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Colonial and Federal Admiralty Jurisdiction

Published online by Cambridge University Press:  24 January 2025

C. A. Ying
C. A. Ying*
Affiliation:
The New South Wales Institute of Technology
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Extract

Notwithstanding the inclusion of “Admiralty and maritime jurisdiction” within the constitutional grant of federal judicial power, current Admiralty jurisdiction in Australia is based solely on a nineteenth century Imperial statute, the Colonial Courts of Admiralty Act 1890. That this has remained the case for so long is regrettable, and reflects in part a traditional deference to Imperial control over international shipping (although lately there have been indications of greater legislative assertiveness over maritime matters generally), and in part a reluctance to interfere with the present allocation of jurisdiction among State courts.

A concerted effort is now under way to lay the foundation for the creation of a modern indigenous Admiralty jurisdiction, and with this in mind, the author sets out to examine the nature and extent of the current colonial jurisdiction, its interrelationship with the federal jurisdiction under section 76(iii) of the Constitution, and the desirability of abandoning the rigid nineteenth century base of the former to realise the full twentieth century promise of the latter.

Type
Research Article
Information
Federal Law Review , Volume 12 , Issue 3 , September 1981 , pp. 236 - 270
Copyright
Copyright © 1981 The Australian National University

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References

1 (1969) 119 C.L.R. 191.

2 Id. 209.

3 See (1969) 4 Law Council Newsletter 11, 29.

4 (1980) 15 (1) Australian Law News 27; [1980] Reform 26. )By March 1980, a Working Group set up by the Joint Committee had prepared a d aft report together with a Draft Bill for consideration by the Joint Committee.

5 For a comparative study of the rules of various countries onle arrest of ships, see generally Maritime Law: Vol. 1, Arrest of Vessels (Netherlan : Kluwer, 1976), published under the auspices of the International Bar Associatio . It was not pure coincidence that a close relationship developed between the Admi lty and commerce clauses in the American Constitution: Stolz, “Pleasure Boating a d Admiralty: Erie at Sea” (1963) 51 California Law Review 661, 666 ff. In 1972, S uth Africa contemplated abolishing its Admiralty jurisdiction, but decided for prasmatic commercial reasons not to do so: Annual Survey of South African Law 1972 (1973) 414.

6 Report of Judicature Committee to Standing Committee D,I Australian Constitutional Convention 1977 (1979) 14-15. The Australian Constitiiitional Convention, a national attempt to reform the Constitution involving Comm4mwealth and State politicians, commenced proceedings in Sydney in 1973, and met fgain in Melbourne in 1975, Hobart in 1976 and Perth in 1978. Unfortunately, although much discussion was generated, few reforms have materialised to date.

7 Third Report of Standing Committee D to Executive Committee, 3 February 1978, Australian Constitutional Convention 1978, 13.

8 Proceedings of the Australian Constitutional Convention 1978: Perth (1979) 12, 204.

9 Generally see Holdsworth, A History of English Law (7th ed. 1966 rep.) Vol. I, 544-573; Marsden's excellent Introduction to Select Pleas in the Court of Admiralty, Vol. I, xi-lxxxiv, and Vol. II, xi-xli, written in 1894 (Selden Society Publications); Mears, “The History of the Admiralty Jurisdiction” in Select Essays in Anglo American Legal History (1907-1909) Vol. II, 312-364 and O'Hare, “Admiralty Jurisdiction” (1980) 6 Monash University Law Review 91, 195. In addition, Sir Travers Twiss's Introduction to each of the four volumes of the U.K. Rolls Series publication (commencing 1871) of the Black Book of the Admiralty provides a documentary and historical background to the old maritime codes administered in the Admiral'sCourt.

10 13 Rich. II c. 5 (1389); 15 Rich. II c. 3 (1391).

11 [1895] P. 95.

12 Id. 107.

13 Per Hill J. in The Fagernes [1926] P. 185, 189 (reversed on the facts by the Court of Appeal in [1927] P. 311).

14 (1859) Bell 72; 169 E.R. 1171.

15 [1927] P. 311.

16 28 Hen. VIII c. 15 (1536).

17 39 Geo. III c. 37 (1799).

18 That the Crown still possesses droits to royal fish (which include the whale, porpoise and sturgeon) was recently brought home when the Queen laid claim to a rare 12 kg. sturgeon which, unknown to Her Majesty, had been set aside for a charity dinner in Cornwall. The dinner had to be cancelled: the Sydney Morning Herald, 21 May 1980, 5.

19 See also the Historic Shipwrecks Act 1976 (Cth) for Commonwealth powers over historic shipwrecks in offshore waters, and Robinson v. Western Australian Museum (1977) 138 C.L.R. 283.

20 Lindo v. Rodney (1783) 2 Dougl. 613n, 616; 99 E.R. 385, 386; The Recovery (1807) 6 C. Rob. 341, 348-349; 165 E.R. 955, 958.

21 1 Halsbury's Laws of England (3rd ed. 1952) para. 87. For a comparative analysis of the fortunes of Admiralty jurisdiction from the nineteenth century, see Wiswall, The Development of Admiralty Jurisdiction and Practice since 1800 (1970).

22 See generally Bennett, The Vice-Admiralty Court of New South Wales (University of Sydney Research Project, 1970), and, by the same author, A History of the Supreme Court of New South Wales (1974) chapter 10.

23 Colonial Courts of Admiralty Act 1890 (Imp.) s. 8(1).

24 Since superseded bys. 4 of the Australian Courts Act 1828 (Imp.).

25 (1876) 2 Ex. D. 63. See further Pianka v. R. [1979] A.C. 107, where the Privy Council re-examined R. v. Keyn, and held by a majority that Jamaican legislation had effectively changed the common law set out in R. v. Keyn so that a local magistrate possessed jurisdiction to try two Americans for drug offences committed on board an American yacht while in Jamaican territorial waters.

26 (1974) 131 C.L.R. 203.

27 (1976) 11 A.L.R. 142.

28 (1978) 18 S.A.S.R. 591.

29 Crimes (Offences at Sea) Act 1978 (Vic.); Crimes (Offences at Sea) Act 1979 (Tas.); Crimes (Offences at Sea) Act 1979 (W.A.); Crimes (Offences at Sea) Act 1980 (S.A.); Crimes (Offences at Sea) Act 1980 (N.S.W.); and Criminal Law (Offences at Sea) Act 1978 (N.T.). For an examination of the legislative scheme see Saunders, “Maritime Crime” (1979) 12 Melbourne University Law Review 158.

30 It is therefore submitted that Mitchell J. spoke in error in Kali Boat Building and Repair Pty Ltd v. The Bosna (1977) 19 S.A.S.R. 112, 115 when she stated that the court's Admiralty jurisdiction under the 1890 Act was crystallised “subject to any additional jurisdiction which may be conferred by South Australian legislation”. S. 5 of the Colonial Laws Validity Act 1865 (Imp.) must be read subject to the 1890 Act, and even if the South Australian Parliament could act under s. 3 of the 1890 Act, s. 6 of the Statute of Westminster 1931 does not affect the operation of s. 3 in the States.

31 Swift & Co. Ltd v. The Heranger (1965) 82 W.N. (Pt 1) (N.S.W.) 540, 543.

32 E.g. John Sharp & Sons Ltd v. The Katherine Mackall (1924) 34 C.L.R. 420.

33 China Shipping Co. v. South Australia (1979) 54 A.L.J.R. 57, 79.

34 As reproduced in O'Connell and Riordan, Opinions on Imperial Constitutional Law (1971) 235.

35 Cmd 3479 (1930), para. 111. The Report of the Conference is also reproduced in Commonwealth of Australia, (1929-1931) Parliamentary Papers, Vol.II, 1337, together with a separate report by Harrison Moore.

36 Harrison Moore, Constitution of the Commonwealth of Australia (2nd ed. 1910) 503.

37 Opinion No. 187 to the Colonial Office, dated 27 January 1915, reproduced in O'Connell and Riordan, op. cit., 245-246. See also infra p. 259-260.

38 (1924) 34 C.L.R. 420. In considering obiter whether the Judiciary Act 1914 (Cth) was valid, both justices assumed, Starke J. more equivocally, that it ought to have been reserved for the royal pleasure, as s. 4 of the 1890 Act required (at 429, 433).

39 [1927] A.C. 906 (hereafter cited as “The Yuri Maru”).

40 E.g. Nagrint v. The Regis (1939) 61 C.L.R. 688; The Terukawa Maru v. Co-operated Dried Fruit Sales Pty Ltd (1972) 126 C.L.R. 170. For an examination of the actual content of the 1890 jurisdiction in Australia, which it is not proposed to discuss here, see Australian and New Zealand Commentary on Halsbury's Laws of England (4th ed. 1974) Chapter 2, paras 311-350.

41 Tharros Shipping Corporation S.A. v. The Owner of the Ship “Golden Ocean” 1972 (4) S.A. 316 (N.P.D.). The case also answered doubts whether the 1890 Act continued to apply to South Africa. See further Trivett & Co. (Pty) Ltd v. Wm. Brandt'sSons & Co. Ltd 1975 (3) S.A. 423 (A.D.).

42 Emphasis added.

43 [1896) P. 42.

44 44[1897] A.C. 337.

45 Marsden, “Admiralty Droits and Salvage-Gas Float Whitton, No. II” (1899) 15 L.Q.R. 353.

46 See the Administration of Justice Acts 1920, 1956 and 1970 (U.K.).

47 For text see Singh, International Conventions of Merchant Shipping (2nd ed. 1973) 1438 ff.

48 For a list, see Halsbury's Statutes of England (3rd ed. 1968) 9, 10, 33.

49 R.S.C. 1970, c. 10 (2nd Supp.), which, inter alia, repealed the Admiralty Act, R.S.C. 1970, c. A-1. See especially ss. 22 and 43.

50 Courts of Judicature Act 1964 (Malaysia), s. 24(b); High Court (Admiralty Jurisdiction) Act, Cap. 6 (1970 Rev. Ed.) (Singapore); Admiralty Act 1973 (N.Z.).

51 Bow, McLachlan & Co. Ltd v. The Camosun [1909] A.C. 597.

52 (1969) 119 C.L.R. 191.

53 Id. 207-208.

54 Id. 208.

55 (1937) 56 C.L.R. 277, 280-281.

56 If the dama e was so caused, then the court would have jurisdiction by virtue of s. 6 of the Admrralty Court Act 1840 (U.K.), or s. 7 of the Admiralty Court Act 1861 (U.K.). For the inherent jurisdiction of the court over torts committed on the high seas, see The Mersey Docks and Harbour Board v. The Zeta [1893) A.C. 468.

57 [1927] A.C. 906.

58 Supra p. 245 nn. 40-41.

59 John Sharp & Sons Ltd v. The Katherine Mackall (1924) 34 C.L.R. 420, 432 per Isaacs J.

60 [1906] V.L.R. 304. His Honour's decision was affirmed by the High Court in McKelvey v. Meagher (1906) 4 C.L.R. 265, although for different reasons.

61 [1906] V.L.R. 304.

62 Id. 310.

63 (1945) 70 C.L.R. 175.

64 Id. 198.

65 (1936) 55 C.L.R. 324.

66 (1906) 4 C.L.R. 265.

67 (1924) 34 C.L.R. 420.

68 (1936) 55 C.L.R. 324, per Latham C.J. (at 340), Starke J. (at 347), Dixon, Evatt and McTiernan JJ. (at 358-360).

69 (1924) 34 C.L.R. 420, 425-426, 432, 433.

70 (1945) 70 C.L.R. 175.

71 Id. 192.

72 Id. 204.

73 Id. 216.

74 Id. 198. See also supra pp. 250-251.

75 (1936) 55 C.L.R. 324.

76 (1936) 56 C.L.R. 277.

77 (1939) 61 C.L.R. 688. However, there were doubts whether the declaration made by the Commonwealth in 1914 was valid: see infra pp. 259-260 and State Supreme Courts continued to exercise colonial Admiralty jurisdiction in the interim, in the absence of any argument on the point: e.g. Christie v. The Karu (1926) 27 S.R. (N.S.W.) 443; Keeney v. The Aneiura [1927] V.L.R. 387.

78 (1945) 70 C.L.R. 175.

79 The Broome Local Court Admiralty Jurisdiction Act 1917 (W.A.) confers limited Admiralty jurisdiction on the Broome Local Court in relation to claims for seamen's wages, and claims for masters' wages and disbursements on the ship's account.

80 Wanstall J. in R. v. Commissioner for Transport; ex parte Cobb & Co. Ltd [1963] Qd. R. 547, 576-577, while conceding (at 575) that the justices in The Katherine Mackall, supra, plainly treated the Commonwealth Parliament as the “legislature of the possession” entitled to make the declaration contemplated by ss. 2(1) and 3(a) of the 1890 Act, nevertheless thought that the pre-1901 power of the Queensland Parliament to act under those sections was preserved by s. 107 of the Constitution. It is argued here that s. 107 does not do so. Moreover, if his Honour's conclusion is correct, in that a State legislature is “the legislature of a British possession” under s. 3 of the 1890 Act, being the legislature of part of a British possession, and if we accept that the “British possession” is Australia (The Katherine Mackall), then we must conclude that if a State legislature makes a declaration under

81 The Annotated Constitution of the Australian Commonwealth (1976 reprint) 799.

82 Similarly, section 26(3) of the British Nationality and Status of Aliens Act 1914 (Imp.) provided “Where any parts of His Majesty's Dominions are under both a central and a local legislature, the expression “British possession” shall, for the purposes of this section, include both all parts under the central legislature and each part under a local legislature.”

83 S. 5 (2) of the Federal Court of Australia Act 1976 (Cth).

84 Land and Environment Court Act 1979 (N.S.W.).

85 District Court Act 1973 (N.S.W.), s. 51.

86 Supra p. 244.

87 For a vigorous view to the contrary, see McPherson, “Admiralty Jurisdiction and the Federal Court” (1981) 55 A.L.J. 71, 76-78.

88 (1945) 70 C.L.R. 175.

89 Id. 192, 206, 216.

90 Id. 198.

91 Viro v. R. (1978) 141 C.L.R. 88. The validity of the Privy Council (Appeals from the High Court) Act 1975 was upheld by the High Court in Attorney-General of the Commonwealth of Australia v. T. & G. Mutual Life Society Ltd (1978) 144 C.L.R. 161.

92 [1907] A.C. 112.

93 (1945) 70 C.L.R. 175.

94 Id. 192-193.

95 Id. 206.

96 Id. 193; 206.

97 (1925) 36 C.L.R. 130.

98 Owners of S.S. Kalibia v. Wilson (1910) 11 C.L.R: 689 and Newcastle & Hunter River Steamship Co. v. Attorney-General (Cth) (1921) 29 C.L.R. 357. The power of the federal Parliament to legislate substantively in maritime matters must be based on one of the heads of power in s. 51 of the Constitution, such as pl. (i) interstate and overseas trade and commerce (as expanded bys. 98); (vii) lighthouses, lightships, beacons and buoys; (x) fisheries in Australian waters beyond territorial limits; (xiv) insurance; (xxix) external affairs: and see now New South Wales v. The Commonwealth (1975) 135 C.L.R. 337; or (xxxix) the incidental power. There is no separate head of federal legislative power expressly dealing with shipping and navigation (as there is in s. 91(10) of the Canadian Constitution, the British North America Act 1867), although such an amendment to the Australian Constitution was recommended by the Imperial Royal Commission on the Constitution in its Report in 1930.

99 Comm. Parl. Deb. 1914, Vol. 75, 262-264, 313-314.

1 e n. 2 below, and see also supra p. 244.

2 Opinion No. 187 to the Colonial Office, dated 27 January 1915, reproduced in O'Connell and Riordan, Opinions on Imperial Constitutional Law (1971) 245-246.

3 Ibid.

4 (1924) 34 C.L.R. 420.

5 (1924) 34 C.L.R. 420, 429-431, 433. Isaacs J. held that since the terms of s. 60 of the Constitution were not satisfied, in that the publication in the Commonwealth Government Gazette of 16 November 1916 was not a speech or message to the Houses of Parliament or a proclamation, and in any event the publication took place more than two years after the Governor-General had assented to the Bill, the Judiciary Act 1914 (Cth) was invalid. On the other hand, Starke J. felt that since on its face the Bill had never been reserved for the royal pleasure, s. 60 did not apply.

6 See supra p. 244 n. 31. As to the date of adoption see supra p. 236.

7 (1815) 7 Fed. Cas. 418. In the historical analysis of Story J. his evident enthusiasm for the Admiralty led him to overstate his case in some respects: see Robertson, Admiralty and Federalism (New York: Foundation Press, 1970) 37, fn. 37 and Chapter IV; Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction” (1962) 6 American Journal of Legal History 250, 347. For further reference to the evolution of the Admiralty clause, see “From Judicial Grant to Legislative Power: the Admiralty Clause in the Nineteenth Century” (1954) 67 Harvard Law Review 1214; Stolz, “Pleasure Boating and Admiralty: Erie at Sea” (1963) 51 California Law Review 661.

8 (1815) 7 Fed. Cas. 418, 443.

9 28 U.S.C.A. 1333.

10 Black, “Admiralty Jurisdiction: Critique and Suggestions” (1950) 50 Columbia Law Review 259, 274.

11 (1825) 23 U 428.

12 5 Stat. 726 (1845), now codified as amended in 28 U.S.C.A. 1873.

13 (1851) 53 U.S. 443.

14 (1868) 75 U.S. 15. While the 1845 Act of Story J. was in the main held inoperative in so far as it conferred jurisdiction, that portion of the Act providing for jury trial on the request of either party was regarded as effective, on the basis that it dealt with a mode of exercising jurisdiction rather than conferring it, and it still appears as 11 1873 in 28 U.S.C.A.

15 (1870) 77 U.S. 557.

16 Id. 563.

17 See generally for Admiralty law and jurisdiction in the U.S.A., Benedict on Admiralty (7th ed. revised N.Y. Matthew Bender) and Gilmore and Black,.The Law of Admiralty (2nd ed. N.Y. Foundation 1975).

18 (1924) 34 C.L.R.420.

19 Id. 427. In 1862 the eminent Admiralty judge, Dr Lushington, while nostalgically admitting the width of the Admiralty jurisdiction of former times, had regretfully conceded that such an expansive jurisdiction as advocated by Story J. could not then be exercised: (1862) Lush. 468,471.

20 Id. 428.

21 Id. 424.

22 Mcllwraith McEacharn Ltd v. Shell Co. of Australia Ltd (1945) 70 C.L.R. 175, 208.

23 (1979) 54 A.L.J.R. 57.

24 Id. 68.

25 Thus, in relation to s. 51, in Lansell v. Lansell (1964) 110 C.L.R. 353, the High Court was prepared to hold s. 86(1) of the Matrimonial Causes Act 1959 (Cth) within the power relating to divorce and matrimonial causes (pl. xxii). S. 86 empowered a court to direct a settlement of property between parties whose marriage had been dissolved, and Taylor J. referred to the principles of progressive interpretation which should be adopted when construing the Constitution (at 366-367)principles which he said recognised the difference between the essential meaning of a term, remaining as it was in 1900, and its non-essential meaning, which might change since that time. Although this distinction was alluded to somewhat sceptically by Mason J. in R. v. Federal Court of Australia and Adamson; ex parte Western Australian National Football League (1979) 143 C.L.R. 190, 233-234, it has been invoked in other cases, e.g. R. v. Brislan; ex parte Williams (1935) 54 C.L.R. 262 (pl. (v)); R. v. Commonwealth Conciliation and Arbitration Commission; ex parte Association of Professional Engineers, Australia (1959) 107 C.L.R. 208, 267 (pl. (xxxv)). See further New South Wales v. The Commonwealth (1975) 135 C.L.R. 337 (pl. (xxix)). See also Cowen and Zincs, Federal Jurisdiction in Australia (2nd ed. 1978) 69 and Lane, The Australian Federal System (2nd ed. 1979) 1107-1120.

26 Supra p. 244 n. 31.

27 For the text of the Convention see Singh, International Conventions of Merchant Shipping (2nd ed. 1973) 1438 ff.

28 So described by the High Court in R. v. Kirby; ex parte Boilermakers' Society of Australia (1956) 94 C.L.R. 254, 268.

29 Cowen and Zines, Federal Jurisdiction in Australia (2nd ed. 1978) 63-72 and Chapter 5; Lane, The Australian Federal System (2nd ed. 1979) 509-540 and 696-716 and Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976) Chapter 11. See also Bailey, “The Federal Jurisdiction of State Courts” (1940) 2 Res Judicatae 109, 184 (especially for the struggle to oust the right of appeal to the Privy Council in cases of federal jurisdiction).

30 See further Cowen and Zines, op. cit., 71-72, 228-233.

31 (1921) 29 C.L.R. 243, 252. See also Booth v. Shelmerdine Bros. Pty Ltd [1924] V.L.R. 276.

32 (1971) 124 C.L.R. 367 (Barwick C.J., Windeyer and Walsh JJ.).

33 (1980) 54 A.L.J.R. 479. The opinions of Murphy and Aickin JJ. in China Shipping Co. v. South Australia (1979) 54 A.L.J.R. 57, 79, 83 were to the same effect.

34 Supra p. 258.

35 (1925) 36 C.L.R. 130.

36 Bistricic v. Rokov (1976) 135 C.L.R. 552; China Shipping Co. v. South Australia (1979) 54 A.L.J.R. 57.

37 (1945) 70 C.L.R. 175.

38 Id. 210. Wanstall J. in R. v. Commissioner for Transport; ex parte Cobb & Co. Ltd [1963] Qd. R. 547, 575-576 expressed agreement with Dixon J.

39 (1979) 54 A.L.J.R. 57. The continuing application in Australia of the low 1894 monetary limits in maritime claims (which was the issue in the case) was an embarrassing anachronism at the time, even if it is conceded that public policy which led to the introduction of limitation principles in English maritime law in 1734 still demands that the principle apply. Disapproving comments on the limits contained in s.503 of the Merchant Shipping Act 1894 (Imp.) were voiced by Sheppard J. in Schlederer v. The Red Fin [1979] 1 N.S.W.L.R. 258, 272-273, and, more recently, by Master Allen in the Common Law Division of the N.S.W. Supreme Court, when he reluctantly upheld the right of the Public Transport Commission to invoke s. 503 in a claim by a deckhand injured in a ferry accident (the Sydney Morning Herald, 31 May 1980, 3). However, the Navigation Amendment Act 1979 (Cth) makes an upward revision of the limitation amounts by adopting the 1957 Brussels Convention, and s. 65 and Sch. 2 which effect this·were brought into force on 31 January 1981 (see Commonwealth of Australia Gazette S7, 22 January 1981, 1).

40 Barwick C.J., Gibbs, Stephen and Aickin JJ.

41 (1979) 54 A.L.J.R. 57, 79.

42 Id. 78.

43 Id. 83.

44 See his sixth and seventh propositions, id. 77.

45 Id. 68.

46 Id. 79. The earlier views of Murphy J. were expressed in Bistricic v. Rokov (1976) 13S C.L.R. S52, S66-S67 and Robinson v. Western Australian Museum (1977) 138 C.L.R. 283, 344.

47 Parliamentary Paper No. 315 of 1976 (Cth) 1-6.

48 Commonwealth of Australia Gazette PIS of 28 December 1979 (since amended and reprinted in Gazette P3 of 11 May 1981). The Code resolves Commonwealth/ State conflicts by laying down uniform technical requirements for the survey and manning of commercial vessels.

49 Navigation (Protection of the Sea) Amendment Act 1981 (Cth); Protection of the Sea (Civil Liability) Act 1981 (Cth); Protection of the Sea (Discharge of Oil from Ships) Act 1981 (Cth); Protection of the Sea (Powers of Intervention) Act 1981 (Cth); Protection of the Sea(Shipping Levy) Act 1981 (Cth); Protection of the Sea (Shipping Levy Collection) Act 1981 (Cth).