Victrawl Pty Ltd v AOTC And Other Co-Owners of Anzcan Cable; Sanko Steamship Co Ltd & Anor v Sumitomo Australia Ltd

[1994] HCATrans 214

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S163 of 1993

B e t w e e n -

VICTRAWL PTY LIMITED

Applicant

and

AOTC LIMITED and OTHER

CO-OWNERS OF ANZCAN CABLE

Respondents

Office of the Registry

Sydney No Sl66 of 1993

B e t w e e n -

THE SANKO STEAMSHIP CO LIMITED

First Applicant

Victrawl	1	11/2/94
BRENNAN J DEANE J GAUDRON J

and

GRANDSLAM ENTERPRISE

CORPORATION

Second Applicant

and

SUMITOMO AUSTRALIA LIMITED

Respondent

Applications for special leave

to appeal

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 1994, AT 10.44 AM

Copyright in the High Court of Australia

MR B.W. RAYMENT, QC:  May it please, Your Honours, I

announce my appearance for the applicant, with my

learned friend, MR A.W. STREET. (instructed by

Phillips Fox)

MR R.B.S. MACFARLAN, QC: If the Court pleases, I appear

with my learned friend, MR J.L.B. ALLSOP, for the

respondents. (instructed by Ebsworth & Ebsworth)

BRENNAN J:  Mr Rayment, would it be appropriate to call the

next application at the same time for argument?

MR RAYMENT:  Your Honours, we would respectfully submit not.

Some different circumstances exist in Sanko from

those in "Lorna Dorn". If the "Lorna Dorn"

application should not succeed, then it may be that

there would be little to add in Sanko.	On the
other hand, if the "Lorna Dorn" application were

being contemplated by the Court, the matter would

be seen rather differently in Sanko.

It could be that the more appropriate vehicle, if the Court were minded to grant special leave, is the "Lorna Dorn" case and that, for example,

Your Honours would come to the view that instead of

granting special leave in Sanko, even if

Your Honours granted special leave in "Lorna Dorn",

the Sanko case might be adjourned.

DEANE J: That is all the more reason for hearing the

applications together, surely.

MR RAYMENT:  we do not really mind, Your Honour. It is just

that in terms of presentation of argument it had

Victrawl 2 11/2/94

had occurred to us that it might be better to do

it - - -

BRENNAN J:  Yes. The difficulty is we may need to hear

Mr King in the next matter in order to consider the strength of your application.

MR RAYMENT:  Very well, Your Honour.

BRENNAN J: Call the next application as well.

MR B.W. RAYMENT, QC: In that matter, if Your Honours

please, I announce my appearance for the applicant

with my learned friend, MR A.J. MEAGHER.

(instructed by Ebsworth & Ebsworth)

MR P.E. KING: If Your Honours please, I appear for the

respondent, with MR K.P. SMARK. (instructed by

Withnell & Co)

BRENNAN J: Yes, Mr Rayment?

MR RAYMENT:  May it please Your Honours. Your Honours, the

application book with more relevant papers is that

in the "Lorna Dorn" case.

Your Honours, the 1976 Convention itself

envisages claims made within the jurisdiction as a

condition precedent to jurisdiction to entertain

limitation proceedings, and that appears from

Article 11 rule 1 which Your Honours will find in

the application book at page 115:

Any person alleged to be liable may constitute

a fund with the Court or other competent

authority in any Stage Party in which legal

proceedings are instituted in respect of

claims subject to limitation.

In other words, if there never were a claim brought within an Australian court, the power to constitute

a fund under the Convention would not exist.

GAUDRON J: There is another way to read that, is there not,

just as identifying the court?

MR RAYMENT: Identifying the court.

GAUDRON J: Being the court in which claims are instituted.

MR RAYMENT: Yes, one could read it that way but the notion

of the Convention is that one limits with respect

to claims. Article 1 rule 1 provides that:

Shipowners and salvors ..... may limit their

liability in accordance with the rules of this

Convention for claims set out in Article 2.

Victrawl 11/2/94

And Article 2 then defines a class of claims which may be made the subject of limitation. indeed,

Article 3 excludes from that class claims which may

not be the subject of limitation.

So, the limitation is with respect to claims

and if there are no claims pending within the

jurisdiction, the notion is, we would submit, there

would be no point in seeking limitation in this

jurisdiction if the claims were going to be brought

overseas, for example. So that it is claims

related, in our respectful submission.

BRENNAN J:  You might be able, while you are dealing with

that aspect of it, to remove for me a problem that

I have with the construction of section 25 of the

Admiralty Act.	How do claims arise under a
convention?

MR RAYMENT:  They do not.

BRENNAN J: They do not?

MR RAYMENT:  They do not. There are claims which are

subject to limitation but they do not arise under a

convention. The section is badly worded. As a

matter of fact, in the course of

Mr Justice Gummow's judgment in the Federal Court,

there is a sentence which follows the language of

section 25 which may have given rise to difficulty

in the Federal Court's judgment. His Honour used

the same language as section 25 uses and it is

similarly inappropriate, in our respectful

submission, in his judgment.

BRENNAN J: So, what do we do, just simply ignore those

words?

MR RAYMENT:  You do. There is no such thing as a claim

pursuant to a limitation convention being a claim

adverse to the shipowner. There is a claim that he

might make for limitation when he invokes the

Convention but the claims with which section 25

seems to be concerned are claims adverse to his

interest rather than claims in his interest.

The sentences we have in mind, Your Honours,

are in the "Lorna Dorn" application book at

page 23, lines 10 to 15 and then lines 25 to 30

where the language of section 25 is followed by

His Honour.

Your Honours, when one looks at the claims

which may be subject to limitation in Article 2,

some of them are claims in the nature, for example,

of collision damage where there would be a

distinct occurrence giving rise to the liability;

Victrawl 4 11/2/94

example, the claim for delay in Article 2.l(b) is a

for example, Article 2.l(a) refers to such claims.

claim which would potentially have a number of

relevant days appropriate to it. Indeed, one could have delay before and after the commencement of the

statute which might be referred to in

Article 2.l(b).

Similarly, Your Honours, Article 2.l(d) talks

of:

claims in respect of the raising, removal,
destruction or the rendering harmless of a

ship which is sunk -

Those removal costs would presumably be recoverable

by virtue of the local statute. The occurrence is

difficult to identify unless it be the raising of

the wreck, not, in other words, the shipowner's

conduct at all.

Your Honours, the statute provides that limitation of liability may be invoked without

admission. One can establish a fund in case it

should be established that one is liable under

claims.

Your Honours, I should add to what I said

about Article 11 rule 1 this: that by local law,

one may seek limitation in advance of claims being

made, and that is something not provided for in the

Convention but, rather, provided by local law. In

the old law, under section 335 of the Navigation

Act it was open to a shipowner who apprehended that

claims might be made against him to seek a decree

of limitation in the nature of pre-emptive strike. Section 25 of the Admiralty Act permitted the same

to be done in the Federal Court. Section 335 is

concerned with supreme courts.

By the current law, section 9 of the Act of

1989 permits such pre-emptive applications to be

made in State courts, and section 25 of the

Admiralty Act now permits a pre-emptive application

to be made in the Federal Court. But that is an

option available to a shipowner rather than

something he has to do and, in our respectful

submission, if he did that and there were later no

claims brought against him, he need not press his

application and, presumably, would not. Indeed,

one would doubt whether the Court would have

jurisdiction to make a decree of limitation if

claims were not being made within the jurisdiction

and it was intended to bring them overseas.

Victrawl 11/2/94
So, focusing, in our respectful submission, on

the occurrence, as the Federal Court would require

one to do, directs attention to the wrong thing.

What is important is the claims which are made

against the shipowner, given that they fall within

Article 2 of the 1976 Convention. To assume that

there will always be an occuirence which will be
the touchstone of liability is incorrect.

Your Honours, in the "Lorna Dorn" case, what happened was this: the old convention was repealed

with effect from 1 June 1991.	The events had
occurred in 1991 but before 1 June.	No litigation

was commenced in any court either by the claimant

or by the shipowner before 1 June 1991. What

happened was that subsequent to 1 June 1991, the

shipowners sought to avail themselves of section 25

in respect of claims apprehended to be made by

Mr Macfarlan's client and then, by the defence to those proceedings and cross claim, those claims

were made in the Federal Court. But all of that

occurred after 1 June 1991.

Your Honours, during the course of submissions

made to the Federal Court in the case, on the

second day of the case but not on the first we

submitted that the effect of that was that the

shipowners in the "Lorna Dorn" matter had no right

to limit under the 1957 Convention. The earlier

written submissions in the case had put, in effect, in the alternative that section 8 preserved a right

to make an application under the 1957 Convention

and Mr Macfarlan, in his written submissions, put

the same. But on the second day of the case, the
court having discussed with us the Heublein case on

the first day, we put in some supplementary

submissions in the Federal Court contending that in

the "Lorna Dorn" case there was no right at all to

seek limitation under the 1957 Convention, and that

matter was agitated in the oral argument.

If I may, Your Honours, because some remarks

have been made in the submissions against us, I
should, I think, ask Your Honours to receive the
written submissions which were put forward on the

second day in the Federal Court and a copy of the

transcript of the second day's argument. If I may

hand up four copies of those. Your Honours, what

was put there and what we desire to press upon this

Court is that the effect of a failure to invoke the
old regime before the repeal of it was that the

right to seek limitation under the 1957 Convention
wholly went. There was no right accrued at

1 June 1991 because nothing had been done to avail

oneself of the right to seek limitation under the

1957 Convention and the statute was simply repealed

without a saving provision and without a provision

Victrawl 6 11/2/94

such as had been formally enacted in our law when

the original 1957 Convention was made part of the

law of Australia providing expressly that

notwithstanding the repeal of the old regime, a
shipowner might, nevertheless, limit in respect of
events which had occurred prior to the repeal of
the earlier statute.

No such law was passed in 1991 when the 1976 Convention was made part of the law, and we would

submit that, consistently with what was said in

Abbott v Minister for Lands, which has been

followed several times in this Court, the effect of

that is that the power to take advantage of the

enactment not having been exercised by seeking the

court's determination of the absence of fault and

privity, the right to limitation under the 1957

Convention disappeared.

Your Honours, we gave a reference to Abbott v

Minister for Lands in the written argument. There, there was no question of any discretionary application. In Abbott v Minister for Lands there was a question of the acquisition of additional

lands by conditional purchase. If a person was the

holder of land he might, upon payment of money,
apply for additional land adjoining and if he paid

his money and sought the land before the repeal of

that right then he had a legal right to obtain the

additional land. Not having done so, however, the

Court said in Abbott, his right to do so ceased

upon the repeal of the legislation giving that

facility to landowners.

That rule, which relates to a section such as

section 8 of the Acts Interpretation Act has been

given application in this Court on a number of

occasions. In the Heublein case, Mr Justice Kitto,

at first instance, gave effect to it and held that

an application under the Trade Marks Act for the

removal of a trade mark, if not made before the

repeal of the relevant provision, ceased upon the

repeal of the enactment.

GAUDRON J: That may just mean that you have no right

to limit at all.

MR RAYMENT:  Yes. It would follow that at least there is no

right to limit under the old Act but that question,

in our respectful submission, would be material in

the examination of the question whether Parliament

intended the 1976 Convention, when enacted without

a transitional provision, to be applicable to

events which arose before 1 June 1991. It would be

very odd, in our respectful submission, if the

effect of new enabling legislation which favours

really both shipowner and claimant because it

Victrawl 7 11/2/94

increases the amount of the limitation fund but
takes away the provision requiring proof of absence

of actual fault or privity.

GAUDRON J: But is it not really a question of the

interpretation of the Convention rather than the

statute, if we get to that point?

MR RAYMENT:  We wish to put the matter upon the

interpretation of the Convention but we would

respectfully submit that the question of whether

the Parliament intended, by the Act of 1989, to

allow limitation in respect of claims not yet made

is a question to be determined by the Court as a

matter of ascertaining the intention of the

Parliament. One thing to be taken into account is

the terms of the Convention. Other things to be
taken into account are the matters referred to in

Abbott v Minister for Lands, that in the absence of

such a rule there would a lacuna for shipowners

whose liability first arose before 1 June 1991 and

who had not previously invoked the jurisdiction of

the Court.

GAUDRON J:  One can understand that submission if the

Convention, properly construed, does apply to occurrences before the Convention came into effect

but if it does not, the argument takes you nowhere,

surely.

MR RAYMENT:  Yes. If you find a clear provision in the

Convention itself excluding limitation for claims

arising out of circumstances before 1 June 1991,

then that is so. It would be a most material

matter in the determination of what Parliament must

have intended.

BRENNAN J: Must not Parliament be taken to have intended

whatever the true construction of Article 17 is?

MR RAYMENT:

Parliament must be taken to have intended

whatever the true construction of the Convention as

a whole is, yes, Your Honour, including Article 17,

that is so. But part of what Parliament must have

intended, in our respectful submission, stems from

municipal considerations arising from Abbott, not

only what one might read in the Convention.

BRENNAN J:  I notice that you have a warning light,

Mr Rayment, but you may need to extend your time,

having regard to the Sanko matter.

MR RAYMENT:  I am grateful for that, Your Honour.

BRENNAN J: Ten minutes.

Victrawl	11/2/94
MR RAYMENT:	Your Honours, can I go to the Convention then.

In our respectful submission - - -

BRENNAN J:  You should, as my brother Deane suggests, finish

this present matter, that is Victrawl, within your
time, and then, to the extent to which you need

additional time, for the Sanko matter to proceed.

MR RAYMENT:  Very well. Your Honours, in Article 15, which

Your Honours will find at page 117 of the

application book, there is a declaration that the

Convention will:

apply whenever any person referred to in

Article 1 -

that is a shipowner -

seeks to limit his liability before the Court

of a State Party -

Now, nothing cuts down the word "whenever" and, in our respectful submission, as between shipowners

and claimants, Article 15 indicates an intention

that it is the act of invocation of the Convention

which will be the touchstone of the power to limit.

It is an ambiguous word "whenever" and it ought to

be given, in our respectful submission, its full

effect.

Article 17 speaks of the date when the

Convention will enter into force but if, as we submit, what it does is enable limitation in

respect of future claims after 1 June 1991, no

violence is done to that language. The claim in

Victrawl was made after 1 June 1991. It was made when a defence to the shipowners' application was

filed. So that "entering into force" meant that

the claims thereafter made, there would be a power
to seek a decree of limitation of liability, which

is precisely what Victrawl did.

Your Honours, the points which we identify as

erroneous in the judgment below, in addition to

those already mentioned, are that the court really approached the case by giving effect to some rules

to do with treaties which affect the parties to

treaties, that is, the State parties, rather than

litigants whose claims might be made under

municipal law and it is really those four errors

which we identify in the judgment below: first,

the failure to notice that the limitation is with respect to certain claims and requires the making of a claim in the jurisdiction; second, the failure

to have regard to the lacuna which would be

produced, having regard to the Heublein decision

unless this view is correct; third, we say the word

Victrawl 9 11/2/94

"whenever" was not properly given effect to and,

fourthly, we say the way in which the case was

approached, looking at Article 28 of the Vienna

Convention, was really beside the point.

BRENNAN J:  You may have another 10 minutes to develop the

Sanko argument if you wish.

MR RAYMENT:  Thank you, Your Honour. Your Honours, in Sanko

the difference is this: there had been before

1 June 1991 in respect of an event also occurring

in 1991 an application in the nature of a

pre-emptive order to limit under the 1957

Convention. That was consistently with Heublein,

preserved, in our respectful submission, in the

facts of the Sanko case, and the parties so agreed

formally.

Nevertheless, when one comes to judge the question of what Parliament intended, in our

respectful submission, one would have regard not to

the facts of a particular case but to the

generality of cases arising as between shipowners

and claimants in this jurisdiction. That was the

way in which the House of Lords approached

retrospectivity questions in the recent case of

L'Office Cherifien which we have given Your Honours

a reference to. Rather than looking at the facts
of the particular case, the House of Lords
considered the generality of cases and looked at

the question of fairness, rather casting doubt on

whether the procedural substantive distinction

traditionally drawn is of much real use in

determining the ultimate question, the nub of which

is fairness.

In our respectful submission, in the Sanko

case if the proper construction of the Convention

is that it can be utilized for events before 1 June

1991, at least as to claims made after 1 June 1991

was brought after 1 June 1991, then the same result	and, again, the litigation in Sanko by the claimant	follows, in our respectful submission, and the
precise question, "Is the 1976 Convention capable
of application to events before 1 June 1991?" should be answered in the same way, notwithstanding that in the case there was also pending an application pursuant to the earlier convention.
That gives rise to possible questions of election
which were debated before Mr Justice Sheppard but
which were not in the case stated before the
Federal Court.

GAUDRON J: 'rt may be a contrary intention for the purposes

of section 8 if the Convention, on its proper
meaning, applies to collisions before it came into

force.

Victrawl 10 11/2/94

MR RAYMENT:  Yes, it might. That is true, if Your Honour

please, it might.

GAUDRON J: But I take it the litigation has thus far been

conducted on the basis of election, has it?

MR RAYMENT:  The litigation has not concluded.

Mr Justice Sheppard is to give judgment and one of the matters upon which His Honour would give

judgment, if this Court ultimately holds that the

Convention is retrospective, is the question of

election.	No question of election arises unless he
so holds.

GAUDRON J: It seems a strange way for litigation to

operate.

MR RAYMENT:  Your Honour, it was desirable, before

His Honour gave decision in the case, for the

Full Court to resolve the question of whether the

1976 Convention was capable of application to

claims in respect of events which arose before

1 June 1991 and His Honour stated the case before

giving judgment in the case, but it is the fact that the Federal Court resolved it as they have that brings us here.

So, because we respectfully submit that it is

the generality of cases rather than the facts of
the particular case which give rise to these

matters, we submit that the answer should be the

same in Sanko as it is in the "Lorna Dorn" to the

first question asked in the case stated in the

"Lorna Dorn" case.

I notice that I am still on my feet. I had

forgotten to mention in "Lorna Dorn" that there is
another question in the case stated as to which I

have put my submissions in writing, that is, the question concerning the master which is itself a

matter of general public importance, in our

respectful submission, in the administration of the

1976 Treaty.

May it please Your Honours, for those reasons,

in both cases, and for the reasons we have put in

the written submissions, we seek special leave.

BRENNAN J: 

Now, if, having heard your opponents, we are of

the view that there was a question of sufficient
public importance to justify a grant of special
leave in both cases, what do you have to say about

whether it would be appropriate to grant it in both

cases or to grant it in one and to adjourn the
other?

Victrawl 11 11/2/94

MR RAYMENT:  Your Honours, the only reason for granting it

in Sanko as well rather than adjourning Sanko might

be the possibility that the "Lorna Dorn" case might

be resolved before argument. It would, in our

respectful submission, be convenient to have

special leave granted in both cases for that reason

but not otherwise. All of the questions arise, in

our respectful submission, in "Lorna Dorn" and only

the possibility that the case might finally not go

ahead, because of settlement, would be the reason

for asking the Court to grant special leave in both

cases.

BRENNAN J: Yes, thank you.

MR RAYMENT: If it please Your Honour.

BRENNAN J:	Mr Macfarlan.
MR MACFARLAN:	If the Court pleases. Your Honours, the

first point we would make is that the principles as

to the existence of a presumption against

retrospectivity of statutes are well established.

There has not really been any issue joined about

that except through the reference that has been

made by my learned friend through his written

submissions to the House of Lords decision in

Cherifien. That is a decision which we suggest is

not in any fashion inconsistent with the Australian

authorities. It simply says something about the

way in which one should go about construing the

legislation to ascertain whether there is a

contrary intention such as to render the

presumption inapplicable.

Now, Your Honours, those principles against

retrospectivity apply here because there are no

transitional provisions and rights have been

acquired. I first advert to the 1957 Convention.

Rights were acquired both by the shipowner and the

property owner. The shipowner acquired rights to

have his liability limited under the Convention,

assuming, of course, it could not be shown that he

had been at fault or privy to the breach. But

subject to that, he acquired a right to limit.

Mr Justice Dixon in the James Patrick case

described that as a substantive right and we would

submit that certainly must be so. The correlative

point is that the property owner acquired a right

to have the question of limitation dealt with under
the 1957 Convention because that was that which was

subsisting at the time of the event.

BRENNAN J:  Why does that follow, Mr Macfarlan?

Victrawl 12 11/2/94

MR MACFARLAN:  Your Honour, depending upon the facts of the

particular casP., it could be either advantageous or

disadvantageous to the property owner to have the

1957 Convention apply.

BRENNAN J:  I appreciate that but why is it that because the

shipowner has a substantive right that the property owner then has a right to the 1957 Convention basis of limitation rather than the basis of limitation

which stands upon the statute book at the time when

the substantive right of the shipowner is given

effect to by a curial decree?

MR MACFARLAN: For this reason, Your Honour, that the cause

of action of the property owner comes into

existence at the time of the occurrence. It is

affected by the then existing limitation provision

and to subsequently render applicable a different

limitation regime that may be raised by way of an

effective defence or partial defence is to

adversely affect the rights of the property owner

within the principles expounded in Maxwell v

Murphy.

BRENNAN J: But does that mean that the property owner's

right is limited at the moment of its creation?

MR MACFARLAN:  No, it is capable of being limited, depending

upon what is able to be proved as to the question

of fault or privity.

Your Honours will appreciate, of course, that

under the 1957 Convention it is easier for the

property owner to defeat the limitation because he

simply has to prove fault or privity whereas, under

the 1976 Convention, he has to prove some conduct

coming close to some sort of criminal participation

in the event on the part of the shipowner. Then,
again, there is another countervailing factor that

the limitation is lower under the 1957 Convention.

So, one cannot say in advance of consideration of

the particular circumstances of the case whether

the particular convention will work for or against

the property owner, on the one hand, or the ship

owner, on the other.

Your Honours, the rights, we say, were

acquired in the way I have mentioned and that is so

notwithstanding that one might - and I do not

concede that one would - classify the rights as

having a procedural character if a choice of law

question arose. The principles expounded in McKain

v Miller and Stevens v Head concerning choice of

law relate to a different field altogether and do

not touch on this question.

Victrawl 13 11/2/94

As was pointed out in one of the authorities -

Maxwell v Murphy itself: I think - a provision,

even though procedural in form, if it affects

substantive rights attracts the operation of the

presumption such that it will not be construed as

operating retrospectively.

The other line of authority upon which

reliance has been placed by my learned friend
relates to the Heublein case and the Abbott case

which he mentioned. The issue there is this, that

if the supposed right is in fact not a right at all

but a mere hope or expectation that upon
application to a court a right will be conferred,
then it is not properly described as a right at all

for the purposes of the Maxwell v Murphy

principles.

In a number of cases it has been found that,

on analysis, all that the person complaining of

retrospectivity has is a mere hope or expectation

of the favourable exercise of discretion by the

court. In Abbott, for example, it was found that

there was no enforceable right, and in other

subsequent cases a like finding was made. In this

case, there is a right under the 1957 Convention

which is not merely available upon the exercise of

discretion by the court. The position -

BRENNAN J: But the language is very peculiar, is it not, to

speak of a "right to a limitation"? I suppose it

might be analysed as an immunity rather than

anything else. But to say that there is a right

which subsists when the law which gave rise to it

expires, it seems to me to be a very odd notion

when the position, relative to the potential
claimant, remains unchanged at the moment of the

repeal of the law.

MR MACFARLAN:  Your Honour, the position, we submit, is

appeal. Assuming no notice of appeal has been	similar to that which arises in relation to an	lodged but, nevertheless, there is litigation on
foot and a change in the law occurs to abolish a right of appeal, that will not be construed as
retrospective in the absence of a clear intention
being manifested. The CSR v Irving decision, which
we have mentioned in our written submissions, makes
that clear.

The position, we say, is the same here.

Mr Justice Dixon described the shipowner's right as

a substantive right and spoke of it in terms of a

cause of action. You can pursue it either as a

defence or as a means of application to the Court.

Victrawl 14 11/2/94

Your Honours, the next step in the argument is

to put the submission that there is simply no
contrary intention manifest by the legislation
whi~h would cause the presumption to be held

inapplicable.

BRENNAN J: What about Article 17 of the 1976 Convention?

MR MACFARLAN:	The "Entry into force" provision?
BRENNAN J: Yes.
MR MACFARLAN:	Or Article 15 mentioning "whenever"?
BRENNAN J: No.	Article 17, paragraph 4, wherever that may

be.

MR MACFARLAN:  It should be at page 118, Your Honour, of the

application book.

BRENNAN J:  Yes:

this Convention shall replace and abrogate the

International Convention - - -

MR MACFARLAN:  It leaves unstated the question of at what

point of time that is to occur. It supports

another submission we make that clearly there is an

intent that one replace the other; that there

neither be a lacuna nor an overlap. So, if it be

found either that the repeal of the 1957 Convention

is not retrospective or if it be found that the

enactment of the 1976 Convention is not

retrospective, then that sheds light on the

conclusion that one should reach as to the other

because the two must go together and there must be

a change-over point. We would submit there is

nothing in Article 17 sub-article 4 which assists

in this argument, Your Honour.

BRENNAN J:  It seemed to me that there was an argument that

the "international intention", if one can so

describe it, was that there should be no lacuna,

and that if that is the intentional intention and

it is enacted as part of the municipal law, then it

must be the municipal law's intention that there

should be no lacuna.

MR MACFARLAN:	Yes.
BRENNAN J:	Now, if there is no lacuna, the question then

becomes whether or not the substantive right to

limitation attaches at the moment of claim or at

the moment of occurrence or at the moment of loss.

That, perhaps, is the real question that needs to

be answered by reference to the construction of the

Victrawl 15 11/2/94

international instruments rather than municipal

law.

MR MACFARLAN:  Yes. Your Honour, we would, I think, be

bound to accept that it attached to the time of

claim if what was involved was some discretionary

power in the court to grant limitation. But what

is the position here is akin to what was spoken of

in the Ho Po Sang case to which we have referred in

our written submissions where there was a

comparison drawn between a right in respect of

which some investigation or legal proceeding was

necessary which is the present case. The

comparison was with an investigation in respect of

whether a right should be given.

BRENNAN J: But if the analysis is as I have put to you,

then the question in Victrawl is not simply whether

or not there is a right under the 1976 Convention
but whether there is an accrued right - using that

not in the Australian municipal sense - under the

1957 Convention.

MR MACFARLAN:  Yes, we accept that, Your Honour, and when

one looks at that question one finds there is, in

my submission. And principles of international

law, both customary and by convention, require one

to apply the same presumption. The Vienna

Convention has a presumption which is identical in

relevant respects to that which applies under

Australian municipal law.

BRENNAN J:  Do these questions of construction raise issues

which this Court ought to consider?

MR MACFARLAN:  We submit not, Your Honour, because the

position is very clear. The principles as to the

presumption do not require consideration. There is

a clear case of the existence of a right. There is

nothing in the 1976 Convention that causes one to

have real doubt about the existence of a contrary

intention but even if there was it would simply be

a question of construction and something which

would not justify leave to appeal being granted.

So, it is not a case in which there is sufficient

prospect of success, in our submission, for an

appeal to be warranted.

Your Honours, we would add: in relation to

the 1976 Convention, what is relied upon most by

our opponents is the word "whenever" as indicating

a contrary intention. But words of that type -

that is to be found in Article 15, "This Convention
shall apply whenever" - are found in virtually all

legislation that is considered in conjunction with

this presumption. For example, in the Fisher case,

the Workers Compensation case that we have referred

Victrawl 16 11/2/94

to in paragraph 2, Fisher v Hebburn, it spoke of a

worker who has received an injury but, applying the

presumption against retropectivity, that was found

to be a reference to workers who have received an

injury after the cor,unencement of the legislation.

And so, also, here. Article 15 would be understood

as referring to the position whenever a relevant

incident occurs after the coming into force of the

Convention.

So, in summary, Your Honours, we say the

principles of law are well settled; the decision

below was plainly correct and a grant of special

leave is not warranted.

BRENNAN J: Mr Macfarlan, could I just ask you this: if the

international intention was that the 1957

Convention should be applicable to occurrences that occurred before the 1976 Convention replaced it,

and thereafter the 1976 Convention applied to

occurrences occurring, has that been carried

through into municipal legislation or, in the case

of Victrawl, at all events, is there any basis on

which limitation under the 1957 Convention can now

be claimed by a shipowner whose occurrence occurred

before 1 June 1991?

MR MACFARLAN:  Your Honours, the Court, we would submit,

would attempt to find a consonance between the

municipal and international provisions but,

ultimately, if it found a conflict then the

municipal provision has to prevail and it is clear,

in our submission, according to municipal law

principles, that there was a right to which the

relevant presumption applies, the right under the

1957 Convention.

BRENNAN J: And that has now gone?

MR MACFARLAN:  Not in respect of events occurring before the

commencement of the legislation.

BRENNAN J: What would be the right of Victrawl now to claim

under the 1957 Convention?

MR MACFARLAN: It would have a right, Your Honour, if

Your Honour is assuming a claim in respect of this

event in question. In particular, Your Honour,

section 8 of the Acts Interpretation Act, as well
as the common law principles of construction,
preserves rights accrued notwithstanding the
purported repeal of legislation, in the absence of

contrary intention.

Could I mention finally, Your Honours, as we

have put in our written submissions, there is a

recent decision of the Dutch Supreme Court which

Victrawl 17 11/2/94

accords with what we have put about the

non-retrospective nature of the 1976 Convention.

If the Court wishes, I am in a position to hand up

copies. The decision has been mentioned in the

European current law year book and I would hand up

relevant portions of that as well. The comments in

that year book, as I understand it, relate to a

different portion of the judgment and not that

which deals with the relevant issue. I am told it

does say something about the relevant point,

Your Honours. If the Court pleases.

BRENNAN J: Yes, Mr King?

MR KING:  Thank you, Your Honours. Your Honours, we

respectfully adopt the submissions of Mr Macfarlan

in relation to those matters which he put and

submit further that the "Sanko Harvest" matter is

an inappropriate vehicle for the grant of leave in

relation to the questions raised for the following

additional reasons canvassed in argument this

morning. Firstly, we respectfully submit that the

reliance by the applicants upon the recent House of

Lords decision in the Cherifien is a contrived

argument - and I will come back to that shortly -

and, secondly, we submit that there are several

significant differences between the "Lorna Dorn"

matter and the "Sanko Harvest" matter.

As to the first point, the House of Lords

decision in the Cherifien, recent as it is, perhaps

of some interest as it is, is inconsistent

completely with the concession made by the

applicants in the "Sanko Harvest" matter in the
court below. If Your Honours would turn, please,

to the "Sanko Harvest" application book at page 4,

paragraph 11, it will be observed that it was

agreed by the applicant:

that the 1957 Limitation

Convention ..... applies in respect of the

grounding and sinking of the vessel and that

Sanko's and Grandslam's application for
limitation under it may be pursued

notwithstanding the repeal of schedule 6.

What we have here and what we had in the Full Court

by some sort of side-wind application was to try

and, as it were, detract from that concession.

Indeed, if Your Honours look at the application

brought by the applicants when the matter was first

initiated at page 6 of the same application book,

Your Honours will see where, in March 1991 before

the new legislation came into force, they applied
for a declaration under the 1957 Convention, and

they have never, with respect, ever amended that

application. So, even today, the application of

Victrawl 18 11/2/94

the applicant is to rely on the 1957 Convention in

our case.

The second contrived aspect of the application

is that although interest is sought to be excited

by a reference to Cherifien, that in fact is not a

startling decision when one looks at the decisions

of this Court in Rodway and in Hebburn, references

to which we have given in our written submissions.

In both those cases, as indeed Mr Justice Gummow

said in his judgment below, nothing was said by

this Court which is of any real difference between

what was said by the House of Lords.

Your Honour the presiding Judge referred to

section 25 of the Admiralty Act and asked

Mr Rayment whether or not that recognized the

existence of a substantive claim and right in his

client and a defence in my client. Mr Rayment said

that it did not but we respectfully submit the

contrary. That is exactly what section 25 does

say. It appears in the "Lorna Dorn" application

book in the judgment of Justice Gummow at page 5.

It is absolutely clear in subsection (1) that a substantive right is being conferred upon the applicant to apply, in a pre-emptive way, to limit

its liability in respect of all claims that may

hereafter occur. The existence of a substantive

defence is explicitly recognized in subsection (4)

where the word "defence" is used.

Now, Your Honours, if the applicant is right,

we are deprived of a very important defence in this

matter arbitrarily because under the 1957

Convention we are in a much better position to
defeat the application of the shipowners to limit

their liability. They have the onus of proof that

the loss occurred without their actual fall or

privity. It is an entirely different situation

under the 1976 Convention.

The third point relates to policy. Various

judges, since this legislation came into force,
have described legislation of this type -

Sir George Jessel's words - as "tyrannical";

Mr Justice Sheppard's words, in another case, as

"extraordinary". It is this legislation which the applicant does say has retrospective effect to the

full extent. It is not an intermediate

retrospectivity that they are talking about of the

type that the House of Lords considered in the

Cherifien, it is a full retrospectivity and that

is, we say, an important difference.

BRENNAN J: It is a question of whether it is

retrospectivity at all, is it not? If the nature

of the right is such that its terms are to be

Victrawl 19 11/2/94

ascertained by reference to the moment of the
application or to the moment of the order giving

effect to it, then so be it. It is that nature or that kind of right, and if that right then applies

in relation to an action brought by you unde~ the

general law, when you do, then so be it.

MR KING:	A short answer to that, with respect, Your Honour,
is, in this case, the 1957 Convention was invoked

before the new legislation came into effect and, in

addition, of course, logically, the relevant

occurrence which is the source of the right to

limit also occurred before the new legislation came

into effect.

BRENNAN J: Yes. I suppose you might that if he has a

substantive claim at the time that he made the

claim under the 1957 Convention, you have a

substantive right to the benefit of it?

MR KING:  That is right. We say that is not inconsistent

with the position we have put.

Your Honours, as to differences between this

case and the "Lorna Dorn", firstly, after a hearing last year, then in May the application was made to the Full Court of the Federal Court in the "Lorna
of four months before Mr Justice Sheppard,

Dorn" case. We have sought judgment from

His Honour in our matter but His Honour has

reserved his decision pending the outcome of this

application.

We are concerned that in a matter of real

importance on the facts, leaving aside any question

of law, because we are dealing here with a large

shipment which ran aground and caused extensive

damage and losses off Western Australia, and it is

not the first of its type, and important matters

relating to the fault of shipowner managers in

relation to occurrences of that type, we would be

concerned, and we would press upon Your Honours

that concern, that those important matters are held

up further.

We also submit this, that in fact it may be

entirely futile. What is decided on - - -

DEANE J:  Mr King, what you are on now really has to be

approached on the basis that leave is going to be

granted in the other case.

MR KING:  That is so, yes. I am really putting additional

matters to distinguish ourselves from Mr Macfarlan.

His case has not even started.

Victrawl 20 11/2/94

DEANE J:  On that assumption, what would happen in this

case, in your case, if we were simply to refuse

leave?

MR KING: Nothing, Your Honours, because as Justice Gaudron

pointed out, if His Honour Justice Sheppard should

decide that by commencing the application in the

way that they did and in other circumstances

pleaded below, in fact, the owners have elected to

rely upon a 1957 Convention, assuming they have a

right of election anyway, then, of course, the

point is futile. Again, it is futile, if

His Honour decides on the facts that the conduct of the owners was so greatly at fault that in fact it was reckless under the 1976 Convention so that the

escape provisions apply in any event, as well as

being negligent or at fault under the 1957

Convention, so it does not matter which one

applies.

DEANE J: Assume against yourself that leave is granted and

ultimately the appeal is successful in the other

matter with the result that the Full Court of the

Federal Court was mistaken on the matters involved

in the application in your case, where would that

leave your case?

MR KING:  I think that probably what His Honour would do, if

Your Honour refused leave in our case, would be to

make a decision as to what he thought was the right

result on this question that is being posed for

Your Honour so that a right of appeal would, in any

event lie, and then he would probably - and this

has been briefly discussed - make an alternative

finding on the assumption that the 1976 Convention

applies. So that in the event that Your Honour

should allow the appeal and the appeal would have

relevance to our case, there has been no wastage of

court time and the evidence that has been led.

That would, with respect, just looking at it from

this point of view, seem to cover the various

possibilities.

Your Honours, in addition, I just briefly

press these points: the Sanko case does not involve the master which Mr Rayment, for the reasons he stated, says is of some public

importance, and I have dealt with the election

argument raised by Your Honour Justice Gaudron.

If Your Honours please, those are the matters

that I would seek to put in the Sanko application.

BRENNAN J: Thank you, Mr King. Yes, Mr Rayment?

MR RAYMENT:  Your Honours, I commence with Mr Macfarlan's

submissions and his first submission which related

Victrawl 21 11/2/94

to the position of parties who would wish to bring

claims or seek limitation. This statute, in its

generality, will apply to events arising all around

the world. It could not possibly be said that

parties had vested rights of one kind or another.

It would depend upon where they sued and whether,

in that jurisdiction, there was power to limit and

when that limitation arose. In our respectful

submission, you might very often, in these cases,

be concerned with events on the high seas or even

in the territorial areas of other countries because

when a ship comes here it can be arrested and the

right to arrest the ship will be treated as being

in rem and this Court can be called upon to

adjudicate questions which otherwise might

naturally fall for determination in other

jurisdictions.

Its world-wide nature is enough to show, in

our respectful submission, that in the generality
of cases no presumption could possibly stem from

that fact.

Your Honours, in relation to the matter put

about CSR v Irving, a case which depended upon

views as to whether a right of appeal was a

substantive right, that question may perhaps, if
the House of Lords is right in L'Office Cherifien,

be of less importance than previously thought but

it is really a submission that Abbott v Minister

for Lands is wrong, and that has been applied most

recently in this Court in Esber's case. In other words, whatever may be the position about appeals,

it is special and it is distinguished from other

statutory rights.

Your Honours, in the third place, may we

embrace what was said about Article 17 rule 4, and add this to it. That in Article 1 rule 4 specific

reference is made to the rights of those for whom

the shipowner is responsible to come in under a limitation right but the touchstone of that right	is the making of a claim against the person.
Mr Coulston in the "Lorna Dorn" case received a
claim - he was the master - after 1 June 1991 and he had a right by Article 1 rule 4 to come in under
the limitation of Victrawl in due course which
would tend to suggest, in our respectful
submission, that this is a claims-related convention.

Your Honours, so far as the Dutch case is

concerned, if Your Honours would turn to page 15 of

it where the decision appears to be given, it

appears from that page that the Dutch court founded

itself, at least in part, upon some provisions of

Victrawl 22 11/2/94

municipal law in Holland. They mentioned, at about

line 10:

The conclusion that consequently the London

Convention -

by which they refer to the 1976 Convention -

cannot take immediate effect is supported by

the transitionary provision of Article VI of

the Act of 14 June 1989, Statute-Book 241 -

that is an immediately following Act -

by which the Code of Commerce and the Code of

Civil Procedure were modified in connection with the London Convention; in as far as

relevant, this provision contains that the

mentioned act is only applicable with respect

to liability resulting from an incident which

occurred after its coming into force.

So, it would seem that at least, in part, the

Dutch decision is based upon Dutch municipal law and would not be of relevance here.

If there were an expressed declaration about that matter the questions would not arise in the same

way.

Your Honours, in our respectful submission, so

far as Mr King's submissions are concerned, nothing

in L'Office Cherifien conflicts with what is said

in paragraph 11 of the case stated. L'Office

Cherifien was not concerned with section 8 of the

Acts Interpretation Act or its equivalent, and the

concession that was made by both parties with

respect to the pending application under the 1957 Act in that case is supportable upon the basis of section 8, properly understood in the light of the

Heublein case because that was pending at the date

of repeal.

Your Honours, finally, if the Court should be

minded to grant leave, so far as the procedure

before Mr Justice Sheppard is concerned, we say

this: His Honour has indicated that if this Court

should grant special leave, he would give an

alternative judgment dealing with limitation under

both conventions and, I suppose, dealing also with

the election question, so that whatever the outcome
of this application when the appeal is heard, all
matters could be disposed of. But unless either

leave is granted or the application is adjourned,

we would, as we see it, be faced with an issue

estoppel upon the matter in Sanko which is a course

that we would respectfully submit would be

undesirable, to put it at its lowest.

Victrawl 23 11/2/94

BRENNAN J:  The Court will adjourn to consider what course

it should take in these matters.

AT 11.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.58 AM:

BRENNAN J:  In the matter of Victrawl Pty Limited v AOTC

Limited and Other Co-Owners of Anzcan Cable, there

will be a grant of special leave.

Mr King, in relation to the Sanko Steamship Co

Limited, the Court would be minded to grant special

leave or to adjourn the matter and we would be

assisted by any submissions that you have to make

as to which of those courses your client would

prefer.

MR KING: Yes, Your Honour. Might I just seek brief

instructions?

BRENNAN J: Yes.

MR KING:  Your Honours, we would adopt the position that we

see as being best able to expedite the decision
below and, in those circumstances, we would take

the view that leave ought to be granted in the

Sanko matter as well so that it can be disposed of

at the same time.

BRENNAN J: There will be a grant of leave in that matter as

well.

MR RAYMENT: If the Court pleases.

AT 12.01 PM THE MATTER WAS ADJOURNED SINE DIE

Victrawl 24 11/2/94