Asiatic Steam Navigation Co Ltd v The Commonwealth - [1956] HCA 82

ASIATIC STEAM NAVIGATION COMPANY

LIMITED AND ANOTHER

APPELLANTS; DEFENDANTS,

THE COMMONWEALTH AND ANOTHER

RESPONDENTS. PLAINTIFFS, Shipping-Commonwealth ship-Not ship of war-Collision-Improper navigation

of ship but without actual fault or privity on part of Commonwealth-Damages- Limitation of liability-Rate of interest-Merchant Shipping Act 1894 (Imp.), ss. 2, 3, 23, 503, 504, 741-Merchant Shipping Act 1906 (Imp.), ss. 8, 80-The Constitution (63 &64 Vict. c. 12), 38. 75 (iii.), 78-Judiciary Act 1903-1950,

In determining the extent to which liability may be limited under S. 503 of the Merchant Shipping Act 1894 (Imp.), there must be ascertained the amount in Australian currency which represents eight English pounds for each ton of the vessel's tonnage when ascertained in accordance with that section.

So held by Taylor J. The Commonwealth of Australia is entitled to limit liability under S. 503 of the Merchant Shipping Act 1894 (Imp.) when owing to the improper navi- gation of a ship of the Commonwealth (not being one of the Queen's ships of war), but without the actual fault or privity of the Commonwealth, loss or damage is caused for which the Commonwealth is liable in damages.

The meaning and operation of the Judiciary Act 1903-1950, discussed. The rate of interest that should be borne by the sum to which such liability is limited should be four per cent per annum.

In re Tennant; Mortlock v. Hawker (1942) 65 C.L.R. 473, referred to. Decision of Taylor J., affirmed.

APPEAL from Taylor J.

In a suit brought by the Commonwealth of Australia and the Secretary, Department of Shipping and Transport, in the original jurisdiction of the High Court by way of writ of summons against the Asiatic Steam Navigation Co. Ltd. the plaintiffs sought, pur- suant to S. 503 of the Merchant Shipping Act 1894 (Imp.), to limit

96 CLR 398

their liability for loss and damage which occurred as the result of a collision on 12th September 1952, near Garden Island, in Port Jackson between the ship Shahzada and the ship River Loddon.

The statement of claim, as amended, was substantially as follows: 1. At all material times the plaintiff the Commonwealth of Australia was and still is registered as owner of the British ship River Loddon registered at Melbourne, Victoria. The plaintiff the Secretary, Department of Shipping and Transport is the permanent head of that Department, and is the permanent head of the Depart- ment in respect of which the ship is registered within the meaning of Order in Council No. 1391 of 1924 dated 8th December 1924.

2. At about 10.45 p.m. on 12th September 1952 the ship River Loddon came into collision with the ship Shahzada, owned by the Asiatic Steam Navigation Co. Ltd., near Garden Island, in Port Jackson, New South Wales.

3. Damage was caused to the River Loddon and to Shahzada and to goods and merchandise carried on the Shahzada.

4. There was not any loss of life or personal injury caused by reason of that collision.

5. The damage was caused…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1956] HCA 82
Decision Date: 6 June 1956

CaseChat Overview and Summary

The case of *Asiatic Steam Navigation Co Ltd v The Commonwealth* concerned a collision between the steamship *River Loddon*, owned by the Commonwealth of Australia, and the steamship *Shahzada*, owned by Asiatic Steam Navigation Co Ltd. The Commonwealth sought to limit its liability for the damage caused by the collision, which it admitted was due to the improper navigation of the *River Loddon*, but without its actual fault or privity. The matter came before Taylor J. in the original jurisdiction of the High Court, and the defendant appealed from his decision.

The primary legal issues before the court were: first, whether the Commonwealth was entitled to limit its liability under section 503 of the *Merchant Shipping Act 1894* (Imp.) for damage caused by a government ship; second, whether the monetary limit of liability under that section should be calculated in English pounds or Australian pounds; and third, what rate of interest should be applied to the limited sum. The court also considered the operation of the *Judiciary Act 1903-1950* in relation to the Crown's liability and the application of the *Merchant Shipping Act 1906* (Imp.) to government ships.

Taylor J. held that the Commonwealth was entitled to limit its liability under section 503 of the *Merchant Shipping Act 1894*, as amended by section 80 of the *Merchant Shipping Act 1906*, despite the fact that the *River Loddon* was a government ship. He determined that the limitation amount should be calculated by converting English pounds to Australian pounds, based on the principle that the Imperial statute was intended to operate uniformly across Her Majesty's dominions, and therefore the reference to "pounds" in section 503 referred to English pounds. Regarding interest, his Honour affirmed the long-standing practice in limitation actions of applying a rate of four per cent per annum, finding no compelling reason to depart from this established precedent, notwithstanding fluctuations in general interest rates.

The Full Court of the High Court affirmed the decision of Taylor J. The court held that the Commonwealth was entitled to limit its liability under section 503 of the *Merchant Shipping Act 1894*, as the *Merchant Shipping Act 1906* and subsequent Orders in Council allowed for the registration of government ships and their treatment as if registered under the principal Act, thereby extending the benefits of section 503. The court also upheld the determination that the limitation sum should be calculated by converting English pounds to Australian pounds, reinforcing the view that the Imperial statute's currency reference should be interpreted as English pounds. Furthermore, the court agreed with the lower court's decision to apply an interest rate of four per cent per annum, considering it a settled practice in limitation actions that should not be disturbed without strong justification.

Orders