Collector of Customs (Vic) v Wilh Wilhelmsen Agency Pty Ltd

Collector of Customs (Vic) v Wilh Wilhelmsen Agency Pty Ltd - [1956] HCA 74 - HCA 1956 case summary — Zoe

[9]

It is the fact, however, that only 99 cases of wine marked in the manner abovementioned were produced to the Customs. The consignment of wine so marked and on board the Thermopylae had been stowed in the refrigerated room in the tween deck space in No. 2 hatch. This room, it is agreed, was kept locked at all times until the discharge of cargo therefrom commenced. The wine was discharged in accordance with an established procedure by which elaborate precautions are taken to ensure that what is called "special cargo", namely cargo requiring care because of its value or nature, passes immediately from the ship to a cage in the wharf shed. The cage consists of a stout timber frame surrounded by heavy steel mesh. It measures about 30 feet by 20 feet by 15 feet, and has only one entrance. There is a clerk in charge of it, and he has the duty of checking the cargo into and out of the cage. There is also a clerk in charge of deliveries, who is accountable to both the Customs and the shipping company for all the cargo unshipped. What happened in respect of the wine discharged from the Thermopylae was as follows. Before discharging began, the clerk in charge of deliveries, having been notified that it was special cargo, arranged that during unloading watchmen should be stationed on the wharf with the duty of watching the movement of cargo, including movement from the ship to the cage. A junior officer or a member of the crew of the ship being stationed in the hold, together with one or more watchmen, the wine was conveyed by slings to the wharf, and there placed on hand trucks and moved on the trucks, under the care of a watchman, to the entrance of the cage. The clerk in charge of the cage checked it into the cage. On completion of the stacking of it in the cage he reported a shortage of one case to the clerk in charge of deliveries, and the latter reported the shortage to the cargo officer of the ship. A check was made on board the ship to see whether a case had been left behind in the hold or elsewhere, but no case was found. There was some evidence that the goods in the refrigerated room were all discharged during daytime work, but I am not satisfied of this.

[10]

The defendant had employed for the delivery of cargo from the Thermopylae a company named F. G. Strang Pty. Ltd. Early in December 1951 this company made to the Customs a report called an out-turn, in which the missing case of wine was shown as shortlanded. The Collector then, on 21st December 1951, sent to the defendant a shortage report which stated that in the examination of the inward papers of the ship one case out of the cargo enumerated remained unaccounted for, and that duty thereon was payable under s. 149 of the Customs Act unless the shortage were satisfactorily explained. On the back of the document was a reference to 100 cases of wine, marked "T.F. & Co.", and one case was shown as "reported shortlanded" and as being dutiable. An explanation was invited in a space provided for the purpose, and there was included a form of statutory declaration verifying the explanation and stating that to the best of the knowledge and belief of the declarant the goods enumerated therein as unaccounted for, and which could not be traced, were not landed and had not come within the Commonwealth. To this the defendant made no immediate response. But it had already, on 14th December 1951, sent letters of inquiry, each headed "Cargo Tracer", to the ship's agents at Rotterdam and Lisbon, the latter having been the only intermediate port at which the Thermopylae had called on its voyage to Melbourne. Each letter gave particulars of a considerable quantity of goods, some shown as shortlanded and some as surplus, and asked that immediate and thorough investigations be made by the agents. Among the goods shortlanded was one case of still wine marked "T.F. & Co. Melb. 200/99". In due course the letters were received back by the defendant, the Rotterdam agents' letter having the words "duly shipped" opposite the reference to the case of still wine and the Lisbon agents' letter bearing the words (in a position which counsel are agreed shows that they were intended to apply to the case of still wine as well as other items) "Reply: Not overlanded at this port".

[12]

On 27th May 1953 the Collector wrote to the defendant a letter which referred to a number of claims for duty in respect of shortlanded cargo, and stating that the explanation furnished by the defendant in respect of each shipment was not satisfactory. It added that as the goods had not been accounted for to the Collector's satisfaction he had again to call on the defendant for payment of the amounts outstanding, and threatened legal proceedings. The Collector, however, for what reason does not appear, took no further step until the following year when he instructed two of his officers, a Mr. Cotton and a Mr. Blakeley, to make an investigation. They interviewed at the defendant's office in May 1954 a Mr. Stirling, the head of the freight department, who answered their questions and gave them access to the ships' files relating to all the matters into which they wished to inquire. They spent two and a half hours in the defendant's office. They were not told (no doubt because no occasion to mention it arose) that the shortage had been reported to the cargo officer on the ship and that the holds were immediately examined. They reported to the Collector on 4th June 1954, and on that day the Collector made and signed a minute stating: "The goods have not been accounted for to my satisfaction pursuant to s. 149 of the Customs Act 1901-1953 ". On 14th September 1954 the Collector wrote to the defendant, referring to the case of wine and stating that after consideration of the defendant's letter of 8th December 1952 and the reports of his officers it appeared that the goods were dutiable goods which had been included in the inwards report of the ship but had not been produced to the Customs officer, and that they had not been accounted for to his satisfaction. Payment of the duty was requested, and legal proceedings were threatened failing payment. The defendant replied on 22nd September 1954, stating that it had satisfied itself "by full and careful inquiries" that the goods were not landed at or consumed in any part of the Commonwealth, and that it had furnished a statutory declaration to that effect, and asking what further information the collector would require in order that the goods might be accounted for to his satisfaction. The present proceedings were begun a few days later.

[13]

So much for the Thermopylae. The facts concerning the Kvernaas were somewhat similar and may be stated more briefly. She reached the port of Melbourne from Europe on 8th January 1952. On that day the defendant delivered to the Collector a report under s. 64, showing as amongst the cargo for the port, under the heading "Hamburg", a case of glassware with distinguishing marks and numbered 3695, which is the case of glass buttons now in question. On the same day the defendant applied for a collector's permit to discharge the ship before entry of its cargo, the application containing the same undertaking as in the case of the Thermopylae. The permit was granted and the unloading proceeded. F. G. Strang Pty. Ltd. was again engaged for the delivery of the cargo, and on 13th February 1952 that company furnished to the customs an out-turn which showed as shortlanded cargo one case of glassware numbered 3695. The goods amongst which the missing case should have been were not treated as special cargo. They were not tallied out of the ship's holds, but only from the wharf at the time of delivery to the consignee's carrier. No trace of the missing case was found on the wharf or in the ship, and the parties agree that it was not in any part of the cargo space of the vessel when she left the port of Melbourne. For the purpose of her departure the defendant submitted to the Collector on 18th January 1952 an application in accordance with form 40 for a clearance, and it was granted. On 18th March 1952 the Collector sent a shortage report to the defendant showing the case of glassware as having been reported shortlanded. The defendant had already sent "Cargo Tracers" to the ship's agents at Hamburg, the port at which the missing case should have been loaded, and at Burnie, the port to which the vessel proceeded after leaving Melbourne. These were sent on 5th and 14th February 1952 respectively. The agents at Burnie reported that no cargo for other ports could be located there, and we now know that in fact the case did not leave Melbourne in the ship. The agents at Hamburg replied that there was no trace of the goods there. (As this reply could not be located when required, a further letter was sent to them on 1st October 1952, and they replied that according to their records all consignments from Hamburg per the Kvernaas had been shipped in full). There had been no intermediate port of call between Hamburg and Melbourne, except Lisbon where the vessel did not berth and only loaded cork from lighters. On 12th May 1952 the defendant dealt with the shortage report by inserting "Shortlanded as stated" in the space for explanation, and making the note as to tallying read that the cargo was not tallied out of the vessel at the time of discharge. The statutory declaration was made by a clerk of the defendant, and the whole document was returned to the Collector. The missing case of glassware has never been produced to the Customs. On 16th April 1953 a first demand for payment of duty under s. 149 in respect of it was made upon the defendant, and from then onwards the course of events was the same as that which has been outlined in respect of the case of wine missing from the Thermopylae.

[16]

The argument primarily relied upon in answer to the claim based on s. 149 is that the section applies only in respect of goods which have been imported, and that in proceedings to recover duty under the section the burden of proving the fact of importation lies upon the Crown. It is conceded that the ship's report affords some evidence, as an admission, against the master or owner who made it, that the goods described in it were in fact imported; but it is said that the evidence as a whole must be regarded, and that if the balance of probability is against the correctness of the admission the claim of the Crown must fail. Accordingly evidence was placed before me (and was admitted subject to objection) which proved that, according to the practice followed by the defendant, reports under s. 64 are made up by transcribing the information contained in documents called original manifests, which the defendant receives from overseas ports by air mail. At the time when this is done, the bills of lading are not yet available. In the case of the Thermopylae and the Kvernaas they were not received until the ship arrived at Melbourne, that is to say until after the report had been sent in to the customs. For this and no doubt other reasons, the reports under s. 64 are often found to be inaccurate, surpluses as well as deficiencies of cargo being frequently discovered when the clerk in charge on the wharf furnishes his out-turn to the customs. Because this has become a common feature of the business, shipping agents have adopted the system of sending "cargo tracers", of which examples have already been mentioned, to agents in overseas ports from which a ship has come or at which it has touched during the material voyage. Theft is an obvious cause of discrepancies between cargo as appearing on the manifests and cargo as produced to the Customs on the wharf, and the evidence shows that theft is more likely to occur in ports of loading than in ports of discharge, because in the former the complicity of fewer people is needed. Another cause is to be found in the falling of articles into the water while being transferred in slings from wharf to ship or vice versa. And errors at ports of loading or intermediate ports not infrequently lead to cargo getting into the wrong ship, even into a ship of a totally different line and trading to a different part of the world. These facts, of course, bear strongly on the probability that if goods which are included in a report as cargo for Melbourne are not produced to the Customs at that port the reason is, not that they have disappeared after being unloaded, but that they have never been imported or at least have never been put onto the wharf. Then, too, I was given detailed information as to the precautions taken at the port of Melbourne to prevent goods disappearing from a wharf after being unloaded and before being produced to the Customs. The possibility of this happening despite all precautions, and indeed the fact that it does happen, were freely admitted; and it is obviously possible that goods such as wine (though less probably glass buttons) may be consumed on the ship; or that they may be surreptitiously disposed of from the ship without being put on the wharf.

[17]

But these possibilities being recognized, I was invited to find that the most probable of the various possible explanations of the shortage of the case of wine from the Thermopylae and the case of glass buttons from the Kvernaas was that they had never been taken into those ships, and that it was in error that the reports under s. 64 included them amongst the imported cargo. I should make that finding if it were material to do so, but I do not consider that it is. On the construction of s. 149, I am of opinion that the question whether the goods were imported is not for the Court to decide. Section 64 places upon the master and the shipowner the duty of making the report of the ship's cargo of goods for the port, and it appears to me that s. 149, taking as its starting point that the responsibility rests upon them to make a correct report, subjects them, in the event of goods not being produced which their report admits have arrived in the ship, to a qualified liability to pay the estimated amount of the duty which, on the footing that the admission accords with the fact, is payable under the Tariff. So understood, the section simply carries a step further the policy of the Act in making goods "subject to the control of the Customs" from the time of their importation (s. 30), giving the customs a right of examination (ss. 32, 49 (3)), forbidding any movement, alteration or interference except by authority of a Customs officer (s. 33), requiring "for the purpose of securing the due importation of goods" that they be entered and unshipped (s. 49 (3)), and making elaborate provisions for ensuring that the unshipping is subject to adequate safeguards for the revenue (ss. 36-41, 68-77). As O'Connor J. observed in R. v. Lyon [1] "the whole policy of the Customs Act, as indicated by a number of sections, is that, from the time of importation until the time of paying duty, the customs shall not lose control of the articles imported. That is indicated directly in s. 30, which provides that imported goods shall be subject to the control of the Customs from the time of importation until delivery for home consumption or exportation. The object of that provision, if it were necessary to give any reasons for its enactment, is obvious; if once goods go into home consumption, that is, into circulation, it becomes almost impossible to trace them. The only security the Customs authorities could have in such a case for the payment of duty would be in most cases the personal security of the importer. Therefore it is, if the Act is to be effective, that all through the dealings with the goods, from the time they are first imported until duty is paid, they must be kept under customs control" [2] . See also Baume v. The Commonwealth [3] . It may be added that although the owner of goods, if they have in fact been imported, is personally liable to pay the duty on them (s. 153), his liability may be difficult to enforce in a case where the goods are missing, for rarely will there be, in the absence of the goods themselves, any evidence admissible against him in a court of the fact of importation, and not always will such particulars of the goods be available as are needed for definite determination of the appropriate amount of duty. The master of a ship is in a position to know what cargo the ship brings into a port for discharge there, for, if he wishes, he can have cargo tallied into the ship at ports of loading and tallied out of the ship at intermediate ports. There are, no doubt, practical difficulties which may induce him to abstain from taking these precautions and to accept the risk of his inward manifests being erroneous; but he can make his choice. Through him, persons within the definition of "owner" are in a like position. But the customs have no means of knowing what the imported cargo consists of, so that they may compare it with the cargo later produced from the ship's custody. Again, the master and the "owner" are in the best position to see that, in accordance with s. 74, goods are not unshipped except pursuant to a collector's permit or an entry passed. Accordingly, s. 149, if construed in the sense I have stated, makes a perfectly congruous addition to the scheme of the Act.

[20]

The defendant then falls back upon the qualifying words: "unless the goods are accounted for to the satisfaction of the Collector". It has not been contended that, in view of the provision contained in s. 122 and of the fact that certificates of clearance were granted to the Thermopylae and the Kvernaas, a finding must be made that the missing wine and glass buttons were accounted for to the satisfaction of the Collector before the respective ships left Melbourne. How it is to be maintained that an undertaking in an application for a clearance to account for goods not produced may be accepted by the collector as an accounting for them, so as to satisfy the requirement of s. 122, I have not to decide and I do not stay to consider. The argument which the defendant submits, in the event of its being held that proof of importation is not a condition of the application of s. 149 in a given case, denies that the effect of the "unless" clause is to exonerate the master or owner from a liability which arises whenever the two conditions are fulfilled that dutiable goods included in a report are not produced to the officer and that the Collector demands payment of the duty thereon as estimated by him. The argument is that, on the contrary, the clause provides an additional condition precedent to the arising of the liability, namely a condition that the goods are not accounted for to the satisfaction of the Collector after he has allowed a fair opportunity of accounting for them to his satisfaction, in the relevant sense of that expression. If this is how the section should be read, no doubt the onus of proving fulfilment of the condition rests upon the Crown; and the argument accordingly proceeds that the Crown in the present case has not made out its case, because it has not shown that an opportunity of accounting for the goods in the relevant sense was given to the defendant. The defendant does not pin itself to any precise submission as to what the relevant sense is. If, contrary to the view I have taken, importation of the goods is a condition of the section, the defendant suggests that accounting for the goods may mean either giving a credible account of what the ship has done with the goods since importation, or giving a credible account showing both what it has done with them since then and that it has not been in some way wanting in due care. On the footing that actual importation is not a condition of the section, I suppose that the defendant would add: or showing that the goods were not imported.

[22]

What, then, is meant by the expression "accounted for to the satisfaction of the Collector"? It appears to require that upon the information before him the Collector shall have reached two conclusions. One conclusion is that his information ought fairly to be accepted as establishing certain facts. The other conclusion is that what those facts show as to the history of the goods is satisfactory from the point of view of one concerned with the due protection of the interests of the Crown under the Customs law. It is in such a sense that corresponding expressions appear to be used in other sections: see ss. 122, 124, 126 and 229 (e), and Willey v. Synan [1] . The Collector is not told specifically what standard he is to apply in deciding whether he should regard as satisfactory that which he finds has happened with respect to the goods, but the language used has no doubt been chosen deliberately in order to give scope for the exercise in each case of a sound judgment based upon practical understanding and good sense. The intention obviously is that the Collector shall not be bound by any rigid rules, but shall apply his mind to the particular facts of the individual case, and form a reasonable judgment upon them in the light of his knowledge of the conditions surrounding the loading and unloading of ships, both abroad and in this country, including, no doubt, the circumstances affecting the likelihood of error in the compilation of inward manifests. The view I have stated, as to what is involved in goods being accounted for to the satisfaction of the Collector, is borne out by a consideration of the purpose to which the section is directed. It deals with goods which presumptively have been imported and therefore presumptively have become "subject to the control of the Customs", but which have not been produced to the officer at the proper time, so that the customs have not been given the full opportunity which the normal procedure affords of enforcing payment of the appropriate amount of duty. But the section does not make the master or owner absolutely liable for what is, after all, only a presumptive loss of that opportunity; it places upon them a qualified liability only, the qualification being made to depend upon a view to be formed by an official whose functions have to do with the protection of the interest which the revenue has in the due observance of the Customs law. From these considerations it seems to me to be the proper conclusion that, if a master or owner is to be held absolved from his prima facie liability for the duty on goods which the report admits have been imported, the Collector must have information about the goods from which he concludes either that there has been no breach of the Customs law which has deprived the Crown of any means of enforcing payment of duty (as where the goods have been included in the report in error and have not in fact been imported in the ship, or where they have been produced to the Customs since the demand was made under s. 149), or that those connected with the ship who were in a position to see that the Customs law was duly observed with respect to the goods ought not in the circumstances to be regarded as responsible for any such breach that has occurred.

[24]

On the construction which I have stated, the concluding words of s. 149 do not prescribe an element in the cause of action which the section creates, but provide only a ground of defence. In the present case that defence is not made out. The defendant placed before the Collector all the information it had obtained as to the missing goods, and all the representations it thought fit to make. The Collector gave personal consideration to the whole of the material available to him, including the reports of officers who, having been charged to investigate the matter, had done so with evident thoroughness. But the material contained nothing to account for the goods if in fact they were amongst the cargo when the respective ships entered the port; and, as will be seen from the foregoing review, it fell far short of proving conclusively that the reports were in error in showing the goods as having been amongst the cargo at that time. Indeed, it added little to the general (and doubtless correct) proposition that if goods, being included in a ship's report which has been made up from original manifests received by the ship's agents from overseas ports, are not produced to the customs when the cargo is unloaded, it is more likely that the report is erroneous, and the goods were never put into the ship at the port of loading or were unloaded at some intermediate port, than that the report was correct and the goods have disappeared after importation. Whether, in a particular case, it should be accepted for the purposes of s. 149 that the report is erroneous is a question which the Collector is trusted to decide - not, I venture to point out, on the footing that whenever there is any reasonable doubt about it the goods should be treated as having been imported (as the then Comptroller-General seems to have erroneously suggested in an "instruction" issued in 1946), but making up his mind reasonably on a balance of considerations. On the whole of the evidence, including the two minutes of 4th June 1954, it is clear that the result of the Collector's consideration of the matter in the present case was that he did not form the conclusion that the goods had not been imported, and the goods were not accounted for to his satisfaction.

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Parties