McIlwraith McEacharn Limited v Shell Company of Australia Limited [1945] HCA 11

McIlwraith McEacharn Limited v Shell Company of Australia Limited [1945] HCA 11 - HCA 1945 case summary — Zoe

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schedule to that Act. That schedule included New South Wales and Victoria but did not include Australia as a British possession, A judge of the Vice-Admiralty Court held that office by virtue of an appointment from the British Admiralty and not by virtue of his position as a judge of a British possession. Vice-Admiralty Courts were truly Imperial Courts and were commissioned from Great Britain. The Colonial Courts of Admiralty Act 1890 did not effect any material alteration in the jurisdiction except that it gave a right of local appeal where formerly there had been none. The Supreme Court has never been given jurisdiction under either of those Acts by name. All that has been done is that a jurisdiction in admiralty has been conferred upon judges of a certain status. When those judges sit as Colonial Courts of Admiralty they do not sit as judges of the Supreme Court but as independent tribunals, The Courts substituted for Vice-Admiralty Courts are still Imperial Courts. The Colonial Courts of Admiralty Act 1890 applied to all British possessions then existing, of which there were six in Australia, except that it was delayed by s. 16 of the Act as far as regards New South Wales and Victoria. In those two areas, Vice-Admiralty Courts were continued until 1911 when they were superseded by Colonial Courts of Admiralty in pursuance of an Order in Council under s. 14 of the Colonial Courts of Admiralty Act 1890. Reference to New South Wales in the schedule to the Act is a " contrary intention " sufficient to render inapplicable the meaning of " British possession " appearing in s. 18 of the Interpretation Act 1889 (Imp.). Notwithstanding the decision in John Sharp & Sons Ltd. v. The Katherine Mackall (1), this Court is not a Colonial Court of Admiralty because Australia is not and never was a " British possession." The political structure of any given British possession determines nothing at all, Australia is not a part of His Majesty's Dominions within the meaning of s. 18 of the Interpretation Act 1889. It is a mere political conception aggregating six British possessions into a legis- lative union ten years after the Colonial Courts of Admiralty Act

a special Act - was enacted and not contemplated at the time it was so enacted. An examination of that Act shows that there is no appeal from the Colonial Court of Admiralty jurisdiction found in New South Wales, to the High Court of Australia. If the Court

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by reason of the definition in s. 18 of the Interpretation Act 1889, the various courts of the State are still courts of a British possession, Under s. 5 of the Colonial Courts of Admiralty Act, this Court has jurisdiction to determine the appeal whether or not the judge of first instance sat as the Supreme Court of New South Wales or as a Colonial Court of Admiralty as distinct from the Supreme Court of New South Wales. The judge of first instance sat in exercise of the original admiralty jurisdiction of the Supreme Court of New South Wales and not as a separate court. Section 5 shows that the intendment and effect of the Act was to add to the juris- diction of the Supreme Court. An almost parallel case is Stewart v. The King (1). The converse type of case where a judge of the Supreme Court, as a persona designata, is invested with special functions is illustrated by Holmes v. Angwin (2) and 0. A, MacDonald Ltd. v. South Australian Railways Commissioner (3). Even if the judge of first instance originally sat not in exercise of the admiralty jurisdiction of the Supreme Court but as a separate court, a Colonial Court of Admiralty, there is still an appeal to this Court from the decision of the Full Court because that Court sat as the Supreme Court of New South Wales and not as a Colonial Court of Admiralty. When construing the words " the appeal" in s. 6 (1), regard should be had to the provisions of s. 5 so that, as in the exercise of the ordinary civil jurisdiction, an appeal lies to the Full Court of the Supreme Court and then from that Court to this Court. There is nothing in s. 7 to indicate that the appellate court was to be a separate court and a distinct entity ; in fact the language of s. 5 isin direct opposition to that interpretation. There are no Imperial Courts of Admiralty, but a function has been added to the Supreme Court and the High Court as courts in a British possession, namely Australia. Accordingly, there is a right of appeal not only preserved by s. 5 but also conferred by the Constitution. The Yuri Maru and The Woron (4) illustrates that in 1890 a complete change was made from the system which prevailed in the Vice-Admiralty Courts and the whole purpose of the legislation was to enable the courts of the Dominions and British possessions to exercise their own jurisdiction in admiralty. That is what occurred here. The matter falls within s. 504 of the Merchant Shipping Act 1894, or, alterna- tively, it falls within s. 2 of the Colonial Courts of Admiralty Act. In either case, the proceedings are brought in the Supreme Court. An interpretation of s. 6 (1) of the Colonial Courts of Admiralty Act is that an appeal lies to the Privy Council in addition to appeals

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meaning of s. 503: See William Cory & Son Ltd. vy. Dorman, Long, & Co. Lid. (2). The words " shall be deemed to include any charterer to whom the ship is demised " in s. 71 of the 1906 Act are words of extension and not merely declaratory (Muller v. Dalgety & Co. Ltd. (3) ). There cannot be a charterer without a charter and there cannot be a charter between two people without a charter party and that must be a document (William Cory & Son Ltd. v. Dorman, Long, & Co. Lid. (4)). The origin of charter parties is dealt with in Abbott's Law relating to Merchant Ships and Seamen, 14th ed. (1901), p. 330. A verbal charter party is unknown (Adamson vy. Newcastle Steam-Ship Freight Insurance Association (5)). The expansion by s. 1 (2) of the Merchant Shipping Act 1921 of the mean- ing of the word " owner" so as to include " any hirer who has con- tracted to take over the sole charge and management " of a lighter, barge or like vessel was discussed in The Thames (6). Although such a person may be in a position analogous to a charterer by demise, he is not in fact a charterer by demise (Zhe Thames (7) ). The effect of the repeal by s. 70 of the 1906 Act of the proviso to s. 1 of the 1898 Act (extending the operation of s. 503 of the principal Act) is that a ship, whether registered or not, is entitled to protec- tion and there is not any necessity to register the ship within a reasonable time or at all (The Harlow (8) ). The words " parties interested " (to whom, by s. 1 of the 1898 Act, the application of s. 502 to s. 509 inclusive'is extended) mean parties interested in the building or the launching of the ship: Halsbury's Laws of England, 2nd ed., vol. 30, p. 940; Marsden's Collisions at Sea, 9th ed. (1934), p. 169. The respondent is not a party so interested. If the view contended for on behalf of the respondent is correct, then William Cory & Son Ltd. v. Dorman, Long, & Co. Ltd. (2) and The Thames (6) could have been decided on the meaning of the words " parties interested."

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is an owner under s. 503 of the Act, as originally appearing and as amended by s. 71 of the 1906 Act. The 1898 Act deals exclusively with unregistered ships and the 1894 Act, with or without amend- ment other than that made by the 1898 Act, deals with registered ships so far as relevant : See Halsbury's Statutes of England, vol. 18, p. 163. In Sir John Jackson Ltd. v. Owners of Steamship '"' Blanche " (1), the House of Lords did not deal with the 1894 Act as amended by s. 71 of the 1906 Act, nor did it deal with s. 71 in isolation ; it dealt with the 1894 Act as originally enacted (William Cory & Son Ltd. v. Dorman, Long, & Co. Ltd. (2)). The collision under con- sideration occurred prior to the passing of the 1906 Act and if s. 71 was not declaratory it would not be applicable to those proceedings. The position in this case was exactly put in arguendo in the " Blanche" Case (3). The criterion of protection under the Act is control and not the mode in which the control is acquired : the pro- tection is given to the person who has the sole control of a ship (4), or, alternatively, has acquired in any manner whatsoever, a special and temporary ownership (5). A charterer by demise does not become liable because he is a charterer by demise as distinct from a charterer not by demise or a hirer, he becomes liable for the same and on the same ground. Cory's Case (2) proceeds upon the basis that (a) the plaintiff or the person seeking limitation was not an owner in the ordinary sense of that expression, it was a company ; (b) the company seeking limitation had not complete control ; (c) the company was not a charterer of any kind, whether by demise or not by demise, in writing or orally; and (d) the company was the servant of another entity. The observations about charters by demise being or not being in writing (6) were only expressions of doubt as to what is the law on the point and were not necessary to the decision in the case. There was not any finding in that case as to what the position would have been if the control had been in the principal company ; the finding of fact upon which the court proceeded was that the lighterage company was owner in law, it was principal in relation to servant. Control means de facto con- trol. The 1921 Act was introduced to enlarge the class of ships or to enlarge the class of craft to which the 1894 Act should apply and it proceeded upon the basis that there was not sole control in the person seeking to limit. It went upon the footing that the person seeking to limit had sole control with the subtraction of the right of the owner at will to reclaim the vessel and repair it, and

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In 1890, the Colonial Courts of Admiralty Act (Imp.) was passed and came into force in New South Wales on Ist July 1911 pursuant to an Order in Council dated 4th May 1911. Subject to the provisions of the Act, the Vice Admiralty Courts Act 1863 (Imp.) was repealed. Every court of law in a British possession which had unlimited civil jurisdiction was constituted a Court of Admiralty with the jurisdiction in the Act mentioned. Jurisdiction was conferred upon such courts over the like places, persons, matters and things as the admiralty jurisdiction of the High Court whether existing by virtue of any statute or otherwise (s' 2). And, subject to rules of court, judgments of a court in a British possession given or made in the exercise of the jurisdiction conferred on it by this Act are subject to the like local appeal, if any, as judgments of the court in the exercise of its ordinary civil jurisdiction, and the court having cognizance of such appeal shall for the purpose thereof possess all the jurisdiction by the Act conferred upon a Colonial Court of Admiralty (s. 5). And the appeal from a judgment of any court in the exercise of the jurisdiction conferred by the Act where there is as of right no local appeal or after a decision on local appeal, lies to His Majesty in Council (s. 6). It was contended that this Act neither confers upon nor transfers to the Supreme Court of New South Wales as such the jurisdiction therein mentioned but con- stitutes another tribunal described in argument as an Imperial Court called a Colonial Court of Admiralty with the jurisdiction and authority in the Act mentioned. And that appeals to the High Court were only competent in cases provided by s. 73 of the Con- stitution. In my opinion, the effect of s. 2 of the Colonial Courts of Admiralty Act 1890, coupled with the Order in Council, was to vest in every court of law in a British possession, which had therein unlimited civil jurisdiction, admiralty jurisdiction as it existed at the time of the passing of that Act (Che Yuri Maru and The Woron (1) ), not as a separate and distinct tribunal called a Colonial Court of Admiralty, but as a part of the jurisdiction of the court in the British possession. The terms of the Act make this clear. Thus, in s, 2, every court of law in a British possession which has therein original unlimited civil jurisdiction is a Court of Admiralty with the jurisdiction in that Act mentioned and to this may be added

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In s. 5, there is no difficulty in treating the local appeal referred to as including an appeal to the High Court where otherwise one lies. That is true also of s. 6. The contention that the reference to " local appeal " allows of only one appeal is perhaps founded on, or at all events supported by, the use of the indefinite article in the expres- sion in s. 6 (1) "after a decision on local appeal." But the general principle disclosed by ss. 5 and 6 is that the appellate process of "the possession " in ordinary civil matters should apply in admiralty, and there is no sufficient indication of an intention to limit the number of successive appeals. The word "local" means " within the unit of jurisdiction," that is, the possession, and an appeal from the Supreme Court to the High Court is an appeal within Australia as a unit of jurisdiction. These views are borne out by the language of the definition, in s. 15, of the expression "local appeal." It is defined to mean an appeal to any court inferior to Her Majesty in Council. The language of s. 6 (1) appears to give an appeal as of right to the Privy Council from the last '' decision on local appeal." Under s. 73 of the Constitution, the judgment of the High Court given in the exercise of its appellate jurisdiction is final and conclu- sive and accordingly an appeal to the Sovereign in Council can be brought only by special leave, the prerogative to admit such an appeal being preserved by s.74. The apparent conflict between these provisions cannot, I think, be resolved by reading s. 6 (1) as not necessarily going beyond an appeal by special leave. In Richeliew and Ontario Navigation Co. v. Owners of S.S. Cape Breton (1), s. 6 (1) was held to confer a right of appeal which overrode a Canadian statute expressed to make the judgments of the Supreme Court of Canada final and conclusive and without appeal, saving any right exercised by the Sovereign by virtue of the royal prerogative. In the present case, the Constitution is, like the Colonial Courts of Admiralty Act 1890, an Imperial statute, but later in point of date, and the solution of the conflict must be found in the principles of interpretation. But, whichever should be held to prevail, the existence of the apparent conflict supplies no reason for saying that under the Colonial Courts of Admiralty Act an appeal cannot lie to this Court.

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context of the Act of 1894, did include oral hirings giving the hirer complete control and management of the ship and her navigation and crew. There was also the decision of the Court of Appeal in William Cory & Son Ltd. v. Dorman, Long, & Co. Ltd. (1), the effect of which is, I think, accurately summed up in the headnote, in which the Court of Appeal had expressed a doubt whether the definition in the Act of 1906 would include such an oral hiring, although the Court was careful not to express an opinion that such a contract could not operate as a transference of ownership within the meaning of the Act of 1894. There was every reason, therefore, why the legislature in 1921, when it was expressly providing that s. 503 should operate as if the expression "ship " included every description of lighter, barge, or like vessel used in navigation in Great Britain, however propelled, should also provide that in the application of s. 503 to any such vessel the expression " owner " should include any hirer who had contracted to take over the sole charge and manage- ment thereof and was responsible for the navigation, manning and equipment thereof. But the fact that the legislature deemed it advisable to provide in the Act of 1921 that such hirers, for the purposes of that Act, should be included in the expression "' owners " in s. 503 does not relieve the Court from the duty of determining whether the meaning does not include such hirers without any statutory definition, and I venture to think that Sir Wilfrid Greene M.R. was only referring to the statutory definitions in the Acts of 1906 and 1921 when he said in the case of The Thames (2) that "the Legislature apparently was seeking for a form of words in _ telation to a class of vessel which is not ordinarily subject to charter, still less to charters by demise, which would describe in appropriate language a degree of control and a position analogous to that enjoyed by a charterer by demise," and that this statement was not intended to mean that, prior to the Act of 1921, hirers in such an analogous position were not owners within the meaning of the word in s. 503. But declaratory provisions in amending Acts to the effect that a word in the original Act is to include certain meanings, which, like the word include, do not indicate, expressly or by necessary implica- tion, an intention to confine the full meaning that should be attributed to the word upon its proper construction in the context of the original statute to those meanings, cannot restrict that full mean- ing to such statutory inclusions. In the instant case, therefore, there is nothing in the declaratory sections in the Acts of 1906 and 1921 to prevent the Court, without any assistance from those Acts, giving to the word " owner" in

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Before

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Judgment (222 paragraphs)

1945,