Nagrint v Ship Regis [1939] HCA 6

In an action brought in the admiralty jurisdiction of the Court the plaintiff, Lorna Ellen Irene Nagrint, claimed to the sum of £400 against the ship Regis, formerly known as the

February 1938 occasioned personal injuries to and otherwise d fied the plaintiff."

An appearance to the action was entered by Charles Henry Ro who, in an affidavit, swore that he was the owner of the defe ship.

1. The plaintiff is an infant within the age of 21 years and sues herein by her duly appointed next friend Cordy Nagrint of Rockdale, near Sydney, New South Wales.

2. On 13th February 1938, the ship Regis, then known as the ship Rodney, was a ship owned and controlled and in the care and management of one Charles Henry Rosman.

_ 3. Rosman then was and still remained a British subject.

4. The said ship was at the date of the commencement of the action known as the ship Regis and was still owned by Rosman.

; 5. On 13th February 1938 the plaintiff promised to pay to Rosman a certain sum in consideration that he would carry her on the said ship on the waters of Port Jackson in order that she might view the United States of America cruiser Lowisville proceed outward from the port of Sydney to sea.

6. In pursuance of that agreement the plaintiff embarked on the ey on 13th February 1938.

7. Rosman then and at all material times was the master of the

8. The ship thereupon proceeded to follow the cruiser referred to bove and at all material times both vessels were being navigated in waters of Port Jackson ordinarily used by ships engaged in trade and commerce with other countries.

9. At a certain time the Rodney negligently and improperly moached so close to the cruiser that it became necessary in er to avoid a collision between the Rodney and the cruiser for Rodney to alter her course and in so doing to avoid the collision Rodney capsized and struck and injured the plaintiff causing mal injuries to her and also precipitated her into the water 'by she became and was for a long time sick and wounded and apparel was ruined and her health permanently impaired.

The plaintiff claimed, inter alia, a declaration that she was entitled 0 the damages proceeded for and condemnation of the ship in such es and in costs.

the allegations in the statement of claim, other than those ined in pars. 1 and 3 thereof, were denied by the defendant

The statement of claim filed on behalf of the plaintiff was substan- H. C. or A.

which, by way of further defence to the statement of claim, that the allegations contained therein did not entitle the plai to the damages as therein claimed or any damages and that th allegations therein contained did not. render the ship liab "condemnation" as therein claimed. The defendant asked tha

Dixon J., and, upon it appearing to his Honour that the ques law hereinafter stated arose and that it would be convenient to have it decided before any evidence was given or any question or

to the sufficiency of the statement of claim to support a proceedt

in rem. The question of law was whether upon the facts alleged in

statement of claim proceedings in rem lay against the ship R formerly the ship Rodney.

F. P. Evans and May, for the plaintiff. C. D. Monahan and R. Le G. Brereton, for the defendant.

Drxon J. delivered the following written judgment : -

The suit is brought in the admiralty jurisdiction of this cou with a view to proceeding in rem against the ship Rodney, whiel has been renamed the Regis. According to the allegation the statement of claim, on 13th February 1938 the plaintiff a passenger upon the Rodney when that vessel took sightseers do Port Jackson to watch the departure of an American cruiser. Tl Rodney with its passengers followed the eruiser down the ha through the waters ordinarily used by ships engaged in trade an commerce with other countries. It is alleged that the owing to improper navigation, approached close to the cruiser in changing her course in order to avoid a collision, capsized "al struck and injured the plaintiff, causing personal injuries to h and also precipitated her into the water." She complains

but, as I understand what was stated at the bar, the allegation is intended to cover proof that as or after the plaintiff was precipi- tated into the water some part of the vessel struck her.

'The existence of a remedy in rem against the vessel, as distinguished from a remedy in personam against the owner of the Rodney, is said to be of practical importance in the particular circumstances obtain- g, and for this reason the plaintiff has sued in admiralty.

_ An appearance to the writ was entered on behalf of the owner, ho at once raised the objection that the cause of action set up was not a matter of admiralty jurisdiction. As it appeared that question of law was involved which it would be convenient to have decided before any evidence was taken or any question of fact s tried, I ordered that the question be raised as an objection to the sufficiency of the statement of claim to support a proceeding in rem (Order XXXII., rule 2, Rules of the High Court). The

statement of claim proceedings in rem lie against the ship Rodney, y called Regis. In effect the question is whether the plaintifi's falls within the admiralty jurisdiction. The conclusion I e reached is that the claim may be enforced in admiralty because claim for damage done by the ship within the meaning of sec. 7 of the Admiralty Court Act 1861. But, to explain what is involved in the question and in the conclusion, some account is necessary of not very simple course which has been taken by statute and al decision in extending the jurisdiction of the High Court of 'alty. For under that provision the jurisdiction of this court to be measured by the jurisdiction of the High Court of alty. Moreover, some discussion is necessary of the interpre- or interpretations which the provision has received.

Under sub-sec. 2 of sec. 2 of the Imperial Colonial Courts of dmiralty Act 1890 a jurisdiction is given to a Colonial Court of ity over the like places, persons, matters and things as the alty jurisdiction of the High Court in England whether existing e of any statute or otherwise. The High Court of Australia ial Court of Admiralty. If sec. 30a of the Judiciary Act

quences of the immersion both to her health and to her wearing H.C. or A.

i "« » eae: pparel. It is not clear how the Rodney "struck" the plaintiff "7

1903-1937 was validly enacted by Act No. 11 of 1914, it is a Co Court of Admiralty because that section contains a declaratioi that effect pursuant to sec. 3 (a) of the Imperial Act. If was not validly enacted, it is a Colonial Court of Admiralty b it is a court of law in Australia of original civil jurisdiction, unlimit as to the value of the subject matter, within the meaning of 2 (1) and 15 of the Imperial Act: See John Sharp & Sons The Katherine Mackall (1); McArthur v. Williams (2); Steamship Co. of New Zealand Ltd. v. The Caradale (3).

The jurisdiction which this court derives from the Imperial A as a Colonial Court of Admiralty is the admiralty jurisdiction of t English High Court as it existed when the Imperial Act was passe that is, in 1890: See The Yuri Maru and The Woron (4).

The admiralty jurisdiction of the English High Court in depended primarily upon sec. 16 (5) of the Judicature Act which transferred and vested in the High Court the jurisdi which at the commencement of that Act was vested in or capab of being exercised by the High Court of Admiralty.

(1938), pp. 552-559). Even if the matter complained of h occurred on the high seas, it is not clear that the High Cou Admiralty would have been permitted to entertain a claim passenger carried upon a ship against the owner for personal inju caused by the negligent navigation of the ship, though there a1 many instances where suits for remedies in personam for to committed on the high seas, such as aseault, were maintain

The petite (6); 'The Lowther Castle (7); The Sarah (8); The Petronella (9), the notes to which give a number of

(1) (1924) 34 CLR. 420, (6) (1824) B Hag. Adm, 2715 (2) (1936) 55 C.L.R. 324, at pp. 340, ER. 9 : 341, 358-360. () Gees) ei Hog. Adm, 384; 1 (3) (1937) 56 C.L.R. 277. i (4) (1927) A.C. 906, at p. 915. (8) (1603) ea 549; 167 ELR. 2

(6) (801) 4°C. Rob. 73; 165 ER. (9) (1730) Burrell 311; 167 E.R. 5: 539. :

History of the Law of England, vol. x11. (1938), at p. 692.

'See, 7 of the Admiralty Court Act 1861 provided that the High of Admiralty should have jurisdiction over any claim for age done by any ship. The very generality of this provision provoked attempts to limit its operation to particular kinds of One view suggested was that it did not extend the kind of

xclusion of any claim on the ground that the waters where it arose e within the body of a county and it had not arisen on the high Sec. 6 of the Admiralty Court Act 1840 had enacted, among other things, that the Court of Admiralty should have jurisdiction to decide all claims for damage received by any ship or sea-going vessel whether such ship or vessel may have been within the body of a county or upon the high seas. It was suggested that the later provision was intended only as the counterpart of the earlier and to produce the same effect where the damage was done, not received, the ship. nother suggestion was that the words " claim for damage done. any ship" applied only to damage to ships or other property | not other forms of injury or loss, as, for instance, personal injury. hese limitations, after some fluctuation of decision, have, I think, ly been rejected authoritatively. The effect of decisions to h I shall refer is that the jurisdiction includes claims for personal injuries and that the criterion is not whether according to the decisions

n the high seas the Court of Admiralty might entertain. The "done," however, imposes a limit upon the operation of the

ection and makes it necessary to distinguish between damage

simply sustained on or in connection with a ship and damage inflicted y the ship as a thing, so to speak, capable of causing harm.

At one stage in the course of decision a difference of opinion arose een the Court of Admiralty and the courts of common law pon the question whether proceedings under Lord Campbell's Act night be brought in the former court. The Court of Admiralty

decided that it had jurisdiction over such proceedings (The @ (1); The Explorer (2) ). The Court of Queen's Bench decided th it had not (Smith v. Brown (3) ). To claimants under Lord

Admiralty Court Act 1861 it was provided that the jurisdic conferred by that Act might be exercised either by proceedin, in rem or by proceedings in personam. The question therefore survived the fusion of jurisdictions eff by the Judicature Act. At first the Court of Appeal was equi divided upon the question, the opinion of two Lords Justices from the common law side being against the jurisdiction in rem and tha of two from the chancery side being in its favour (Zhe Franconi (4)). But later the Court of Appeal unanimously held that claim: under Lord Campbell's Act must proceed in personam bef jury, because that statute gave a special remedy and proc and it was exclusive (The Vera Cruz [No. 2] (5) ). This de was affirmed by the House of Lords (Seward v. Vera Cruz (6) ). the early stages of the controversy the reasons given for denyiny that claims for loss of life could be the subject of admiralty pro ings in rem were much wider than those finally adopted. Sec. 7 the Admiralty Court Act 1861 was construed as relating only to da done to property and therefore as incapable of extending to pers

injury or loss of life (7). But in the end the decision that cla under Lord Campbell's Act fell outside sec. 7 was placed entirely on the nature of the claim by relatives for the loss of actual prospective support by the deceased, on the special remedies g by Lord Campbell's Act, and on the implications found in provisions. It was conceded that proceedings in rem lay personal injuries as well as damage to property, a proposition wl had been decided by the Privy Council in The Beta (8) but ove by the Queen's Bench on prohibition in Smith v. Brown (9).

In The Franconia (10) Bramwell and Brett L.JJ. had exp refrained from offering any opinion upon the question whether

(1) (1868) LR. 2 Ad, & Ecc. 325; 19 (6) (1884) 10 App. Cas, 59.

LT. 748, (7) (1871) LR. 6 Q.B., at pp. 7% (2) (1870) LR. 3 Ad, & Eco. 289, 736. (3) (1871) LR. 6 Q.B. 729. (8) (1869) LR. 2 P.C, 447. (4) (1877) 2 PD. 163. (9) (1871) LR. 6 QB. 729.

(5) (1884) 9 P-D. 96. (10) (1877) 2'P-D., at p. 170.

rt where there was no death and the person hurt was the plaintiff. in The Vera Cruz [No. 2] (1) Brett M.R. said : - " The section

by the ship. I do not say that damage need be confined to age to property, it may be damage to person, as if a man were

ycase when physical injury isnot done by a ship." Fry L.J. said : - First, then, does damage include injury to the person? I consider that it does, for the reasons given in the judgment which Baggallay LJ. delivered in The Franconia (2) on behalf of himself and James The preamble of the Act leads me to the same conclusion " (3). en L.J. did not mention personal injury but he said : - " The gives a claim for compensation for damage done by the ship - nd this only, is the cause of action. 'Done by a ship' means ie by those in charge of a ship, with the ship as the noxious instrument " (3).

Tn the House of Lords the question whether personal injury fell within the jurisdiction in rem was mentioned by Lord Blackburn

ly, who treated it as irrelevant but not closed (4). The Admiralty Division adhered to the interpretation by which claims for personal njuries were included in its jurisdiction in rem (The Theta (5) ). ut when the British legislature decided to extend the remedy

em to claims for loss of life, apparently it was thought better to ut the jurisdiction in rem in cases of personal injury beyond doubt. y sec, 5 of the Maritime Conventions Act 1911, which does not xtend to Australia (sec. 9 (2) ), it was provided that any enactment hich confers on any court admiralty jurisdiction in respect of damage shall have effect as though references to such damage ncluded references to damages for loss of life or personal injury, nd accordingly proceedings in respect of such damages may be nought in rem or in personam. This provision was transcribed by

(1) (1884) 9 P.D., at p. 99. (8) (1884) 9 P.D., at p. 101. (2) (1877) 2 P.D., at pp. 172 et seq. (4) (1884) 10 App. Cas., at p. 72. (5) (1894) P. 280,

of Admiralty would have jurisdiction in a case of personal H- ©. or A.

sec. 262 of the Commonwealth Navigation Act 1912-1935. IE tl section operates, through the Colonial Courts of Admiralty Act Ii upon sec. 7 of the Admiralty Court Act 1861 in its indirect app! to the High Court of Australia, and if it applies to the case of passenger claiming against a vessel engaged in intra-State tr but sailing in waters used by oversea ships, it would exclud possibility of questioning the jurisdiction to entertain proceedin, in rem for claims for personal injury, provided that the injury "done by the ship." But assuming that sec. 262 of the Nav Act is justified by sec. 98 of the Constitution it is not clear how far it can stand with the proviso to sec. 3 of the Colonial Courts Admiralty Act 1890; and the decision in R. v. Turner; Ex p Marine Board of Hobart (1) tends against the view that there sufficient relation between the casualty in the present case and fore or inter-State trade or commerce to bring the rights or of those injured under the operation of Commonwealth law. may be placed upon sec. 51 (xxxix.) and sec. 76 (iii.) of the C tion to support sec. 262, but the decision of the court in John & Sons Ltd. v. The Katherine Mackall (2) places the jurisdiction the High Court of Australia upon the authority of the Colo Courts of Admiralty Act 1890 and not upon sec. 30 (b) of the Judie Act 1903-1937. With such a foundation for the jurisdiction, it would seem that effect should be given to the proviso to sec. 3 of

independently of the provisions contained in sec. 5 of the Brit Maritime Conventions Act 1911 and in sec. 262 of the Commonwi Navigation Act, sec. 7 of the Admiralty Court Act 1861 gives diction where damage is done by a ship to a person or to a thin including, of course, another ship. The chief authorities are Sylph (3); The Beta (4); The Vera Cruz [No. 2] (5); The Zeta per Lord Herschell; The Theta (7). The fullest statement of grounds for the conclusion is to be found in the judgment of Baggallay ..5. in The Franconia (8).

(1) (1927) 39 C.L.R. 411. (5) (1884) 9 P.D., at pp. 99, 101. (2) (1924) 34 CLR. 420. (6) (1893) A.C. 468, at p. 478. (3) (1867) LLR. 2 Ad. & Boo, 24. (7) (1894) P. 280.

(4) (1869) LR. 2 P.C. 447. (8) (1877) 2 P.D., at pp. 173-1

"The conclusion that a claim for damages for personal injuries falls H. ©. or A. ithin the jurisdiction in rem does not answer the objection to the ge isdiction. For there remains the contention that sec. 7 of the Nacrrr Admiralty Court Act 1861 does not cover a claim by a passenger Tr

gainst the ship carrying him for negligent navigation causing such ~ Rugre accident as that described. The contention, perhaps, does not Pion J.

ally depend on separate or alternative grounds. But for clearness

convenience I think it may be treated as based on two grounds, first on the view that claims by a passenger for injury caused

Tn a very summary manner Butt J. rejected an argument sec. 7 covered a claim by a cargo owner for damage to his ds caused by a collision of the carrying vessel with another, g to the improper navigation of the former (The Victoria (1) ).

'it with which it can come into contact and not to things like cargo on board. In The Franconia (2) Bramwell and Brett L.JJ. say : It is remarkable that no jurisdiction is given in a case of bodily to a passenger, nor to his goods for injury done in the ship." The Bernina [No. 2] (3) Lopes .J., speaking of the admiralty tule for the division of the loss where both vessels are to blame for a collision between them, said : - ' This rule before the Judicature Ads clearly did not apply to claims brought by passengers or by presentatives of deceased passengers under Lord Campbell's Act. h claims were not brought in the Admiralty Court at all, because e was no question of maritime lien ; but were brought in a court common law, in which the ordinary rule as to contributory ligence was in force." It is doubtful, perhaps, whether Lopes had sec. 7 in mind.

From these citations it does appear to have been assumed as a general proposition that proceedings in rem would not lie where the al ground of complaint was a failure in the duty to carry goods or engers safely. The existence or prevalence of such a view is

(1) (1887) 12 P.D, 105. (2) (1877) 2 P.D., at p. 171. (3) (1887) 12 P.D. 58, at p. 95.

readily to be accounted for by three considerations, viz., that t jurisdiction of the High Court of Admiralty did not cover

enforcement of liabilities under contracts of affreightment, i sec. 6 of the Admiralty Court Act 1861 made an express and gua provision in reference to claims for loss of and damage to carge

uncertain course of development. But once sec. 7 received a meanin, which made its application depend not on any prior conception 4 the ambit of admiralty jurisdiction, not on any limited constru of the word " damage," and not on any restricted denotation of th word "claim," but simply on the question whether the damag could properly be said to have been " done by the ship," no existed for differentiating between passengers or members of ship's company on the one hand and strangers to the ship on other. It is true that where passengers or crew suffer injury it will k often be possible to say that the ship did the damage. In cases if an injury is sustained by a passenger or one of the s company it will be found to have occurred in or on the ship ai to have been "done by" the ship. But cases may arise and arisen where the ship is the instrument of damage. The distinction between loss or injury inflicted by the ship regarded as an at

with the ship and attributable to the negligence of the master o crew, is not "done by the ship" may appear artificial and unt For, after all, whether, for example, a plaintiff's complaint is he fell down an uncovered hatchway on the vessel or sufferec immersion because his dinghy was overturned or swamped by th movement of the ship, negligence in or about the management of the ship by her master, officers or crew or one or some of them i the foundation of his cause of action, if any. Yet the distinction is the turning point of a number of decisions both in England and th dominions. :

The criterion is usually expressed by a citation of the words of Brett MLR. (1), "a case in which a ship was the active cause, the damage being physically caused by the ship," or of those of Bow

J. (1), "damage done . . . by those in charge of a ship, with the H. © or A. ship as the noxious instrument." In The Theta (2) Bruce J. applied oats) these expressions to the case of an officer injured by falling into the Naerrnr

hold ofa ship lying between his own ship and the wharf while attempt- Tis

to gain his own ship. The learned judge held that the damage ied s done on board the ship but not by the ship. yesh In Lhe Minerva (3) the ship proceeded against had, after com-

pleting the loading of grain by means of an elevator-barge, taken

aboard part of the elevator during the storing of gear by the barge.

hile the ship's derrick was returning the part taken aboard, the

of the derrick broke and the part fell on the deck of the barge,

damage both to itself and to the barge. Bateson J. applied

the same criterion and held that, by the failure of the ship's derrick

to act properly in the hands of the owner's servants, the ship was

In The Queen Eleanor (4) a stevedore's labourer fell into the hold

igh some fault in a hatch or in the hatchway. Stout Ci

"But for the decisions I vee ae to I should tate Habart that the words of the section were wide enough to cover such a class

It was, in my view, the ship that did the damage, ter faulty construction ; but that is not the meaning of ' done the ship' which the English courts have held to be within the diction of the Admiralty Court. I came to this conclusion not without some doubt, and with regret " (7). In Wyman v. The Duart Castle (8) an engineer was scalded through he breaking of a stop valve on a steamer, and McLeod J. held that this was damage done by the ship. In Barber v. The Nederland (9) and wey v. The Neosho (10) on facts like or analogous to those of The Eleanor (4) the same conclusion was reached by the Canadian hequer Court. In Outhouse v. The Thorshavn (11) the remoter sequences of jettisoning oil were held to be damage done by the }) (1884) 9 P.D., at p. 101. (6) (1894) P. 280. (2) (1894) P., at p. 284. (7) (1899) 18 N.Z.L.R., at p. 84. (1933) P' 294° (8) (1899) 6 Can. Ex. C.R. 3 (1899) 18 N.Z.L.R. 78. (9) (1909) 12 Can. Ex. C.R. 252.

5. (1884) 9 P.D. 96. (10) (1919) 19 Can: Ex. GR. 1. (11) (1935) Ex. C.R. (Can.) 120.

H.C. oF A. ship, and in Lincoln Pulpwood Co. Ltd. v. The Rio Casma (1) dama pecan ian suffered by a barge through being placed in an improper berth by

Nacrrr_ the crew of the defendant ship in order to make room for the latte b

Tue ship was held to be damage by that ship. It is true that these cas " Reats."

Pixon J. heen applied. But they show that when the injury arises from s

are no more than illustrations of the manner in which the test

defect in the condition of the ship considered as premises or as structure upon which the person injured is standing, walking o1 moving, the ship is treated as no more than a potential danger of 2 passive kind, a danger to the user, whose use is the active cause. the injury. But where the injury is the result of the mana or navigation of the ship as a moving object or of the working 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 impropet navigation of the ship caused her so to behave that she caps Her behaviour as an active agent was the direct cause of the harm and in that sense she was the noxious instrument. 4

In my opinion, proceedings im rem lie and this court has juris diction.

Order that upon the facts alleged in the s of claim proceedings in rem lie against ship Regis formerly Rodney. Costs, tiff's costs in the cause including costs order Tth December 1938.

Solicitors for the plaintiff, Carruthers, Hunter & Co. F Solicitors for the defendant, Dawson, Waldron, Fase d Nicholls.