a wealth v H.C. or A.

a wealth v H.C. or A. - [1917] HCA 77 - HCA 1917 case summary — Zoe

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nner mentioned for the requisition of the ship for the said purpose, as hereinbefore stated the ship was never requisitioned. Prior to 8th August 1916 the Melbourne representative of the ering agents for the Commonwealth informed the said master that the Commonwealth had issued instructions to the Department Customs that no clearance for the ship should be granted unless e were loaded with wheat and that the ship would not be allowed to leave port unless so loaded. 10. On 8th August 1916 the ship was ready to proceed to sea to y out the contract for carriage of nitrates, but by reason and in view of the communications and other circumstances hereinbefore ged the master did not then make application for a clearance. IL, On 24th August 1916 the master by his agents notified the ; tment of Customs of his intention to take the necessary steps to obtain a clearance, and was then informed by an officer of the said Department that the taking of such steps would be useless 1s an embargo had been placed on the ship. _ 12. Thereupon the agents of the master wrote to the Collector of ustoms at Melbourne a letter as follows : - "* Dear Sir, - The Russian '8 hip Samoena now lying in Hobson's Bay in ballast is ready to make her departure for Caleta Buena, Chili. On behalf of the master we notified the clearing clerk that it was our intention to take out the ance papers this afternoon, but we are informed that an embargo been placed on the vessel's departure. We will be glad if you kindly advise the reason of the embargo so that we will be in a position to advise the master, who is ready to sail."" Aa On or about 26th August the said agents of the master ived from the Comptroller-Géneral of Customs a letter as

- " Dear Sir, - In reply to your letter of the 24th instant, sed to the Collector of Customs at Melbourne relative to the de e from Melbourne of the Russian ship Samoena I have to 'inform you that the master of the, vessel is aware of the position." 1M. Nothing has been done or omitted up to 26th August by the iter in connection with the ship or the discharge or loading of e same or in any matter in connection therewith in contravention f the Customs Act 1901-1910 or the regulations thereunder, or in

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-say he " may" grant it. If it did, the principle of Julius v. Bishop _ of Oxford (1) would in the circumstances apply, and give such a ; provision compulsory force. The affirmative duty is found, we think, in other considerations. Magna Charta (9 Hen. III.), c. 30, relating to foreign merchants said: " All merchants unless they were openly prohibited before, shall have safe and sure conduct to depart out of England, and to come into England, and to tarry in and go through England, as well by land as by water to buy or sell _ except in time of war." This provision, as is observed in Chitty on the Prerogative (p. 163), " strongly proves that the English had this liberty before." International commercial intercourse by sea (subject to any specially indicated municipal requirement) is always understood to imply a right to depart with the vessel. Foreign commerce and intercourse would otherwise be impossible, and one main object of the Customs Acts, including Tariff Acts, would be frustrated. The Customs Act must be read with reference to mari- time practice, applicable to all oversea commerce, inwards and outwards. It is trite law that Statutes should be construed, so far as their language permits, so as not to clash with international comity (Hx parte Blain; In re Sawers (2); Winans v. Attorney- freneral (3) ; Colquhoun v. Brooks (4); Macleod v. Attorney-General for New South Wales (5)). So reading it, there is a duty on the Com- monwealth (by the hand of the Collector) to grant the clearance if satisfied that the law has been complied with. An arbitrary refusal or one based on unjustifiable grounds is the denial of a right implicitly recognized, incorporated into and limited by the Act. By unjustifi- able grounds, we must not be understood as excluding in all cases an honest and not unreasonable belief on the part of the Collector acting for the Commonwealth, that the law has not been complied with. In times of peace, the refusal alleged in this case, if its possibility then be assumed, would be a clear primd facie breach of the Statutes. 'The justification of the Commonwealth, if any, must rest on par. Sand par. 12 of the defence. Par. 8 raises considerations applicable

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the one side was that though " requisition" of the vessel wit compensation would have been intra vires, nothing short of t would be - for instance, an embargo considered by the Crown to necessary for the public safety. On the other side it was urged ti property of a foreigner may be taken equally with that of a subj without any right on the part of the owner to compensation, subject to a diplomatic liability to his Sovereign to comp the owner. From this it was deduced that anything short of to acquisition - such as temporary user - of a foreign ship is equi permissible and equally free of compensation. In our opinion, the question as it arises in this case is not co to property. The requirement of the Commonwealth was tl aliens should themselves engage in the service of the Commony as well as permit their property to be used: To some extent appears to be recognized as permissible. In Hall's Foreign diction, at p. 171, it is said that an alien " in return for the pro which he receives, and the opportunities of profit and which he enjoys, is liable to a certain extent at any rate, in mome of emergency, to contribute by his personal service to the mai tenance of order in the State from which he is deriving adv: and under some circumstances it may even be permissible to re him to help in protecting it against external dangers." At p. | it appears that during the American Civil War Lord Lyons instructed accordingly. But, in the authorities which we hi been referred to or have seen, there is not any statement she that the mere fact of war supports an attempt to compel alie personally enter into the King's service outside the territory, ant on the open sea, and while there to risk capture or death at hands of the enemy. Any such act, if justifiable at law, mus justified by emergency under the war power specially pleaded. It would be most unwise, even if possible, to endeav anticipation to state the circumstances which alone would j the acts complained of. In view of the fact that par. pleaded and remains to be proved, if it can be proved, we ab (1) (1915) 3 K.B., 649. (2) (1916) 2. A.C, Th

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