Morrison v Peacock

Case [2002] HCA 44

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND HAYNE JJ

ANTHONY MORRISON  APPELLANT

AND

HAROLD ANTHONY PEACOCK & ANOR  RESPONDENTS

Morrison v Peacock [2002] HCA 44

9 October 2002

S184/2001

ORDER

1.   Appeal allowed.

2.   Set aside order of the New South Wales Court of Criminal Appeal made on 30 October 2000 in so far as it ordered that question (i)(a) of the questions reserved be answered "Yes", and in its place order that question (i)(a) be answered as follows:

Question (i)(a):

As a matter of law can the wear and tear in consequence of which oil escapes come within the word "damage" under s 8 of the Marine Pollution Act 1987 (NSW)?

Answer to question (i)(a):

In that section, "damage" means a sudden change in the condition of the ship or its equipment that was the instantaneous consequence of some event, whether the event was external or internal to the ship or its equipment.  The Court considers the question otherwise not appropriate to answer.

On appeal from the Supreme Court of New South Wales

Representation:

R J Ellicott QC with A L Hill for the appellant (instructed by Abbott Tout)

C G Gee QC with G J Nell for the respondents (instructed by Ebsworth & Ebsworth)

Intervener:

R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Morrison v Peacock

Environmental law – Marine pollution – Discharge of oil from ship – Exception where discharge in consequence of damage other than intentional damage.

Statutes – Construction – Damage – Damage to the ship or its equipment – Wear and tear.

Words and phrases – "damage".

Marine Pollution Act 1987 (NSW), ss 7, 8, 8(2)(b).
International Convention for the Prevention of Pollution from Ships 1973, Annex 1, reg 11.

  1. GLEESON CJ, McHUGH, GUMMOW, KIRBY AND HAYNE JJ.   The Land and Environment Court of New South Wales stated a case to the Court of Criminal Appeal of that State asking inter alia:

    "(i)(a)As a matter of law can the wear and tear in consequence of which oil escapes come within the word 'damage' under s 8 of the Marine Pollution Act 1987?"

  2. The Court of Criminal Appeal (Spigelman CJ, Wood CJ at CL and Barr J) answered the question in the affirmative[1].

  3. In our opinion, the question stated did not formulate the issue that arose upon the facts of the case. The true issue was not whether wear and tear that results in the escape of oil is "damage" under s 8 of the Marine Pollution Act 1987 (NSW) ("the Act"). It was whether, upon the facts of the case, the expression "damage ... to the ship or its equipment"…

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Morrison v Peacock [2002] HCA 44
Case
[2002] HCA 44
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the New South Wales Court of Criminal Appeal concerning charges of marine pollution. The appellant, Morrison, prosecuted the respondents, Peacock and others, alleging a breach of section 8(1) of the *Marine Pollution Act 1987* (NSW) for discharging oil into State waters from the vessel *Sitka II*. The respondents sought to rely on a defence under section 8(2)(b) of the Act, which provides an exception where oil escapes in consequence of damage to the ship or its equipment, provided all reasonable precautions were taken.

The central legal issue before the High Court was the interpretation of the word "damage" within section 8(2)(b) of the Act, specifically whether the rupture of a hydraulic hose on the vessel's crane, caused by prolonged abrasion and chafing due to corrosion and the hose's movement, constituted "damage" for the purposes of the defence. The respondents argued that the hose rupture was damage to the ship's equipment, leading to the oil escape, and that this damage was not intentional.

The High Court determined that the question reserved by the lower court did not accurately reflect the factual dispute. The true issue was whether the specific circumstances of the hose rupture, resulting from wear and tear over time due to chafing against a corroded sleeve, fell within the meaning of "damage" as contemplated by the Act. The Court reasoned that "damage" in this context refers to a sudden change in the condition of the ship or its equipment, caused by an instantaneous event, rather than a gradual deterioration. Therefore, the prolonged abrasion and chafing leading to the hose rupture did not constitute "damage" in the sense required for the statutory defence.

Consequently, the High Court allowed the appeal, setting aside the order of the New South Wales Court of Criminal Appeal. The Court answered the reserved question (i)(a) by stating that "damage" in section 8 means a sudden change in the condition of the ship or its equipment that was the instantaneous consequence of some event. The Court found the question otherwise inappropriate to answer in light of its interpretation.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside order of the New South Wales Court of Criminal Appeal made on 30 October 2000 in so far as it ordered that question (i)(a) of the questions reserved be answered "Yes", and in its place order that question (i)(a) be answered as follows:

Question (i)(a):

As a matter of law can the wear and tear in consequence of which oil escapes come within the word "damage" under s 8 of the Marine Pollution Act 1987 (NSW)?

Answer to question (i)(a):

In that section, "damage" means a sudden change in the condition of the ship or its equipment that was the instantaneous consequence of some event, whether the event was external or internal to the ship or its equipment. The Court considers the question otherwise not appropriate to answer.

Background

Background to the litigation

In our opinion, the question stated did not formulate the issue that arose upon the facts of the case. The true issue was not whether wear and tear that results in the escape of oil is "damage" under s 8 of the Marine Pollution Act 1987 (NSW) ("the Act"). It was whether, upon the facts of the case, the expression "damage ... to the ship or its equipment" in s 8 covered the rupture of the ship's hose that was brought about by the abrading and chafing of the hose over a period of time. In our opinion the expression "damage ... to the ship or its equipment" in s 8 did not cover the rupture of the ship's hose in the present case.The material facts In December 1996, the vessel Sitka II was using a crane to unload cargo at a jetty on Lord Howe Island. During the unloading, an hydraulic hose that was fitted to the crane ruptured. The rupture caused 15 litres of oil to escape. Five litres went into the sea. The hose ruptured because it turned in excess of 400 degrees. The turning caused a sawing motion at the base of a steel sleeve in the crane column. Because the sleeve was heavily corroded and rough, the turning caused abrasion and chafing of the hose and its eventual rupture. The appellant prosecuted the respondents in the Land and Environment Court alleging that the discharge of oil was a breach of s 8(1) of the Act. The first respondent was the master of the Sitka II; the second respondent was its owner. Section 8(1) of the Act provides:"Subject to subsections (2) and (4), if any discharge of oil or of an oily mixture occurs from a ship into State waters, the master and the owner of the ship, and any other person whose act caused the discharge, are each guilty of an offence punishable, upon conviction, by a fine ..." "State waters" means the territorial sea adjacent to the State of New South Wales, the sea on the landward side of the territorial sea that is not within the limits of the State, and waters within the limits of the State that are prescribed by regulation for the purpose of the definition[2].[2]Section 3(1). The respondents asserted that s 8(2)(b) of the Act gave them a defence to the charge. It states:"Subsection (1) does not apply to the discharge of oil or of an oily mixture from a ship:...(b)if the oil or oily mixture, as the case may be, escaped from the ship in consequence of damage, other than intentional damage, to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimising the escape of oil or oily mixture, as the case may be ..." The respondents contended that the oil had escaped in consequence of damage to the ship's equipment. They asserted that the rupture of the hose constituted damage to the ship's crane, that the oil had escaped because of the damage and that the damage was not intentional damage. Section 8(3) of the Act declares that damage to a ship or to its equipment is to be taken to be intentional damage if, and only if, the damage arose in circumstances in which the master or owner of the ship:"(a) acted with intent to cause the damage, or(b)acted recklessly and with knowledge that damage would probably result."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HUGH, GUMMOW, KIRBY AND HAYNE JJ

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Ratio Decidendi

Legal Principle Established

Established by: HUGH, GUMMOW, KIRBY AND HAYNE JJ

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