China Ocean Shipping Co v South Australia

[1979] HCA 57

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Murphy and Aickin JJ.

CHINA OCEAN SHIPPING CO. v. SOUTH AUSTRALIA

(1979) 145 CLR 172

22 November 1979

Navigation

Constitutional Law (Cth)—Federal jurisdiction—Admiralty and maritime jurisdiction—State Supreme Court invested with federal jurisdiction—Jurisdiction also invested by Imperial Act—Limitation suit against State brought in Supreme Court—Whether federal jurisdiction—Suit to &hich a State is a party—The Constitution (63 &64 Vict. c. 12), s. 76 (iii.)—Judiciary Act 1903 (Cth), ss. 39 (2), 64—Colonial Courts of Admiralty Act, 1890 (Imp.) (53 &54 Vict. c. 27), s. 2 (1)—Merchant Shipping Act, 1894 (Imp.) (57 &58 Vict. c. 60), s. 504. Constitutional Law (S.A.)—Applicability of Imperial Law in South Australia—Imperial Acts of 1891 and 1900—Whether Acts ceased to apply in South Australia after Federation—The Constitution (63 &64 Vict. c. 12)—Merchant Shipping Act, 1894 (Imp.) 57 &58 Vict. c. 60), ss. 503, 504—Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (Imp.) (63 &64 Vict. c. 32), s. 1. Statutes—Interpretation—Crown—Crown in right of South Australia—When right to sue limited by statute—General principles—Merchant Shipping Act, 1894 (Imp.) (57 &58 Vict. c. 60), ss. 503, 504. Shipping and Navigation—Admiralty—Docks and ports—Collision with jetty—Limitation of liability—Whether master and agent can bring limitation suit—Merchant Shipping Act, 1894 (Imp.) (57 &58 Vict. c. 60), ss. 503, 504—Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (Imp.) (63 &64 Vict. c. 32), s. 1—Harbours Act, 1936 (S.A.), s. 124.

Decisions

1979, November 22.
The following written judgments were delivered:-
BARWICK C.J. The Minister of Marine of the State of South Australia ("the Minister") has sued the owner, agent and master of a vessel known as the Wuzhou in the Supreme Court of South Australia for damage done by that ship to a port installation the property of the Minister, namely, a jetty at Wallaroo in the said State. The ship is owned by the China Ocean Shipping Co. Patrick Operations Pty. Ltd. is the "agent" of the ship in Australia. Li Zhong Yi is and has been at material times the master of the vessel. (at p179)

2. The Minister sued the owner and the ship's agent in one action, basing his claim upon s. 124 (1) (a) of the Harbors Act, 1936-1974 (S.A.) ("the Harbors Act"). The liability under that section of the owner and agent of a vessel which has damaged a port installation is absolute and not dependent on proof of the mismanagement of the vessel. (at p179)

3. In a second action, the Minister sued the master of the vessel, basing his cause of action on s. 124 (1) (b) of the Harbors Act but in this instance asserting the master's mismanagement of the vessel. (at p179)

4. In a third action, the Minister sued the vessel in rem for the injury done by it to the port installation. (at p179)

5. The defendants in these actions thereupon commenced an action in the Supreme Court seeking to limit liability as under s. 504 of the Merchant Shipping Act, 1894 (Imp.). (at p179)

6. The parties to the action in which limitation of liability is sought, stated a case in which the Supreme Court was asked the following questions:
1. Does s. 504 of the Merchant Shipping Act, 1894-1900 entitle the plaintiffs or any of them in any circumstances to make an application under that section relating to liability alleged to have been incurred by them or any of them in respect of the property referred to in par. 3 of the statement of claim (having in mind the nature and description of that property and disregarding for the purpose of this question its ownership)?
2. Does s. 503 of the Merchant Shipping Act, 1894-1900 apply of its own force to the Crown in right of the State of South Australia so as to entitle the plaintiffs or any of them in any circumstances to limit their liability to the defendant for damages?
3. If s. 503 does not so apply of its own force, does it apply by virtue of s. 64 of the Judiciary Act 1903-1976? (at p180)

7. This stated case has been moved into this Court pursuant to s. 40 of the Judiciary Act 1903 (Cth), as amended. The Minister's suits await the determination of this stated case. (at p180)

8. The following specific questions are involved in the consideration of the three questions asked by the stated case. (at p180)

9. Under the first question:
1. At the date of the injury to the jetty and at the date of the institution of the Minister's suits, were the provisions of Pt VII, and in particular ss. 503 and 504 of the Merchant Shipping Act 1894 (Imp.) ("the 1894 Act"), operative in the State of South Australia?
2. At those times, were the provisions of s. 1 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (Imp.) ("the 1900 Act"), operative in South Australia?
3. Can an action under s. 504 of the 1894 Act be brought in the Supreme Court by the ship's agent and by its master? (at p180)

10. Under the second question:
1. Is the claim of the Crown against any of the defendants to the Minister's suits within the limitation of liability imposed by s. 503 of the 1894 Act?
2. Are the provisions of s. 124 of the Harbors Act repugnant to the provisions of the Acts of 1894 and 1900, so as to be avoided by s. 2 of the Colonial Laws Validity Act, 1865 (28 &29 Vict. c. 63) (Imp.). (at p180)

11. Under the third question:
1. Is s. 64 of the Judiciary Act 1903 (Cth), as amended, effective in the exercise of federal jurisdiction to bring the Crown within the operation of the limitation provision of the 1894 Act as extended by the Act of 1900?
2. Is the jurisdiction exercised by the Supreme Court of South Australia in entertaining an action under s. 504 of the 1894 Act an exercise of federal jurisdiction?

First question. (at p181)

12. The Solicitor-General for South Australia put in the forefront of his argument on this question the proposition that the Parliament of the United Kingdom ceased to have any power to pass any law effective in Australia as on and from the proclamation of the Commonwealth on 1st January 1901. It was said that, by the Constitution and its proclamation, the Commonwealth became an independent nation, completely severed from Great Britain. (at p181)

13. I must say that when I heard this proposition put by the Solicitor-General, it seemed to me to represent a very quaint aberration, not only unsupported by any authority but contradicted by decisions of this Court. Moreover, it seemed to me to betray a lack of appreciation of the constitutional history of this country. (at p181)

14. Since I began to work on these reasons for judgment, I have been given the advantage of reading the reasons for judgment prepared in this matter by my brother Stephen. He there demonstrates that the Solicitor-General's proposition is in flat contradiction to authority, to historical fact and to long and correctly adopted legal doctrine. I fully agree with all that my brother Stephen has written on this question. (at p181)

15. I would add for myself two matters. First, I would, as indeed my brother has done, emphasize the value to Australia of continuing Imperial legislation after the inauguration of the Commonwealth. In addition to the instances given by my brother Stephen, I would mention the benefit obtained by the continued operation of the Fugitive Offenders Act, 1881 (Imp.): see Bailey v. Kelsey (1959) 100 CLR 352 . The continuing applicability of this statute within the British Commonwealth avoided the need for the immediate negotiation of bilateral extradition treaties with both the old and new members of the Commonwealth, a task in itself likely to be fraught with much difficulty. (at p181)

16. Perhaps a telling instance, both of the continuance of Imperial legislative power and of the need for it, is the passage by the Imperial Parliament of the Geneva Convention Act, 1937 (1 Edw. 8 &1 Geo. 6 c. 15). At that date, Great Britain had ratified the Geneva Convention of July 1929 for the treatment of wounded and sick soldiers. But Australia had not adopted the Statute of Westminster. It was necessary to amend the law to implement Art. 28 of the Convention with respect to the use of the Red Cross. (at p182)

17. Section 2 of the Imperial Act expressly gave power to the Parliament of the Commonwealth to pass a law to give effect to all the provisions of Art. 28 of the Convention, such a law to have extra-territorial effect in specified respects. The Imperial Act also expressly terminated the operation in Australia of the Geneva Convention Act, 1911 (Imp.). (at p182)

18. Pursuant to the power thus given to the Parliament of the Commonwealth, it passed the Geneva Convention Act, 1938, thus performing the obligations of the Convention. (at p182)

19. The second matter I would add deals with the effect of the creation of the Commonwealth. At the outset it should be observed that nothing took place in 1900 or 1901 in any wise comparable with Art. 1 of the Treaty of Paris of 3rd September 1783 between Great Britain and the United States of America. Nor would any of those who were anxious for the formation of the Commonwealth have desired any such provision. There was neither a desire nor an intention to sever relationships with Great Britain by the formation of the Commonwealth. Indeed, it is a notable historical fact that the Statute of Westminster was not adopted by Australia until 1942, and then not without some public dissent. (at p182)

20. The Supreme Court of Rhodesia which accepted the de facto independence of Rhodesia by the Unilateral Declaration of Independence, acknowledged its illegality, conceding the continuing power of the Imperial Parliament notwithstanding the grant of autonomy by the 1961 Constitution (an autonomy quite as large and extensive as that to be derived from the Australian Constitution): see Madzimbamuto v. Lardner-Burke; Baron v. Ayre (1966) RLR 756 . (at p182)

21. The Commonwealth, by the grant of the Constitution, in my opinion quite clearly became a colony. Indeed, it might well have been concluded that it became the colony. The former colonies, whose people were united in the indissoluble Commonwealth, could have been considered no longer to be colonies having become constitutent States of the new Commonwealth albeit with constitutional powers identical in content with those formerly existing but now deriving, but subject to its terms, from s. 106 of the Constitution. But, though this view has not been taken, the new Commonwealth became itself another colony, self-governing but lacking both political and constitutional independence. (at p182)

22. The historical movement of Australia to the status of a fully independent nation has been both gradual and, to a degree, imperceptible. In that movement, the Statute of Westminster, the validity of which the Solicitor-General's submission would deny, and its adoption by the Parliament (treated by the submission as futile and nugatory) played their very substantial part. Thus, though the precise day of the acquisition of national independence may not be identifiable, it certainly was not the date of the inauguration of the Commonwealth in 1901. The historical, political and legal reality is that from 1901 until some period of time subsequent to the passage and adoption of the Statute of Westminster, the Commonwealth was no more than a self-governing colony though latterly having dominion status. I have no doubt that the provisions of Pt VIII of the 1894 Act continued in operation at all material times in the State of South Australia. (at p183)

23. I agree with my brother Stephen's conclusion that the 1900 Act was effective to include in the operation of s. 503 of the 1894 Act damage done to port and shore installations. I agree with my brother's reasons for this conclusion and would reject the submission of the Solicitor-General to the contrary. (at p183)

24. The next question is whether all of the defendants to the Minister's suits are entitled to be plaintiffs in a suit under s. 504 of the 1894 Act. Clearly enough, the owner is. Equally clearly, the master is not. The master would have no liability for injury done by the ship, unless he was himself party to or responsible for the mismanagement of it which resulted in the injury. Equally, under the Harbors Act, the master would only be liable if he was thus at fault. (at p183)

25. But a real question arises in relation to the ship's agent. I am unable, with respect, to agree with the view of Adam J. expressed in Goodes v. James Patrick &Co. Pty. Ltd. (1963) VR 334 that the word "agent" in this area has no precise meaning or denotation. (at p183)

26. It is evidently necessary for the ship to be represented in those ports of the world to which it must go in the course of its carrying trade. There are various matters connected with its entry, berthing and departure, as well as with other activities of the ship, to which attention must be given by some person or body: in short, the ship needs an agent. (at p183)

27. It seems to me that if the relationship of the "agent" to the ship is such that its owner was bound in law to indemnify the agent for damages for which he may become liable because of an injury done by the vessel to property or persons afloat or to port or harbour installations, the amount which the owner may thus be required to pay to the agent must be included in the limit of damages for which the owner can be liable in respect of that injury. That result could not be avoided by an action brought against the agent alone. But in this case the owner and agent are sued in the one action. I can see no reason why they should not join in a limitation suit, the owner, as I have said, being bound to indemnify the agent in respect of the damages payable by the ship and its owner. Generally, the agent would not be personally liable for injury done by the ship. But s. 124 of the Harbors Act imposes an absolute liability upon the agent for that injury, the draftsman of that Act seeing no difficulty in contemplating that a ship's agent could be indemnified. In my opinion, the agent is properly joined with the owner in the suit claiming the benefit of s. 503 of the 1894 Act. (at p184)

28. If the Harbors Act sought to deny the ship's agent the benefit of s. 503 and thus leave the owner with a liability to indemnify the agent to an amount in excess of the limit fixed by s. 503, I would think the Harbors Act to that extent would be repugnant to the Merchant Shipping Act and void. But as will appear, I do not think that the Harbors Act purports to do any such thing. (at p184)

29. If, as I think, ss. 503 and 504 continue to be operative in South Australia, no provision of a South Australian statute not passed conformably to the provisions of the 1894 Act could impair that operation. The Colonial Laws Validity Act would ensure the paramountcy of the Imperial legislation. Thus, having decided that the 1894 and 1900 Acts were in operation at material times, no further question as to the Harbors Act really arises. (at p184)

30. However, for the reasons I shall shortly give, there is in any case no repugnancy between the Harbors Act and Pt VIII of the 1894 Act. (at p184)

31. It will be convenient at this point to describe the operation of Pt VIII as an understanding of that operation bears upon that question of repugnancy as well as upon the resolution of the second question. (at p184)

32. Section 503 of the 1894 Act, as extended in operation by s. 1 of the 1900 Act, limits in the stated circumstances the total liability of an owner for damages resulting from an injury done by his vessel to property or persons afloat or to port or shore installations. Section 504 provides a means whereby the amount representing that total liability may be distributed among the various claimants for damages for the injury done to their respective interests. That section also enables the owner to initiate proceedings to determine that amount and to effect its distribution. Incidentally, it enables the owner to obtain a stay of proceedings upon individual claims. But, otherwise, the sections do not provide an answer to liability in such individual proceedings. They do, of course, limit the extent to which recovery may be made: and as an incident of the operation of s. 504, do make the proof of the owner's responsibility unnecessary. The owner, in bringing a suit pursuant to s. 504, must admit responsibility to all those who may justify their claims to have suffered damage by the ship. The individual claims are thus in substance converted into claims upon the fund representing the owner's total liability. (at p185)

33. Substantially, in my opinion, these sections, given the existence of the conditions they stipulate, provide for the formation of a fund representing the total liability of the owner and for the distribution of that fund amongst all those who have a claim to damages arising out of the particular incident which has injured property and persons afloat or a port or shore installation. (at p185)

34. The policy evident in these sections is the protection of the owner engaged in the maritime carrying trade from financial ruin where his vessel causes damage of the described kind. That policy is evidently adopted for the protection of the merchant marine. The formula for the establishment of the total liability is not a scientific formula, though broadly the extent of injury done by a ship may be rated to its size expressed in tonnage. (at p185)

35. For these sections to attain their object and for that policy to be implemented, it is, in my opinion, indispensably necessary for all claims, no matter by whom made, to be included in the operation of the sections. The language of the sections is universal in its nature: there is no express exception from its universal operation. Section 503 speaks of any property and of damage to any persons. As expressed, the sections seem to me to contemplate that all those without exception who have a claim to damage arising out of the particular injury done by the ship shall be in a like case, i.e. they will be affected by the operation of ss. 503 and 504. Both sections contemplate that persons will have claims justifiable at law, whether based upon the general law or upon some statutory provision. The sections themselves do not create any liability for damages. (at p185)

36. I now return to the question of repugnancy and will later relate what I have said about the sections to the question whether the claim of the Crown falls within their operation. (at p185)

37. It is important to see what the relevant part of the Harbors Act purports to do. Division VI of Pt III of the Harbors Act deals with wrecks, obstruction and damage. Section 124 (1) provides that where an injury is done by a vessel . . . to any of the works or property of or vested in the Minister (a) the owner or agent of the vessel . . . and (b) in case the injury is caused through the act of negligence of the master of the vessel . . . the owner or agent and also the master . . . shall be liable in damages to the Minister for the injury. In the present case, the port installation damaged by the vessel was clearly a work or property of or vested in the Minister within the operation of s. 124. (at p186)

38. It is apparent from the language of s. 124 that where the injury is done by a vessel to any such works or property, the owner or agent is liable for the whole amount of damage done whether or not the injury was caused by negligence or without the fault or privity of the owner. (at p186)

39. The Colonial Laws Validity Act has been at all relevant times and still is in operation in relation to South Australia which has been conceded to remain within the definition of a colony contained in s. 1 of that Act. Consequently, s. 2 of that Act remains effective to avoid any statute of the legislature of South Australia which is repugnant to any Act of the Imperial Parliament which extends to South Australia. If s. 124 of the Harbors Act is in any respect repugnant to the provisions of the 1894 Act, as extended by the 1900 Act, it will be absolutely void and inoperative to the extent of the repugnancy by the operation of s. 2 of the Colonial Laws Validity Act. (at p186)

40. Section 735 of the 1894 Act gave power to the local legislature to repeal wholly or in part any provision of that Act relating to ships registered in its territory, such repeal being confirmed by the Crown in Council. Section 736 also gave to the local legislature power to regulate the coasting trade in its area subject to certain conditions. The Harbors Act is neither a statute confirmed by the Crown in Council nor did it relate to the coasting trade of South Australia. In any case, the Harbors Act does not purport to repeal, amend or in any sense to supersede the provisions of Pt VIII of the Act of 1894 or of that of 1900. (at p186)

41. The question therefore is whether the two statutory provisions can stand together. Put another way, whether any provision of the Harbors Act is repugnant to the provisions of Pt VIII of the Merchant Shipping Act. (at p186)

42. What the Harbors Act does is to create a liability for damages in the owner or agent and, in the case of negligence by the master, in the master of the vessel as well. It makes it clear that the liability of the owner and ship's agent is absolute and not conditioned on the owner's or agent's negligence or, for that matter, on the master's negligence. It is in contract to the liability under s. 74 of the Harbours, Docks, and Piers Clauses Act, 1847 (U.K.) as interpreted in River Wear Commissioners v. Adamson (1877) 2 App Cas 743 , though cf. Great Western Railway Co. v. Owners of S.S. Mostyn (1928) AC 57 . But, it seems to me, the creation of this liability makes no impact whatever on the provisions of Pt VIII and, in particular, of ss. 503 and 504. That Part presupposes the existence of a liability or liabilities exceeding the limit which s. 503 sets. (at p187)

43. In my opinion, the two statutes can stand together. The owner, agent or master, as the case may be, is by the local Act made liable in damages for the injuries done to the harbour installations where otherwise he might have no liability. Claims founded on the provisions of the Harbors Act will be circumscribed by ss. 503 and 504. Notwithstanding the creation of the liability, it seems to me there remain the overriding provisions of ss. 503 and 504 which perform a function which I have already described. I am therefore of opinion that the Harbors Act is not repugnant to the 1894 Act. That Act remains to perform the function it was designed to perform, namely, of setting the upward limit of what in totality the owner might be called upon to pay by way of damages for injury done by his vessel to property or person afloat or to port and shore installations. However, as I have earlier said, to conclude that the 1894 and 1900 Acts continue in operation in South Australia is to deny the possibility of the validity of any local statute repugnant thereto.

Second question. (at p187)

44. I now turn to the second question which turns on the identity of the Minister as representing the Crown in right of South Australia as owner of the port or shore installation which has been damaged. The Minister's claim is therefore a claim by the Crown for damages to be paid by the owner, the ship's agent, the master and, indeed, by the ship itself. (at p187)

45. The question whether a statute embraces the acts or obligations of the Crown is determined as a matter of construction of the particular statute. The relevant rule is that the Crown will not be bound by the provisions of a statute unless, in the absence of express words including the Crown in its operation, it is a necessary implication from the terms of the statute that the Crown should be bound. In general, the question arises with respect to a statutory provision which seeks to impose obligations or duties upon persons. In such cases it has been found convenient to express the problem as whether the Crown is bound by the statutory provision. In other instances where no duty or obligation is sought to be placed on the Crown, as in this instance, it is I think more convenient to express the problem as whether the Crown is within the operation of the statute; in this case, whether the claim of the Crown is within the operation of the statute properly construed? In my opinion, the 1894 Act in ss. 503 and 504 does pose such a problem, namely, whether the claim of the Crown to be paid damages for the injury done to its property is embraced or included in the totality of claims with respect to which an upward limit of liability on the part of the owner is set by the statute. (at p188)

46. I have already described the operation of ss. 503 and 504 and emphasized the importance of understanding what the sections purport to do. In doing so, I have referred to the generality of the language and the absence of exception from its operation. (at p188)

47. It is quite clear that there are no words expressly referring to the Crown in these two sections. The exemption in s. 741 of Her Majesty's ships from the operation of the 1894 Act supports no relevant conclusion as to whether the claim of the Crown is within the operation of s. 503. On the other hand, there are no words which expressly or by any implication would suggest that there was any exception to the operation of the two sections. Further, the evident policy of Pt VIII might well be defeated if the Crown's claim were excepted and the Crown were enabled to exact its claim to an unlimited extent out of the resources of the owner, leaving the others whose claims were clearly within the operation of that Part to suffer complete loss or to be able only to participate in so much of the resources of the owner as might be left after the Crown was fully satisfied. Further, there would be little point in an owner seeking to limit at all if he could not include the claim of the Crown in the limitation. (at p188)

48. The Crown, of course, has no prerogative of priority of payment of its damages. Thus, the fund representing the total liability of the owner could not be administered on the footing that the Crown had any priority for its claim. The case of the administration of an insolvent or other estate is quite different, the Crown in such matters having a prerogative of priority for its debt. Sections 503 and 504, if applicable to the Crown's claim, operate before and indeed virtually preclude judgment in the Crown's action. Thus, no debt in the ordinary course in respect of that claim arises before the court deals with a limitation suit under s. 504. (at p188)

49. Of course, in the present case, the only claimant is the Crown. This arises from the fact that the injury was an injury to a port installation. The operation of ss. 503 and 504 is, in my opinion, better understood if the case of a collision at sea between a privately-owned vessel and a government-owned vessel were in contemplation and it be supposed that the government vessel was carrying cargo not the property of the government and passengers who are not servants of the government. In such a case, it seems to me quite impossible to suppose that a court under s. 504 could distribute the fund (i.e. the sum resulting from the application of 8 pounds per ton to the displacement of the ship at fault) amongst the cargo owners and the passengers, leaving the government in competition with a separate suit for the whole of its damage as the owner of the ship. The policy of the Act, to which I have already referred, which the South African Supreme Court did not seem to think of overbearing interest in South African Railways and Harbours v. Smith's Coasters (Prop.) Ltd. (1931) AD 113 comes into play in this connexion. I can think of no policy reason why an owner should be exposed to unlimited liability to the Crown as well as to limited liability to those interests which may be involved in the collision. It seems to me that upon its proper construction, s. 504 requires limited liability to be applicable to all claimants and the power of the Court under s. 504 to effect a distribution to operate as to all claimants according to their respective interests. I cannot think that a draftsman could contemplate inserting in s. 503 or in s. 504 an exception in favour of the Crown without realising that such an exception would destroy the scheme of the two sections. (at p189)

50. I agree with my brother Stephen's criticism of the approach made by the Canadian courts to the construction of the Canadian equivalent to ss. 503 and 504 of the 1894 Act: Gartland Steamship Co. v. The Queen (1960) SCR 315; (1960) 1 Lloyd's Rep 388 . I have already expressed for myself in a passage (The Commonwealth v. Rhind (1966) 119 CLR 584, at p 598 ) quoted by my brother Stephen the rule of construction, as I understand it, in Australia. It may be that the manner in which the Canadian Interpretation Act is expressed had its influence on the approach which the Canadian courts have made to the question of construction where the Crown is involved. But, in my opinion, the Canadian courts reached the right conclusion. Their reference to the absence of any prerogative as to the payment of damages and their insistence on the purpose of the statute, namely, the protection of the shipowner, though not used in their judgment in precisely the manner in which I have emphasized those matters, do in general accord with the conclusion I have reached. (at p190)

51. On the other hand, I do not think the South African courts sufficiently considered the operation of the 1894 Act, as extended by the 1900 Act, or gave due weight to the structure of those sections. De Villiers C.J. in the South African case (1931) AD 113, at p 127 seems to realise that the Crown may be included by general words in a statute. He cites the Magdalen College Case (1615) 1 Co Rep 66b (77 ER 1235) but, for some reason which to my mind is not plain, decided that the Crown was not bound by the Merchant Shipping Act. He quite rightly draws no conclusion from the exemption in s. 741 of the 1894 Act of Her Majesty's ships from the operation of the statute. He seems to treat the statute as if it were only directed to actions between citizens. I have great difficulty in accepting such a view because the words of s. 503 are so universal in character: and there is no difficulty in including the Crown within the description of "person" in a statute. There does not seem to have been a sufficient examination of what is the scheme of ss. 503 and 504. Nor is any consideration given to the very serious inroad which would be made into that scheme if a claim by the Crown were not included in those claims to which the Court, under s. 504, could have regard and amongst which it could make a distribution. If there are many claims, and the owner paid into court in an action under s. 504 the amount prescribed by s. 503 but had in fact little or no other resources and the Crown were not entitled to share in the distribution of that sum because, as the South African court would say, it was not "bound" by the section, the Crown might be left lamenting unless it could initiate and prosecute its proceedings so as to have judgment before the conclusion of the suit by the owner's limitation. There can be no ground upon which the Crown could then upset the operation of s. 504 as to all other claims. I find the South African judgment unconvincing. (at p190)

52. However the matter is looked at, it seems to me that the scheme of ss. 503 and 504 of necessity requires that all claims, including claims by the Crown, should come within the distribution of the funds provided by a defendant shipowner in conformity with s. 503. Thus, "the nature of the subject matter of the statute" and the evident policy behind it combine with the language in which the scheme of the section is expressed to make it inevitable, in my opinion, that the operation of the statute extends to embrace a claim by the Crown for damages done by the ship: that is to say, the Crown, to use the classical language, is bound by necessary implication.

Third question. (at p191)

53. As I am of opinion that the claim of the plaintiff comes within the operation of s. 503 and s. 504 of the 1894 Act as extended by the Act of 1900, the third question does not arise. Accordingly, I have no need to express any opinion upon it. (at p191)

54. I would answer the three questions as follows:
1. As to the owner and agent, in the affirmative and, as to the master, in the negative.
2. In the affirmative.
3. Unnecessary to answer. (at p191)

GIBBS J. This action was commenced in the Supreme Court of South Australia by the plaintiffs, who are respectively the owner, agent, and master of the Wuzhou, a ship registered in the People's Republic of China, against the State of South Australia, which is the title under which in that State proceedings may be brought against the Crown: s. 5 (2) of the Crown Proceedings Act, 1972 (S.A.). (at p191)

2. The parties to the action concurred in stating a special case raising three questions of law for the opinion of the Supreme Court. That part of the action that is constituted by the special case has been removed into this Court. The relevant facts as stated in the special case are as follows. On 24th October 1977 the Wuzhou caused damage by collision to a jetty and certain other structures and works, the property of the Crown, situated at Wallaroo in South Australia. The collision was caused partly by the improper navigation of the vessel, but the damage was caused without the actual fault or privity of any of the plaintiffs. Actions have been brought by the Minister of Marine for the State of South Australia pursuant to s. 124 of the Harbors Act, 1936 (S.A.), as amended, against all three plaintiffs claiming damages caused by the collision, and other claims have been made against the plaintiffs in respect of the said and consequential damages. (at p191)

3. Wallaroo is situated on the shores of Spencer Gulf, the waters of which are within the boundaries of South Australia; Raptis (A.) and Son v. South Australia (1977) 138 CLR 346 . (at p191)

4. The plaintiffs seek relief under s. 504 of the Merchant Shipping Act, 1894 (Imp.) ("the Act of 1894"), on the basis that their liability to damages is limited by s. 503 of that Act, as extended by s. 1 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (Imp.) ("the 1900 Act"). (at p192)

5. The fundamental issues, to which the three questions asked in the special case are directed, are whether the plaintiffs or any of them are entitled under s. 503 of the Act of 1894 as extended by s. 1 of the 1900 Act to limit their liability for damage in a case where, without their actual fault or privity, damage was caused to the property of the Crown in right of South Australia by reason of the improper navigation of the ship in waters within the territory of South Australia, and whether proceedings under s. 504 of the Act of 1894 may be brought against the Crown in such a case. (at p192)

6. By s. 503 (1) of the Act of 1894 it was provided, inter alia, as follows:

"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,) . . . (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; (that is to say,) . . . (ii) in respect of loss of, or damage to, vessels, goods, merchandise, or other things, whether there be in addition loss of life or personal injury or not, an aggregate amount not exceeding eight pounds for each ton of their ship's tonnage."

Section 504 of that Act provided, inter alia, as follows:

"Where any liability is alleged to have been incurred by the owner of a British or foreign ship in respect of . . . 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 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 . . ."

Both those sections were included in Pt VIII of the Act of 1894. Section 509, which also appeared in that Part, provided as follows: "This Part of this Act shall, unless the context otherwise requires, extend to the whole of Her Majesty's dominions." (at p192)

7. The provisions of ss. 503 and 504 did not apply to damage caused to a jetty or other property on shore, but by s. 1 of the 1900 Act it was provided as follows:
"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." (at p193)

8. Although s. 1 of the 1900 Act does not expressly refer to s. 504, whereas s. 2 (which confers a right on owners of docks and canals and harbour and conservancy authorities to limit liability for loss or damage to vessels and things on board) does so, it was held by the House of Lords in Mersey Docks and Harbour Board v. Hay (1923) AC 345 that s. 1 of the 1900 Act impliedly incorporated s. 504 of the Act of 1894. This decision was, in my respectful opinion, correct. The limitation of liability conferred by s. 503 operates as a defence when there is only one claimant. However, when, as is not uncommon, a number of separate actions are brought by different claimants, it is necessary that there should be a procedure for distributing the total amount for which the shipowner is liable proportionately amongst the various claimants: see Mersey Docks and Harbour Board v. Hay (1923) AC, at pp 355, 378-379 ; McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. (1945) 70 CLR 175, at p 207 ; Asiatic Steam Navigation Co. Ltd. v. The Commonwealth (1956) 96 CLR 397, at p 422 . Without such a procedure, the "shipowners could not be fully protected and claimants would be remitted to a competitive scramble for the aggregate sum, in which the hindmost would come off as the hindmost proverbially do": per Lord Sumner in Mersey Docks and Harbour Board v. Hay (1923) AC, at p 379 . Obviously enough, once a shipowner became entitled to limit his liability for damage to property on shore, a similar procedure had to be made available in that case also. Accordingly, as Viscount Finlay said in Mersey Docks and Harbour Board v. Hay (1923) AC, at p 362 :

"That section (s. 504) is, in my view, a provision for working out in practice the rights given by s. 503, and when the Act of 1900 applies the limitations set by s. 503 it must include the machinery without which the enactment would be unworkable."

The fact that s. 2 of the 1900 Act mentions s. 504, while s. 1 does not, is of no real importance in this regard, because s. 2 creates a new limitation of liability which is dealt with on different lines from those laid down by s. 503: see Mersey Docks and Harbour Board v. Hay (1923) AC, at pp 379-380 . (at p193)

9. However, it was submitted on behalf of the State of South Australia that the provisions of the Merchant Shipping Acts 1894 to 1900 ceased to be applicable in South Australia on the formation of the Commonwealth in 1901. To accept this argument would be to abandon both authority and principle. It is established by a number of decisions of this Court that the Merchant Shipping Acts are of continued operation in Australia. I need refer only to three of those decisions which have proceeded on the basis that one of the sections now in question, s. 503, is still in force in the Australian States: McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. (1945) 70 CLR 175 ; Asiatic Steam Navigation Co. Ltd. v. The Commonwealth (1956) 96 CLR 397 ; Bistricic v. Rokov (1976) 135 CLR 552 . The argument for the State was based on certain dicta of my brother Murphy in Bistricic v. Rokov (1976) 135 CLR, at p 565 and Robinson v. Western Australian Museum (1977) 138 CLR 283, at p 343 . His Honour there enunciated two propositions - that the United Kingdom has since 1901 had no legislative authority over Australia, and that statutes of the United Kingdom - at least those statutes "directed towards regulating the imperial-colonial relations" (in which his Honour would include the Merchant Shipping Acts and the Colonial Laws Validity Act, 1865) - ceased to be applicable in Australia in 1901. Those dicta were not supported by any other member of the Court; they are contrary to settled authority and, with all respect, cannot be accepted as correct. I need not further discuss the first of those propositions, since in the present case both of the statutes in question were enacted before 1901, but I must add a few words with regard to the suggestion that the Merchant Shipping Acts have ceased to be part of the law of the Australian States. (at p194)

10. When Pt VIII of the Act of 1894, upon its enactment, became part of the law of South Australia and of the other Australian colonies, the provisions of that Part did not occupy a separate and exceptional position. They became part of the whole body of the law by which the colony was governed. They were just as much a part of the law of the colony as the principles of common law and equity, the statute law of England enacted before the colony was settled, and the enactments of the colonial legislature. They would remain part of the law until they were repealed or amended by a legislative body which had power to affect them. The Parliament of the United Kingdom had such power, but the legislature of the colony had only the limited powers conferred by ss. 735 and 736 of the Act of 1894. Since the Statute of Westminster Adoption Act 1942 (Cth) the Parliament of the Commonwealth has been free from the restrictions of those sections, and its enactments since that time have no longer been liable to be held void or inoperative on the ground that they are repugnant to any statute of the United Kingdom. It is, however, unnecessary to discuss the effect of the Statute of Westminster on the powers of the Commonwealth Parliament, since no legislation relevant to the present question has been enacted by the Parliament. Part VIII of the Navigation Act 1912 (Cth), as amended, contains provisions for the limitation of liability in respect of government ships, but does not deal with the limitation of liability when damage is caused by a private vessel. The establishment of the Commonwealth in 1901 did not have any effect on the operation of the Merchant Shipping Acts - like other laws of the colonies, they continued in force in the States, although subject to the Constitution. The enactment of the Statute of Westminster Adoption Act 1942 did not operate to repeal any of the provisions of the Merchant Shipping Acts as they extended to the States; on the contrary, s. 5 of the Statute of Westminster indicated that it was assumed that those Acts continued to apply. Part VIII of the Navigation Act proceeded on the same assumption. The change in the relationship that gradually occurred between Australia and the United Kingdom did not have the effect of repealing any of the Imperial statutes in force in the States. Statutes do not cease to be part of the law because the conditions in which they were enacted have changed. If a change in the political relationship between the United Kingdom and Australia had resulted in the silent abrogation of some or all of the Imperial legislation in force in Australia, the law would have been rendered defective and gravely uncertain; indeed, on some subjects there would have been no law at all. But that is not the case. The Merchant Shipping Acts, not having been repealed, remain in force in Australia. (at p195)

11. A more limited submission made on behalf of the State of South Australia was that the 1900 Act did not, as a matter of construction, apply to South Australia. In support of this argument, reliance was placed on the fact that the 1900 Act did not contain any provision corresponding to s. 509 of the Act of 1894, and in that respect the 1900 Act was contrasted with the Maritime Conventions Act, 1911 (Imp.). Further support for the argument was drawn from the reference, in s. 3 of the 1900 Act, to "any general or private Act of Parliament", which it was submitted meant an Act of the Parliament of the United Kingdom and showed that the operation of the Act was intended to be confined to the United Kingdom. As I have said, the object of s. 1 of the 1900 Act was to give an extended operation to s. 503, and by implication also to s. 504, of the Act of 1894. The 1900 Act was to be construed with the Act of 1894: s. 5 of the 1900 Act. In these circumstances, in my opinion, s. 1 was intended to have the same territorial operation as the sections which it affected, that is, it was intended to extend to the whole of Her Majesty's dominions. It was perhaps thought to be so clear that this result would follow that no express provision as to the application of the Act was included. It is difficult to see how the Maritime Conventions Act, 1911 assists in deciding this question. That Act, which amended the Merchant Shipping Acts in certain respects, contained, in s. 9, an express provision that the Act should extend throughout His Majesty's dominions, but went on to state that it should not extend to the self-governing dominions which it named. The inclusion of the whole of s. 9 may well have been necessary once it was decided to provide that the Act should not extend to the self-governing dominions, which it was apparently thought would themselves legislate, as in fact they did, to give effect to the Convention which led to the enactment of the Maritime Conventions Act, 1911. However, s. 9 of that Act throws no light on the 1900 Act. (at p196)

12. Section 3 of the 1900 Act provided, inter alia, that the limitation of liability under that Act shall apply "whether the liability arises at common law or under any general or private Act of Parliament, and notwithstanding anything contained in such Act". This provision does not appear to me to be directed to the question whether the application of s. 1 is confined to the United Kingdom. It may have been thought that it was unnecessary to refer particularly to liabilities arising under colonial legislation, because any colonial law repugnant to s. 1 would have been void and inoperative to the extent of the repugnancy. Whether or not that was so, the words of s. 3 do not in my opinion reveal an intention that the operation of the Act should be limited to the United Kingdom, and it is difficult to suggest any reason why Parliament should have had such an intention. (at p196)

13. For completeness, I may add that s. 1 of the 1900 Act was repealed by the Merchant Shipping (Liability of Shipowners and Others) Act, 1958 (U.K.) ("the Act of 1958"). It was held in Bistricic v. Rokov (1976) 135 CLR 552 that s. 2 (4) of that Act was not in force in New South Wales, but it follows from the reasoning of Mason J. in that case, with which a majority of the Court agreed, that no part of that Act became part of the law of any of the Australian States. The repeal of s. 1 was therefore not effective in Australia. (at p197)

14. I accordingly hold that in the circumstances as stated in the special case, if the fact that the property damaged was owned by the Crown is disregarded, the company which owns the Wuzhou is entitled to limit its liability under s. 503, and for that purpose to bring limitation proceedings under s. 504. (at p197)

15. However, in my opinion, neither the master nor the agent has a similar privilege. The limitation of liability for damages to an arbitrary amount, which may be far less than that suffered by the persons whose property was injured by the improper navigation of the ship, is entirely the creature of statute law: cf. The Andalusian (1878) 3 PD 182, at p 190 . Section 503 confers the privilege only on the "owners" of a ship, and s. 504 similarly enables only an "owner" to make an application under that section. The ambit of the sections has been extended, in respects presently immaterial, by amendments to the Merchant Shipping Acts, notably those passed in 1898 and 1906. By s. 3 of the Act of 1958 the privilege has been extended in certain circumstances to the master of a ship, but, as I have said, that Act is not in force in South Australia. There is no express provision of the Merchant Shipping Acts as in force in South Australia that extends the provisions of s. 503 either to masters or agents. No doubt the word "owner" is not to be construed in a narrow technical sense (cf. McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. (1945) 70 CLR, at pp 194, 199, 214-215, and 218 , but by no legitimate extension of its meaning can it include a master or agent who does not happen also to be an owner of the ship. (at p197)

16. In McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. (1945) 70 CLR, at p 214 , Dixon J. referred to statements from the speeches in the House of Lords in Sir John Jackson Ltd. v. Owners of S.S. Blanche (1908) AC 126 , where Lord Atkinson (1908) AC, at p 136 said that the owner becomes liable not because he is owner, but because he is the master or employer of the persons whose negligence causes the damage, and Lord Loreburn L.C. (1908) AC, at p 131 said that the policy of s. 503 "was simply to prevent ruinous damages from being inflicted upon an innocent principal as the consequence of an error of judgment in a difficult and dangerous business by his agents in charge of a vessel". It would seem that the same considerations did not, speaking generally, exist so as to make it necessary for a master or agent to enjoy a similar protection. The master is not the employer of the crew of his ship, and (in the absence of a statute imposing absolute liability) he would, in accordance with ordinary principles, only be liable for damage caused by the improper navigation of the ship if he himself were negligent. This seems to be the law: see Marsden, Law of Collisions at Sea, 11th ed. (1961) (British Shipping Laws, vol. 4), par. 59 and Halsbury's Laws of England, 3rd ed., vol. 35, par. 1057. Similarly, in the absence of statute, an agent could not be liable for damages by reason of the negligent navigation of a ship. Whether or not these circumstances provide an explanation for the form of s. 503, the fact is that that section applies only to "owners", and there is nothing in the context of the Merchant Shipping Acts which requires the word to have a wide enough meaning to include a master or agent who is not also an owner. The liability of masters and agents for damages of the kind to which s. 503 refers therefore remains unlimited. (at p198)

17. Section 124 of the Harbors Act imposes on "the owner or agent of the vessel, floating timber or material" by which injury is done to any of the works or property of or vested in the Minister a liability in damages which does not depend either on the fact that the injury resulted from negligent or otherwise tortious conduct or upon the existence of any causal connexion between the injury and an act or omission on the part of any person, and (except in the case where there has been negligence or otherwise tortious conduct for which the Minister or an officer of his Department is responsible) it is not a defence to show that the injury was wholly or partially attributable to any factor independent of the control of the person against whom the proceedings are brought: s. 124 (1a). However, the master of the vessel is liable under the section only if the injury is caused through his "act or negligence": s. 124 (1). Having regard to the express provisions of s. 124 (1a) it seems impossible to limit the word "agent", where it appears in the section, to a person having authority to prevent or avoid the injury and the decision in Goodes v. James Patrick &Co. Pty. Ltd. (1963) VR 334 is accordingly distinguishable. (at p198)

18. We are not called upon to decide upon the meaning of the word "agent" in s. 124, because for the purposes of the special case we must accept the statement that the second plaintiff is the agent of the Wuzhou. However, it was submitted on behalf of the plaintiffs that an agent called upon to pay damages by virtue of the provisions of s. 124 would have a right of indemnity against the owner, with the consequence that the owner might ultimately be made liable to an extent greater than that permitted by s. 503. If it be assumed that this submission is correct, it still does not follow that the agent is entitled to limit his liability under s. 503. The fact that the agent may be indemnified by the owner does not mean that he is the owner. (at p199)

19. It was further submitted on behalf of the plaintiffs that s. 124, at least in so far as it imposes liability on an agent, is repugnant to s. 503 of the Act of 1894 and is to that extent void and inoperative. Before I deal with this question, it is necessary to consider whether the provisions of ss. 503 and 504 of the Act of 1894, as extended by s. 1 of the 1900 Act, entitled the owners of a ship to limit their liability for damage caused to the property of the Crown. (at p199)

20. The rules which now govern the question whether the provisions of a statute affect the rights of the Crown are well settled. The modern rules have sometimes been criticized as technical and narrow, but they are at least clear and simple. They are stated succinctly in Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58, at p 61 in a passage adopted in Premchand Nathu &Co. Ltd. v. Land Officer (1963) AC 177, at pp 188-189 , as follows:

"The maxim of the law in early times was that no statute bound the Crown unless the Crown was expressly named therein . . . But the rule so laid down is subject to at least one exception. The Crown may be bound, as has often been said, 'by necessary implication.' If, that is to say, it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions."

The law is similarly stated by Barwick C.J. in The Commonwealth v. Rhind (1966) 119 CLR 584, at p 598 :

"In my opinion, the rule to be applied universally as of this time in the construction of statutes, is that the Crown is not included in the operation of a statute unless by express words or by necessary implication. Where the Crown is not expressly mentioned, the implication will be found, if at all, by consideration of the subject matter and of the terms of the particular statute."

In Downs v. Williams (1971) 126 CLR 61, at pp 65, 67, 85-88, 91 and 93 all the members of the Court accepted this rule as established. In Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58 their Lordships explained what is meant by saying that the Crown is bound by necessary implication. In that case counsel had argued that an Act enacted "for the public good" must be taken to bind the Crown, and after referring to that argument, their Lordships said (1947) AC, at p 63 :

"Their Lordships prefer to say that the apparent purpose of the statute is one element, and may be an important element, to be considered when an intention to bind the Crown is alleged. If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound. Their Lordships will add that when the court is asked to draw this inference, it must always be remembered that, if it be the intention of the legislature that the Crown shall be bound, nothing is easier than to say so in plain words."

These rules of construction apply to the Crown in all its capacities; in other words, they apply in deciding whether the provisions of the Merchant Shipping Acts were intended to include in their operation the Crown in the right of the colonies, and therefore the Crown in right of the States of Australia: cf. Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. (1979) 145 CLR 107 . (at p200)

21. When these rules are applied to ss. 503 and 504 of the Act of 1894, as extended by s. 1 of the 1900 Act, it seems to me that the conclusion that should be reached is that the Crown is not included in the operation of those sections. The Crown is not mentioned. There are no words expressly limiting the liability of the subject in an action brought by the Crown. Can it then be said that the Crown was included by necessary implication? It is clear that s. 503 (both in its original and its extended form) limited the right of an injured party under the general law to recover damages. The section did not create a right subject to a qualification; it limited an existing right. Under the general law the injured party was entitled to obtain full restitution for his loss. By the section, the right given by the general law was cut down. There is nothing to suggest that it was intended that the section was intended to derogate from the rights of the Crown. The apparent purpose of the section, to protect an innocent owner from the disastrous consequences of the negligent navigation of his servants, will not be wholly frustrated if one claimant, the Crown, is entitled to claim damages without limitation. The innocent owner will still receive some protection. Section 504 is ancillary to s. 503, providing the procedure necessary to enable the latter section to operate. If s. 503 does not apply to the Crown, the procedure created by s. 504 will operate without impairment in relation to all claimants other than the Crown. The Crown will then be able to claim compensation for its damage without limitation whereas other claimants will be compelled to take their rateable shares of the amount at which damages, other than those payable to the Crown, are limited. I can see nothing in the terms of the sections, or in their subject matter, that leads to the conclusion that it was the intention of the Parliament that the rights of the Crown should be affected. (at p201)

22. There is no authority in England or in Australia which governs this question. In England the Crown, whilst asserting that liability could not be limited against it, has usually accepted, as a matter of grace, the amount which the owners of the defaulting ship would have had to pay if they had been able to limit their liability under the Merchant Shipping Acts: The "Zoe" (1886) 11 PD 72, at pp 73-74 ; The "Myrtlegrove" (1919) 1 Lloyd's Rep 289, at p 290 . In Australia, the question whether s. 503 derogates from the rights of the Crown does not appear to have fallen for consideration in any reported case. However, that question has arisen elsewhere. In South Africa, in South African Railways and Harbours v. Smith's Coasters (Prop.) Ltd. (1931) AD 113 it was held that the Crown was not bound by s. 503 of the Act of 1894 as it extended to South Africa. In Canada, a similar conclusion was reached in Canada Steamship Lines Ltd. v. Emile Charland Ltd. (1933) Ex CR 147 , but that case has not been followed. In Gartland Steamship Co. v. The Queen (1960) SCR 315; (1960) Lloyd's Rep 388 it was held by the Supreme Court that the provisions of the Canada Shipping Act, 1934 (Can.) (which corresponded to those of the Merchant Shipping Acts) entitled the owner of a ship which had collided with a bridge to limit its liability in an action brought by the Crown. That decision has naturally been followed in later cases in Canada: Reg. v. Levis Ferry Ltd. (1960) Ex CR 243, at pp 258-260 ; Marpole Towing Ltd. v. British Columbia Telephone Co. (1969) 2 Lloyd's Rep 526, at p 532; (1969) 2 Ex CR 429, at p 439 . The reasons of the Supreme Court of Canada in Gartland Steamship Co. v. The Queen were shortly expressed. Locke J., with whom the other members of the Court agreed, said (1960) SCR, at p 345; (1960) 1 Lloyd's Rep, at pp 398-399 :

"It cannot be said, in my opinion, that the Royal prerogative ever extended to imposing liability upon a subject to a greater extent than that declared by law by legislation lawfully enacted. The fact that liability may not be imposed upon the Crown, except by legislation in which the Sovereign is named, or that any of the other prerogative rights are not to be taken as extinguished unless the intention to do so is made manifest by naming the Crown, does not mean that the extent of the liability of a subject may be extended in a case of a claim by the Crown beyond the limit of the liability effectively declared by law."

With all respect, the question for decision was not whether the royal prerogative was affected, or whether the Crown could extend the liability of the subject beyond the limit declared by the law. The subject was attempting to limit his liability under the general law in reliance upon a statute which did not expressly refer to the Crown. In those circumstances the question was whether it appeared by necessary implication that the rights of the Crown were intended to be affected by the statute. It seems to me that Locke J. rather assumed the answer to that question. The judgment in Gartland Steamship Co. v. The Queen (1960) SCR 315; (1960) 1 Lloyd's Rep 388 does not persuade me to take a view different from that which I have already expressed. For these reasons I would hold that the provisions of ss. 503 and 504 of the Act of 1894, as extended by s. 1 of the 1900 Act, and as in force in South Australia, do not limit the right of the Crown to claim damages from the owner of a ship when damage is caused to the property of the Crown by reason of the improper navigation of the ship. (at p202)

7. I turn now to the question of the nature of the jurisdiction which the Supreme Court of South Australia would be exercising in the hearing of these limitation proceedings, as a preliminary to considering s. 64 of the Judiciary Act. (at p241)

8. In McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. (1945) 70 CLR 175, at p 210 Dixon J. said:

"When s. 39 was passed, the Statute of Westminster 1931 (Imp.) had not been enacted, and, having regard not only to the many inconveniences that would result, but also to the conflicts with the provisions of the Colonial Courts of Admiralty Act which would ensue from an attempt to make the jurisdiction thereunder of this Court exclusive of that of the Supreme Courts and then to invest them with Federal jurisdiction of the same character as would otherwise belong to them as Colonial Courts of Admiralty, I do not think that the general words of s. 39 should be interpreted as applying to the special case of the jurisdiction of Colonial Courts of Admiralty."

He did not however specify "the conflicts with the provisions of the Colonial Courts of Admiralty Act" to which he referred. I do not doubt that one of these conflicts arose out of the curious nature of the jurisdiction of the colonial courts of Admiralty. I say "curious" because it possessed two features which, whether by design or not, were incorporated in the nature of federal jurisdiction. Section 2 (4) of the Colonial Courts of Admiralty Act, 1890 is as follows: "Where a Court in a British possession exercises in respect of matters arising outside the body of a county or other like part of a British possession any jurisdiction exerciseable under this Act, that jurisdiction shall be deemed to be exercised under this Act and not otherwise." (at p242)

9. That provision involves the notion of jurisdiction defined not merely be reference to the nature of the matters to be decided but also by reference to the legislative source of the power to decide and the words "and not otherwise" should make the jurisdiction "exclusive" of jurisdiction derived from any other source. (at p242)

10. A situation in which each of two competing legislatures provide that jurisdiction conferred by it shall be "exclusive" in the same area would provide an unusually acute conflict. When s. 39 (2) of the Judiciary Act was introduced in 1903 it would have been natural and reasonable to treat its general words as not intended to displace, or duplicate so specialised and "exclusive" a jurisdiction as that conferred by the Colonial Courts of Admiralty Act. (at p242)

11. In the Union Steamship Co. of New Zealand v. The Commonwealth (1925) 36 CLR 130 the Court held that the provisions of the Navigation Act 1912-1920 (Cth) with respect to engagement and discharge of seamen in relation to British shipping were inconsistent with the 1894 Act and therefore void to the extent of such "repugnancy" pursuant to s. 2 of the Colonial Laws Validity Act, 1865. That view was regarded as consistent with the decisions in The Commonwealth v. Limerick Steamship Co. Ltd. and The Commonwealth v. Kidman (1924) 35 CLR 69 and The Commonwealth v. Kreglinger &Fernau Ltd. and The Commonwealth v. Bardsley (1926) 37 CLR 393 because they were based upon the provisions of s. 74 of the Constitution and its pre-eminent place in the judiciary chapter of the Constitution. In the Union Steamship Co. Case (1925) 36 CLR 130 however the 1894 Act was regarded as establishing a system for the regulation of British shipping so as to operate in a uniform manner throughout what was then the Empire - see in particular the judgment of Isaacs J. (1925) 36 CLR, at pp 147-152 . (at p243)

12. Dixon J. did not so express his decision but he had already said in Ffrost v. Stevenson (1937) 58 CLR 528, at p 573 :

"It has always appeared to me that, once the conclusion was reached that Federal jurisdiction was validly conferred, then under s. 109 it was impossible to hold valid a State law conferring jurisdiction to do the same thing, whether subject to no appeal or subject to appeal in a different manner or to a different tribunal or tribunals, or otherwise producing different consequences."

The other members of the Court in that case did not deal with that aspect of the matter. However the view then expressed by Dixon J. was approved by the majority of the Court in Felton v. Mulligan (1971) 124 CLR 367 as being the only acceptable manner for the determination of which jurisdiction a State court is exercising or has exercised in any particular case. (at p243)

13. By treating the federal law as paramount and thus in effect conferring exclusive federal jurisdiction the problem raised but not satisfactorily solved in Lorenzo v. Carey (1921) 29 CLR 243 is avoided. On this view concurrent Imperial jurisdiction under the Colonial Courts of Admiralty Act and federal jurisdiction conferred by s. 39 would produce a situation of two purported exclusive jurisdictions having some different incidents conferred by the respective Acts. At the date of the observations of Dixon J. quoted above (1945) the Commonwealth Act would have been regarded as invalid under the Colonial Laws Validity Act the Judiciary Act having been enacted prior to the adoption of the Statute of Westminster in 1942. The course prescribed by s. 15A of the Acts Interpretation Act 1903, as amended, would have been to read the Judiciary Act as not extending into that invalid area, but remaining otherwise valid and in force. (at p243)

14. The observations of Dixon J. are expressed in a cryptic manner but what I have just said seems to me to underlie the proposition which he enunciates and to demonstrate the constitutional foundation which he must have had in mind. (at p243)

15. As appears from the reasons of my brother Stephen we are not here dealing with jurisdiction conferred by the Colonial Courts of Admiralty Act, but with jurisdiction conferred by the 1894 Act on "competent courts" of British possessions, not expressed to be "exclusive". There are however features of the 1894 and 1900 Acts which have themselves a "special character". They have the character which enabled Isaacs J. to resolve the apparent inconsistency between the decisions in the Limerick Steamship Co. Case (1924) 35 CLR 69 on the one hand and the Union Steamship Co. Case (1925) 36 CLR 130 on the other hand as I have indicated above. (at p244)

16. The jurisdiction conferred by ss. 503 and 504 of the 1894 Act, as amended by the 1900 Act, is not expressed to be exclusive so that the acute form of repugnancy arising under the Colonial Courts of Admiralty Act does not arise. However that jurisdiction is conferred by an Act which was held in the Union Steamship Co. Case (1925) 36 CLR 130 to prevail over the provisions of the Navigation Act. I am unable to see any satisfactory basis for distinguishing the present provisions of the Merchant Shipping Act from those in question in that case. It is true that a different system of appeal would be available under the Merchant Shipping Act from that which would be available in the case of jurisdiction conferred upon the State courts by s. 39 (2) of the Judiciary Act. That factor has been regarded as one of great importance but it did not operate to lead Dixon J. to a different conclusion from that which is expressed in the passage which I have quoted above. The distinctions which have been drawn in these cases are fine and are a continuing, but not frequent, cause of difficulty. Since the passing of the Statute of Westminster Adoption Act 1942 (Cth) they are of course readily solved by legislation. On the whole I have arrived at the conclusion that the view expressed by Dixon J. is equally applicable to the provisions of ss. 503 and 504 of the 1894 Act and that s. 39 (2) should not be construed as conferring federal jurisdiction on the State courts which extends to proceedings which depend upon those sections. (at p244)

17. On that view no question arises as to the operation of s. 64 of the Judiciary Act. (at p244)

18. For those reasons I would answer the questions in the same manner as that proposed by my brother Stephen. (at p244)

Orders

Order that the questions removed by the case stated be answered as follows:
1. Does s. 504 of the Merchant Shipping Act 1894-1900 entitle the plaintiffs or any of them in any circumstances to make an application under that section relating to liability alleged to have been incurred by them or any of them in respect of the property referred to in par. 3 of the statement of claim (having in mind the nature and description of that property and disregarding for the purpose of this question its ownership)?
A. As to the owner, yes.
As to the agent, not answered.
As to the master, no.

2. Does s. 503 of the Merchant Shipping Act 1894-1900 apply of its own force to the Crown in right of the State of South Australia so as to entitle the plaintiffs or any of them in any circumstances to limit their liability to the defendant for damages?
A. No.

3. If s. 503 does not so apply of its own force, does it apply by virtue of s. 64 of the Judiciary Act 1903-1976?
A. No.

Order that the plaintiffs in action No. 452 of 1978 in the Supreme Court of South Australia pay the defendant's costs in this action.