage caused by the ship or by faulty navigation in the same manner as if the pilotage were not compulsory.

10. A correct understanding of the operation and effect of s 410B(2) is central to the question whether s 36 and also s 21 of the Harbors and Navigation Act and s 24 of the South Australian Ports Corporation Act are inconsistent with it. There are two possible interpretations of s 410B(2). The first is that it simply states that the liability of the owner or master of a ship is the same whether the ship is under voluntary or compulsory pilotage and that the owner or master is vicariously liable for the pilot. The second is that it states that the liability of the owner or master of the ship is the same whether the ship is under voluntary or compulsory pilotage, that the owner or master is vicariously liable for the pilot, and that that vicarious liability exists only if the pilot is guilty of negligence. The history leading to the enactment of s 410B indicates that the former is the proper interpretation of s 410B(2).

11. Section 410B(2) is based on s 15(1) of the Pilotage Act 1913 (UK) which did not come into operation until 1 January 1918: s 15(2).  The events leading to the enactment of s 15(1) of the Pilotage Act are noted in some of the judgments in Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626. I refer particularly to the reasons of Gibbs CJ at 640 ‑ 641, Wilson J at 647, Brennan J at 666 – 667, and Dawson J at 684 ‑ 685. Further assistance is to be found in Owners of the Steamship Towerfield v Workington Harbour and Dock Board; The Towerfield [1949] P 10 especially in the judgment of Bucknill LJ and, on appeal, Workington Harbour and Dock Board v Towerfield (Owners) [1951] AC 112; see also Esso Petroleum Co Ltd v Hall Russell & Co Ltd, The Esso Bernicia [1989] AC 643 in the speech of Lord Jauncey at 682 – 684.

12. At common law, the shipowner was liable for the negligence of a pilot who had been voluntarily engaged: The “Eden” (1846) 2 W.Rob. 442, 166 ER 822. On the other hand, if the pilotage was compulsory, the owner was not liable at common law. Statutory effect was given to that principle in a succession of enactments of which the last was s 633 of the Merchant Shipping Act, 1894 which declared that the owner of a ship should not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of the pilot.  The reason given for this distinction was that, when the pilot was voluntarily engaged, he became the servant for the shipowner but, when his employment was compulsory, he did not become the owner’s servant: The “Maria” (1839) 1 W.Rob. 95, 166 ER 508; The Liverpool, Brazil, and River Plate Steam Navigation Company, Limited v Benham; The “Halley” (1868) LR 2 P.C. 193 at 202; Townsville Harbour Board v Scottish Shire Line Ltd (1914) 18 CLR 306 at 326 – 327; Steamship “Beechgrove” Co Ltd v Aktieselskabet “Fjord” of Kristiana [1916] 1 AC 364 at 382 – 385; Thom v J & P Hutchinson Ltd [1925] SC 386.

13. The exemption of the shipowner from liability for the negligence of a compulsory pilot both at common law and by statute was removed, in the United Kingdom by s 15(1) of the Pilotage Act 1913 and in Australia in s 410B(2) of the Navigation Act 1912. Section 410B(2) was modelled on s 15(1) of the Pilotage Act 1913.  The main object of s 15(1) was to abolish the defence of compulsory pilotage in order to bring the law of England into line with the laws of other nations: The Towerfield [1949] P at 22; Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (supra) per Dawson J at 684.  The effect of the section is to make the owner of the ship liable for any loss or damage caused by the ship or by faulty navigation of the ship no matter whether the ship is under compulsory pilotage or not.  There was to be no distinction between compulsory and voluntary pilotage so that the shipowner will be liable in either instance.

14. Section 15(1), also had the consequence that the shipowner was to be vicariously liable for the fault of the pilot both when the ship is under compulsory pilotage as well as when the ship is under voluntary pilotage.  As Bucknill LJ remarked in The Towerfield [1949] P at 23, s 15(1) was intended to repeal the law as stated in s 633 of the Merchant Shipping Act, 1894 and “put on the shipowner the same responsibility for the acts of a compulsory pilot as he had always had for the acts of a voluntary pilot, ‘namely, a contractual relation of service, to which the maxim of respondeat superior directly applies’ as Lord Atkinson said in his speech in The Beechgrove [1916] 1 AC 364, 383”. As Lord Jauncey said in The Esso Bernicia (supra) at 682, “the position of a compulsory pilot was equiparated to that other voluntary pilot at common law by s 15(1)”.  By this means, the pilot is deemed to be a constituent member of the crew: Lord President Clyde in Thom v J & P Hutchinson Ltd(Owners of SS “Smerdis”) [1925] SC 386 at 392.

15. Beyond making the owner or master of the ship vicariously liable for the pilot, the section does not, I think, contain any prescription of the circumstances in which the shipowner will be liable, that is to say, it does not prescribe, say, that the shipowner is liable only if the pilot is negligent or that the shipowner is strictly liable in the case of both compulsory or voluntary pilotage.  It does no more than state that the shipowner or master is answerable for loss or damage caused by the ship in the case of compulsory pilotage as well as in the case of voluntary pilotage.

16. Mr Street SC contended that, because in 1913 the shipowner was only liable for negligence of the pilot, the effect of s 15(1) (and that of s 410B(2)) is that the shipowner is vicariously liable only if the pilot is negligent. There is nothing in these provisions to that effect. The fact that s 410B(2) makes the shipowner answerable for faulty navigation of the ship does not gainsay that conclusion. That is because there are two limbs to the liability of the shipowner. The shipowner is first answerable “for any loss or damage caused by the ship”, an expression which leaves entirely open the manner in which that liability might be determined. Secondly, the shipowner is answerable for any loss or damage caused by the fault of the navigation of the ship. While that may make the shipowner answerable for the fault of the pilot, it is expressed in the alternative and does not circumscribe the width in which the first limb is expressed.

17. Nor does Mr Street gain any assistance from the fact that another purpose of s 15(1) was to give effect to the International Convention for the Unification of Certain Rules of Law in regard to Collisions signed at Brussels on 23 September 1910.  Article 5 provided:

    “The liability imposed by the preceding Articles attaches in cases where the collision is caused by the fault of a pilot even where the pilot is carried by compulsion of law.”

    However, as Clarke J has noted in Oceangas (Gibraltar) Ltd v Port of London Authority; The “Cavendish” [1993] 2 Lloyds Rep. 292 at 294, s 15 is wider in its operation than Article 5.

    “       The preceding articles related only to collisions between vessels; so art. 5 was limited in effect to collisions between vessels caused by the fault of a compulsory pilot.

    Many of the provisions of the Convention were enacted in the Maritime Conventions Act 1911, but art. 5 was not.  However it was no doubt at least partly because of art. 5 of the 1910 Convention that s. 15 was included in the Pilotage Act, 1913.

    Section 15 of the Act is wider than art. 5 of the Convention.  For example it is not limited to collisions between vessels but extends to any loss or damage caused by a vessel or by any fault of the navigation of a vessel.  In Workington Harbour & Dock Board v. Towerfield (Owners), (1950) 84 Ll.L.Rep. 223; [1951] A.C. 112 (a case which is usually referred to as ‘The Towerfield’) the House of Lords held that s. 15 was not limited to cases where the owners of a vessel under compulsory pilotage were facing claims by third parties but extended to a claim by the owners themselves.”

    Although Article 5 renders a shipowner liable for the fault of the pilot (which causes a collision between ships) where the pilotage is compulsory, s 15 is expressed in wider terms.  It is not correct, therefore, to contend that s 15 is simply a statutory adoption of Article 5.

18. I have also considered whether the concluding words of s 410B(2) and, in particular, the phrase “in the same manner as he would if pilotage were not compulsory” are intended to be a prescription that the shipowner will be liable only where the pilot is negligent. I do not think it does. The fact that there are two limbs to the operation of s 410B(2) stands in the path of that conclusion.

19. In other words, s 410B(2) does not state that the shipowner is liable for the pilot only if the pilot is negligent. Instead, it makes the shipowner answerable for any loss or damage caused by the ship or by its faulty navigation when the pilotage is compulsory as well as when the pilotage is voluntary. It abolishes the distinction between compulsory and voluntary pilotage, at the same time making the shipowner vicariously liable for the pilot.

20. Section 36 of the Harbors and Navigation Act provides:

    “       36.    (1)    The duty of a pilot is to pilot the vessel subject to the authority of the master, and the fact that a vessel is under pilotage does not relieve the master from responsibility for the navigation of the vessel.

    (2)    No civil liability attaches to a pilot or to a pilot’s employer for negligence by the pilot in relation to the pilotage of the vessel (but this subsection does not relieve from liability that may attach to a person as owner of a vessel).

    (3)    The liability of the owner or master of a ship for damage resulting from a fault in the navigation of the ship is unaffected by the fact that the vessel is under pilotage or that the pilotage is compulsory.”

    The provisions of s 36(1) mirror those in s 410B(1) and there is no direct inconsistency. Section 36(2) contains a provision which is not found in s 410B. It expressly relieves the pilot of any liability and also relieves the pilot’s employer of any vicarious liability. Although that is not expressly stated in s 410B, it has been held that the employer of the pilot is not vicariously liable for the pilot’s negligence: Oceanic Crest Shipping Company v Pilbara Harbor Services Pty Ltd (supra). Section 36(3) is not expressed in the same terms as s 410B(2) but its effect is the same. It simply states the liability of the shipowner is the same whether the ship is under voluntary or compulsory pilotage.

1. Whatever similarities might exist between s 410B and s 36, it is, however, clear that s 410B(2) expresses an intention to cover the field by the use of the expression “notwithstanding anything contained in an Act or a State Act ...”. In this way, s 410B(2) expresses in unequivocal terms an intention to state completely the law as to liability of shipowners and masters where the ship is under compulsory pilotage. The consequence is subsection (3) of s 36 is invalid to the extent of any inconsistency. Section 410B(2) operates in respect of interstate and overseas shipping. The Amarantos was engaged in overseas shipping.  Section 36(3) cannot, therefore, operate in respect of liability for the collision with the jetty at Wallaroo.

2. Although s 410B(1) is not expressed to apply notwithstanding any other Act, it is, I think, intended to cover the field. That is a consequence of the fact that s 2 of the Navigation Act makes it clear that the Act is intended to apply, among other things, to ships engaged in interstate and overseas trade. Section 410B(1), I think, the expression of an intention to cover the subject matter of the authority of a master where a ship engaged in interstate or overseas trade is under pilotage. Section 36(1) is, therefore, inconsistent with s 410B(1). This is, of course, a further argument for concluding that s 36(3) is inconsistent with s 410B(2). In the result, both s 36(1) and s 36(3) are inconsistent respectively with s 410B(1) and s 410B(2).

3. Section 36(2) deals with a matter which is not covered by s 410B and is outside that field. It deals with the question whether the employer of the pilot is vicariously liable for the fault of the pilot. By contrast, s 410B is concerned only with the liability of the master or owner of the ship under pilotage. There is, therefore, no inconsistency within the meaning of s 109.

   Is s 21 inconsistent with s 410B?

4. As already mentioned, s 21 creates a strict liability in the owner of a ship which damages property of the Crown, property of the Minister, or property in private ownership consisting of harbour facilities or a navigational aid. By s 21(4), that strict liability is stated to apply irrespective of fault in the case of a ship under compulsory pilotage. For the reasons already expressed, s 410B(2) does not prescribe the circumstances in which a shipowner might be liable for loss or damage caused by the ship beyond making the shipowner vicariously liable for the pilot and equiparating voluntary and compulsory pilotage. In other words, s 410B(2) does not cover the field of the liability of shipowners. There are many more aspects of that liability than are dealt with in s 410B(2). There is no direct inconsistency between s 21 and s 410B(2). There is, therefore, no inconsistency within the meaning of s 109 of the Constitution between s 21 and s 410B.

   Is s 24 inconsistent with s 410B?

5. Section 24 of the South Australian Ports Corporation Act deals with liability for damage by a vessel to property of Ports Corp. There is no material difference between s 21 of the Harbors and Navigation Act and s 24 of the South Australian Ports Corporation Act. Section 24(3), like s 21(4), creates a strict liability irrespective of fault and irrespective of whether the vessel was under compulsory pilotage at the time. The reasoning which leads to the conclusion that s 21(4) is not inconsistent with s 410B also leads to the conclusion that s 24(3) is not inconsistent with s 410B.

   The Questions

6. Against that background, I answer each question.

   1.Do the provisions of s 24 of the South Australian Ports Corporation Act 1994 and s 21 of the Harbors and Navigation Act 1993 render Amarantos Shipping strictly liable to the State of South Australia in respect of the damage to the harbour facilities?

   Section 24(3) and s 21(4) each create a strict liability which would render Amarantos Shipping strictly liable to the State of South Australia. Neither provision is inconsistent with s 410B of the Navigation Act.  The answer to this question is, Yes.

   2.At the date of the collision, were the provisions of Pt VIII, and in particular s 503 and s 504 of the Merchant Shipping Act, 1894 (Imp) (“the 1894 Act”), operative in the State of South Australia?

   The provisions of Part VIII of the 1894 Act and, in particular, s 503 and s 504 were repealed by s 104(3) of the 1979 Act. The answer to this question is, No.

   3.At the date of the collision, were the provisions of s 1 and s 2 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (Imp) (“the 1900 Act”), operative in South Australia?

   For the reasons expressed, the provisions of s 1 and s 2 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (Imp) are not operative in South Australia.  The answer to this question is, No.

   4.Does s 1 of the 1900 Act provide for a limitation of liability which may be available to Amarantos Shipping in respect of the collision, as part of the law of South Australia?

   Given the answer to question 3, the answer is, No.

   5.Does s 2 of the 1900 Act provide for a limitation of liability which may be available to the State in respect of the collision as part of the law of South Australia?

   Given the answer to question 3, the answer is, No.

   6.Does s 1 of the 1900 Act bind the Crown in right of the State of South Australia?

   Given the answer to question 3, it is not necessary to answer this question.

   7.Is the liability (if any) of Amarantos Shipping arising from the collision with the wharf facilities limited by the Limitation of Liability for Maritime Claims Act 1989 (Cth)?

   For the reasons above, the Limitation of Liability for Maritime Claims Act 1989 (Cth) regulates limitation of liability for shipowners throughout Australia at least in respect of ships engaged in interstate or overseas trade. As the Amarantos was a ship engaged in overseas trade, the liability of Amarantos Shipping is limited by this Act.  The short answer to this question is, Yes.

   8.If the answer to question 3 is yes, is s 1 of the 1900 Act inconsistent with the Limitation of Liability for Maritime Claims Act 1989 (Cth)? If yes, which Act prevails?

   As the 1900 Act did not operate in Australia in 2000, it is unnecessary to answer this question.

   9.Has the 1900 Act been repealed by the 1979 Act, the Statute Stocktake Act 1999 or any other legislation enacted by the Parliament of the Commonwealth of Australia and, if so, is such repeal valid?

   Section 1 of the 1900 Act was repealed expressly by s 104(3) of the 1979 Act, if not also s 2 of that Act. Both were impliedly repealed by the 1989 Act.

   10.Are s 735 and s 736 of the 1894 Act part of the law of the State of South Australia?

   Section 735 and s 736 of the 1894 Act were repealed by the Australia Act 1986 (UK) and the Australia Act 1986 (Cth). The answer to this question is, No.

   11.Are s 21 and s 36 of the Harbors and Navigation Act inconsistent with s 410B of the Navigation Act 1912 and therefore inoperative to the extent of the inconsistency?

   Section 36(1) and s 36(3) of the Harbors and Navigation Act are inconsistent with s 410B of the Navigation Act and are, therefore, inoperative to the extent of the inconsistency in respect of ships engaged in interstate and overseas trade. Neither s 36(2) nor s 21 are inconsistent with s 410B.

   12.Is s 24 of the South Australian Ports Corporation Act 1994 inconsistent with s 410B of the Navigation Act 1912 and therefore inoperative to the extent of the inconsistency?

   Section 24 of the South Australian Ports Corporation Act is not inconsistent with s 410B(2) of the Navigation Act 1912.

7. For these reasons, I answer the questions as follows:

   1.      Yes.

   2.      No.

   3.      No.

   4.      No.

   5.      No.

   6.      Not necessary to answer.

   7.      Yes.

   8.      Not necessary to answer.

   9.Yes, if not expressly repealed by the 1979 Act, the 1900 Act was impliedly repealed by the 1989 Act.

   10.     No.

   11.Subsections (1) and (3) of s 36 are inconsistent with s 410B but neither s 36(2) nor s 21 is inconsistent with s 410B.

   12.     No.