mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: The 'Antonis P Lemos' [1983] 2 Lloyd's Rep 310
Outcome: referred to
Whether or not a claim bears the requisite legal character in any given case may not be straightforward. In a number of cases the courts have examined the assertions made in, and facts proven in relation to, the writ and accompanying documents to answer the question whether the claim, as made, answers the description of the words of the relevant paragraph as an appropriate enquiry as to the jurisdiction of the court: see, for example, The 'Bass Reefer', The 'Acrux' [1965] P 391 ; and The 'Antonis P Lemos' [1983] 2 Lloyd's Rep 310. How, in any given case, the plaintiff chooses to discharge the responsibility on it to satisfy the court of the jurisdiction of the court is a matter for it. The plaintiff may choose to lead evidence of the underlying claim. But it should always be borne in mind that it is the claim, that is the relevant assertions, that must bear the requisite legal character. Care should be taken not to invest this task with a function or requirement of proving the claim at some prefatory level or to some preliminary standard of satisfaction. To do so would raise difficulties of a character similar, indeed related to, those that Willmer J saw posed by the defendant's unsuccessful argument in The 'St Elefterio' [1957] P 179 at 185-87.
Case: The'Champion' [1932] P 1
Outcome: referred to
The early cases such as The 'Vera Cruz' (No 2) (1884) 9 PD 96 and Currie v McKnight [1897] AC 97 appear on their own facts to require a close and direct connection between the damage and the ship as an instrument. Lord Diplock approved these cases in The 'Eschersheim' , but factually applied the phrase more broadly than perhaps was done in those cases. A similarly somewhat broader approach can also be found in The 'Industrie' (1871) LR 3 A &amp; E 303, The 'Chr Knudsen' [1932] P 153 and the The 'Minerva' [1933] P 224.
Case: The 'Edinburgh Castle' [1999] 2 Lloyds Rep 362
Outcome: referred to
Recalling that such a provision conferring jurisdiction on a superior court is to be interpreted liberally and without imposing or reading in limitations not found in the express words, what do these paragraphs mean? The words "in respect of" provide for a wide relational connection and should be given their ordinary broad meaning: The 'Sydney Sunset' [2001] FCA 210 at [12] per Tamberlin J which was applied by Belinda Ang JC in The 'Alexandrea' [2002] 3 SLR 56 at 61 [25] and [26]; The Kommunar' [1997] 1 Lloyd's Rep 1 at 5; and The 'Edinburgh Castle' [1999] 2 Lloyds Rep 362 and 363. The phrase has been said to "have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject matters to which the words refer": Trustees Executors &amp; Agency Co Ltd v Reilly [1941] VLR 110 at 111, cited in State Government Insurance Office (Qld) v Crittenden [1966] HCA 56 ; (1966) 117 CLR 412 at 416. However, of course, the meaning of the phrase, in any given case, is to be derived substantially from context: State Government Insurance Office (Qld) v Rees [1979] HCA 52 ; (1979) 144 CLR 549 at 561 and Workers Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 646-47.
Case: The 'Harlow' [1922] P 175
Outcome: referred to
"Navigation" is a word capable of wide meaning. It is used, sometimes in the phrase "navigation or management", in a number of maritime contexts, including article IV of the Hague Rules and Hague-Visby Rules dealing with the distinction between care of cargo and navigation or management of the ship. It has been said that a ship need not be in a state of motion to be in a state of navigation: Hayn v Culliford (1878) 3 CPD 410 at 417. One definition is the science or art of conducting a ship from place to place through the water: The 'Warkworth' (1884) 9 PD 145 at 148. However the word is apt to encompass, if the context permits, the controlled movement of a ship to berth with the assistance of tugs: see generally The 'Lord' v Newsum Sons &amp; Co [1920] 1 KB 846 at 849; Cyber Sea Technologies Inc v Underwater Harvester Remotely Operated Vehicle Serial (2000) 1 FC 569 at [6] and [7]; Good v The London Steamship Owners' Mutual Protecting Association (1871) LR 6 CP 563 at 569; Whistler International Limited v Kawasaki Kisen Kaisha Ltd [2001] 1 AC 638 at 643-44; The 'Glenochil' [1896] P 10 at 15-16; City of Charleroy v Bittern (1923) 14 Ll L Rep 302; The 'Mac' (1882) 7 PD 126 at 130; The 'Harlow' [1922] P 175 at 181; and The 'Champion' [1932] P1 at 10 and 15-16. Some cases require the planned or ordered movement from one place to another: see Polpen Shipping Co v Commercial Union Assurance Co Ltd [1943] 1 KB 161 at 167 and Steedman v Scofield [1992] 2 Lloyd's Rep 163 .
Case: The 'Lord' v Newsum Sons &amp; Co [1920] 1 KB 846
Outcome: referred to
"Navigation" is a word capable of wide meaning. It is used, sometimes in the phrase "navigation or management", in a number of maritime contexts, including article IV of the Hague Rules and Hague-Visby Rules dealing with the distinction between care of cargo and navigation or management of the ship. It has been said that a ship need not be in a state of motion to be in a state of navigation: Hayn v Culliford (1878) 3 CPD 410 at 417. One definition is the science or art of conducting a ship from place to place through the water: The 'Warkworth' (1884) 9 PD 145 at 148. However the word is apt to encompass, if the context permits, the controlled movement of a ship to berth with the assistance of tugs: see generally The 'Lord' v Newsum Sons &amp; Co [1920] 1 KB 846 at 849; Cyber Sea Technologies Inc v Underwater Harvester Remotely Operated Vehicle Serial (2000) 1 FC 569 at [6] and [7]; Good v The London Steamship Owners' Mutual Protecting Association (1871) LR 6 CP 563 at 569; Whistler International Limited v Kawasaki Kisen Kaisha Ltd [2001] 1 AC 638 at 643-44; The 'Glenochil' [1896] P 10 at 15-16; City of Charleroy v Bittern (1923) 14 Ll L Rep 302; The 'Mac' (1882) 7 PD 126 at 130; The 'Harlow' [1922] P 175 at 181; and The 'Champion' [1932] P1 at 10 and 15-16. Some cases require the planned or ordered movement from one place to another: see Polpen Shipping Co v Commercial Union Assurance Co Ltd [1943] 1 KB 161 at 167 and Steedman v Scofield [1992] 2 Lloyd's Rep 163 .
Case: The 'Mac' (1882) 7 PD 126
Outcome: referred to
"Navigation" is a word capable of wide meaning. It is used, sometimes in the phrase "navigation or management", in a number of maritime contexts, including article IV of the Hague Rules and Hague-Visby Rules dealing with the distinction between care of cargo and navigation or management of the ship. It has been said that a ship need not be in a state of motion to be in a state of navigation: Hayn v Culliford (1878) 3 CPD 410 at 417. One definition is the science or art of conducting a ship from place to place through the water: The 'Warkworth' (1884) 9 PD 145 at 148. However the word is apt to encompass, if the context permits, the controlled movement of a ship to berth with the assistance of tugs: see generally The 'Lord' v Newsum Sons &amp; Co [1920] 1 KB 846 at 849; Cyber Sea Technologies Inc v Underwater Harvester Remotely Operated Vehicle Serial (2000) 1 FC 569 at [6] and [7]; Good v The London Steamship Owners' Mutual Protecting Association (1871) LR 6 CP 563 at 569; Whistler International Limited v Kawasaki Kisen Kaisha Ltd [2001] 1 AC 638 at 643-44; The 'Glenochil' [1896] P 10 at 15-16; City of Charleroy v Bittern (1923) 14 Ll L Rep 302; The 'Mac' (1882) 7 PD 126 at 130; The 'Harlow' [1922] P 175 at 181; and The 'Champion' [1932] P1 at 10 and 15-16. Some cases require the planned or ordered movement from one place to another: see Polpen Shipping Co v Commercial Union Assurance Co Ltd [1943] 1 KB 161 at 167 and Steedman v Scofield [1992] 2 Lloyd's Rep 163 .
Case: The 'Minerva' [1933] P 224
Outcome: referred to
The early cases such as The 'Vera Cruz' (No 2) (1884) 9 PD 96 and Currie v McKnight [1897] AC 97 appear on their own facts to require a close and direct connection between the damage and the ship as an instrument. Lord Diplock approved these cases in The 'Eschersheim' , but factually applied the phrase more broadly than perhaps was done in those cases. A similarly somewhat broader approach can also be found in The 'Industrie' (1871) LR 3 A &amp; E 303, The 'Chr Knudsen' [1932] P 153 and the The 'Minerva' [1933] P 224.
Case: The 'Oceanic Grandeur' [1972] HCA 51 ; (1972) 127 CLR 312
Outcome: referred to
The conventional and shorter definition expressed in The 'Princess Alice' (1849) Wm Rob 138 at 139-40; 166 ER 914 at 915 by Dr Lushington that towage is the employment of one vessel to expedite the voyage of another when nothing more is required than the acceleration of her progress, is not to be limited to activity requiring a line on board. As Benedict on Admiralty (5 th Ed, Banks &amp; Co 1925) said at 166 [100]: Countless vessels, such as barges and canal boats, have no motive power of their own and are built with a view to receiving their propelling force from other sources. Other vessels with motive power of their own yet employ auxiliary power to hasten their progress or to assist in working about harbours or into docks. To supply such power to another vessel is towage and the towage contract is in all its features within the cognizance of the admiralty for such a contract is in its nature maritime. [footnotes omitted] See also Australian Coastal Shipping Commission v P V Wyuna [1964] HCA 76 ; (1965) 111 CLR 303; The 'Oceanic Grandeur' [1972] HCA 51 ; (1972) 127 CLR 312 at 332; The 'Sacramento' 273 US 326 at 328 and Lugenbuhl, C and Sharpe, D "The Law of Towage at the Millenium: What Changes Are Needed" (1999) 73 Tulane Law Review 181.
Case: The 'Princess Alice' (1849) Wm Rob 138; 166 ER 914
Outcome: cited
The conventional and shorter definition expressed in The 'Princess Alice' (1849) Wm Rob 138 at 139-40; 166 ER 914 at 915 by Dr Lushington that towage is the employment of one vessel to expedite the voyage of another when nothing more is required than the acceleration of her progress, is not to be limited to activity requiring a line on board. As Benedict on Admiralty (5 th Ed, Banks &amp; Co 1925) said at 166 [100]: Countless vessels, such as barges and canal boats, have no motive power of their own and are built with a view to receiving their propelling force from other sources. Other vessels with motive power of their own yet employ auxiliary power to hasten their progress or to assist in working about harbours or into docks. To supply such power to another vessel is towage and the towage contract is in all its features within the cognizance of the admiralty for such a contract is in its nature maritime. [footnotes omitted] See also Australian Coastal Shipping Commission v P V Wyuna [1964] HCA 76 ; (1965) 111 CLR 303; The 'Oceanic Grandeur' [1972] HCA 51 ; (1972) 127 CLR 312 at 332; The 'Sacramento' 273 US 326 at 328 and Lugenbuhl, C and Sharpe, D "The Law of Towage at the Millenium: What Changes Are Needed" (1999) 73 Tulane Law Review 181.
Case: The 'Rama' [1996] 2 Lloyd's Rep 281
Outcome: discussed
In The 'Rama' [1996] 2 Lloyd's Rep 281, Clarke J discussed The 'Eschersheim' and concluded at 293 that to be "damage done by a ship" three criteria must be satisfied: (a) the damage must be caused by something done by those engaged in the navigation or management of the ship in a physical sense; (b) the ship must be the actual or noxious instrument by which the damage is done; and (c) the damage must be sustained by a person or property external to the ship.
Case: The 'Shin Kobe Maru' (1991) 32 FCR 78
Outcome: discussed
This view swept away the doubts and hesitations about the scope or reach of s 76(iii) that had been expressed by Isaacs J in John Sharp and Sons Ltd v Ship 'Katherine Mackall' [1924] HCA 37 ; (1924) 34 CLR 420 at 427-428 and passed over the caution (if I may put it that way without any intended disrespect) of Dixon J in McIlwraith McEachern Ltd v Shell Co of Australia Limited [1945] HCA 11 ; (1945) 70 CLR 175 at 208-209. This view vindicated the submission of Sir Owen Dixon, when he had been senior counsel for the Commonwealth, in The 'Katherine Mackall' at 424, the views of Gibbs J in China Ocean Shipping Co v South Australia [1979] HCA 57 ; (1979) 145 CLR 172 at 204, the views of Zelling J in the 1981 FS Dethridge Memorial Address "Of Admiralty and Maritime Jurisdiction" FS Dethridge Memorial Addresses 1977-1988 (Maritime Law Association of Australia and New Zealand, 1989) also found in (1982) 56 ALJ 101, and the views of the authors of the Australian Law Reform Commission Report on Civil Admiralty Jurisdiction Report No 33 (the 'ALRC Report') at [70]. This had been the view of the Full Court of this Court in the decision under appeal in The 'Shin Kobe Maru' (1992) 38 FCR 227 ( The 'Skin Kobe Maru' (FCFC)) at 235 and 245-47, and of Gummow J at first instance in The 'Shin Kobe Maru' (1991) 32 FCR 78 ( The 'Shin Kobe Maru' (FC)) at 100-111.
Case: The 'Shin Kobe Maru' (1992) 38 FCR 227
Outcome: discussed
This view swept away the doubts and hesitations about the scope or reach of s 76(iii) that had been expressed by Isaacs J in John Sharp and Sons Ltd v Ship 'Katherine Mackall' [1924] HCA 37 ; (1924) 34 CLR 420 at 427-428 and passed over the caution (if I may put it that way without any intended disrespect) of Dixon J in McIlwraith McEachern Ltd v Shell Co of Australia Limited [1945] HCA 11 ; (1945) 70 CLR 175 at 208-209. This view vindicated the submission of Sir Owen Dixon, when he had been senior counsel for the Commonwealth, in The 'Katherine Mackall' at 424, the views of Gibbs J in China Ocean Shipping Co v South Australia [1979] HCA 57 ; (1979) 145 CLR 172 at 204, the views of Zelling J in the 1981 FS Dethridge Memorial Address "Of Admiralty and Maritime Jurisdiction" FS Dethridge Memorial Addresses 1977-1988 (Maritime Law Association of Australia and New Zealand, 1989) also found in (1982) 56 ALJ 101, and the views of the authors of the Australian Law Reform Commission Report on Civil Admiralty Jurisdiction Report No 33 (the 'ALRC Report') at [70]. This had been the view of the Full Court of this Court in the decision under appeal in The 'Shin Kobe Maru' (1992) 38 FCR 227 ( The 'Skin Kobe Maru' (FCFC)) at 235 and 245-47, and of Gummow J at first instance in The 'Shin Kobe Maru' (1991) 32 FCR 78 ( The 'Shin Kobe Maru' (FC)) at 100-111.
Case: The 'St Elefterio' [1957] P 179
Outcome: referred to
Whether or not a claim bears the requisite legal character in any given case may not be straightforward. In a number of cases the courts have examined the assertions made in, and facts proven in relation to, the writ and accompanying documents to answer the question whether the claim, as made, answers the description of the words of the relevant paragraph as an appropriate enquiry as to the jurisdiction of the court: see, for example, The 'Bass Reefer', The 'Acrux' [1965] P 391 ; and The 'Antonis P Lemos' [1983] 2 Lloyd's Rep 310. How, in any given case, the plaintiff chooses to discharge the responsibility on it to satisfy the court of the jurisdiction of the court is a matter for it. The plaintiff may choose to lead evidence of the underlying claim. But it should always be borne in mind that it is the claim, that is the relevant assertions, that must bear the requisite legal character. Care should be taken not to invest this task with a function or requirement of proving the claim at some prefatory level or to some preliminary standard of satisfaction. To do so would raise difficulties of a character similar, indeed related to, those that Willmer J saw posed by the defendant's unsuccessful argument in The 'St Elefterio' [1957] P 179 at 185-87.
Case: The 'St Merriel' [1963] P 247
Outcome: referred to
This approach accords with comparative practice in other jurisdictions: see for example, The 'Acrux' and The 'St Merriel' [1963] P 247.
Case: The 'Sydney Sunset' [2001] FCA 210
Outcome: referred to
Recalling that such a provision conferring jurisdiction on a superior court is to be interpreted liberally and without imposing or reading in limitations not found in the express words, what do these paragraphs mean? The words "in respect of" provide for a wide relational connection and should be given their ordinary broad meaning: The 'Sydney Sunset' [2001] FCA 210 at [12] per Tamberlin J which was applied by Belinda Ang JC in The 'Alexandrea' [2002] 3 SLR 56 at 61 [25] and [26]; The Kommunar' [1997] 1 Lloyd's Rep 1 at 5; and The 'Edinburgh Castle' [1999] 2 Lloyds Rep 362 and 363. The phrase has been said to "have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject matters to which the words refer": Trustees Executors &amp; Agency Co Ltd v Reilly [1941] VLR 110 at 111, cited in State Government Insurance Office (Qld) v Crittenden [1966] HCA 56 ; (1966) 117 CLR 412 at 416. However, of course, the meaning of the phrase, in any given case, is to be derived substantially from context: State Government Insurance Office (Qld) v Rees [1979] HCA 52 ; (1979) 144 CLR 549 at 561 and Workers Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 646-47.
Case: The 'Tian Sheng No 8' [2000] 2 Lloyd's Rep 430
Outcome: referred to
This kind of distinction between a limitation relevant to the jurisdiction of a court which goes to the existence of jurisdiction (that is as a condition which must exist before authority to adjudicate arises) and which goes to the exercise of jurisdiction was discussed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 391 as follows: It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. See also The Queen v Gray: Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351 at 374-75 per Mason J (as he then was), and in an Admiralty context, see The 'Tian Sheng No 8' [2000] 2 Lloyd's Rep 430 at 443 per Sir Anthony Mason sitting in the Hong Kong Court of Final Appeal.
Case: The 'Vera Cruz' (No 2) (1884) 9 PD 96
Outcome: discussed
The early cases such as The 'Vera Cruz' (No 2) (1884) 9 PD 96 and Currie v McKnight [1897] AC 97 appear on their own facts to require a close and direct connection between the damage and the ship as an instrument. Lord Diplock approved these cases in The 'Eschersheim' , but factually applied the phrase more broadly than perhaps was done in those cases. A similarly somewhat broader approach can also be found in The 'Industrie' (1871) LR 3 A &amp; E 303, The 'Chr Knudsen' [1932] P 153 and the The 'Minerva' [1933] P 224.
Case: The 'Warkworth' (1884) 9 PD 145
Outcome: referred to
"Navigation" is a word capable of wide meaning. It is used, sometimes in the phrase "navigation or management", in a number of maritime contexts, including article IV of the Hague Rules and Hague-Visby Rules dealing with the distinction between care of cargo and navigation or management of the ship. It has been said that a ship need not be in a state of motion to be in a state of navigation: Hayn v Culliford (1878) 3 CPD 410 at 417. One definition is the science or art of conducting a ship from place to place through the water: The 'Warkworth' (1884) 9 PD 145 at 148. However the word is apt to encompass, if the context permits, the controlled movement of a ship to berth with the assistance of tugs: see generally The 'Lord' v Newsum Sons &amp; Co [1920] 1 KB 846 at 849; Cyber Sea Technologies Inc v Underwater Harvester Remotely Operated Vehicle Serial (2000) 1 FC 569 at [6] and [7]; Good v The London Steamship Owners' Mutual Protecting Association (1871) LR 6 CP 563 at 569; Whistler International Limited v Kawasaki Kisen Kaisha Ltd [2001] 1 AC 638 at 643-44; The 'Glenochil' [1896] P 10 at 15-16; City of Charleroy v Bittern (1923) 14 Ll L Rep 302; The 'Mac' (1882) 7 PD 126 at 130; The 'Harlow' [1922] P 175 at 181; and The 'Champion' [1932] P1 at 10 and 15-16. Some cases require the planned or ordered movement from one place to another: see Polpen Shipping Co v Commercial Union Assurance Co Ltd [1943] 1 KB 161 at 167 and Steedman v Scofield [1992] 2 Lloyd's Rep 163 .
Case: The Owners of the Motor Vessel 'Iran Amanat' v KMP Coastal Oil Pte Limited [1999] HCA 11 ; (1999) 196 CLR 130
Outcome: referred to
If the question is whether, for the purposes of paragraphs (a) and (b) of s 17 or s 18 or s 19, there is the necessary relationship between the ship or other property and the relevant person, that is whether at the specified times the relevant person was the owner or charterer or in possession or control of the ship or other property, that must be established as a state of affairs or as a fact upon which jurisdiction or authority to commence the proceedings as an action in rem depends: The Owners of the Motor Vessel 'Iran Amanat' v KMP Coastal Oil Pte Limited [1999] HCA 11 ; (1999) 196 CLR 130, 138 and the cases there cited by way of example.
Case: The Queen v Gray: Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351
Outcome: referred to
This kind of distinction between a limitation relevant to the jurisdiction of a court which goes to the existence of jurisdiction (that is as a condition which must exist before authority to adjudicate arises) and which goes to the exercise of jurisdiction was discussed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 391 as follows: It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. See also The Queen v Gray: Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351 at 374-75 per Mason J (as he then was), and in an Admiralty context, see The 'Tian Sheng No 8' [2000] 2 Lloyd's Rep 430 at 443 per Sir Anthony Mason sitting in the Hong Kong Court of Final Appeal.