SHIPPING PRELIMINARY NOTE

249 SHIPPING PRELIMINARY NOTE General Statute law relating to shipping and navigation applicable within the territory of this State consists partly of legislation of the Parliament of this State, partly of Commonwealth legislation, and partly of Imperial legislation. To ascertain the provisions applicable in any particular case, a careful examination of all three bodies of legislation may be necessary. This article cannot do more than indicate in a general way the respective fields of the Imperial and Queensland Acts. The Imperial Merchant Shipping Acts, of which those having any operation within the limits and waters of Queensland are printed below, are of paramount importance. The chief of these is the Merchant Shipping Act, 1894, which constitutes a consolidation and re-enactment of the Merchant Shipping Acts theretofore passed. The Merchant Shipping Act, 1894 (as amended and supplemented by later Acts) constitutes a complete code of law on the subjects with which it purports to deal. The application of particular portions of it to British dominions overseas may be expressly declared (e.g. s. 91), expressly negatived (e.g. s. 372), or be left to be ascertained from the terms and character of the specific provisions. In this connection Dr. Lushington's dictum in The Rajah of Cochin (1859), Sw. Ad. Rep. 473, with respect to the Merchant Shipping Act, 1854, may usefully be repeated: "I am also clearly of opinion-and I regret to see that a doubt was entertained upon the subject-that this Merchant Shipping Act does generally apply to our colonies.... It would be impossible to construe this Act without supposing it extended to our colonies, for otherwise there are provisions applying to them, which would not confer the benefit the statute was intended to do, but would produce utter confusion and discord...." The application of particular Parts of the Merchant Shipping Act, 1894, is dealt with below. The Merchant Shipping Act, 1894, ss. 736 and 735 empower "the legislature of a British possession" to regulate the coasting trade of that possession on terms that treat all British ships alike, and to repeal, by Act confirmed by Her Majesty in Council, any provisions of the Merchant Shipping Act, 1894, itself (other than those relating to emigrant ships) so far as they apply to ships registered in that possession. The repeal may be effected by implication from the enactment of inconsistent provisions by the legislature of the British possession H ume v. Palmer (1926), 38 c.l.r. 441, at p. 449. Under the Merchant Shipping (Equivalent Provisions) Act, 1925, s. 2, p. 55 I, post, British ships registered outside the United Kingdom may be exempted while in United Kingdom ports from any provisions of the Merchant Shipping Acts which apply to such ships "if, but only if, they are within a port of

250 SHIPPING Vol. 15 the United Kingdom". The power has not been exercised. The whole position is summed up by Isaacs, J., in Union Steamship Co. of N.Z. Ltd. v. Commonwealth (1925), 36 C.L.R. 130, at p. 142: "The Merchant Shipping Acts, 1894 to 1906, treat merchant shipping as an Imperial subject. They indicate an endeavour to provide on a national basis for all contingencies of British mercantile navigation throughout the Empire, partly by direct enactment and partly by optional local enactment imperially sanctioned (ss. 711, 735 and 736). But the Acts in one way or another cover the whole subject". Commonwealth powers The establishment of the Commonwealth has inevitably led to the raising of the questions, under the Merchant Shipping Act, 1894, as under other Imperial Acts, whether the Parliament of the Commonwealth is the "legislature of a British possession", and, if it is, whether the Parliaments of the States remain such. The Interpretation Act, 1889, s. 18 (2) (23 Halsbury's Statutes of England, 2nd ed., p. 219) declares that, subject to the appearance of a contrary intention, parts of British dominions under a central legislature, where there are both central and local legislatures, shall be deemed to be one British possession. It had been definitely decided by the High Court that the Parliament of the Commonwealth was the legislature of a British possession for purposes of ss. 735 and 736 of the Merchant Shipping Act, 1894, Hume v. Palmer, supra. Cf. John Sharp & Sons Ltd. v. The Katherine Mackall ( 1924), 34 CL.R. 420, deciding a similar question with respect to the Colonial Courts of Admiralty Act, 1890, title ADMIRALTY, Vol. 1, p. 123. However, on the adoption by the Commonwealth of ss. 5 and 3 of the Statute of Westminster, 1931, title COMMONWEALTH AND STATES, Vol. 4, p. 269, the Parliament of the Commonwealth ceased to be the legislature of a British possession for purposes of ss. 735 and 736 of the Merchant Shipping Act, 1894, and acquired a general power to make laws having an extraterritorial operation, without, however, affecting the line of division between Commonwealth and State powers, ibid., ss. 8-10. The Commonwealth Constitution, ss. 51 (i), 98, title COMMON WEALTH AND STATES, Vol. 4, pp. 206, 229, allows the Commonwealth to legislate on navigation and shipping with other countries and among the States, and s. 5 of the Commonwealth of Australia Constitution Act has the effect of extending the operation of Commonwealth laws to British ships, other than ships of war, whose first port of clearance and port of destination are in the Commonwealth. See Merchant Service Guild of Australasia v. A rchibald Currie & Co. (1908), 5 CL.R. 737; Clarke v. Union SS. Co. of New Zealand Ltd. (1914), 18 C.L.R. 142; Merchant Service Guild of Australasia v. Commonwealth Steamship Owners Assoc. (1913), 16 CL.R. 664. These powers under ss. 51 (i) and 98, at all events when unaided by s. 5 of the Constitution Act, and, semble, also when that section applies, do not enable the Commonwealth to override Imperial legislation applicable to ships not engaged in the coasting trade and not registered in Australia (Union Steamship Co. of N.Z. Ltd. v. The Commonwealth (1925), 36 C.L.R. 130), the legislative powers conferred by the Commonwealth Constitution being subject to, and not overriding, s. 2 of the Colonial Laws Validity Act, 1865, title CONSTITUTION, Vol. 2, p. 725.

PRELIMINARY NOTE 251 The limits between Commonwealth powers and the powers reserved to the States have been more closely defined in several cases. Thus the Commonwealth Parliament cannot regulate the manning of ships not engaged in inter-state or foreign trade merely because they go on the high seas or in waters used by ships engaged in such trade or commerce, and it cannot deal with collisions between vessels not engaged in such trade merely because the collision occurred in a navigable river, at a short distance outside the course ordinarily used by ships engaged in such trade or commerce, and shortly after the colliding vessels had traversed part of that course, R. v. Turner (1927), 39 c.l.r. 411, 424-425; Newcastle and Hunter River Steamship Co. v. A.-G. (1921), 29 c.l.r. 357. Where a State Act or regulations thereunder and a Commonwealth Act or regulations thereunder purport to deal with the same subject matter in relation to ships and navigation within the powers of the Commonwealth, the State Act or regulations are invalid, Commonwealth Constitution, s. 109, title COMMONWEALTH AND STATES, Vol. 4, p. 232; Hurne v. Palmer (1926), 38 c.l.r. 441. It remains to mention that the Commonwealth has powers, independent of those with respect to shipping and navigation, to regulate naval defence, lighthouses, lightships, beacons and buoys, quarantine, and fisheries in Australian waters beyond territorial limits, Commonwealth Constitution, s. 51 (vi), (vii), (ix), (x), Vol. 4, p. 206. Commonwealth legislation See Navigation Act 1912-1968. Queensland legislative powers The power of the Parliaments of the States since the establishment of the Commonwealth to legislate as the legislatures of British possessions, subject of course to the Commonwealth Constitution, has not been seriously questioned on any occasion, notwithstanding that the matter appears to be seriously arguable on the terms of s. 18 (2) of the Interpretation Act, 1889 (Imperial), 24 Halsbury's Statutes of England, 2nd ed., p. 219. Judicial pronouncements relevant to this question are so far very meagre. Some little guidance may, perhaps, be gleaned from the judgments in McArthur v. Williams (1936), 55 C.L.R. 324, more particularly at pp. 359-361, and McKelvey v. Meagher (1906), 4 c.l.r. 265, but the decisions there given were influenced by a number of considerations different from those arising under the Merchant Shipping Act. It is important to remember, however, that s. 18 (2) of the Interpretation Act, 1889, only lays down a rule for application where no inconsistent intention appears from the particular provision, and that the legislative powers of the Commonwealth in this connection are subject to serious limitations under the Constitution. However this question may be decided, it cannot affect the validity of Queensland Acts passed prior to the establishment of the Commonwealth or Queensland Acts not being repugnant to provisions of the Imperial Acts extending to Queensland. The most important limitation on the powers of the Queensland Parliament is that contained in the Commonwealth Constitution and already described.

252 SHIPPING Vol. 15 Queensland legislation Queensland shipping legislation is to be found under this title and consists of the Queensland Marine Acts, 1958 to 1967. The contractual relations of owners and charterers and shippers with respect to carriage of goods by sea are dealt with by the Sea Carriage of Goods (State) Act of 1930, p. 743, post, which, however, applies only to carriage between ports within this State (ibid., s. 3), interstate carriage and carriage from ports in the Commonwealth to ports outside the Commonwealth being governed in similar terms by the Sea-Carriage of Goods Act 1924 of the Commonwealth. Both Acts follow closely the Imperial Carriage of Goods by Sea Act, 1924 (23 Halsbury's Statutes of England, 2nd ed., p. 884), which applies to carriage of goods from any port in Great Britain or Northern Ireland (s. 1). Survey of Merchant Shipping Acts, 1894 to 1967 and Queensland Marine Acts, 1958 to 1967 Registration of Ships. Registration of British ships is provided for by Part I of the Merchant Shipping Act, 1894, post, which, by virtue of s. 91, applies to all British dominions. As to registries in British possessions, see ss. 4 (1) (e), 89. Provisions having specific application to British possessions are ss. 62 and 90. Certain small vessels are exempted from registry by s. 3. With respect to registration of motor boats and motor vessels, see Queensland Marine Acts, 1958 to 1967, s. 196, post. The Merchant Shipping Act, 1894, Part I, is supplemented by the Merchant Shipping Act, 1911, post. Masters, Officers and Seamen. The Imperial legislation is to be found in the Merchant Shipping Act, 1894, Part II, p. 290, the Merchant Shipping Act, 1906, Parts III and IV, p. 356, the Merchant Shipping (Seamen's Allotment) Act, 1911, p. 571, and the Merchant Shipping (Certificates) Act, 1914, p. 550, post. These Acts have only a very limited application to ships registered out of the United Kingdom, but may be extended to British possessions by the legislatures thereof, Merchant Shipping Act, 1894, ss. 261, 264, post. Provisions having particular reference to British possessions abroad are ss. 102, 114 (4), 124, 125, 166, 205, 238, 253 (1) (a), 254, 257. Commonwealth legislation, applying within the limits above indicated, is contained in the Navigation Act, 1912-1968, Parts II, III (see particularly ss. 10, 11, 28, 149, 170, 177) and the Seamen's Compensation Act 1911-1960. The legislation governing coastal shipping confined to Queensland territory and waters consists of Queensland Marine Acts, 1958 to 1967, Parts III and IV, post. Survey and Certification of Vessels. Survey and certification are provided for by the Merchant Shipping Act, 1894, ss. 271 et seq., 289 (as to application of which, see ss. 364 et seq.) and the Merchant Shipping (Safety and Load Line Conventions) Act, 1932, p. 563, post. The latter Act does not apply to the self-governing dominions, but most of these, including Australia, are parties to the Conventions thereby implemented (see note following the Preamble to that Act). The Commonwealth has implemented the Act by the Navigation (Maritime Conventions) Act 1934.

PRELIMINARY NOTE 253 Provision for the survey and certification of vessels engaged in the coasting trade of Queensland is made by Queensland Marine Acts, 1958 to 1967, Part VI, post. Safety, Prevention of Collisions, etc. The Imperial provisions are contained in the Merchant Shipping Act, 1894, Part V, and the Merchant Shipping (Safety and Load Line Conventions) Act, 1932. The application of Part V is left to be gathered from the provisions thereof. The Act of 1932 does not apply to the self-governing dominions but Australia, among others, is a party to the Conventions (see note following the Preamble of the Act). Adequate provision with respect to Australian shipping is made by the Navigation Act 1912-1968. Passengers. See the Merchant Shipping Act, 1894, Part III and the Merchant Shipping Act, 1906, Part II (as to application of which, see ss. 364 et seq. of the 1894 Act), the Navigation Act 1912-1968, Part V (Commonwealth), and Queensland Marine Acts. 1958 to 1967, Part V. Pilotage. Pilotage in Queensland ports and harbours is provided for by Queensland Marine Acts, 1958 to 1967, Part VIII, post. Vessels the master of which does not hold a certificate of exemption are required to be given in charge to duly qualified pilots upon entering any harbour or port for which such a pilot is appointed (s. 166). Neither the Crown nor the pilot is liable civilly for damage or loss occasioned by his conduct of a vessel, Queensland Marine Acts, 1958 to 1967, s. 182, but the owner or master of a vessel plying solely between places within Queensland is not relieved from liability for acts of a pilot "by reason of the fact that the employment of the pilot is compulsory", ibid., s. 181. Coasting Trade. Provisions appearing to be directed chiefly to securing payment of Australian rates of wages in the coasting trade between ports within the Commonwealth, are contained in Part VI of the Navigation Act 1912-1968. No ship shall engage in the coasting trade (excluding, of course, purely intrastate shipping) unless a license or permit to do so has been issued. See also Queensland Marine Acts. 1958 to 1967, s. 255. Fishing Boats. The Merchant Shipping Act, 1894, Part IV, which contains special provisions with respect to fishing boats is declared, by s. 372, to apply to British possessions only where expressly provided. There appears to be no such express provision. See however Queensland Marine Acts, 1958 to 1967, s. 196. Motor Boats and Motor Vessels. The Governor in Council (of Queensland) has made regulations for registration, safety, navigation, etc., of motor boats and motor vessels, reference to which will be found in the Table of Contents, p. 245, ante. Wreck and Salvage. The Merchant Shipping Act, 1894, Part IX and the Merchant Shipping (Salvage) Act, 1916, deal with wreck and salvage. The greater portion of Part IX is in terms inapplicable to Australian waters, but of particular interest are ss. 523 and 558. Similar provisions to those of the Imperial Act are to be found in the Navigation Act 1912-1965, Part VII (Commonwealth). Inquiries and Courts. Part VI of the Merchant Shipping Act, 1894, which relates to special shipping inquiries and courts is for the most part inapplicable. The provisions contained in ss. 472 and 478 with respect

254 SHIPPING Vol. IS to the powers of courts in British possessions are however of some importance. Commonwealth Courts of Marine Inquiry may be established under the Navigation Act 1912-1968, (Commonwealth), Part IX and the Marine Board of Queensland has jurisdiction to hold inquiries into shipping casualties and charges of incompetence against officers under the Queensland Marine Acts, 1958 to 1967, ss. 183-195, p. 692, post. Limitation of Shipowners' Liability. The provisions contained in Part VIII of the Merchant Shipping Act, 1894, supplemented by the Merchant Shipping (Liability of Shipowners and others) Act, 1900, p. 553, post, extend throughout British dominions, unless the context otherwise requires, Merchant Shipping Act, 1894, s. 509, post. There are no equivalent provisions in Commonwealth or Queensland legislation. Lighthouses. Under the Lighthouses Act 1911-1961 the Commonwealth may acquire, establish and control lighthouses, lightships, beacons, buoys and submarine signal stations. Light dues are payable under ss. 13-18 of the Lighthouses Act 1911-1961. Harbour lights and dues in respect thereof fall under the Harbours Acts, 1955 to 1968, ss. 60, 61, 119-136, (Queensland), title HARBOURS, Vol. 6. The provisions with respect to lighthouses in Part XI of the Merchant Shipping Act, 1894, are confined to lighthouses in Great Britain, with the exception of ss. 670-675, which provide for collection of colonial light dues in the United Kingdom. Pollution of Waters by Oil Acts, 1960 to 1961 The object of this Act is to prevent the pollution of territorial waters and inland navigable waters by oil. Section 4 imposes very heavy penalties for a breach of this object. The remaining sections of the Act, designed to prevent or remedy pollution, include s. 8 (duty to report discharge), s. 10 (transfer of oil at night restricted), and ss. 13, 14 (offences and proceedings generally).