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Owners of SS Kalibia v Wilson

Owners of SS Kalibia v Wilson

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Case Copied 17 December 1910 58 min read

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11 CLR 689

THE OWNERS OF THE S.S. KALIBIA

APPELLANTS;

ALEXANDER WILSON

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Seamen's Compensation Act 1909 (No. 29 of 1909), secs. 4, 13--Order for detention

of ship-Power of Judge in Chambers to set aside ex parte Order-Appeal to High Court-Judicial order-Appeal-Ship engaged in coasting trade- Cargo-Goods carried without freight-Vulidity of Federal Statute-Applic ability of American decisions in construction of Commonwealth Constitution- Sexerability-The Constitution (63 &64 Vict. C. 12), secs. 51 (1), 76 (III.), 98 -Regulation of internal trade of a State-Trade and commerce clause-Navi- gation and shipping-Laws of admiralty and maritime jurisdiction.

A Judge in Chambers has power to set aside an order made ex parte by another Judge under sec. 13 of No. 29 of 1909. An order made for the deten- tion of a ship under that section is a judicial order, from which an appeal lies to the High Court.

Per Griffith C.J.-A - power conferred upon a judicial officer, eo nomine, to make an order to the prejudice of another, is prima facie judicial.

When a judicial order has been obtained ex parte, the party affected by it may apply for its discharge.

A ship was chartered to carry cargo from New York to Australian ports. While the ship was at Adelaide, the chief officer, at the request of the charterers' agent, agreed to take charge of a small package, which had been consigned from New York to Brisbane by another ship, and had been dis- charged at Adelaide by mistake.

The chief officer carried the package in his cabin from Adelaide to Brisbane, and delivered it there to the charterers' agents. The package was not entered in the ship's manifest, no bill of lading or shipping note was signed in

11 CLR 690

respect of it, and no freight was paid for it, the transaction being treated as a voluntary courtesy on the part of the chief officer. Held, that the package was not cargo within the meaning of sec. 4 of No. 29 of 1909.

Decision of Gordon, J., In re Wilson, 27 W.N., 73, reversed on this point. The provisions of sec. 4 of the Seamen's Compensation Act 1909, in so far as they purport to regulate purely intra-State trade, are ultra vires sec. 51 (1) of the Constitution.

Sec. 98 of the Constitution does not enlarge the ambit of the trade and commerce clause in sec. 51 (1), but is merely explanatory of the trade and

Per Griffih C.J., Barton and Isaacs JJ.-The validity of these provisions of sec. + cannot be supported as being an exercise of the jurisdiction conferred upon the Parliament by sec. 76 (III.)

Per Barton and Isaacs JJ.-The rule of construction adopted by the American Courts as to the jurisdiction conferred by Art. 3, sec. 2 of the American Constitution, is not applicable to the construction of sec. 76 (III)

Per Griffith C.J., Barton, O'Connor and Isaacs JJ. (Higgins J. dis- senting) that, the Parliament having…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1910] HCA 77
Decision Date: 17 December 1910

CaseChat Overview and Summary

The Owners of the SS Kalibia appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned an order made ex parte by a Judge in Chambers for the detention of the SS Kalibia, sought by a seaman, Wilson, to secure potential compensation for injuries. The owners argued that the Seamen's Compensation Act 1909 did not apply to the circumstances of the seaman's employment and that the Act itself was beyond the legislative power of the Commonwealth Parliament.

The High Court was required to determine two primary legal issues. Firstly, whether a small package carried by the chief officer from Adelaide to Brisbane, without freight or entry on the manifest, constituted "cargo" within the meaning of section 4 of the Seamen's Compensation Act 1909, thereby engaging the ship in the "coasting trade" as defined by the Act. Secondly, the Court had to consider the constitutional validity of the Act, specifically whether its provisions, particularly those relating to the coasting trade, fell within the Commonwealth Parliament's legislative powers under section 51(1) of the Constitution, and if not, whether the invalid provisions were severable from the valid ones.

The Court held that the small package was not "cargo" within the meaning of the Act, as it was carried as a gratuitous courtesy by the chief officer and did not involve a contractual relationship for reward on behalf of the shipowners. Consequently, the ship was not engaged in the coasting trade under the Act based on this transaction. Regarding the constitutional validity, the majority of the Court found that the Seamen's Compensation Act 1909, in its definition of "coasting trade," purported to regulate purely intra-State trade, which was beyond the scope of the Commonwealth's trade and commerce power under section 51(1) of the Constitution. The Court further determined that the invalid provisions relating to intra-State trade were not severable from the rest of the Act, as the Parliament had clearly expressed its intention to apply the Act to all trade between ports, regardless of whether it was inter-State or intra-State.

The High Court reversed the decision of the Supreme Court. The order for the detention of the SS Kalibia was set aside, and the Act was declared invalid in its entirety due to the inseparability of its valid and invalid provisions.

Orders