Re TNT Alltrans Grounding (Court of Marine Enquiry)

Re: M.V. "T.N.T. ALLTRANS" GROUNDING
No. N85/225
Courts of Marine Inquiry

COURT

IN THE COURT OF MARINE INQUIRY AT SYDNEY

Sheppard J. and (assessors: Captain J. Bollen and Captain J.F. QUINN)

CATCHWORDS

Courts of Marine Inquiry - nature of jurisdiction - charges of misconduct against officers - the role of assessors - the desirability or otherwise of making recommendations as to the cancellation or suspension of an officer's certificate.

Navigation Act 1912, ss. 6C, 15, 359, 363 and 364

Navigation (Courts of Marine Inquiry) Regulations, regs. 5, 6, 14 and 15

Navigation (Orders) Regulations Part 22 of Order No. 3 of 1983 made pursuant to Navigation (Orders) Regulations

HEARING

SYDNEY

#DATE 30:6:1986

JUDGE1

Attachment to Decision of Court of Marine Inquiry given on 30 June 1986.

Note on Jurisdiction of Court and Associated Matters

See, inter alia, pp. 14-15 and 17 of Reasons for Decision

During the course of the hearing a number of questions were raised as to the nature of the Court's jurisdiction and certain other matters related thereto. It seemed convenient to deal with these matters in a separate note rather than in the body of the reasons themselves.

Courts of Marine Inquiry are constituted by provisions contained in s. 358 a Court of Marine Inquiry shall be constituted by a Judge or by two or more Judges. "Judge" in relation to a Court of Marine Inquiry means, inter alia, a Judge of the Federal Court of Australia. Section 359 provides that every Court of Marine Inquiry shall be assisted by not less than two assessors appointed under the Act "who shall advise the Court but shall not adjudicate on the matter before the Court" (the emphasis is added). Section 363 empowers the making of regulations prescribing the practice and procedure of Courts of Marine Inquiry.
The central section of Part XI is s. 364 which provides that a Court of Marine Inquiry "shall have jurisdiction to make inquiries as to all casualties affecting ships . . . and as to charges of incompetency or misconduct, or of failure of duty in regard to any collision or in any matter relating to the navigation, management or working of a ship, on the part of masters, mates or engineers of ships in" certain specified cases. These include a shipwreck or casualty occurring to a ship on or near the coast of Australia. Section 365 provides that a Court of Marine Inquiry shall, when requested by the Minister so to do, make any inquiry which it has jurisdiction to make. Section 369 provides that every inquiry shall be so conducted that, if a charge is made against any person, that person shall have full opportunity of making a defence.
The terms "incompetency" and "misconduct" are defined in s. 60 of the Act. The definition of "misconduct" is as follows:-

"For the purposes of this Act - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) an officer is guilty of misconduct if he is guilty of careless navigation, drunkenness, tyranny, improper conduct or, without reasonable cause or excuse, failure of duty".

In passing I should mention that there was some discussion during the argument as to whether a state of intoxication falling short of drunkenness could amount to "misconduct" within the meaning of the section. The argument was that there was to be discerned an intention to exclude lesser degrees of intoxication from the other categories of misconduct which are provided for. I do not agree with this view. In my opinion, if a person is intoxicated but not drunk, he may be guilty of "improper conduct" if the totality of the circumstances warrant such a conclusion. It may be observed that the same sort of problem of construction could arise in relation to the meaning of s. 99 of the Act which is referred to in the reasons for decision. Another matter to notice about s. 6C of the Act is that it does not apply to misconduct on the part of anyone who is not an officer. That is a matter which was mentioned in the reasons themselves.
Regulation 6(1) of the Regulations provides that charges of incompetency, misconduct or failure of duty on the part of masters or officers of ships, in the cases specified in s. 364 of the Act, may be made by the Departmental Representative. Regulation 5 provides that, where the Minister requests a court to make an inquiry, the Registrar shall serve or cause to be served a notice of inquiry in accordance with form CMI - 1 or form CMI - 2 as the case requires. The form CM - 1 applies in the case, inter alia, of an inquiry into a casualty affecting a ship. The form CM - 2 applies in the case of an inquiry as to a charge, inter alia, of misconduct. The form used in the present case was form CM - 1.
Until 1979, when it was repealed by the Navigation Amendment Act 1979, Part XI of the Act contained additional sections, including s. 372. Section 372 provided that a Court of Marine Inquiry holding any inquiry within its jurisdiction under the Act might, inter alia, cancel or suspend the certificate of competency of any master or ship's officer which was granted in Australia. Sections 373-375B, inclusive, which were also repealed, contained provisions consequential to those of s. 372.
Until 1979 there had been a long standing practice in Australia whereby charges of incompetency arising out of the holding of an inquiry into a casualty were made by the formulation of questions put to the Court by the Departmental Representative. The received view was that there was no need separately to deal with such charges and thus no need for the service of form CM - 2. The practice derived from the practice in the United Kingdom which is referred to in the judgment of Gorell Barnes P. in The Carlisle (1906) P 301 His Lordship said (p. 314):-

"At the outset (of the inquiry) it is not certain at all what will be dealt with - and it is not until the close that anybody can be certain exactly what position ought to be adopted.

As soon as the inquiry is closed the questions are put. Those questions may directly involve the liability of the master or other officer to have his certificate suspended, and it is almost a natural course of things that from that moment the master or officer is placed in the position of the defendant who is being charged with an offence which may lead, if found against him, to the suspension of his certificate".

The Carlisle is referred to in the judgments of Halse Rogers J. in Robbie v. The Director of Navigation (1944) 44 SR (N.S.W.) 407 and Maxwell J. in Firth v. The Director of Navigation (1950) 50 SR (NSW) In the latter case Maxwell J. referred to the two forms, CM - 1 and CM - 2, provided for in the Regulations, and continued (p. 123):-

"But an inquiry properly instituted by service of form C.M.I. could during its course reveal matters which would properly call for charges against an officer.

In my opinion in such a case it is not necessary that the second form should then be served before the question of an officer's conduct can be proceeded with, so long only as the provisions as to the laying of charges and the opportunity for a defence are complied with. That this is the true position is, I think, clearly supported by an examination of ss. 369, 372 and 373. The overriding obligation contained in s. 369 ensures that every inquiry shall be so conducted that if a person is charged he shall have full opportunity of making a defence. Section 372 expressly provides that a Court of Marine Inquiry may cancel or suspend certificates. In the result, so long as the proper safeguards are preserved, the need for a second inquiry is obviated and this in no way denies to the person charged the opportunity of making his defence".

The practice referred to by Maxwell J. was adopted in a number of inquiries conducted by Spicer C.J. during the 1960s' and early 1970s'. It was also adopted by Henchman D.C.J. of the District Court of New South Wales who had a long experience of shipping and maritime matters; see Re Ferry "Lady Edeline" and Ferry "Sunrise Star" (1969) 2 DCR (NSW) 178 at p 180
Had it not been for the repeal of s. 372 of the Act, I would myself have had no hesitation in following the procedure adopted by the judges to whom I have referred. The question is whether the repeal of s. 372 makes any difference. The repeal came about as the result of the recommendations contained in the report of the Commission of Inquiry into the Maritime Industry into Australian Maritime Legislation published in June 1976. The Commission recommended that the Court of Marine Inquiry should be known as the Marine Inquiry Commission. The Commission's only function should be to inquire into a casualty. Its proceedings should be inquisitorial and should follow the general pattern of the existing practices and procedures of the Court of Marine Inquiry save that there should be no penal proceedings. Instead the power which a Court of Marine Inquiry had under the existing legislation to cancel or suspend certificates should be exercised by an officer so authorised by the Minister and his decision should be subject to review by the Administrative Appeals Tribunal. Those recommendations were adopted in the Navigation Amendment Act 1979 except that the name of the Tribunal remains that of a Court of Marine Inquiry. I respectfully agree with the Commission, however, that the nature of the Court's functions are now clearly administrative in character rather than judicial. This may indeed have been the position prior to the repeal of s. 372; I express no opinion.
The remaining recommendations made by the Commission were adopted. Para. 15(2)(c) of the Act provides that the regulations may make provision for and in relation to the cancellation or suspension of certificates of competency. The relevant regulations are the Navigation (Orders) Regulations which authorise the making of certain orders. Part 22 of Order No. 3 of 1983 provides for the cancellation or suspension of certificates. Under that Part an authorised officer may cancel or suspend a certificate but there are procedures which he must follow before he may do so. He may not take action in relation to a certificate unless, inter alia, he has the findings of a Court of Marine Inquiry on relevant to questions of fact. If he decides that there is a prima facie case for cancellation or suspension, he must give the affected person notice of that decision and may not cancel or suspend the certificate until he has taken into account any submission made by the holder of the certificate. The Navigation (Orders) Regulations provide a procedure for review by a delegate of the Minister. If the delegate's decision is adverse to the holder of the certificate, he has an appeal to the Administrative Appeals Tribunal.
The question is whether the removal of the Court's jurisdiction to deal with an officer's certificate makes any difference to the way in which it should conduct an inquiry. Section 364 remains in force and empowers the Court to inquire into charges of misconduct. Furthermore, it remains expressly bound to afford a person charged with misconduct full opportunity of making a defence. In those circumstances I have reached the conclusion that the former procedure still applies and that it is appropriate for charges of misconduct to be preferred in the way that the charge here was preferred.
Counsel for Mr. Pearl submitted that the nature of the Court's function had undergone a change which prevented it now from dealing with charges of misconduct when it conducted an inquiry which was a purely inquisitorial proceeding. He referred to In the matter of "The Marine Board Act 1887" Ex Parte Taylor (1889) 15 VLR 287 I have not examined the legislation upon which that case was decided in detail, but my view is that, if the case cannot be distinguished because the provisions of the legislation upon which it was decided are identical or substantially the same as those contained in the Act, the case ought not to be followed because of the weight of authority the other way.
My only criticism of the way in which this matter has proceeded concerns the form of the questions which are designed to implicate the officers of the "T.N.T. Alltrans". I think it would have been preferable if there had been put to the Court separate questions which expressly raised the matters relied upon in relation to each officer. But in the present case the matters relied upon appear clearly enough from the suggested answers. Those answers were circulated to all counsel including counsel for Mr. Warnholtz. No objection to the procedure which was followed was taken. Express opportunities were offered counsel for Mr. Warnholtz, along with counsel for other parties, to call evidence and to make submissions.
For all those reasons I conclude that the procedure which has been followed is in accordance with the Act and the Regulations.
I next wish to say something about assessors. As mentioned, s. 359 makes it clear that assessors are to advise the Court but are not to adjudicate on the matter before the Court. Regulation 14(3) provides that each assessor assisting a court shall, if he concurs in the decision of the court, sign the decision, and if he dissents from the decision, he shall state in writing to the Minister his dissent and the reasons therefor. This regulation is of long standing and has been followed by Courts of Marine Inquiry for very many years. Nevertheless, there seems to me to be a problem about it. If there were a case where an assessor, as he well might, were to disagree with the Court's decision on a finding of a charge of misconduct, there would be an indication of disagreement between the Court and one or more of the assessors, notwithstanding that it is the assessors' function to advise and not to adjudicate. This seemed to me to raise a question as to the validity of the regulation. Submissions were addressed to the Court on the point, but I have decided that, in the circumstances, it is unnecessary to reach a conclusion on the question which I do not believe to be without difficulty.
The reason that I think the question need not be decided in this case is that the assessors do agree with the decision so that it is their view that Mr. Warnholtz has been guilty of misconduct and their view, also, that his certificate should be suspended until 31 March 1987. Furthermore, it has long been the practice of judges presiding over Courts of Marine Inquiry in Australia not to raise objection to the assessors signing the decision. I am unwilling to disturb that practice at this point, but this may not always remain my view or be the view of other judges.
What I think ought to happen is that the problem should be looked at with a view to seeing whether it is appropriate to require the assessors to indicate their agreement or disagreement with the decision. If there were disagreement in a case such as this, I can well imagine that an officer not affected by a court's decision, it having decided that he was not guilty, would be appalled to see that assessors, who played no part in the decision-making process, thought that he was guilty after all. It is difficult to perceive the relevance that their opinion could have. If on the other hand, the position were the reverse, similar considerations would apply.
Although I do not decide the matter, I do express the view that there are strong reasons for thinking that regulation 14(3) is invalid. It appears to be in conflict with so much of s. 359 of the Act as provides that the assessors have only an advisory function. In Courts of Admiralty the judge has a duty to decide in accordance with his own opinion. The assessors' advice, if contrary to that opinion, must be put aside. Furthermore, the matters that concern assessors are not all the matters in issue in a given case. Thus in "The Beryl" L.R. (1884) 9 PD 137 Brett M.R. said (p. 141):-

"The assessors who assist the judge take no part in the judgment whatever; they are not responsible for it, and have nothing to do with it. They are there for the purpose of assisting the judge by answering any question, as to the facts which arise, of nautical skill. They have nothing to do with the credibility of witnesses, unless that credibility depends upon a knowledge of nautical affairs specially. They have nothing to do with whether the evidence proves that vessels were at one distance or another at any given time. That is not their function. All that is to be decided upon the responsibility of the judge, and upon the evidence before him, and upon his view of that evidence".

The final matter with which I need to deal is the question of the making of a recommendation to the Minister concerning the length of the suspension of Mr. Warnholtz' Certificate of Competency. In this respect regulation 15 provides that the Court, when forwarding to the Minister a copy of its decision in a case, may make, in relation to the case or its decision, such observations as it thinks fit. I have no difficulty with the validity of this regulation and it is clearly desirable that the Court be empowered to make observations of the kind made in the reasons for decision here concerning drinking at sea, the duties of lookouts and alarm systems on the bridges of vessels. But the question arises as to whether it is desirable that the Court should make a recommendation about a period of suspension. My reasons for raising the matter are partly those referred to in the reasons for decision themselves and partly because of the present procedure which provides for an authorised officer to make a decision, a review by a delegate of the Minister and an appeal to the Administrative Appeals Tribunal. If the matter stopped at the stage of review by the Minister's delegate, I would not have the same reservations. But the making of a recommendation may have the effect, or appear to have the effect, of constituting an attempt to usurp or affect the jurisdiction which the Administrative Appeals Tribunal was intended to have. Be that as it may, I have decided that in this case it is appropriate to make a recommendation and I have done so.

[1986] FCA 102

30 JUNE 1986