Liosatos v Australian National Line

[1964] HCA 43

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto Taylor and Menzies JJ.

LIOSATOS v. AUSTRALIAN NATIONAL LINE

(1964) 111 CLR 282

30 July 1964

Shipping and Navigation

Shipping and Navigation—Seaman incapacitated by illness—Employed by same owner for successive voyages—Separate articles signed for each voyage—Illness contracted during currency of articles for previous voyage—Whether contracted "in the service of the ship or her owner"—Navigation Act 1912-1958 (Cth), s. 132 (2), (6) (d).

Decisions

July 30.
The following written judgments were delivered:-
BARWICK C.J. The plaintiff, a seaman, sued the defendant in the Local Court of Adelaide for wages and maintenance totalling 455 pounds 10s. 0d. He claimed the wages to be due to him by the combined effect of s. 132 of the Navigation Act 1912-1958 (Cth) and the clause of his articles fixing his rate of remuneration as a seaman on the s.s. Lake Torrens, and the maintenance by reason of the terms of s. 127 of the Navigation Act. (at p284)

2. The plaintiff, whose home port was Adelaide, was left on shore at Port Melbourne because of an illness which incapacitated him from following his duty on the ship. It was this circumstance which he claimed entitled him to the wages and the maintenance for which he sued. The illness, however, was not contracted by him during the currency of the articles under which he was serving when left on shore. For this reason the Local Court judge dismissed his claim for wages, giving him judgment only for the amount found to be due to him for maintenance under s. 127 of the Navigation Act, as to which no question arises in this appeal. (at p284)

3. The judge was of the opinion that s. 132 of the Navigation Act should be given the same meaning as this Court in the case of Burns Philp and Co. Ltd. v. Myrhe (1934) 51 CLR 463 gave articles in substantially the same terms as the statute, and that no variation in the terms of the statute subsequent to that decision required any different construction. (at p284)

4. The plaintiff carried the matter to the Supreme Court of South Australia by means of an order to review. For the purposes of that review facts were agreed, the material parts of which were as follows:
1. From 25th September 1957 until 17th June 1960 the plaintiff, as a seaman, served the s.s. Lake Torrens and her owner, the defendant, under successive articles and had not been absent from the ship except for periods of annual leave on full pay, and of weekend leave on full pay. The said ship was registered in Australia.
2. On 16th March 1960 the articles under which the plaintiff had been engaged expired, and on 17th March 1960 the plaintiff was engaged under new articles which were in operation on 17th June 1960.
3. The plaintiff's proper return port was Port Adelaide.
4. On 17th June 1960 the plaintiff was left on shore at Melbourne by reason of illness or disease; and was returned to Port Adelaide on 21st June 1960. (at p284)

5. The illness or disease was not due to the plaintiff's act, default or misbehaviour, and was not a venereal disease. 6. So far as can be ascertained the illness or disease was contracted early in 1960, and before the commencement of the articles by which the plaintiff was engaged on the ship on 17th March 1960. (at p285)

5. The Supreme Court concluded, and before this Court it was conceded on behalf of the defendant for the purposes of the action, that the illness which thus incapacitated the plaintiff was contracted by him in the service of the ship though during the currency of earlier articles. (at p285)

6. The Supreme Court affirmed the view that a different interpretation should not be placed on the words of the statute from that which had been given to the words of the articles the subject of decision in Myrhe's Case (1934) 51 CLR 463 . The Supreme Court therefore held that a seaman left on shore at other than his home port incapacitated by illness, hurt or injury, could only recover wages as provided by s. 132 if that illness, hurt or injury was contracted or sustained, as the case may be, during the currency of the articles under which he was serving when left on shore. Accordingly the Court discharged the order to review. This appeal is brought, by leave, against that decision. (at p285)

7. This Court in deciding Myrhe's Case (1934) 51 CLR 463 confined itself to the construction of the articles under which wages were claimed as an instrument inter partes unaffected in relevant respects by s. 132 of the Navigation Act. The construction of the statute was not brought before this Court (indeed it does not seem to have been referred to in argument) nor was any submission made that the articles could not validly diverge from the requirements of the statute so as to lessen the statutory obligation of the person liable for the seaman's wages. Accordingly, the decision of this Court in that case, at best, is a decision on the construction of a contract inter partes and is plainly in its terms founded upon purely contractual considerations. The Court found in those considerations sufficient warrant for introducing an implication limiting the operation of the express terms of the contract to illness, hurt or injury contracted or sustained during the currency of the contract between the parties. (at p285)

8. The Supreme Court of Queensland, whose decision this Court reversed, had also expressly dealt with the case as one involving the construction of a contract and not the construction of a statute (Myrhe v. Burns Philp and Co. Ltd. (1934) 28 QJP 49, at p 60 ). But that Court thought the contractual language wide enough to embrace illness contracted on the ship under earlier articles, or in the service of the ship or the owner previously to the signature of the current articles. It found nothing in the nature of the service of a seaman as such to show that the parties must necessarily have been contracting with reference only to the illnesses thereafter to be contracted. (at p286)

9. But in the case now before us the plaintiff bases his claim on the statute: we have therefore to construe s. 132 of the Navigation Act and to determine the extent of the obligation it imposes upon the responsible party irrespective of, and indeed, despite those considerations which might have prevented him assuming such an obligation contractually, or which might be ground for an implication restricting the express terms of a bargain which had been voluntarily made. (at p286)

10. It appears from Myrhe's Case (1934) 51 CLR 463 that the clause in the articles - and presumably the original section of the Act - had its counterpart in an industrial agreement between industrial unions of seamen and of shipowners respectively: but in the construction of the section I obtain no assistance from that circumstance, nor do I gain any assistance from the fact that since the decision in Myrhe's Case (1) the section has been amended without any significant divergence from the contractual language which the Court had construed in that case. It is said that legislative amendment in such circumstances must indicate the adoption by the Parliament of the Court's construction of that language as the meaning of the section: but the Parliament and its draftsman must be expected to have observed that this Court in Myrhe's Case (1934) 51 CLR 463 was not construing the statute and was confining itself to mere contractual considerations. (at p286)

11. On the other hand, it was pressed on us that the opening words of sub-s. (6) (d) of s. 132, inserted as they were by amendment subsequent to the decision in Myrhe's Case (1934) 51 CLR 463 , point in the direction of the construction for which the appellant contended, namely, that the incapacitating illness need not be contracted during the term of the current articles. But I cannot draw any significant inference from these words or from the occasion of their insertion. The Parliament, in the exception with which par. (d) begins, was concerned to liberalize the statute so far as venereal disease was involved and apparently desired to limit the extent of that liberality to venereal disease contracted after the seaman had engaged to serve on the ship. I cannot take from this amendment that the Parliament, having taken the view that this Court had placed a limited construction on the section, intended to remove such a construction by no clearer words than those of the excepting expressions of par. (d). The purpose of this addition to the language of s. 132, it seems to me, was no more than to remove the necessity for a connexion between the ship or the service of the ship or of the owner and incapacity caused by venereal disease, in the case of that disease when contracted after the seaman had engaged to serve upon the ship, whatever point of time that expression denotes. (at p287)

12. The section of the statute we have to construe is clearly remedial in its purpose but there is authority for the view that this is not a reason for construing it liberally in favour of the seaman (Anderson v. Rayner (1903) 1 KB 589, at p 591 ). It is part of the protection of the seaman who without his default is left incapacitated for duty by reason of illness, hurt or injury at a port other than his home port. It is for this circumstance that the statute provides in s. 127 for his medical and surgical attention, his sustenance and his repatriation and in s. 132 for his wages during his incapacity up to certain specified time limits. (at p287)

13. The obligation imposed by s. 132 is imposed in favour of a seaman "belonging to a ship". The same expression is found in s. 127. It is wide enough and, in my opinion, it is designed to cover all seamen who in fact serve the ship though no express agreement may exist between the seaman and the master or between the seaman and the owner. Indeed, the seaman may serve the ship though not the owner. (at p287)

14. The mate of the Michigan, the subject of the proceedings reported in Reg. v. Judge of the City of London Court (1890) 25 QBD 339 no doubt "belonged to the ship" though he had been discharged from his articles which had expired and had made no new agreement with the owner. So also would a seaman who has continued to serve the ship after a change of ownership, with notice of it, but without having made any agreement with the new owner. The master of the Edwin ((1864) Br &L 281 (167 ER 365) who had served the ship but without any authority from the owner, nonetheless "belonged to the ship". Again, a seaman who had been taken aboard, in breach of the statute (see s. 46 Navigation Act 1912-1958), without signing the articles, and had served her, would likewise "belong" to the ship. (at p287)

15. In these cases implications would be made to support a claim and a lien for wages for service in fact performed to the ship, in the first two instances at the rate payable under the earlier expired agreements and in the others at a reasonable or conventional rate, according to whether or not such a rate was established. Lord Stowell in The Jane and Matilda (1823) 1 Hagg Adm 187 (166 ER 67) said: "Supposing informality in the mode of hiring, still if the work has been done, and properly done, it entitles the performer to the common remuneration (1823) 1 Hagg Adm, at pp 192, 193 (166 ER, at p 69) ." (at p288)

16. But apart from such an implication, necessary to support an action, it would be the service of the ship itself which created the relationship which is expressed as "belonging to the ship". The performer "belongs" to the ship, if the services which are performed are "connected with the ship as a sea going instrument of navigation or of transport of cargo from one place to another", an expression I take from the judgment of Wills J. in the case of the Michigan (1890) 25 QBD 339 . See also the definition of "seaman", Navigation Act 1912-1958, s. 6. (at p288)

17. In Secretary of the Board of Trade v. Sundholm (1879) 41 LT 469; 4 Asp MLC 196 it was decided that eating the provisions provided by the owner of the ship was doing something in the service of the ship, so that illness caused by bad food fell within the then controlling section, s. 228 of the Merchant Shipping Act 1854 (Imp.). It was also decided that work done on shore in supervising repairs to the ship (see Reg. v. Judge of the City of London Court (1890) 25 QBD 339 ) and in rigging the ship in preparation for a voyage could be in the service of the ship (see Great Eastern Steamship Case (1885) 5 Asp MLC 511 ). Indeed, the doing of the work might well at the same time establish that the person who did it was a seaman and that he "belonged" to the ship. (at p288)

18. The underlying concept of the expression "belonging to the ship" is of identification with the ship as a ship, an identification which does not necessarily depend upon an express agreement or, in particular, one to which a stipulated currency is expressly assigned: but an identification which, of course, may be and usually is so established. (at p288)

19. In defining the incapacitating illness, hurt or injury which will bring the seaman's case within the operation of the section, sub-s. (5) of s. 132 (putting aside for the moment the case of incapacity due to venereal disease) speaks of an illness "contracted" and a hurt or injury "sustained". It is the refinement of language at this point which, to my mind, is the source of the present difficulty or apparent difficulty. For it has been decided that in the expression "an illness contracted" the word "contracted" points not to the time of the manifestation of the illness, nor to the point of time at which it brings on incapacity, but to the initial onset of the disease or malady which is included in the broad word "illness". See Herbert v. Interstate Steamships Pty. Ltd. (1931) SASR 393 , approved in Burns Philp &Co. Ltd. v. Myrhe (1934) 51 CLR, at p 469 . Thus the section appears to contemplate that in the case of illness a period of time may separate the contracting of it and the resulting incapacity. The same is true of the case of hurt or injury "sustained" though the likelihood of a significant lapse of time between the sustaining of the hurt or injury and the incapacity which results may be less than in the case of an illness. (at p289)

20. The same sophistication of language is found in s. 127 which speaks of "receiving" a hurt or injury, "contracting" a disease, or "suffering" from an illness. (at p289)

21. Section 228 of the Merchant Shipping Act, 1854 (Imp.), from which s. 127 derives, and which furnishes some part of the language of s. 132, provided that if any seaman "receives any hurt or injury in the service of the ship to which he belongs" the necessary surgical and medical expenses and medical advice, with attendance and medicine, and the seaman's subsistence until he is cured or is brought back to some port in the United Kingdom, if shipped in the United Kingdom, and of his conveyance to such port, should be defrayed by the owner. In Secretary of the Board of Trade v. Sundholm (1879) 41 LT 469; 4 Asp MLC 196 it was held in the Queen's Bench Division (Cockburn C.J. and Lush J.) that the word "injury" in this section included an illness. (at p289)

22. The same phraseology was retained in the replacing section (s. 207) of the Merchant Shipping Act, 1894 (Imp.). However, in the Merchant Shipping Act, 1906 (Imp.) a differentiation in expression was made and express provision made for the case of illness. Section 34 of the Act of 1906 says that if a seaman "belonging to a ship receives any hurt or injury in the service of the ship or suffers any illness . . ." the expenses as in the earlier section should be met by the owner. (at p289)

23. The expression "receives any injury" (in which illness is included) as in the Acts of 1854 and 1894, and the expression "suffers any illness" as in the Act of 1906, would more readily yield to the construction which the unsuccessful party in Herbert's Case (1931) SASR 393 contended should be placed upon s. 132 of the Navigation Act in its then form, in which event the present problem would not arise. It is observable that in Herbert's Case (1931) SASR 393 assistance in construction was sought in the language of the workers' compensation legislation rather than in the language of the British statutes. The group of sections was regarded as a scheme of compensation to seamen, though not intended to be exhaustive: see Reg. v. Hamilton Knight; Ex parte Commonwealth Steamship Owners Association (1952) 86 CLR 283 . (at p290)

24. But in form of expression the Australian Act has become more specialized with the result according to the decided cases, that there is now undoubtedly the possibility that an illness may be contracted during the currency of one agreement for employment and manifest its incapacitating power in another, although in truth the service of the ship by the employee may have been continuous. It seems to me that it is because of the draftsman's refinement of language in the Australian development of the British sections that the present problem has emerged. Two quite different streams of Parliamentary thought, each intentioned for the benefit of the seaman, have accidentally appeared to come into conflict through the differentiation in expression which I have but briefly traced. There is the desire to safeguard the seaman who is left on shore away from his home port incapacitated by his service to the ship to which he belongs. This is done by providing for his medical and surgical attention, sustenance and repatriation, and the payment of his wages up to a certain maximum: ss. 127 and 132 of Navigation Act 1912-1958. And there is also the desire to protect the seaman from engagements of indefinite duration and obligation. For this purpose a written agreement is required to be entered into with a limit on its term and the intended voyage of the ship specified: see Div. 8 of Navigation Act 1912-1958. Although seamen no doubt frequently serve on the same ship or in ships of the same line for many years, particularly in the coastal trade of Australia where the number of ships is not great, successive periods of employment are entered into because of the restriction on the length of time of any one engagement. Thus what is in reality a continuous service of the ship or of its owner is segmented into a succession of limited engagements. The Australian Parliament expanded the words "hurt" and "injury" as found in the earlier English legislation and used more appropriate verbs to relate to the expanded expressions. It thus at least exposed, if it did not create, the possibility of a gap in time between the contracting of an illness or the sustaining of a hurt or injury and the resulting incapacity. But it seems to me that in so doing there can have been no intention on the part of the Parliament to modify the basic concept in the notion of a seaman "belonging" to a ship which runs through ss. 127 and 132 and to make the relationship of the initial reception of the incapacitating hurt, injury or illness to the currency of a period of employment, rather than its mere relationship to the service of the ship as a ship or to the service of the owner as the owner of a ship, critical to the operation of those sections. (at p291)

25. No doubt in making the basic criterion of liability the connexion of the incapacitating illness, hurt or injury with the ship or with the service of the ship or of the owner, without any express temporal qualifications, the Parliament has left unsolved many possible situations. Some of them may produce what might be thought to be unusual consequences if the language of the section is applied literally but that, in my opinion, is no reason for the court to import limiting terms into the statute in order to minimize what the court might think were undesirable consequences. Even if I had some doubt as to the intention of the provisions of s. 132, I would not in this case be prepared to introduce any implication to limit the express words of the statute. See Cox v. Hakes (1890) 15 AC 506, at p 528 ; Wilkes v. Goodwin (1923) 2 KB 86 ; Inland Revenue Commissioners v. Hinchy (1960) AC 748, at p 767 . See also Vacher v. London Society of Compositors (1912) 3 KB 547 . (at p291)

26. In my opinion the section should be applied according to its terms. It is not in terms limited in its operation to incapacity resulting from illness, hurt or injury contracted or sustained during the currency of the articles under which the seaman was serving when left on shore at other than his home port. It is enough that a seaman belonging to the ship should be left on shore incapacitated from an illness, hurt or injury contracted or sustained on board the ship or in the service of the ship or of the owner. (at p291)

27. Whatever might be the situation if one were endeavouring to ascertain what contracting parties were initially conceding to each other in making a contract of employment, I can find no reason why an implication should be introduced into the statute limiting the operation of its express terms in the manner proposed. (at p291)

28. In my opinion, therefore, the plaintiff by the agreed facts and the admission made established all that was necessary for his success in this action in respect of his wages. Accordingly, the appeal should be allowed. (at p292)

McTIERNAN J. This appeal raises a question as to the proper construction of par. (d) of sub-s. (6) of s. 132 of the Navigation Act 1912-1958. (at p292)

2. The provisions of s. 132 are enacted for the benefit of a seaman "belonging to a ship" from which by reason of an illness, hurt or injury he goes or is sent on shore. Subject to the conditions enacted by s. 132, if such an event occurs, the seaman is entitled to receive for one or other of the periods specified by the section wages at the rate fixed by "his agreement". This is the agreement then current into which the seaman entered to serve on board the ship from which he goes or is taken on shore. The conditions precedent to this right are enacted in pars. (a) to (d) of sub-s. (6). A question arises only under par. (d). The provisions of this paragraph deal with both illness and hurt and injury. If par. (d) ought to receive a strictly literal construction it is sufficient merely that the illness or hurt or injury as the case may be was so far as can be ascertained contracted or sustained on the ship or in the service of the ship or its owner. The question is whether these conditions ought to be construed literally. Upon a literal construction it would be enough if the illness or hurt or injury were "contracted" or "sustained" before the seaman entered into the agreement which is current when he is left on shore and which fixes the rate of wages he is entitled to receive after being left on shore. Is it enough to entitle the seaman so far as par. (d) is concerned that the illness was contracted or the injury sustained on the ship or in its service irrespective of when either of these events happened? If the words of description used in par. (d) in reference to illness, injury or hurt respectively be read literally they would not have any limit in respect of time or circumstances except that inherent by the words themselves. But, of course, the words do not stand alone: they condition the right of the seaman to receive wages ultra the agreement created by the section. I think that the words have to be applied subject to any necessary implication supplied by the section read as a whole. The section is enacted for the individual benefit of a seaman who has entered into an agreement to serve on board a ship - upon entering into the agreement he is a seaman "belonging" to the ship (Navigation Act 1912-1958, Div. 8): his agreement entitles him to wages for work done on board the ship or time spent in the service of the owner for the duration of the agreement. Section 132 makes a statutory addition to the terms of the agreement, namely a right, stated broadly, to receive wages while on shore and out of the service of the ship, if that is due to illness or hurt or injury as described in par. (d). The section does not relate back beyond the time the agreement was entered into, just as the agreement itself does not. It follows in my opinion that the words of par. (d) descriptive of illness and hurt or injury respectively are necessarily limited in their application by the implication that the seaman's right to the benefit of the section arises from his having entered into an agreement to serve on board the ship. The result is that an illness or hurt or injury within the meaning of par. (d) is an illness or hurt or injury contracted or sustained during the currency of the agreement. (at p293)

3. It was argued from the words with which par. (d) begins, "except in the case of a venereal disease contracted after the seaman engaged to serve on the ship" that the implication arises that an illness is sufficient if it is contracted or sustained before the seaman engaged himself by the current agreement to serve on the ship. That opinion mistakes the reason for the exception of the words quoted: they are plainly inappropriate to the rest of par. (d). A venereal disease is not excluded from the scope of s. 132 but it is in the same position as any other illness because it is not included unless it is contracted after the current engagement of the seaman to serve on the ship: sub-s (7) enacts that for the purposes of par. (a) of sub-s. (6) where a seaman suffers from a venereal disease that disease shall not be deemed to be due to his wilful act or default or misbehaviour. (at p293)

4. The agreement which was the subject of the decision in Burns Philp and Co. Ltd. v. Myrhe (1934) 51 CLR 463 , had a statutory source substantially identical with s. 132 of the present Act. The provisions of that agreement and of s. 132 are directed towards giving the same kind of benefit to a seaman. I think that the ratio decidendi of the abovementioned case governs the determination of the question of construction that arises in the present appeal. (at p293)

5. In my opinion the appeal should be dismissed. (at p293)

KITTO J. The question for decision in this appeal depends upon the true construction of sub-s. (6) (d) of s. 132 of the Navigation Act 1912-1958 (Cth). (at p293)

2. The appellant, being a seaman belonging to a ship registered in Australia, was left on shore at a port other than his proper return port (see the definition in s. 6E) by reason of an illness not due to his own wilful act or default or to his misbehaviour, which incapacitated him wholly from the performance of his duty and was or appeared to be of such a nature as to require or to be likely to require medical treatment for a period exceeding seven days. In these circumstances he was entitled under sub-s. (2) of s. 132 to receive wages for a certain period at the rate fixed by his agreement, provided that the condition was fulfilled which is stated in sub-s. (6) (d) of that section. The provision there made, so far as material, is in these terms: "A seaman is entitled to wages under this section by reason of an illness, hurt or injury only if the illness, hurt or injury . . . (d) . . . is, so far as can be ascertained, an illness contracted on board the ship, or in the service of the ship or her owner, or a hurt or injury sustained in the service of the ship or her owner". (at p294)

3. The respondent impliedly admitted below and expressly admitted in this Court that the appellant's illness was, so far as could be ascertained, contracted on board the ship or in the service of the ship or her owner, but not during the period of the appellant's service under the particular agreement which was in force at the time he was left on shore. The appellant, for his part, conceded that the illness was contracted during the currency of a previous agreement under which he served in the same ship. He contends, however, that that circumstance is irrelevant: the fact remains, he says, that he contracted the illness on board that ship or in her service or the service of her owner. (at p294)

4. The Supreme Court, upholding the judgment of a magistrate, has decided the question in favour of the respondent, regarding itself as obliged to hold, in view of the decision of this Court in Burns Philp &Co. Ltd. v. Myrhe (1934) 51 CLR 463 , that as the appellant contracted his illness before entering into the agreement which was in force when he was left on shore he has no rights under the section. In the case cited the provision upon which the decision depended was a provision in a seaman's articles of agreement. Its terms resembled those of s. 132, and the Court held that wages were not recoverable under it in respect of an illness which, though its incapacitating results led to the seaman being left on shore during the period of the agreement, had been contracted on board the ship or in the service of the ship or her owner during the currency of an earlier agreement. The reasoning of the judgment, however, is inapplicable to a general statutory provision such as s. 132. Put shortly, it was that the agreement provided prospectively for rights and obligations to arise during its term; that it assumed that the seaman was free from illness at the time of his engagement; that the intention in requiring that the illness should be contracted on board the ship, etc., was that the seaman was to be entitled to the benefits of the section "should he contract an illness on board the ship", etc.; and that accordingly the right to wages under the provision arose only in case the seaman should contract an illness during the currency of the agreement. (at p295)

5. It is necessary to approach s. 132 somewhat differently, for the section speaks as from the commencement of the Act and not as from the date of any particular agreement. The first point to notice is that sub-s. (6) (d) must as a matter of commonsense be read as subject to some unexpressed qualification, for there would be no little absurdity in holding that the condition might be satisfied in the case of an illness which a seaman contracted on board the ship or in the service of the ship or her owner but at a time when he was not a seaman belonging to the ship, e.g. when he was travelling in the ship as a passenger, or when he was in the service of the owner as a gardener at his home. The problem is therefore not to choose between a literal and a non-literal construction of sub-s. (6) (d), but to identify, upon consideration of the section as a whole, the qualification to which the expression "on board the ship, or in the service of the ship or her owner" is impliedly subject. The choice to be made is between reading the expression as if there were added to it the words "under the agreement in force at the time he is left on shore", and reading it as if there were added the words "under any agreement, even though not in force when he was left on shore, under which he was a seaman belonging to the ship at the time he contracted the illness". (at p295)

6. It seems to me essential to keep prominently in mind that the topic to which s. 132 is addressed is the seaman's right to the wages fixed by his current agreement after he has been left on shore by reason of illness, hurt or injury. It is an age-old topic, and always, as far as I have been able to discover, a continuing right to wages has been made to depend upon a connexion of some sort between the disabling illness, hurt or injury and the employment during which the disablement has caused the seaman to be left on shore, but not any other employment. Even in the mediaeval law of Oleron there was a provision in which may be seen reflected the basic ideas behind s. 132. I quote from the translation in McFee's Law of the Sea (1951) pp. 286, 287 : "(6) Mariners hire themselves out to their master, and some of them go ashore without leave, and get drunk and make a row . . . , and there are some of them who are hurt ; the master is not bound to have them healed, nor to provide them with anything ; on the contrary he may properly put them ashore, and hire others in their place ; . . . But if the master sends a mariner on any service of the ship, and the mariner wounds himself or is hurt, he is to be healed and maintained at the cost of the ship. (7) It happens that sickness attacks one of the ship's company, or two or three, and the sick man can do nothing in the ship, as he is so ill ; the master ought to put him ashore, and seek a lodging for him, and furnish him with tallow or a candle, and supply himn with one of the ship's boys to tend him, or hire a woman to nurse him ; . . . and the ship ought not to delay her voyage for him; on the contrary she should proceed on it ; and if he should recover he ought to have his wages for the whole voyage ; and if he should die, his wife or his near relatives ought to have them (wages) for him". It seems to have remained a matter of doubt whether and in what circumstances a seaman's agreement was terminated or terminable upon his becoming incapacitated for service. One aspect of the question arose for consideration in Chandler v. Grieves (1792) 2 H B1 606 (n) (126 ER 730) , where the rule was taken over from Admiralty that a seaman disabled by injury was entitled to wages for the whole voyage, provided that he sustained the injury in the course of his duty. The principle as generally accepted is stated in Abbott's Law of Merchant Ships and Seamen, 14th ed. (1901) p. 250, where it is said that the seaman is entitled to his whole wages even where he has been unable to render his service, if his inability has proceeded from any hurt received in the performance of his duty or from natural sickness happening to him in the course of the voyage. But areas of doubt apparently remained, particularly as to when a seaman could lawfully be left on shore. In the circumstances of Chandler v. Grieves (1792) 2 H B1 606 (n) (126 ER 730) for example, it was said by Chambre J. in Beale v. Thompson (1803) 3 B &P 405, at p 419 (127 ER 221, at p 228) that the master was totally unjustified in leaving the seaman on shore : "he ought to have kept the seaman and brought him back to the place where he first took him on board". When the Australian Act was passed (in 1912) the Legislature "intended that . . . the rights of the seaman should be reduced to certainty and not left to be determined in a conflict of whether his contractual relations with the ship were severed or not" : per Isaacs J. in Bruhn v. Australian Steamships Pty. Ltd. (1922) 31 CLR 136, at pp 141, 142 . Accordingly s. 132 provided that a seaman left on shore "in any manner authorized by law, by reason of illness or accident in the service of the ship incapacitating him from performing his duties" should be deemed to be discharged from his ship, but that (inter alia) wages according to his agreement should be payable to the end of the engagement, with a maximum of three months. Accident having been thus provided for only if occurring "in the service of the ship", the section went on to make the rights it conferred in case of illness conditional upon the illness having been "contracted on board or in the service of the ship or its owners". Thus, as I see it, the quite logical step was taken of assimilating illness to accident by excluding cases where the cause of the disablement was set in train at a time when the seaman was not in the relevant service. In 1921, s. 132 was recast. It no longe provided that the seaman should be deemed to be discharged from the ship, but it continued to apply only where he should be "left on shore in any manner authorized by law, by reason of illness or accident in the service of the ship". The condition formerly applying to illness was now expressed in relation to illness, hurt or injury, and so far as material it took the form which it still retains. The uncertainties inherent in the expression "in any manner authorized by law", and the lack of correspondence between "illness or accident" and "illness hurt or injury" were removed by an amending Act of 1952. The present s. 132 was substituted by an amending Act of 1958, but without alteration in any respect which need here be noticed. (at p297)

7. If the requirement of sub-s. (6) (d) is to be taken as satisfied by an illness which the seaman contracted on board the ship but before he entered into the articles which were interrupted by his being left on shore, or by an illness which he contracted in some service of the ship or her owner other than his service under those articles, the Act of 1912 (and the New Zealand Act which set the example for it) must be regarded as having, for some reason or another, set up, as a condition of the seaman's continuing right to wages when left on shore as disabled, the existence of a circumstance which has no necessary connexion with the employment. What could be the point of doing so? The section is not providing for the payment of compensation for some fault. It is attaching an incident to an existing relationship. Why should the incident be made conditional upon an event which may have happened before the identical relationship began? The history of the subject does not appear to suggest that anyone ever before saw a reason for doing so. It is easy enough to see the good sense of the condition if it means that the illness or injury must be tied in point of origin to the period of service which is current when the seaman is left on shore, for the effect then is that a seaman cannot entitle himself to wages during a prospective period of incapacity by joining a ship after the cause of the incapacity has occurred. But what good sense is there in it if it means that of two seamen who have contracted an illness before joining a ship and are subsequently left ashore by reason of that illness, one is to be paid wages under the section because he contracted the illness in the same ship (then owned, maybe, by a former owner), while the other is to receive nothing under the section because he contracted the illness in a different ship (though owned, maybe, by the same former owner). (at p298)

8. The truth, I think, is that the expression "contracted on board the ship, or in the service of the ship or her owner" means contracted in the course of the seaman's serving under the agreement by virtue of which he belonged to the ship at the time he was left on shore. I respectfully adopt the words in which Reed J. dealt with the corresponding New Zealand enactment in Williams v. Northern Steamship Co. Ltd. (1927) NZLR 261 : "The wording of s. 6 (7) of the Shipping and Seamen Amendment Act, 1911, may not be perfectly clear, but the general purpose of the provision is clear enough. It seems to me that, for the plaintiff to succeed, the illness in respect of which the claim is made must have been one that was contracted after the commencement of the service from which the seaman was subsequently discharged or in which the break in his employment occurred" (1927) NZLR, at p 262 . (at p298)

9. In my opinion the conclusion reached by the Supreme Court was correct and the appeal should be dismissed. (at p298)

TAYLOR J. I agree with the Chief Justice and Menzies J. that this appeal should be allowed. (at p298)

2. The only ground upon which the appellant's claim under s. 132 of the Navigation Act 1912-1958 is resisted is that the illness "by reason" of which he was left on shore at Melbourne on 17th June 1960 was not, within the meaning of sub-s. (6) (d) of that section, "contracted on board the ship, or in the service of the ship or her owner". (at p298)

3. The agreed facts show that from 25th September 1957 to 17th June 1960 the appellant served as a seaman on the Lake Torrens and that during this period he had not been absent from the ship except when on annual leave or on week-end leave. His service in the ship was, therefore, continuous during this period but he so served under successive agreements entered into at unspecified intervals. However, it appears that the penultimate agreement under which he served expired on 16th June 1960 and that the ultimate agreement was made and came into operation on the following day, 17th June 1960. He had, therefore, commenced to serve under the latter agreement when he was left on shore but since, so far as can be ascertained, the illness "by reason" of which he was left ashore was contracted early in 1960, it was contracted whilst he was serving under the earlier agreement. There is no question that the illness was then contracted on board or in the service of the ship, but this, it is said, is not sufficient to satisfy the condition expressed by sub-s. (6) (d); that condition, it is contended, is satisfied only where the illness has been contracted during the currency of an agreement which is subsisting when the seaman is left ashore. The submission concedes, therefore, that if the appellant had been left ashore on 16th June 1960 he would have been entitled to the benefits provided by the section but it asserts that, as he was not left ashore until the following day, he is not. (at p299)

4. Unassisted by authority I would have been prepared to conclude that this is not the effect of the statutory provision. Fundamentally what the section seeks to do is to provide for the continuance of a seaman's wages for various specified periods where by reason of illness hurt or injury he becomes totally incapacitated from the performance of his duty (sub-s. (6) (b)) and is, therefore, left ashore. Of course, total incapacity may follow immediately upon the contraction of an illness or the occurrence of some hurt or injury or it may develop after some period has elapsed. But primarily the benefits which the section provides are in respect of the resultant incapacity. However, it is not every incapacity resulting from illness hurt or injury that will attract the operation of the section; there must be some connexion between it and the service of the seaman. This is expressed in the language of sub-s. (6) (d): "6. A seaman is entitled to wages under this section by reason of an illness, hurt or injury only if the illness, hurt or injury - (d) . . . is, so far as can be ascertained, an illness contracted on board the ship, or in the service of the ship or her owner . . .". These are general words and unless some implication is to be made are quite appropriate to cover the present case. But it is the respondent's contention that the words "on board the ship or in the service of the ship or her owner" must read as limited, in point of time, by some such expression as "during the currency of the agreement subsisting at the time when the incapacity supervenes". I can, myself, find no warrant in the sub-section for such a construction. Here the appellant had served continuously in the ship for nearly three years. It is true that he had done so under successive agreements but the reason for the successive agreements is to be found in s. 50 of the Act which provides that agreements of this character may be made for a voyage, or, if the voyages of the ship average less than six months in duration, may be made to extend over two or more voyages. But such "running agreements" are not to extend beyond six months from the date thereof. With these provisions in mind it is not unreasonable to suppose that if it had been intended that, in the case of incapacity caused by illness, liability under s. 132 should be restricted to these cases where the illness was contracted and the resultant incapacity occurred during the currency of the same agreement, the section would have made express provision to that effect. But all that the section requires is that it shall appear, so far as can be ascertained, that the incapacity has resulted from an illness contracted on board the ship, or in the service of the ship or her owner. To my mind the admitted facts bring the case within the plain words of the section. (at p300)

5. The respondent, however, has pointed out that this conclusion is in conflict with the decision of this Court in Burns Philp &Co. Ltd. v. Myrhe (1934) 51 CLR 463 but I agree that for the reasons already given the decision in that case, based as it was upon what the Chief Justice has called contractual considerations, should not be regarded as conclusive of this case. Accordingly I am of the opinion the appeal should be allowed. (at p300)

MENZIES J. The Full Court of the Supreme Court of South Australia, regarding itself as bound so to do by a decision of this Court, viz. Burns Philp &Co. Ltd. v. Myrhe (1934) 51 CLR 463 , held that a seaman belonging to a ship and claiming wages under s. 132 (2) of the Navigation Act 1912-1958 (Cth) could not recover in a case where the illness which necessitated his being left on shore had not been contracted during the currency of the articles under which the seaman was in the service of the ship when he was left on shore. (at p300)

2. Myrhe's Case (1934) 51 CLR 463 was not a claim under the section but it was a claim under articles expressed in the same language as the section and void to the extent of any inconsistency with any provision of the Act. The Supreme Court of Queensland had decided that the words in the relevant article - i.e. article 22 - ". . illness contracted on board the ship or in the service of the ship or her owner" were wide enough in their ordinary meaning "to include illnesses contracted on the ship under previous articles, or contracted in the service of the ship or her owner previously to the signature of the current articles, and that there is nothing in the nature of the service of a seaman such as to show that the parties must necessarily have been contracting with reference only to illnesses thereafter to be contracted". The High Court reversed that decision on the footing that article 22 was intended to do no more than "determine the rights and obligations of the parties in case the respondent might contract an illness during the currency of the agreement". It may be that different considerations apply when the claim by a seaman is under the section itself rather than under articles in the same terms and that on this ground Myrhe's Case (1934) 51 CLR 463 is to be distinguished. However, whether this be so or not, it is necessary for us in this case to construe s. 132 of the Act and apply it to the facts. (at p301)

3. It seems that on 17th June 1960 while the appellant was in the service of ss. Lake Torrens under articles entered into on 17th March 1960, he was by reason of illness left on shore in Melbourne, his home port being Port Adelaid. His incapacitating illness was contracted while in the service of the ship under earlier articles. Dr. Bray, for the respondent, conceded for the purposes of this case that the appellant was entitled to succeed unless the right to wages conferred by s. 132 (2) is restricted by sub-s. (6) thereof to a case where the illness in question was contracted during the currency of the articles under which the seaman was serving when left on shore. (at p301)

4. The right to wages conferred by s. 132 (2) upon a seaman belonging to a ship is "subject to this section", a phrase which looks forward to sub-s. (6) which, so far as it is relevant here, is in these terms: - "A seaman is entitled to wages under this section by reason of an illness, hurt or injury only if the illness, hurt or injury . . . (d) except in the case of a venereal disease contracted after the seaman engaged to serve on the ship, is, so far as can be ascertained, an illness contracted on board the ship, or in the service of the ship or her owner, or a hurt or injury sustained in the service of the ship or her owner". (at p301)

5. The words "an illness contracted on board the ship or in the service of the ship or her owner" are wide enough to cover a case where this happened while the seaman was serving under articles earlier than those by reason of which he belonged to the ship when he was left on shore, and I have found no good reason for restricting them to a case where the contraction of the illness and the leaving on shore both occurred during the currency of the same articles. (at p302)

6. To support a narrower meaning, reference was made to the presumed unlikelihood that a seaman contracting an illness while serving under earlier articles should receive wages in accordance with later articles and to other so-called anomalies; but for every anomaly one way it is possible to find a counter - e.g. the unlikelihood that a seaman contracting an illness at the end of his articles should be disentitled from any relief under s. 132 because incapacity did not eventuate until new articles had been signed. Furthermore, although the appellant and the respondent placed reliance upon the special provision in s. 132 (6) (d) relating to venereal disease, I have not been able to derive any assistance from this provision. (at p302)

7. In these circumstances I think the only course to take is to avoid speculation and, as far as possible, to give the words used their ordinary meaning without making any unnecessary implication. So doing, it seems to me that the requirement of s. 132 (6) (d) is fulfilled if the incapacitating illness was contracted by a seaman belonging to the ship while in the service of the ship. This interpretation of the section, which does not involve the making of any implication, is sufficient to dispose of this case. It would be another case altogether if a seaman's claim depended merely upon his presence on board when he contracted the illness that later incapacitated him while in the service of the ship. (at p302)

8. For the foregoing reasons I am of the opinion that this appeal should be allowed. (at p302)

Orders

Appeal allowed with costs. Order of Supreme Court set aside and in lieu thereof order that appeal from Local Court be allowed with costs and that judgment be entered for the plaintiff for 240 pounds 2s. 5d. with costs.