mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hayn v Culliford (1878) 3 CPD 410
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: John Sharp and Sons Ltd v Ship 'Katherine Mackall' [1924] HCA 37 ; (1924) 34 CLR 420
Outcome: referred to
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: McIlwraith McEachern Ltd v Shell Co of Australia Limited [1945] HCA 11 ; (1945) 70 CLR 175
Outcome: referred to
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: Nagrint v The Ship 'Regis' [1939] HCA 6 ; (1939) 61 CLR 688
Outcome: discussed
In Nagrint v The Ship 'Regis' [1939] HCA 6 ; (1939) 61 CLR 688 at 698, Dixon J commented on the artificiality of the distinction based on the need for the ship to be an active agent, but recognised the importance of it in the jurisprudence: see the discussion of the cases at 698-700. A helpful passage is at 700: It is true that these cases are no more than illustrations of the manner in which the test has been applied. But they show that when the injury arises from some defect in the condition of the ship considered as premises or as a structure upon which the person injured is standing, walking or moving, the ship is treated as no more than a potential danger of a passive kind, a danger to the user, whose use is the active cause of the injury. But where the injury is the result of the management or navigation of the ship as a moving object or of the working of the gear or of some other operation, then the damage is to be regarded as done by the ship as an active agent or as the "noxious instrument." In the present case, according to the allegations, the improper navigation of the ship caused her so to behave that she capsized. Her behaviour as an active agent was the direct cause of the harm, and in that sense she was the noxious instrument. 88 What then is claimed here? One goes to the statement of claim which supports the amended writ. The oil came from Global Peace . The defendant says that it was the ship's bunker fuel. That can be seen for various purposes, including the operation of the arrest provisions to be part of the ship: Scandinavian Bunkering AS v The Bunkers on Board the Ship FV 'Taruman' [2006] FCAFC 75. It is alleged that those in charge of Global Peace , the pilot and master, failed in their duties in the navigation or management of the ship, in respect of its handling in the berthing operation. It is also alleged that those in charge of the tug were negligent for which the owner of Global peace was responsible. The propositions by way of assertions are that the ship was mishandled by, in part, those on board the ship. Thus, if these allegations are made good Medi Vitoria has had her hull fouled by the oil that has escaped from Global Peace by, in part, the faulty navigation or management or handling of Global Peace in manoeuvring the ship in the berthing operation. To paraphrase the words of Dixon J in Nagrint v The Ship 'Regis' at 200, the injury to Medi Vitoria is claimed to be the result of the navigation or management of Global Peace as a moving object in her berthing or some other operation in her berthing.
Case: Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404
Outcome: discussed
In Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 ( The 'Shin Kobe Maru' (HC)), the High Court, in a unanimous joint judgment, made clear the broad Constitutional scope of s 76(iii). It was not limited by English and colonial history; it was not tied to the state of Admiralty jurisdiction in England or the local colonies as at 1900 or 1890. Rather, it was stated (at 424) that s 76(iii): extends to matters of the kind generally accepted by maritime nations as falling within a special jurisdiction, sometimes called Admiralty and sometimes called maritime jurisdiction, concerned with the resolution of controversies relating to marine commerce and navigation.
Case: Owners of SS Kalibia v Wilson [1910] HCA 77 ; (1910) 11 CLR 689
Outcome: referred to
The second question raises an important issue about the approach to s 15, and it is appropriate to say something about this. As a matter of construction of s 15 a number of considerations are relevant. First, the approach enunciated by Dixon J in Parisienne Basket and discussed in The Queen v Gray; Ex parte Marsh and The 'Tieng Sheng (No 8)' to which I have already referred must be borne in mind. Secondly, the word "includes" in s 15(2) reflects the fact that the Act leaves open the possibility of other maritime liens being recognised beyond those listed. This might occur by reference to the development of Australian maritime law in this respect, or by the recognition of foreign maritime liens by reference to principles of private international law different to those expressed by the majority of the Privy Council in The 'Halcyon Isle' ; and see Price, G The Law of Maritime Liens (Sweet &amp; Maxwell 1940) at Ch 20. The defendant submitted (as is the case) that s 6 of the Act provides that the Act does not have the effect of creating a new maritime lien, and that this assists the conclusion that the court should not extend the categories of maritime liens. That, however, was an approach to the formulation of the whole Act on the basis of the perceived limitation of the legislative power of the Commonwealth found in Owners of SS Kalibia v Wilson [1910] HCA 77 ; (1910) 11 CLR 689 to the effect that the Commonwealth Parliament does not have implied power to legislate for Admiralty and maritime substantive law. It is unnecessary and inappropriate to discuss whether The 'Kalibia' reflects the current Constitutional position given the emergence of Australia as a fully independent nation state: cf The 'Shin Kobe Maru' (FC) at 86-7; The 'Genessee Chief' 53 US 263 (1851); The 'Lottawanna' ; Butler v Boston and Savannah Steamship Co 130 US 527 (1889); In re Garnett 141 US 1 (1891); Southern Pacific Co v Jensen 244 US 205 (1917); Panama Railroad Co v Johnson 264 US 375 (1924); and Harrison Moore The Constitution of Australia at 562. It is sufficient to say that s 76(iii) provides for Parliament to confer or invest Admiralty and maritime jurisdiction. The absence (according to The 'Kalibia' ) of a coterminous legislative power to deal with substantive law matching the reach of judicial authority over Admiralty and maritime controversies does not limit the full import and implication of the grant of judicial power. The conferral of jurisdiction is not a matter of mere procedure. It is the conferral of a species of governmental power to quell controversies. Subject to limited circumstances that may exist by way of exception, courts have a duty to exercise the power if jurisdiction is invoked. Thus, judges have a responsibility to ascertain and declare the general maritime law of Australia, as part of the common law of Australia. If that includes ascertaining and declaring the law of maritime liens, that is part of the task.
Case: PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29 ; (1998) 153 ALR 520
Outcome: referred to
In [193] to [195], [227] and [228] of the ALRC Report, there was discussion of both accrued jurisdiction and associated jurisdiction. Accrued jurisdiction is another way of referring to the whole of a matter or controversy beyond the element of identifiably federal law: that is, apparently otherwise non-federal elements which are part of the one controversy which, for a reason or reasons having its or their source or sources in s 75 or s 76 of the Constitution , is in federal jurisdiction: see especially Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 and Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570. Provisions such as s 12 of the Act and s 32 of the Federal Court of Australia Act 1976 (Cth) dealing with associated jurisdiction confer (or invest) jurisdiction in a matter which, by reference to ss 75 and 76 of the Constitution , could be (but has not been) conferred (or invested), if it is "associated" with a matter in respect of which jurisdiction has been conferred (or invested) and which has been invoked. See generally Philip Morris Inc v Adam P Brown Male Fashions [1981] HCA 7 ; (1981) 148 CLR 457, PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29 ; (1998) 153 ALR 520 and Zines Cowen and Zines's Federal Jurisdiction in Australia (Federation Press, 3 rd Ed 2003) at 148-49. For reasons that will become apparent, it is unnecessary to explore the relationship between accrued and associated jurisdiction any further, or to discuss the content of the relationship of matters which leads to a conclusion that they are "associated". It is, however, important to recognise that s 12 deals with associated matters of Admiralty and maritime jurisdiction (and not other kinds of matters contemplated by s 75 or 76 of the Constitution ).
Case: Philip Morris Inc v Adam P Brown Male Fashions [1981] HCA 7 ; (1981) 148 CLR 457
Outcome: referred to
In [193] to [195], [227] and [228] of the ALRC Report, there was discussion of both accrued jurisdiction and associated jurisdiction. Accrued jurisdiction is another way of referring to the whole of a matter or controversy beyond the element of identifiably federal law: that is, apparently otherwise non-federal elements which are part of the one controversy which, for a reason or reasons having its or their source or sources in s 75 or s 76 of the Constitution , is in federal jurisdiction: see especially Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 and Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570. Provisions such as s 12 of the Act and s 32 of the Federal Court of Australia Act 1976 (Cth) dealing with associated jurisdiction confer (or invest) jurisdiction in a matter which, by reference to ss 75 and 76 of the Constitution , could be (but has not been) conferred (or invested), if it is "associated" with a matter in respect of which jurisdiction has been conferred (or invested) and which has been invoked. See generally Philip Morris Inc v Adam P Brown Male Fashions [1981] HCA 7 ; (1981) 148 CLR 457, PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29 ; (1998) 153 ALR 520 and Zines Cowen and Zines's Federal Jurisdiction in Australia (Federation Press, 3 rd Ed 2003) at 148-49. For reasons that will become apparent, it is unnecessary to explore the relationship between accrued and associated jurisdiction any further, or to discuss the content of the relationship of matters which leads to a conclusion that they are "associated". It is, however, important to recognise that s 12 deals with associated matters of Admiralty and maritime jurisdiction (and not other kinds of matters contemplated by s 75 or 76 of the Constitution ).
Case: Polpen Shipping Co v Commercial Union Assurance Co Ltd [1943] 1 KB 151
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: Scandinavian Bunkering AS v The Bunkers on Board the Ship FV 'Taruman' [2006] FCAFC 75
Outcome: referred to
What then is claimed here? One goes to the statement of claim which supports the amended writ. The oil came from Global Peace . The defendant says that it was the ship's bunker fuel. That can be seen for various purposes, including the operation of the arrest provisions to be part of the ship: Scandinavian Bunkering AS v The Bunkers on Board the Ship FV 'Taruman' [2006] FCAFC 75. It is alleged that those in charge of Global Peace , the pilot and master, failed in their duties in the navigation or management of the ship, in respect of its handling in the berthing operation. It is also alleged that those in charge of the tug were negligent for which the owner of Global peace was responsible. The propositions by way of assertions are that the ship was mishandled by, in part, those on board the ship. Thus, if these allegations are made good Medi Vitoria has had her hull fouled by the oil that has escaped from Global Peace by, in part, the faulty navigation or management or handling of Global Peace in manoeuvring the ship in the berthing operation. To paraphrase the words of Dixon J in Nagrint v The Ship 'Regis' at 200, the injury to Medi Vitoria is claimed to be the result of the navigation or management of Global Peace as a moving object in her berthing or some other operation in her berthing.
Case: State Government Insurance Office (Qld) v Crittenden [1966] HCA 56 ; (1966) 117 CLR 412
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: State Government Insurance Office (Qld) v Rees [1979] HCA 52 ; (1979) 144 CLR 549
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 'Acrux' [1965] P 391
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. 130 For the reasons that I have identified, it is unnecessary to decide either of these questions. Given the restrictive approach to maritime liens in Anglo-Australian law, there are significant obstacles in the way of the first question, being an argument that a new class of maritime lien should be recognised: see for example, The 'Acrux' , The 'Halcyon Isle' [1981] AC 221; and Fournier v The Ship 'Margaret Z' [1999] 3 NZLR 111 [22]-[23]. 135 This approach accords with comparative practice in other jurisdictions: see for example, The 'Acrux' and The 'St Merriel' [1963] P 247.
Case: The 'Alexandrea' [2002] 3 SLR 56
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.