Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd

provide services of a high standard and competent manner of towing and pilotage of all vessels entering departing or moving within the Port of Dampier as required by

(iii) Shipping and Pilotage Act 1967 and its Regulations

By cl. 7 of that agreement Pilbara was entitled to make and collect charges for pilotage. Under the law of Western Australia, pilotage for vessels entering or leaving the Port of Dampier was (with certain irrelevant exceptions) compulsory: Shipping and Pilotage Act 1967 W.A., as amended ("the Act"), s. 9(2)(a); Port of Dampier Regulations, reg. 7. Pilots in Western Australia are appointed by the Governor (s. 4 of Shipping and Pilotage Act) but the State had agreed by a letter dated 27 September 1974 that pilots for the Port of Dampier would be appointed and removed under that Act in accordance with requests made by Pilbara (but Pilbara might only request the appointment of persons adequately qualified for that purpose) and that so long as Pilbara provided the pilotage services it would have the benefit of the pilotage charges levied under the Act: see s. 9(1)) and regulations (reg. 13) for the services of pilots who were also employees of the company. Captain Hammonds was engaged as an employee of Pilbara at an annual salary and was subsequently appointed by the Governor to be a pilot for the Port of Dampier.

Hamersley brought proceedings against Pilbara and Oceanic to recover damages and in the action there were proceedings for contribution or indemnity between the two defendants. The result of the proceedings, after an appeal had been brought to the Full Court of the Supreme Court of Western Australia, was that judgment was given in favour of Hamersley as against Oceanic for $625,362.36 and that Hamersley's claim as against Pilbara, and all claims brought in the contribution proceedings, were dismissed. Oceanic now appeals, seeking judgment against Pilbara for contribution or for a complete indemnity.

Oceanic's argument is put in two ways. First, it is said that Pilbara owed Oceanic a duty to provide a pilotage service which would be carried out with reasonable care and skill by a competent pilot and that Oceanic was entitled to claim damages for economic loss (the damages potentially payable to Hamersley) caused by a breach of that duty. Alternatively, Oceanic's claim is based on s. 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 W.A., a familiar provision whose material terms are as follows:

Where damage is suffered by any person as the result of a tort -

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage

That argument is that Pilbara is liable to Hamersley for the damage caused to the dolphin, and that Oceanic, a tortfeasor also liable, can recover contribution. (In fact, of course, Pilbara was sued by Hamersley and found not to be liable, but that difficulty may be put aside for the present.) Oceanic cannot succeed in either argument unless Pilbara is vicariously liable for the negligence of the pilot whom it supplied. On ordinary principles Pilbara would be liable for damage caused by the negligent acts and omissions of its servants acting within the scope of their employment. However it is a question whether these principles do apply so as to render the government or other body which employs a pilot liable for the pilot's negligence in the piloting of a ship. No doubt Pilbara, having control of the harbour and in effect a monopoly of the right to supply the pilots whose use in the port was required by law, was under a duty to supply pilots qualified and fit to perform their functions, but no breach of that duty is suggested. Pilbara clearly was not an insurer of the safety of vessels being piloted by its servants. The critical question is whether Pilbara is liable for the negligence of Captain Hammonds committed while he was performing his functions as pilot of a ship.

The learned trial judge (Wallace J.) and the majority of the Full Court (Burt C.J. and Smith J.) held that the authority of the decision of the Judicial Committee in Fowles v. Eastern and Australian Steamship Co. Ltd. [1] , required that question to be answered in the negative. Brinsden J., who dissented in the Full Court, held that that case was distinguishable. In Fowles v. Eastern and Australian Steamship Co. Ltd. a ship under compulsory pilotage in the Port of Brisbane had been stranded by the negligence of the pilot. The action was brought by the shipowners against the nominal defendant representing the Government. The pilot was licensed by the Marine Board, a Government department, and was employed as a public servant receiving a salary and was provided by the government with boats and crew; the pilotage rates were paid to the government. It had been held by the Full Court of the Supreme Court of Queensland that the action was maintainable against the government [2] . An appeal to this Court from the decision of the Supreme Court was allowed, but, for reasons which it is unnecessary to mention, only three members of this Court determined the question whether the Government was liable; Barton A.C.J. and Powers J. held that it was and Isaacs J. held that it was not [3] . The Judicial Committee agreed with Isaacs J. and held that the action was not maintainable. Earl Loreburn, who delivered the judgment of their Lordships, said [4] , that the true question was "whether or not the Government had laid upon them the conduct and management of this ship" and that "if so, then they were bound to use proper care and skill and are liable for failure to do so". Their Lordships answered that question in the negative. The reason for the decision was expressed in the following words of Earl Loreburn [5] :

if the question be, as their Lordships think it is, whether or not the defendants were bound to navigate this ship and employed Maxwell [the pilot] to do for them the work which they were bound to do, then it is not conclusive to say that he was in their service unless it can also be said that the Government were "the principals in the piloting of ships," to borrow the happy phrase of Isaacs J. That phrase seems to hit the point exactly. If Maxwell himself was the principal in the piloting of ships, then the defendants cannot be liable. It was he and not they who owed the duty of careful piloting to the plaintiffs.

In their Lordships' opinion these Acts of Parliament did not alter the original status of a pilot, which is, in effect, that he must be regarded as an independent professional man in discharging his skilled duties. If it had been intended to alter this old and familiar status, it is to be supposed that the Legislature would have done it more explicitly. What it has done is more consistent with a different and limited purpose, namely, to secure a proper selection, a proper supply, a proper supervision, and a proper remuneration of men to whose skill life and property is committed, whether the shipowner likes it or not. For this purpose they become servants of the Government. For the purpose of navigating ships they remain what they were, and the duty which the State or Government owes to a shipowner, exercised, it is true, by various authorities, is to provide a qualified man in the terms of the statutes, but not to take the conduct or management of the ship.

1. [1916] 2 A.C. 556. 2. (1913) St. R. Qd. 64. 3. (1913) 17 C.L.R. 149. 4. [1916] 2 A.C., at p. 560. 5. [1916] 2 A.C., at pp. 562-563.

The decision of the Judicial Committee was in line with earlier authority. There could, of course, be no doubt that the mere fact that a harbour authority licensed the pilot does not make it responsible for his negligence: Dudman v. Dublin Port and Docks Board [6] ; Shaw, Savill and Albion Co. v. Timaru Harbour Board [7] . In Holman v. Irvine Harbour Trustees [8] , the Court of Session held that harbour trustees were liable for the negligence of unlicensed pilots whom they employed, but made it clear that the position would have been different if the pilot had been licensed. Lord Ormidale said [9] :

A duly qualified or licensed pilot is a public officer who obtains his certificate only after a careful examination of his qualifications by parties competent to judge of them. On being licensed he occupies an independent position, very much as a notary-public or messenger-at-arms does. The public constitute his master, and he is the servant of the public, like these and other public functionaries; and the usual consequences and responsibilities arising from the ordinary relation of master and servant do not arise. See also per Lord Moncreiff [10] . InOtago Harbour Board v. Cates [11] and Actieselskabet Bannockburn v. Williams [12] it was held that the employer of a licensed pilot was not liable for his negligence. In the last-mentioned case, Cullen C.J. said [13] , that the pilot, in taking charge of the navigation of a ship, was "exercising a duty which no employer could control by directions given during the course of the carrying out of his work". 1. (1873) Ir. R. 7 C.L. 518. 2. (1890) 15 App. Cas. 429. 3. (1877) 4 Sess. Cas. (4th Ser.) 406. 4. (1877) 4 Sess. Cas. (4th Ser.), at p. 416. 5. (1877) 4 Sess. Cas. (4th Ser.), at p. 422. 6. [1883] 2 N.Z.L.R. (S.C.) 123. 7. (1912) 12 S.R. (N.S.W.) 665. 8. (1912) 12 S.R. (N.S.W.), at p. 670.

The decision in Fowles v. Eastern and Australian Steamship Co. Ltd. has since been understood in this Court as depending on the circumstance that the pilot was executing an independent duty which the law cast upon him: Field v. Nott [14] ; Little v. The Commonwealth [15] ; cf. Attorney-General (N.S.W.) v. Perpetual Trustee Co. Ltd. [16] . In Little v. The Commonwealth [15] , Dixon J. (as he then was) cited Fowles v. Eastern and Australian Steamship Co. Ltd. [17] as one of the authorities which establishes or exemplifies "the doctrine that any public officer whom the law charges with a discretion and responsibility in the execution of an independent legal duty is alone responsible for tortious acts which he may commit in the course of his office and that for such acts the government or body which he serves or which appointed him incurs no vicarious liability". The doctrine to which Sir Owen Dixon referred in that passage was first laid down in Australia in Enever v. The King [18] , which followed Tobin v. The Queen [19] and Stanbury v. Exeter Corporation [20] . It has been criticized by textwriters (see Fleming, Law of Torts, 6th ed. (1983), p. 346 and Atiyah, Vicarious Liability in the Law of Torts (1967), pp. 75-78), and has been abrogated by statute in some jurisdictions. However, it is firmly established as part of the common law of Australia: other cases in which it has been applied include Baume v. The Commonwealth [21] and Irvin v. Whitrod [No. 2] [22] .

1. (1939) 62 C.L.R. 660, at pp. 672, 675. 2. (1947) 75 C.L.R. 94, at p. 114. 3. (1952) 85 C.L.R. 237, at pp. 265, 300-301. 4. (1947) 75 C.L.R. 94, at p. 114. 5. [1916] 2 A.C. 556. 6. (1906) 3 C.L.R. 969. 7. (1864) 16 C.B. (N.S.) 310 [143 E.R. 1148]. 8. [1905] 2 K.B. 838. 9. (1906) 4 C.L.R. 97. 10. [1978] Qd R. 271.

The principle is not limited to cases in which the duty which is being carried out is imposed by statute - the question is whether the person who committed the tort was acting in the performance (or supposed performance) of a duty imposed by law (either by statute or by common law) or whether his authority to act was derived from his employment. Further, although many of the decisions in which the principle has been applied were cases in which the Crown was sought to be made liable for the tort of a public officer, the principle is not confined to such cases. Stanbury v. Exeter Corporation was a case in which a local authority was held not to be liable for the negligence of an inspector whom it had appointed, where the inspector was negligent in carrying out a duty imposed by statute upon him and not on the local authority. That decision was followed, not only in Enever v. The King [23] but also in Fisher v. Oldham Corporation [24] , and both Stanbury v. Exeter Corporation and Fisher v. Oldham Corporation were mentioned with apparent approval in the judgment of the Judicial Committee in Attorney-General (N.S.W.) v. Perpetual Trustee Co. Ltd. [25] ; see also Reg. v. Commissioner of Police of the Metropolis; Ex parte Blackburn [26] . There are three cases which might possibly be thought to support a contrary conclusion; in Goff v. Great Northern Railway Co. [27] ; Edwards v. Midland Railway Co. [28] ; and Lambert v. Great Eastern Railway [29] it was held that employers of special constables under private statutes were vicariously liable for wrongful arrests which they had effected, but those cases were discussed in Fisher v. Oldham Corporation [30] , and the view was there taken that they depended on the effect of particular statutes. The fact that in the decisions of this Court to which reference has been made Fowles v. Eastern and Australian Steamship Co. Ltd. is regarded as falling within the principle plainly shows that this Court was of the view that the doctrine is not confined to the Crown.

1. (1906) 3 C.L.R., esp. at pp. 976, 986-987, 992-993. 2. [1930] 2 K.B. 364. 3. [1955] A.C. 457, at pp. 478-480. 4. [1968] 2 Q.B. 118, at p. 136. 5. (1861) 3 El. & El. 672 [121 E.R. 594]. 6. (1880) 6 Q.B.D. 287. 7. [1909] 2 K.B. 776. 8. [1930] 2 K.B., at pp. 373-374.

It was submitted before us that Fowles v. Eastern and Australian Steamship Co. Ltd. depended on a view of the principles of vicarious liability that is no longer accepted, namely, the view that if the work to be done involves the exercise of special skill or independent judgment, so that the employer cannot control or interfere in the manner of its performance, the employer will not be vicariously liable to third parties for the acts of the persons performing the work: see Zuijs v. Wirth Brothers Pty. Ltd. [31] . It was there said [32] , that "what matters is lawful authority to command so far as there is scope for it if only in incidental or collateral matters". In England the courts have applied "a new test which involves the question whether or not a man's work is done as an integral part of another's business or is only accessory to it; whether, to put it in slightly different terms, the person in question is performing the relevant services as a person in business on his own account": Federal Commissioner of Taxation v. Barrett [33] . It is however not right to say that this test, which involves difficulties of its own, has been accepted as the decisive test in Australia or that the degree of control which the employer can exercise is irrelevant in considering whether the relationship of master and servant exists: see Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [34] .

1. (1955) 93 C.L.R. 561, at pp. 570-571. 2. [1916] 2 A.C., at p. 571. 3. (1973) 129 C.L.R. 395, at p. 402. 4. (1986) 160 C.L.R. 16, at pp. 24-29, 35-37.

With all respect to those who are of a different opinion, the decision of the Judicial Committee in Fowles v. Eastern and Australian Steamship Co. Ltd. does not conflict with modern principles. The doctrine laid down in the cases which followed Stanbury v. Exeter Corporation and Enever v. The King [35] does not exempt the employer from liability on the ground that the relationship of master and servant does not exist. Even though the person who committed the tort was employed under a contract of service, the employer will not be liable if the tortfeasor was executing an independent duty which the law cast upon him. This was made clear by Dixon J. in Field v. Nott [36] , where his Honour said:

When a public officer, although a servant of the Crown, is executing an independent duty which the law casts upon him, the Crown is not liable for the wrongful acts he may commit in the course of his execution. As the law charges him with a discretion and responsibility which rests upon him in virtue of his office or of some designation under the law, he alone is liable for any breach of duty. Similarly, in Attorney-General (N.S.W.) v. Perpetual Trustee Co. Ltd. [37] , Fullagar J. said: The distinction taken in those cases seems to be in substance between an act or default of an officer in the course of his service under the Crown on the one hand, and an act or default in executing some independent duty cast upon him by the common law or by statute on the other hand. The distinction itself has been criticized But, whether the distinction has been soundly applied or not, it has turned, as it seems to me, not on the presence or absence of the relation of master and servant as such (though it may, of course, be loosely said that the servant is not a servant quoad hoc) but on the question whether the servant is acting in the course of his employment by the Crown. These passages refer to the Crown, but as I have said the doctrine is not confined to the Crown. The passage which I have already cited from Fowles v. Eastern and Australian Steamship Co. Ltd. [38] shows that their Lordships did not regard the question as being whether the relation of master and servant existed, but rather whether the pilot was performing an independent duty. 1. (1906) 3 C.L.R. 969. 2. (1939) 62 C.L.R., at p. 675. 3. (1952) 85 C.L.R., at pp. 283-284. 4. [1916] 2 A.C., at p. 562.

It may well be true that in some of the earlier cases in which the employer of a pilot has escaped liability the question was thought to be whether the employer had the power and responsibility to control the pilot's conduct: see, for example, the remarks of Cullen C.J. in Actieselskabet Bannockburn v. Williams [39] . In the United States that seems to be the approach: see Port of Seattle v. M/V Maria Rubicon [1] and City of Los Angeles v. Standard Transport Co. [2] but compare the decision in The "Thielbek" [3] . Even if the question were whether the pilot was acting as a servant of the authority which employed him, it would not be wrong to regard the extent of the control exercised by the employer as important. However Fowles v. Eastern and Australian Steamship Co. Ltd. approached the matter in a different way and was consistent with established principle in so doing.

1. (1912) 12 S.R. (N.S.W.) 665. 2. (1975) 404 F.Sup. 302. 3. (1929) 32 F. (2d) 988. 4. (1917) 241 F. 209.

The common law treated the liability of the employer of a pilot differently from the liability of the shipowner. It was held at common law that the shipowner was liable for the negligence of a pilot who had been voluntarily engaged: see The "Eden" [4] . On the other hand, if the pilotage was compulsory, the owner was not responsible - that was the common law, later given effect in a succession of statutory enactments of which the latest was s. 633 of the Merchant Shipping Act 1894 U.K.. The reason given for this distinction was that when the pilot was voluntarily engaged he became the servant of the shipowner, but when his employment was compulsory he did not become the owner's servant: see The "Maria" [5] ; The "Halley" [6] ; Townsville Harbour Board v. Scottish Shire Line Ltd. [7] ; Steamship "Beechgrove" Co. Ltd. v. Aktieselskabet "Fjord" of Kristiania [8] ; Thom v. J. & P. Hutchinson Ltd. (Owners of S.S. "Smerdis") [9] .

1. (1846) 2 W.Rob. 442 [166 E.R. 822]. 2. (1839) 1 W.Rob. 93, at pp. 99-103, 106, 107-108 [166 E.R. 508, at pp. 510-512, 513]. 3. [1868] L.R. 2 P.C. 193, at p. 202. 4. (1914) 18 C.L.R. 306, at pp. 326-327. 5. [1916] 1 A.C. 364, at pp. 382-385. 6. [1925] S.L.T. 239, at p. 241.

The freedom of the shipowner from liability for the negligence of a compulsory pilot was removed in the United Kingdom by s. 15(1) of the Pilotage Act 1913 U.K., the provisions of which have been enacted in Australia in s. 410B(2) of the Navigation Act 1912 Cth, as amended. Section 410B provides as follows:

(1) A pilot who has the conduct of a ship is subject to the authority of the master of the ship and the master is not relieved from responsibility for the conduct and navigation of the ship by reason only of the ship being under pilotage.

(2) Notwithstanding anything contained in a law of the Commonwealth or of a State or Territory, the owner or master of a ship navigating under circumstances in which pilotage is compulsory under a law of a State or Territory is answerable for any loss or damage caused by the ship, or by a fault of the navigation of the ship, in the same manner as he would if pilotage were not compulsory.

Sub-section (2) has the effect that "a shipowner who through a compulsory pilot is responsible for faulty navigation is responsible for damage to his own ship as well as for injury to the property of another": Workington Harbour & Dock Board v. Towerfield (Owners) [10] . This provision, which was not in force at the time of the stranding which gave rise to Fowles v. Eastern and Australian Steamship Co. Ltd., provides an additional reason for concluding that, in the case of compulsory pilotage, the employer of a pilot is not responsible for his negligence. "The law does not recognise a several liability in two principals who are unconnected": Laugher v. Pointer [11] . This is another rule which is criticized by Professor Atiyah (op. cit., at pp. 156-157) who nevertheless appears to accept that the question is settled, although he points out that one employer may be held vicariously liable while another is liable on another ground. Where the services of the servant of one employer are temporarily used by another, both employers will not be liable; prima facie the liability will usually remain with the general employer who may, however, "show, if he can, that he has for a particular purpose or on a particular occasion temporarily transferred the services of one of his general servants to another party so as to constitute him pro hac vice the servant of that other party with consequent liability for his negligent acts": Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool), Ltd. [12] . In the case of a pilot, s. 410B(2) of the Navigation Act casts the liability directly on to the shipowner and in consequence excludes any liability of the general employer of the pilot. 1. [1951] A.C. 112, at p. 134. 2. (1826) 5 B. & C. 547, at p. 558 [108 E.R. 204, at p. 208]. 3. [1947] A.C. 1, at p. 13.

It might be thought at first sight that it is difficult to reconcile the fact that the shipowner is liable for the negligence of the pilot with the proposition that the pilot while navigating the ship is executing an independent duty that the law casts upon him. It may be that originally liability was imposed on the shipowner for reasons of policy, so that a person injured by the negligence might have recourse against a defendant more likely to be able to meet an award of damages than the individual pilot himself would be. However, a reconciliation of the two propositions may be effected; so far as the pilot's general employer is concerned, the pilot is executing an independent legal duty conferred on him by law and his powers are not derived from the general employer; on the other hand, it may be said that the pilot's power does derive at least in part from the authority given by the shipowner - in that regard it will be remembered that the master has, though only in exceptional circumstances, power to take control of navigation out of the hands of the pilot (see cases cited in Geen and Douglas, Law of Pilotage, 2nd ed. (1983), pp. 89-90), a power confirmed by sub-s. (1) of s. 410B. Even if the liability of the shipowner is anomalous, there is nothing in the judgments of the cases that dealt with the liability of the shipowner that casts any doubt on the principle applied in Fowles v. Eastern and Australian Steamship Co. Ltd.

It may be that if some of the questions which I have been discussing now arose for decision for the first time it might have been thought convenient to cast responsibility for the negligence of the pilot on to the pilot's employer. As I have shown, however, the law has taken a different course. The decision of the Judicial Committee in Fowles v. Eastern and Australian Steamship Co. Ltd. rests on an intelligible principle and is not in conflict with fundamental doctrine. It has been cited with approval in a number of authoritative decisions. It appears to derive additional support from the provisions of s. 410 of the Navigation Act. It is likely that the employers of pilots have ordered their affairs in reliance on its correctness. It should in my opinion be followed. It cannot be distinguished from the present case. The result in my opinion is that Pilbara is not liable to Oceanic for the negligence of the pilot.

I have had the advantage of reading the reasons for judgment prepared by Brennan J. I agree with his Honour that the sole issue which is open to be considered in this appeal is whether the appellant ("Oceanic") should succeed in its claim against the respondent ("Pilbara") for contribution amounting to a complete indemnity in respect of the damage for which it has been found liable to Hamersley Iron Pty. Ltd. ("Hamersley"). The claim is based upon the provisions of s. 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 W.A. ("the Act"). It is common ground that in order to succeed under those provisions Oceanic must show that Pilbara is a tortfeasor "who is or would if sued have been liable" to Hamersley "in respect of the same damage whether as a joint tortfeasor or otherwise". The facts which give rise to the litigation and the history of the case are narrated in the judgment of Brennan J. and it is unnecessary for me to repeat those matters at any length. Hamersley suffered loss when one of its dolphins in the Port of Dampier was severely damaged by Oceanic's vessel the "Oceanic Crest" during its berthing in the port. It is not now contested that the mishap was due to the negligence of Captain Hammonds, a pilot in the employ of Pilbara and who had the conduct of the ship at the material time. Hamersley sued both Pilbara and Oceanic in he Supreme Court of Western Australia. It succeeded against Oceanic but its claim against Pilbara was dismissed. In the Full Court a finding of negligence against the master of the ship was set aside but otherwise the conclusions of the learned trial judge were affirmed. The Court was unanimous in acquitting the master of negligence and in holding Oceanic liable to Hamersley but resolved by majority (Burt C.J. and Smith J., Brinsden J. dissenting) that Pilbara was not vicariously liable to Hamersley for Hammonds' negligence. Hamersley has not appealed from the decision of the Full Court but I agree with Brennan J. that the judgment of dismissal of its claim against Pilbara is not an insuperable obstacle to Oceanic's pursuit of its claim against Pilbara. If it can show that Pilbara should have been found liable to Hamersley then the course proposed by his Honour would enable justice to be done.

Oceanic does not now contest that it must bear responsibility for the negligence of Captain Hammonds. But it may be of critical importance to appreciate the basis on which that responsibility rests. The common law of Admiralty always drew a clear distinction between the liability of a shipowner in respect of the negligence of a pilot under a voluntary engagement and the situation where the engagement of a pilot was compelled by law. In The "Maria" [13] , Dr. Lushington described the "leading principle" in the case of compulsory pilotage as this: "that the masters are compellable to take such pilots on board, and the owners are not responsible for the acts of persons to whom they are thus forced to commit the management of their property, and over whom they have no control." Such a situation was contrasted with the case: "when it is in the election or discretion of the master to take a pilot or not, and he thinks fit to take one, the pilot so taken is to be considered as a servant of the owners" [14] . This perspective is emphasized by the statement of principle by Lord Atkinson in Steamship "Beechgrove" Co. Ltd. v. Aktieselskabet "Fjord" of Kristiania [15] , in the following passages:

As long as the statutory compulsion operates the person in charge of the ship is not the owner's servant, and the owner is therefore not responsible for his acts. Thus at common law the basis of the owner's immunity is the legal compulsion upon him If the owner or his agent, the master, should request or permit the pilot to continue in command of the ship beyond the time he is bound by law to permit him so to do, then the relation between the owner and pilot becomes at common law a contractual relation of service, to which the maxim of "respondeat superior" directly applies. It is plain that the shipowner is liable for the negligence of a pilot voluntarily engaged because the relationship thus established is considered to be that of master and servant. This principle of the common law was considered in depth in a test case before the First Division of the Court of Session in 1925. The case was Thom v. J. & P. Hutchinson Ltd (Owners of S.S. "Smerdis") [16] . The widow and children of a ship's engineer sued the shipowner for damages in respect of the engineer's death, which was caused by the fault of a compulsory pilot. The claim was met by the defence of collaborateur, a Scottish doctrine which was equivalent to the English doctrine of common employment. By reason of s. 15 of the Pilotage Act 1913 U.K. - a provision in terms similar to s. 410B(2) of the Navigation Act 1912 Cth as amended, which I shall have occasion to consider later in these reasons - the owners of the "Smerdis" were to be answerable for any loss or damage caused by any fault of the navigation of the vessel in the same manner as they would be if pilotage were not compulsory. The pursuers maintained that the true relation between the owners and a voluntary pilot was that of agency and not of service, in which case the defence of collaborateur would have no place. The Lord President, in a judgment with which all three other members of the Court agreed, examined the submission in a passage which reads as follows [17] : The point mainly relied on by the pursuers was the absence of power, on the part of the owners of the ship, to direct and control the manner in which the pilot exercised his duties. But if the employment is voluntary, I see no more reason to doubt the right of the employer to do so - however foolish it might be of him to attempt it - in the case of the pilot than in the case of the captain. It is, no doubt, true that the highly skilled nature of the work to be done and the remoteness of the ship from her owners make actual direction and control practically impossible in either case. But it is now for the first time suggested that the legal relation between a seaman and the owner of the vessel on which he serves is other than that of master and servant; and - though I rather think it is true that there is no case in which the true nature of the legal relation of a pilot (voluntarily engaged) to the owners has been canvassed - it has never been doubted throughout a long series of cases that it is that of service. The earliest quoted to us was that of The "Maria" per Dr. Lushington [18] . Lord Chelmsford evidently treated the point as one not open to doubt in Prowse v. European and American Steam Shipping Co. [19] , see at end of judgment. And the same understanding clearly underlies the reasoning in one of the latest cases (Steamship "Beechgrove" Co. v. Aktieselskabet "Fjord" [20] ). It is unnecessary to make a larger citation. His Lordship concluded that "the liability artificially made to rest on the owners must be taken with all the legal qualifications attaching to it, and the defence of collaborateur is one of them" [21] . 1. (1839) 1 W.Rob. 95, at p. 99 [166 E.R. 508, at p. 510]. 2. (1839) 1 W.Rob., at p. 103 [166 E.R., at pp. 511-512]. 3. [1916] 1 A.C. 364, at pp. 382-383. 4. 1925 S.C. 386. 5. 1925 S.C., at pp. 392-393. 6. (1839) 1 W.Rob., at pp. 107, 108 [166 E.R., at p. 513]. 7. (1860) 13 Moo. P.C. 484 [15 E.R. 182]. 8. 1916 S.C. (H.L.) 1; [1916] 1 A.C. 364. 9. 1925 S.C., at p. 393.

In Australia, the extent and nature of the liability of the shipowner for the negligence of a compulsory pilot is to be determined in the context of s. 410B of the Navigation Act 1912. That section reads:

(1) A pilot who has the conduct of a ship is subject to the authority of the master of the ship and the master is not relieved from responsibility for the conduct and navigation of the ship by reason only of the ship being under pilotage.

(2) Notwithstanding anything contained in a law of the Commonwealth or of a State or Territory, the owner or master of a ship navigating under circumstances in which pilotage is compulsory under a law of a State or Territory is answerable for any loss or damage caused by the ship, or by a fault of the navigation of the ship, in the same manner as he would if pilotage were not compulsory.

There is no difficulty in reaching the conclusion that the owner of the ship is vicariously liable for the negligence of the pilot. The problem is to determine whether the scope of that liability leaves any room for a finding of vicarious liability in the pilotage authority, the general employer of the pilot. Sub-section (1) of s. 410B confirms that the rationale for subjecting the owner of the ship to liability is grounded in the incorporation of the pilot into the shipowner's enterprise in the capacity of a servant. The pilot is declared to be subject to the authority, that is the control, of the master. Alternatively, the pilot's position may be described in the words used by the Lord President in Smerdis [22] , namely, as "a constituent member for the time being of the organisation composed of the officers and crew". This is so whether the pilotage is voluntary or compulsory. Furthermore, the terms of sub-s. (2) plainly impute the pilot's negligence to the shipowner in all cases where loss is caused through faulty navigation, leaving it responsible for damage to its own ship as well as for injury caused thereby to the property of another: Workington Harbour & Dock Board v. Towerfield (Owners) [23] . 1. 1925 S.C., at p. 392. 2. [1951] A.C. 112.

I have dwelt at some length on an examination of the basis on which it must be taken to be established that Oceanic is vicariously liable to Hamersley for the negligence of the pilot because it seems to me to lead necessarily to a rejection of Oceanic's claim to an indemnity from Pilbara pursuant to s. 7 of the Act. One must have regard to the undisputed finding that Captain Hammonds was a competent pilot adequately qualified to be appointed as such. In the light of that finding, the only basis available to Oceanic in support of its claim is the proposition that Pilbara, as the employer of the pilot, was vicariously liable to Hamersley for his faulty navigation. But that liability cannot co-exist with an identical liability attaching to Oceanic. It is unnecessary to look for the exceptional circumstances that would, consistently with the views of the House of Lords in Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd. [24] , result in the transfer of the service and control of a servant from a general employer to a particular employer so as to attach vicarious liability for the servant's negligence to the latter. It is unnecessary because the statute has pre-empted the answer. It has declared in effect that when Captain Hammonds was bringing the "Oceanic Crest" into its berth in Dampier on 8 August 1978 he was subject to the authority of the master of the ship and in a master-servant relationship with its owner. That being so, we have a situation in which the biblical truth that "no man can serve two masters" may not be without relevance. No doubt the reason why the common law identified the voluntary pilot so strongly with the ship was because originally pilots were self-employed. It was the case, as Earl Loreburn observed in delivering the judgment of their Lordships in Fowles v. Eastern and Australian Steamship Co. Ltd. [25] , that: "Originally the business was simply a matter of private enterprise; seamen of local experience made their own bargains with masters of ships." In that situation it was imperative that the law merchant provide for those who suffered damage from the faulty navigation of a ship to have recourse against the owners of the ship. The exemption of the shipowner from liability in the case of compulsory pilots came under attack increasingly in the nineteenth century: see Geen & Douglas, Law of Pilotage, 2nd ed. (1983), Ch. 1. Finally, efforts were made to unify the municipal laws of all nations relating to collisions between ships or to damage caused (without collision) by one ship to another ship and her cargo resulting in the International Convention for the Unification of Certain Rules of Law in Regard to Collisions (signed at Brussels, 23 September 1910). Article 6 of the Convention abolished the defence of compulsory pilot. The change was effected in the United Kingdom by the Pilotage Act 1913, s. 15, which repealed s. 633 of the Merchant Shipping Act 1894 U.K.. For the history surrounding the Convention and its subsequent implementation in the United Kingdom, see Owners of the Steamship Towerfield v. Workington Harbour and Dock Board [26] .

1. [1947] A.C. 1. 2. [1916] 2 A.C. 556, at p. 560. 3. [1949] P. 10, at pp. 22-23, 46-47.

The development of pilotage authorities and statutory regimens for the licensing of pilots has not resulted in any diminution of the responsibility placed upon the shipowner for the negligence of a pilot. It has been held consistently that so long as the authority employs qualified and competent pilots it is not vicariously liable for their negligence: Holman v. Irvine Harbour Trustees [27] ; Dudman v. Dublin Port and Docks Board [28] ; Shaw, Savill and Albion Co. v. Timaru Harbour Board [29] ; Otago Harbour Board v. Cates [30] ; Actieselskabet Bannockburn v. Williams [31] ; Fowles [32] ; City of Los Angeles v. Standard Transportation Co. [33] .

1. (1877) 4 Sess. Cas. (4th Ser.) 406. 2. (1873) Ir. R. 7 C.L. 518. 3. (1890) 15 App. Cas. 429. 4. [1884] 2 N.Z.L.R. (S.C.) 123. 5. (1912) 12 S.R. (N.S.W.) 665. 6. [1916] 2 A.C. 556. 7. (1929) 32 F. (2d) 988.

In Fowles , the Government of Queensland was sued to recover damages sustained by the plaintiff's ship by reason of the negligence of a compulsory pilot. The Judicial Committee reviewed the statutory framework under which the State charged pilotage rates which were paid into the Treasury, employed pilots in the public service, paid them salaries and provided them with boats, implements and crews, and then continued [34] :

In their Lordships' opinion these Acts of Parliament did not alter the original status of a pilot, which is, in effect, that he must be regarded as an independent professional man in discharging his skilled duties. If it had been intended to alter this old and familiar status, it is to be supposed that the Legislature would have done it more explicitly. What it has done is more consistent with a different and limited purpose, namely, to secure a proper selection, a proper supply, a proper supervision, and a proper remuneration of men to whose skill life and property is committed, whether the shipowner likes it or not. For this purpose they become servants of the Government. For the purpose of navigating ships they remain what they were, and the duty which the State or Government owes to a shipowner, exercised, it is true, by various authorities, is to provide a qualified man in the terms of the statutes, but not to take the conduct or management of the ship. It is not said that they have failed in this duty of providing a qualified man. Their Lordships added the comment that if they had thought the government was directed to carry on the business of pilotage, that is to say to become "the principals in the piloting of ships" then they would have held it responsible for negligence in the conduct of that business. 1. [1916] 2 A.C., at pp. 562-563.

Counsel for Oceanic has argued that the present case is to be distinguished from Fowles because Pilbara is in the business of piloting ships, and thus within the qualification expressed by their Lordships. I am unable to accept that submission. True it is that Pilbara is a private company incorporated for commercial purposes. In accordance with the Hamersley Iron (Port of Dampier) By-laws Pilbara exercised substantial control over the use of the port after the assignment agreement with Hamersley in 1974. But the by-laws, on their proper construction, have nothing to say about pilots or pilotage charges. The establishment of the port, the appointment of pilots, the provision for compulsory pilotage and the levying of pilotage rates were all matters which were dealt with by the Governor pursuant to the Shipping and Pilotage Act 1967 W.A. as amended. Indeed, once Dampier was proclaimed a port under that Act in 1971, the entry and departure of vessels into and from the port and their movement within the port came under the control of a harbour master appointed by the Governor. It was agreed between Hamersley and the State that upon the proclamation of the port, the Governor would be advised to appoint, for the time being at least, Hamersley's marine manager to be the harbour master, provided that the company would ensure that only persons adequately qualified for the purpose be appointed marine manager, and that it would ensure that when acting as harbour master the marine manager acted in good faith in the interests of all the shipping using the port. It was also agreed that until the marine manager ceased also to be the harbour master, pilots for the port would be appointed and removed under the Act in accordance with requests made by the company, but the company could only request the appointment of persons who were adequately qualified for the purpose. It was arranged that although pursuant to the Shipping and Pilotage Act 1967 the pilotage charges levied in accordance with that Act were to be paid to the State, the company would be given the benefit of such charges as related to the services of pilots who were also employees of the company. In 1973, on the nomination of Hamersley, Captain Hammonds was appointed by the Governor to be a pilot at the Port of Dampier.

As I have indicated, in 1974 Hamersley assigned to Pilbara certain of its rights and obligations in relation to the port. So far as material, Pilbara agreed with Hamersley to "provide services of a high standard and competent manner of towing and pilotage of all vessels entering departing or moving within the Port of Dampier as required by the Shipping and Pilotage Act 1967 and its Regulations". The State agreed to the substitution of Pilbara for Hamersley in relation to the nomination of pilots and the remuneration for pilotage services. It is common ground that Captain Hammonds then became an employee of Pilbara.

I agree, with respect, with the conclusion of Burt C.J. in the Full Court that this statutory framework and Pilbara's role in relation thereto is not to be distinguished from the context in which Fowles was decided. Pilbara itself had no authority to engage in the piloting of ships. Its obligation to provide pilotage services as required by the Shipping and Pilotage Act 1967 was limited to the nomination to the State of persons suitably qualified to be appointed by the Governor as pilots under that Act and the employment of sufficient qualified pilots to meet the needs of the port.

It was also urged on behalf of Oceanic that the decision in Fowles should not now be followed by reason of developments in recent decades in the law of vicarious liability, whereby an employer has been held vicariously liable for the negligence of his servants even in circumstances where it was not practicable for the employer to exercise any de facto control over the performance of their work. But in this respect I agree with the view expressed by Smith J. in the Full Court to the effect that the submission misunderstands the thrust of Fowles' Case. Their Lordships were not concerned with the question of control of an employee by a master so as to make the servant's act that of the master. They were concerned with questions of status and of statutory authority. Captain Hammonds did not derive his authority to navigate the "Oceanic Crest" from his employment by Pilbara, for Pilbara had no such authority. His authority as a pilot came from his appointment as such by the Governor in accordance with s. 4(b) of the Shipping and Pilotage Act 1967. It was his personal authority, and his alone. This consideration invites the further comment that it is the statutory authority possessed by the servant that renders the employer immune to vicarious responsibility for the conduct of the servant in the exercise of that authority and not the character of the employer. It is immaterial whether the employer be the Crown, as in Fowles , a statutory corporation, as in Stanbury v. Exeter Corporation [35] , or a private company, as in this case.

In any event, I would hesitate long before declining to apply Fowles to this case. It is a decision which has stood for seventy years. It may have been responsible for the absence in Western Australia and Tasmania of a statutory limitation of the liability of a pilotage authority such as was effected in the United Kingdom by the Pilotage Authorities (Limitation of Liability) Act 1936: see now the Pilotage Act 1983 U.K., Pt III. But for total exclusion of liability see in Queensland The Queensland Marine Act of 1958, as amended, s. 182; in New South Wales the Maritime Services Act 1935 as amended, s. 21B. The liability of the shipowner has long been limited: Merchant Shipping Act, 1894 U.K., s. 503; see now Pt VIII of the Navigation Act 1912 Cth. The liability of the pilot is limited by the Pilots' Limitation of Liability Act 1962 W.A.. In all the circumstances, I see no reason to doubt the correctness of Fowles . But even if I am wrong in that regard, the case may be one to which the observation of Lord Diplock in Geelong Harbour Trust Commissioners v. Gibbs Bright & Co. [36] is applicable. His Lordship stated:

The law laid down by a judicial decision, even though erroneous, may work in practice to the satisfaction of those who are affected by it, particularly where it concerns the allocation of the burden of unavoidable risks between parties engaged in trade or commerce and their insurers. 1. (1974) 129 C.L.R. 576, at p. 582.

On 8 August 1978 a bulk iron ore carrier, the "Oceanic Crest", struck a dolphin as it was berthing in Dampier Harbour in Western Australia. A dolphin is a buffer constructed of piles driven into the seabed. The dolphin was severely damaged. It was owned by Hamersley Iron Pty. Ltd. ("Hamersley"). At the time, the ship was under compulsory pilotage. The pilot was a Captain Hammonds, who had been appointed as a pilot for the Port of Dampier and who was employed, in circumstances presently to be mentioned, by the respondent Pilbara Harbour Services Pty. Ltd ("Pilbara"). Pilbara is a wholly-owned subsidiary of Hamersley and employs the pilots who navigate ships within Dampier Harbour. The "Oceanic Crest" was owned by the appellant, Oceanic Crest Shipping Company ("the shipping company"). In the Supreme Court of Western Australia, Hamersley sued Pilbara and the shipping company for damages. Hamersley alleged that Pilbara was negligent in that, inter alia, "its servant the pilot set the vessel down too hard onto the dolphin", and that the shipping company was negligent in that, inter alia, "by its servants the Master of the vessel and the pilot it set the vessel down too hard on to the dolphins". Wallace J. found that the master of the vessel and the pilot were both negligent. Finding these officers to be servants of the shipping company, his Honour held that company liable. His Honour held that the shipping company was the "particular employer" of Captain Hammonds and that it, not the "general employer" Pilbara, was vicariously liable for the pilot's negligence. Accordingly, judgment was entered for Hamersley against the shipping company for damages in the agreed sum of $625,362.36, and for costs. Judgment was entered for Pilbara against Hamersley. On appeal to the Full Court, the finding that the master was negligent was set aside, but the finding that the pilot was negligent was affirmed. No challenge is now made to the Full Court's findings of fact. The shipping company was held vicariously liable for the pilot's negligence, and a majority of the Full Court held that the decision of the Privy Council in Fowles v. Eastern and Australian Steamship Co. Ltd. [37] precluded a finding that Pilbara, though employer of the pilot, was vicariously liable for the pilot's negligence. Accordingly, the judgment in favour of Pilbara against Hamersley was not disturbed.

In third party proceedings, each of the shipping company and Pilbara claimed against the other to be entitled to an indemnity or alternatively to contribution in respect of any sum which Hamersley might recover against it. The grounds on which the shipping company's claim for an indemnity was made were stated in its contribution notice as follows:

that the negligence of the said pilot and/or of the said tug - each of which was provided by you - caused or contributed to the said collision and that in such circumstances it is entitled thereto by contract and/or pursuant to the provisions of the Law Reform (Contributory Negligence & Tortfeasors' Contribution) Act 1947. The shipping company's claim to be indemnified thus rested on contract or on statute. The Western Australian Act (hereafter "the Tortfeasors' Contribution Act ") is in familiar form. In particular s. 7(1)(c) of that Act corresponds with s. 6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act 1935 U.K.. In so far as the shipping company's claim rested on the Tortfeasors' Contribution Act, the shipping company was bound to show that it and Pilbara were tortfeasors and that, if the shipping company were liable to Hamersley, Pilbara was liable to Hamersley in respect of the same damage: see s. 7(1)(c).

In its defence to the third party proceedings brought against it by Pilbara, the shipping company pleaded that the damage suffered by Hamersley "was caused or contributed to by the negligence of [Pilbara] by its servant or agent [the pilot] and not by any negligence whether by act or omission for which in law [the shipping company] is liable". In its counterclaim, the shipping company pleaded that "in the premises, if it is found liable to [Hamersley] then it is entitled to be indemnified by [Pilbara] to the full extent of any such liability".

The issues arising in the third party proceedings brought by the shipping company against Pilbara do not include the issue of Pilbara's direct liability to the shipping company for damages in tort. They were sketched rather than defined by the brief claims and pleadings which they exchanged, but they include the following: (1) was Pilbara bound by contract to indemnify the shipping company for the damages awarded against it to Hamersley? (2) were Pilbara and the shipping company both liable to Hamersley for the negligence of Captain Hammonds? Wallace J. made no finding on the first issue, perhaps because it was not pursued at the trial. The majority of the Full Court held that there was no contract between the shipping company and Pilbara. Accordingly, the first ground of the shipping company's claim for an indemnity failed. And as Wallace J. and the majority of the Full Court held that Pilbara was not vicariously liable to Hamersley for Captain Hammonds' negligence, the second ground of the shipping company's claim for an indemnity also failed. Accordingly, an order dismissing the shipping company's counterclaim in the third party proceedings against Pilbara was made by Wallace J. and, presumably, that order was intended to dismiss also the shipping company's original claim. The shipping company now appeals against the Full Court's judgment dismissing its appeal against the dismissal of its claim in the third party proceedings. There are two difficulties relating to a consideration of the shipping company's third party claim against Pilbara which should be mentioned at this stage. The first is that, while Hamersley was a party to the proceedings before the Full Court, it is not a party to the present appeal. The second is that the shipping company's argument on this appeal goes outside the issues raised by the pleadings. It will be necessary to consider subsequently whether the extended issues can properly be determined in this appeal.

Pilbara submits that there are three objections which are fatal to the shipping company's claim as raised by the pleadings. It is submitted first that the judgment of the Privy Council in Fowles establishes the immunity of Pilbara as a pilotage authority from vicarious liability for the negligence of a pilot; secondly, that there was no personal duty to navigate the "Oceanic Crest" carefully owed by Pilbara to Hamersley; and, thirdly, that s. 410B of the Navigation Act 1912 Cth imposes liability for the consequences of the negligence of a compulsory pilot on the owner of the ship and excludes any such liability on the pilot's employer. No challenge is made by either party to the finding that there was no contractual obligation on Pilbara to indemnify the shipping company. The consideration of these objections requires mention of the statutes and agreements which affected the relationships among Hamersley, Pilbara, the shipping company and the pilot. It is to those statutes and agreements that I now turn.

On 30 July 1963 Hamersley and the State of Western Australia ("the State") made an agreement relating to the development of iron ore deposits in the Hamersley Range ("the Iron Agreement"). The Iron Agreement was approved by the Iron Ore (Hamersley Range) Agreement Act 1963 W.A. as amended. Clause 20 of the Iron Agreement authorized the company at any time to assign to an associated company "as of right and to any other company or person with the consent in writing of the Minister" the whole of the company's rights under the Iron Agreement and "the obligations of the Company hereunder". The first recital to the Iron Agreement defined "the Company" to include "the successors and assigns of the Company including where the context so admits the assignees and appointees of the Company under clause 20 hereof". As we shall see, Pilbara became the assignee of Hamersley under cl. 20. By cl. 10(2)(f) of the Iron Agreement "the Company" agreed:

subject to and in accordance with by-laws (which shall include provision for reasonable charges) from time to time to be made and altered as provided in subclause (3) of this clause and subject thereto or if no such by-laws are made or in force then upon reasonable terms and at reasonable charges (having regard to the costs thereof to the Company) [to] allow the State and third parties to use the Company's wharf and harbour installations wharf machinery and equipment and wharf and harbour services and facilities provided that such use shall not unduly prejudice or interfere with the Company's operations hereunder; and that the Company shall have the entire control of such use and that no personnel other than personnel provided or approved by the Company shall be utilised for or in respect of such use. By s. 4 of the Act the Governor was empowered to "make by-laws, for the purposes of, and in accordance with, the Agreement", and cl. 10(3) of the Iron Agreement provided that: The Governor in Executive Council may upon recommendation by the Company make alter and repeal by-laws for the purpose of enabling the Company to fulfil its obligations under paragraphs (f) of subclause (2) of this clause On 6 October 1971 the Hamersley Iron (Port of Dampier) By-laws were made under the Iron Ore (Hamersley Range) Agreement Act and the Iron Agreement. By-law 78 provided, inter alia: Pursuant to paragraph (f) of subclause (2) of Clause 10 of the Agreement the Company shall have the entire control of all port services, port facilities and port installations and no personnel other than personnel provided or approved by the Company shall be utilized for or in respect of such use. "Port service" was defined to mean, inter alia, "any service rendered or provided by the Company for or in connection with vessels using the port, any wharf or any port installation (including pilotage and towage services) ": By-law 3(15). By-law 29 provided, inter alia:

(1) All dues are hereby levied and charged for the use and benefit of the Company and (notwithstanding any other provision of these by-laws) the owner master and agent of a vessel in respect of or in connection with which any dues are payable shall be jointly and severally liable for such dues.

(2) All dues shall be paid to the Marine Manager but the Company may at any time sue for and recover the same in any court of competent jurisdiction.

This by-law encompassed pilotage charges which would otherwise have been payable to the harbour master for the benefit of the State under regulations made pursuant to the Shipping and Pilotage Act 1967 W.A.. That Act empowers the Governor to declare any place to be a port: s. 10. When a place is declared to be a port the harbour master of the port is empowered to control the berthing, mooring and moving of vessels within the port (s. 5(1)(b)); pilotage charges in respect of the usage of pilotage facilities by a vessel entering, departing from or moving within a port are payable (s. 9(1)); and the regulations might provide for compulsory pilotage: s. 9(2)(a). The Governor is empowered to make the necessary regulations: s. 12. The Port of Dampier was proclaimed to be a port and on 6 October 1971 the Port of Dampier Regulations were made under the Shipping and Pilotage Act. The regulations provide for compulsory pilotage. Subject to certain immaterial exceptions, the master of a vessel is prohibited from causing or permitting his vessel to enter or depart from the port without having first taken on board a pilot (reg. 7) and the master or owner of the vessel is required to pay prescribed pilotage charges to the harbour master: reg. 13. The term "pilot" is defined to mean "any person appointed by the Governor to be a pilot at the port": reg. 2.

On 30 September 1974, Hamersley made an agreement with Pilbara ("the Hamersley-Pilbara Agreement") in exercise of Hamersley's right to assign its rights and obligations under the Iron Agreement. By cl. 3(1) of the Hamersley-Pilbara Agreement, Pilbara agreed to:

provide services of a high standard and competent manner of towing and pilotage of all vessels entering departing or moving within the Port of Dampier as required by -

(iii) Shipping and Pilotage Act 1967 and its Regulations; or

By cl. 5 of the Hamersley-Pilbara Agreement, Pilbara was to have the entire responsibility of recruiting and employing labour qualified and competent to perform the work and, in particular, the responsibility for recruiting and employing qualified and competent pilots. By cl. 7(1), Pilbara agreed to make and collect charges for the pilotage and towing services to be performed by Pilbara. An agreement was made between the State and Pilbara whereby the Public Works Department was to allow Pilbara to nominate the harbour master and the pilots for the Port of Dampier. The Government agreed, inter alia, to appoint and remove pilots for that port in accordance with Pilbara's request and agreed to ensure that so long as Pilbara should provide pilotage services it should have the benefit of any pilotage charges levied for the services of pilots who are Pilbara's employees.

Pilbara recruited and employed Captain Hammonds whose experience and credentials made him qualified and competent to perform the work of a pilot. His immediate superior was Captain Nielsen, an employee of Pilbara and the harbour master and marine manager, who had authority to give Captain Hammonds instructions and advice if he considered that necessary. Captain Nielsen and Captain Hammonds were appointed to the respective offices of harbour master and pilot under the Shipping and Pilotage Act and in accordance with the agreement between the State and Pilbara.

No Contract between the Shipping Company and Pilbara.

The master of the "Oceanic Crest", being bound by reg. 7 of the Port of Dampier Regulations to take a pilot on board, took on board Captain Hammonds. He became liable to pay the pilotage charges prescribed by the regulations. If it were not for the provisions of the regulations making pilotage on entering the Port of Dampier compulsory, a contract for the engaging of the pilot and the payment of a pilotage fee may have been implied between the shipping company or the master on the one hand and Pilbara and the pilot (or one of them) on the other. When the question is whether a contract has been made for the provision of pilotage services in a case where pilotage is compulsory, something in the nature of a consensual arrangement must appear before a contract can be found - something more than an arrangement on the part of the shipowner or master to discharge the statutory obligation by taking a pilot on board and permitting the pilot to navigate the ship: see per Barton A.C.J. in Fowles v. Eastern and Australian Steamship Co. Ltd. [38] (an appeal to this Court on a case stated before the trial of the action which led to the appeal to the Privy Council earlier mentioned). In the present case, the master of the "Oceanic Crest" was not shown to have done more than to have taken Captain Hammonds on board and to have permitted him to navigate the ship within the harbour. No contract was thereby to be implied between the shipping company or the master on the one hand and Pilbara or the pilot (or one of them) on the other. The Full Court was right in so holding.

It follows that there was no contractual obligation owed by Pilbara to the shipping company to exercise reasonable care in rendering pilotage services although, as we have seen, Pilbara had made an agreement with Hamersley that it would provide pilotage services "of a high standard and competent manner". The import of the contractual obligation owed to Hamersley will be considered presently. For the moment, it is sufficient to note that the absence of a contractual obligation owed by Pilbara to the shipping company to exercise reasonable care in rendering pilotage services removes one of the bases on which the shipping company might have founded its claim for an indemnity. Where an employee or contractor who is bound by his contract with his employer to use reasonable care and skill in performing his allotted task is negligent and his negligence makes the employer liable in damages to a third person, the employer is entitled to recover an indemnity for his liability from the employee or contractor as damages for breach of contract. This was one of the bases, and perhaps the only basis, on which the employer of a negligent lorry driver was held entitled to recover from the driver damages amounting to an indemnity in Lister v. Romford Ice and Cold Storage Co. Ltd. [39] . An employer's cause of action for damages for breach of contract by an employee or contractor whose negligence results in the employer's liability in damages to a third party is well established (see Voli v. Inglewood Shire Council [40] ) where an obligation on the employee or contractor to act carefully is expressed or is to be implied in the contract of employment. This Court has not yet been required to consider whether such an obligation is to be implied in an ordinary contract for services: cf. McGrath v. Fairfield Municipal Council [41] . In Mowbray v. Merryweather [42] ; Honeywill and Stein Ltd. v. Larkin Brothers Ltd. [43] ; and Sims v. Foster Wheeler Ltd. [44] , an employer recovered damages from a contractor whose negligence resulted in the employer's liability to a third party. The employer recovered in each case for breach of an obligation resting on the contractor to act carefully. The obligation in each case was implied from the contract or, in Honeywill and Stein Ltd., the obligation was "either in contract or for negligence" - a question that was not contested [45] . Counsel for the shipping company placed some reliance on Honeywill and Stein Ltd. in support of an argument that a contractor owes an obligation of reasonable care to the employer for breach of which the contractor is liable in tort, but that case is not an authority for that proposition. The issue in that case was whether the employer of the contractor owed a duty of care to an injured party whose theatre was damaged by the independent contractor in the course of performing an extra-hazardous function. That question arose not because there was a contest as to the existence of a noncontractual duty owed by the contractor to the employer, but because the independent contractor asserted that the employer was under no liability to the injured party.

1. [1957] A.C. 555. 2. (1963) 110 C.L.R. 74, at p. 100. 3. (1985) 156 C.L.R. 672. 4. [1895] 2 Q.B. 640. 5. [1934] 1 K.B. 191. 6. [1966] 1 W.L.R. 769; [1966] 2 All E.R. 313. 7. [1934] 1 K.B., p. 195.

The cases relating to damages recoverable by an employer for breach of contract by a negligent employee or contractor are mentioned to deny their relevance to the existence of a noncontractual duty to act carefully owed to one who would become liable to a third party in damages if the duty were breached. Counsel for the shipping company argued that Pilbara was under a noncontractual duty of care to it, and that the shipping company is entitled to recover damages in tort for the liability to Hamersley which was imposed on it because of Captain Hammonds' negligence. As we shall see, such a duty cannot be the foundation of the shipping company's claim for contribution under the Tortfeasors' Contribution Act. The existence of such a duty can be material only as an element in an independent cause of action in tort.

The existence of a cause of action in tort for damages representing the amount of compensation paid or payable to an injured third party was left undecided in Lister v. Romford Ice and Cold Storage Co. Ltd. [46] , not considered in McGrath [47] , and passed over in Honeywill and Stein Ltd. If there be such a cause of action, its elements have not been judicially defined. The circumstances of this case would require that, if the shipping company had raised and pursued a claim founded on such a cause of action, consideration be given to its elements, evidence relevant to those elements be received and the necessary findings of fact be made. That did not happen and, it seems, no application was made that it should happen. One issue that would have arisen is this: what is the damage which a plaintiff is entitled to recover? In argument the damage was said to be an amount which the plaintiff is called upon to pay in respect of his liability to the injured third party. But would damages be recoverable by a plaintiff for an amount which he had not paid or at least been held liable to pay to the injured third party? And that issue leads to another: when does the cause of action arise? If the cause of action is not complete before the liability of a plaintiff to the third party is crystallized in some way, any claim for damages in tort which the shipping company might have raised in this case had not arisen when the action commenced or, I assume, when the contribution proceedings began.

1. [1957] A.C., at pp. 579-580, 585-586. 2. (1985) 156 C.L.R., at pp. 674-675.

There are some unresolved questions of principle that must be judicially decided before the existence of such a cause of action can be affirmed. Are the plaintiff and the defendant concurrent tortfeasors, and, if so, does the rule in Merryweather v. Nixan [48] affect the cause of action (a question raised but not answered in Lister v. Romford Ice and Cold Storage Co. Ltd.)? If plaintiff and defendant are concurrent tortfeasors, and the plaintiff is entitled to recover damages before he pays compensation to the injured third party, is the defendant liable for damages in tort to the injured third party and to the plaintiff so that he may be compelled to pay twice? And is the plaintiff, irrespective of any fault on his part, entitled to a full indemnity from the defendant? These questions received no consideration in the shipping company's argument either in this Court or, so far as the record shows, before Wallace J. and the Full Court. Although counsel with undoubted accuracy assured us that a breach of duty owed by Pilbara to the shipping company was argued below, the cause of action to which such a duty might have been material was not pleaded and the issues which the raising of such a cause of action throw up for consideration were not addressed. In Dare v. Pulham [49] , this Court unanimously reaffirmed the principle that "[a]part from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings". Clearly enough, there was no agreement to fight this case on issues relating to an independent cause of action in tort. When counsel for Pilbara was asked to address the question of a cause of action in tort, he had understandable difficulty in identifying what was the duty said to be owed to the shipping company by Pilbara arising out of the act of the pilot. It may be that a cause of action in tort for damages amounting to an indemnity could have been litigated in this action if it had been pleaded or if, without pleading, the parties had expressly or by the conduct of their cases raised the necessary issues for decision. But clearly the issues which the alleged cause of action raised for decision were not addressed. The supposed cause of action to which alone the duty of care owed to the shipping company was material was not litigated, and no relief founded on the supposed cause of action can be ordered. It is not for this Court to seek out a case different from what was litigated below: Maloney v. Commissioner for Railways [50] .

1. (1799) 8 T.R. 186 [101 E.R. 1337]. 2. (1982) 148 C.L.R. 658, at p. 664. 3. (1978) 52 A.L.J.R. 292, at p. 294; 18 A.L.R. 147, at pp. 151-152.

The shipping company's third party claim which was pleaded and litigated and on which it has so far failed was based on s. 7(1)(c) of the Tortfeasors' Contribution Act. On this basis Lord Morton of Henryton and perhaps Viscount Simonds in Lister v. Romford Ice and Cold Storage Co. Ltd. held the employer of the negligent lorry driver entitled to contribution amounting to a full indemnity. It is convenient to recall the terms of s. 7(1)(c):

Where damage is suffered by any person as the result of a tort -

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise but so that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability for which contribution is sought.

The provision relates to contribution in respect of damage suffered by a person for which two or more tortfeasors are liable to him. In the present context, it relates to the damage suffered by Hamersley, not to the damage suffered by the shipping company in incurring a liability to Hamersley or in having a judgment entered against it.

Contribution may be recovered only by a tortfeasor "liable in respect of that damage" (in this case, the shipping company which has an unchallenged right to seek contribution) "from any other tortfeasor who is or would if sued have been liable in respect of the same damage". Is Pilbara a tortfeasor liable to Hamersley in respect of the damage suffered by Hamersley? If the answer given by this Court to that question is in the affirmative, a further question will arise: does the judgment dismissing Hamersley's claim against Pilbara preclude a finding of Pilbara's liability to Hamersley in the third party proceedings?

The submission that Pilbara is liable to Hamersley can be put on either of two bases: the first, that Pilbara is vicariously liable for Captain Hammonds' negligence in navigating the ship; the second, that Pilbara is personally liable for breach of a duty of care owing by it to Hamersley. Different considerations apply to the two bases of liability.

Vicarious liability for the negligence of a pilot is imposed by the common law on the owner of a ship when the pilot's services are engaged voluntarily: The "Maria" [51] ;Thom v. J. & P. Hutchinson Ltd. (Owners of S.S. "Smerdis") [52] ; Fowles [53] . That liability has been long established, though its true foundation may be a matter of debate. In Steamship "Beechgrove" Co. Ltd. v. Aktieselskabet "Fjord" of Kristiania [54] , Lord Atkinson said that the voluntary employment of a pilot created "a contractual relation of service, to which the maxim of "respondeat superior" directly applies". His Lordship was there speaking of an application of the maxim as between the owner of a ship and a pilot who was navigating the ship at a time when the ship was not under compulsory pilotage. But there is nothing in the nature of the work of a pilot which excludes an application of the maxim as between the pilot and his general employer. In Holman v. Irvine Harbour Trustees [55] , harbour trustees who employed a boatman (or "hobbler", not a licensed pilot) to conduct a ship into their harbour were held vicariously liable for the boatman's negligence whereby the ship was damaged.

1. (1839) 1 W.Rob. 95 [166 E.R. 508]. 2. 1925 S.C. 386, at pp. 392-393. 3. (1913) 17 C.L.R., at p. 181. 4. [1916] 1 A.C. 364, at p. 383. 5. (1877) 4 R. (Sess. Cas.) 406.

However, in Fowles , where a ship under compulsory pilotage was damaged by the pilot's negligence and the pilot was an employee of the Queensland Government, an action against the Government failed. Although the plaintiff shipowner sought to fix the Government with liability on the footing that it was vicariously liable for the negligence of its servant the pilot, Earl Loreburn, delivering the judgment of the Judicial Committee, saw the case as turning entirely upon the nature of the duty cast upon the Government by the statutory provisions in force in Queensland. Their Lordships held that the obligation of the Queensland Government to the shipowner was no more "than that of providing qualified pilots" and their Lordships rejected the proposition that an obligation had been laid upon the Government for "the conduct and management of this ship". Earl Loreburn said that [56] "it is not conclusive to say that [the pilot] was in their service unless it can also be said that the Government were "the principals in the piloting of ships" to borrow the happy phrase of Isaacs J. If [the pilot] himself was the principal in the piloting of ships, then the defendants cannot be liable. It was he and not they who owed the duty of careful piloting to the plaintiffs." In Field v. Nott [57] , Dixon J. regarded Fowles [58] as an example of a case where a public officer, although a servant of the Crown, was executing an independent duty which the law casts upon him, so that the Crown was not acting through him and was not vicariously responsible for his negligence. And in Little v. The Commonwealth [59] , Fowles [60] was one of the authorities cited for the doctrine which his Honour stated in these terms: "any public officer whom the law charges with a discretion and responsibility in the execution of an independent legal duty is alone responsible for tortious acts which he may commit in the course of his office and that for such acts the government or body which he serves or which appointed him incurs no vicarious liability."

1. [1916] 2 A.C., at p. 562. 2. (1939) 62 C.L.R. 660, at p. 675. 3. [1916] 2 A.C. 556. 4. (1947) 75 C.L.R. 94, at p. 114. 5. (1913) 17 C.L.R. 149.

When the Crown or a public authority is the employer of a public officer who is charged by statute with the exercise of an "independent responsibility cast on him by law" (the phrase used by Dixon J. in Musgrave v. The Commonwealth [1] ), what is done in discharge of that responsibility is not done on behalf of the employer. The Crown or public authority, having no authority either to discharge that responsibility or to control its discharge, is not acting through the officer and what is done by the officer in discharge of the independent responsibility by the employee is not regarded as done in the course of his employment as a servant of the Crown or public authority. The statute which charges the officer-employee with the exercise of the independent responsibility denies that what he does in discharge of that responsibility is done on behalf of or for the benefit of the Crown or public authority. But an employer which is a private trading corporation having a commercial interest in its employee's exercise of a statutory responsibility stands in a different position. It may be within the objects and powers of a trading corporation - "within the scope of their incorporation" to adopt the phrase of Fry J. in Edwards v. Midland Rail. Co. [2] - to employ servants who will discharge an independent statutory responsibility. True it is that such a servant needs no authority from and is not amenable to control by his employer in acting in discharge of his independent statutory responsibility, but in so acting he is doing what he is employed to do and he is doing it on behalf of his employer. This seems to be the basis on which railway companies employing special constables became liable for a wrongful arrest made or a malicious prosecution launched by those constables. In Edwards , Fry J. said:

In my view it is within the scope of their incorporation, and is not like a thing entirely outside the objects of their business. It is a thing which, taking into account the nature of their business, they could not reasonably do without and do not do without. That case was followed in the Court of Appeal in Lambert v. Great Eastern Railway [3] where Cozens-Hardy M.R. said of constables employed by a railway company: No doubt they are servants who are given a special immunity and protection, and they have the peculiar protection which other constables have, namely, that they are not liable if they have reasonable ground for believing that a felony has been committed, and that the person whom they have arrested was guilty of a felony. If they had such reasonable grounds, their employers, I take it, would not be liable for their acts, but if they had not reasonable grounds, then it seems to me that their employers must be liable. 1. (1937) 57 C.L.R. 514, at p. 548. 2. (1880) 50 L.J. (Q.B.) 281, at p. 284. 3. [1909] 2 K.B. 776, at p. 781.

These cases were criticized by McCardie J. in Fisher v. Oldham Corporation [4] , who sought to distinguish them as turning on special statutory provisions. Though the ground of distinction was tenuous in the extreme, his Lordship's approach to the vicarious liability of a person appointing and paying a constable for acts done by the constable in discharging the duties of his office accords with and follows the judgments in this Court in Enever v. The King [5] . But vicarious liability of a constable's employer was denied in Enever because (taking the criterion from what Barton J. said [6] ) "the person must be not only the servant of the superior, but must be under the control of the superior before the latter can be held liable". In time, the criterion has changed. As Mason J. has recently pointed out in Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [7] :

the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, "so far as there is scope for it", even if it be "only in incidental or collateral matters" (Zuijs v. Wirth Brothers Pty Ltd [8] ). The widening of the criterion for vicarious liability may be of little assistance to those seeking to sheet home vicarious liability to the Crown or to public authorities whose powers are construed as stopping short of engaging in the function involved in the discharge of an independent statutory responsibility. The Crown or a public authority escapes vicarious liability for the negligence of an employed public officer discharging an independent statutory responsibility because the discharge of that responsibility is not a function which the employer is authorized to perform. That was the foundation on which Earl Loreburn rested the immunity of the Government in Fowles [9] . But as the maxim "respondeat superior" applies to a contractual relation of service between a licensed pilot and a shipowner, an immunity of the pilot's employer cannot be taken to rest simply on the statutory authority which a licence confers on a licensed pilot to provide pilotage services. It is only when the functions of an employer are so limited by statute as to exclude the function performed by an employee in discharging his statutory responsibility that the employer is immune from liability for the employee's negligence in discharging that responsibility. But a trading corporation whose objects are advanced by the employment of servants to discharge independent statutory responsibilities and whose powers extend to the employment of servants to advance the corporate objects may be held liable on the same footing as railway companies employing constables, that is: "liable to the extent to which their servant and agent is liable - not further than that, but to that extent": per Cozens-Hardy M.R. in Lambert [10] . 1. [1930] 2 K.B. 364. 2. (1906) 3 C.L.R. 969. 3. (1906) 3 C.L.R., at p. 983. 4. (1986) 160 C.L.R. 16, at p. 29. 5. (1955) 93 C.L.R. 561, at p. 571. 6. [1916] 2 A.C. 556. 7. [1909] 2 K.B., at p. 782.

In the present case, the piloting of the "Oceanic Crest" by Captain Hammonds was an activity which he performed as part of his duties to his employer, a trading corporation. He was subject to the control of Pilbara at least to the extent of having to obey the instructions of his superior to pilot ships entering the harbour. By piloting the ship he discharged, pro tanto, Pilbara's contractual obligations to the State of Western Australia and to Hamersley to provide pilotage services. Pilbara was empowered to employ him as a servant to pilot ships not only to advance the objects of the corporation but to permit Pilbara to exercise the function conferred on it by By-law 78. By-law 78, as we have seen, gave originally to Hamersley and, after the Hamersley-Pilbara agreement, must be taken to have given Pilbara "the entire control of all port services" including pilotage services.

In the light of the development of the law relating to vicarious liability, Fowles should not now be seen to be an obstacle to holding that a trading corporation which is empowered by its constitution (or by a special statute) to employ a licensed pilot to pilot ships under compulsory pilotage is vicariously liable for negligence in the piloting of a ship by a pilot employed by it. The first of the two bases of Pilbara's liability to Hamersley was, in my opinion, established. The second basis depends on the existence of a personal duty of care owed by Pilbara to Hamersley.

In Fowles , there was no contract between the Government and the plaintiff (the shipowner) binding the Government to exercise reasonable care in the piloting of the ship. Had the Queensland Government contracted to provide pilotage services to the shipowner, it would have been liable for the pilot's negligence in piloting the ship, as Isaacs J. pointed out [11] :

If the facts admitted amounted to a voluntary entering upon the business of piloting ships, quite independently of and in addition to the functions of Government contemplated by the Statutes, including in that business the ordinary responsibility for the careful conduct of the persons actually performing the task - practically a guarantee of their carefulness, - then I do not deny a wholly different situation would arise. Then, though the law would still, as I view it, look to the pilot only as the proper agent to navigate the ship, yet as the Government chose to place itself in a superadded relation of contractual responsibility to the vessel, it might be bound to answer for the pilot's negligence. 1. (1913) 17 C.L.R., at p. 183.

In this case, as we have seen, the pilot's employer (Pilbara) was contractually bound to the plaintiff (Hamersley) to "provide services of a high standard and competent manner of towing and pilotage of all vessels within the Port of Dampier": Hamersley-Pilbara Agreement, cl. 3(1). I read the qualifying words of cl. 3(1) - "as required by the Iron Agreement Shipping and Pilotage Act 1967" - not as restricting the standard of pilotage services to be provided but as specifying what pilotage services are to be provided. Pilbara's assumption of the obligation to provide pilotage services of a high standard was intended, no doubt, to ensure that pilotage services theretofore provided by Hamersley under the Iron Agreement and the By-laws of 6 October 1971 would continue to be provided for the benefit of the iron ore trade and the owners and charterers of bulk iron ore carriers. But Pilbara's contractual obligation enured also to the benefit of Hamersley whose wharf, dolphins and other harbour installations would be at risk in the event of negligence in the conduct and navigation of ships within the harbour. Pilbara had undertaken a contractual duty of care to Hamersley and Captain Hammonds' negligence constituted a breach of that duty whereby Hamersley's dolphin was damaged. Accordingly, Hamersley was entitled to recover from Pilbara damages for breach of contract. The breach may be described as a failure to discharge a duty of care, but, if that duty arose solely out of contract, there would be much to be said for the view that Pilbara's liability is not properly to be classified as the liability of a tortfeasor.

A liability which arises solely out of contract may not be a liability which attracts the operation of s. 7(1)(c) of the Tortfeasors' Contribution Act: see Giffels Associates Ltd. v. Eastern Construction Co. [12] ; McConnell v. Lynch-Robinson [13] . The Western Australian Parliament has not followed the lead of Westminster by enacting a provision permitting contribution as between a tortfeasor and a person liable for breach of contract in respect of the same damage: see The Civil Liability (Contribution) Act 1978 U.K. which was enacted to overcome the decision in McConnell v. Lynch-Robinson: Dugdale, The Civil Liability (Contribution) Act 1978, Modern Law Review, vol. 42 (1979), p. 182.

1. (1978) 84 D.L.R. (3d) 344. 2. [1957] N.I. 70.

In the present case, the classification of Pilbara's liability to Hamersley for breach of contract need not be pursued. If Pilbara is vicariously liable for Captain Hammonds' negligence, that liability would bring it within s. 7(1)(c) and make it amenable to a contribution order in respect of the damage to Hamersley's dolphin. However, counsel for Pilbara submits that the vicarious liability which would be imputed to Pilbara by the common law is excluded by s. 410B of the Navigation Act 1912 Cth (hereafter "s. 410B").

(1) A pilot who has the conduct of a ship is subject to the authority of the master of the ship and the master is not relieved from responsibility for the conduct and navigation of the ship by reason only of the ship being under pilotage.

(2) Notwithstanding anything contained in a law of the Commonwealth or of a State or Territory, the owner or master of a ship navigating under circumstances in which pilotage is compulsory under a law of a State or Territory is answerable for any loss or damage caused by the ship, or by a fault of the navigation of the ship, in the same manner as he would if pilotage were not compulsory.

Section 410B(2) was modelled on s. 15(1) of the Pilotage Act 1913 U.K. (which did not take effect until 1 January, 1918: s. 15(2)). The purpose of that provision, as Bucknill L.J. pointed out in Owners of the Steamship Towerfield v. Workington Harbour and Dock Board. The Towerfield [14] , was to comply with an International Convention which provided that liability under the Articles of the Convention should attach where the collision is caused by the fault of a pilot even when the pilot is carried by compulsion of law. The common law imposes no liability on the owner of a ship for damage done by the ship as the result of negligence on the part of a compulsory pilot: The "Maria" [15] ; The "Protector" [16] ; The "Beechgrove" [17] ; Townsville Harbour Board v. Scottish Shire Line Ltd. [18] . Section 15(1) got rid of the defence of compulsory pilotage, not only by abrogating the common law immunity of the owner from vicarious liability for the negligence of a compulsory pilot but also by repealing s. 633 of the Merchant Shipping Act 1894 U.K. which had given statutory recognition to the common law rule. The effect of the provision, as Bucknill L.J. stated it [19] , was to "put on the shipowner the same responsibility for the acts of a compulsory pilot as he has always had for the acts of a voluntary pilot". The effect of s. 15 of the U.K. Act was further considered in Workington Harbour & Dock Board v. Towerfield (Owners) [20] (" The Towerfield ") by the House of Lords. Lord Radcliffe said [21] that s. 15 "must be construed so as to impute [the pilot's] negligence to the owners, even when they appear as plaintiffs seeking to recover damages for injury to their vessel". Contributory negligence being a complete defence at that time, the pilot's negligence precluded the owners from recovering damages in negligence from any other tortfeasor whose negligence had contributed to the damage sustained by the ship.

1. [1949] P. 10, at p. 23. 2. (1839) 1 W.Rob., at pp. 103-104 [166 E.R., at p. 512]. 3. (1839) 1 W.Rob. 45, at pp. 54-56 [166 E.R. 490, at p. 494]. 4. [1916] 1 A.C., at pp. 380, 382, 393. 5. (1914) 18 C.L.R. 306, at pp. 316, 320, 327. 6. [1949] P., at p. 23. 7. [1951] A.C. 112. 8. [1951] A.C., at p. 156.

It was submitted, however, that s. 410B goes further than sheeting home liability for the pilot's negligence to the owner or master of the ship. Counsel for Pilbara submitted that s. 410B excludes vicarious liability in any other person.

In The Towerfield, s. 15(1) of the Pilotage Act was held to have a wider effect than making the owner of the ship responsible for the compulsory pilot's negligence as if the pilot were the owner's servant. The damage to the "Towerfield" was caused not only by the pilot's negligence but, it was alleged, by errors in a navigation chart, the accuracy of which had been warranted by the Harbour Board. Section 15(1) was held to make the owner liable, to the exclusion of contractual liability (if any) in the Harbour Board, for the damage suffered by the ship because of the pilot's negligence [22] . The inference might be drawn from the speeches in that case - and it was the inference which counsel for Pilbara submitted that we should draw - that s. 15(1) is intended to make the owner or master of the ship not only responsible for any damage caused by the negligence of a compulsory pilot but exclusively liable for that damage. I am not sure that that inference should be drawn, but if that be the view adopted in England in reference to s. 15(1) of the Pilotage Act, I would respectfully decline to apply it to s. 410B(2). To give s. 410B the operation for which Pilbara contends would deny to a plaintiff relief against any person other than the owner or master although that person caused or contributed to the plaintiff's damage. The language of that provision does not go so far.

It is further submitted that, if s. 410B(2) does not make the owner and master exclusively liable for any damage caused by the negligence of a compulsory pilot, at least it makes the compulsory pilot a servant of the owner for whose negligence only the owner can be vicariously liable. In Thom v. Owners of S.S. "Smerdis" [23] s. 15 of the Pilotage Act was held to convert a compulsory pilot into a servant of the shipowner so as to exclude a claim for damages for fatal injury to a seaman on the ground that the pilot and the seaman were common employees of the shipowner. In The Towerfield, Lord Normand expressed his agreement with the view that the compulsory pilot is to be regarded as a servant of the owner. These cases provide a foundation for the submission that s. 410B makes the pilot a servant of the owner of the ship and that he cannot have two masters vicariously liable for his negligence. It is submitted that control and liability must be allocated exclusively to one or the other (see Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd. [24] ; McDonald v. The Commonwealth [25] ) and, as s. 410B allocates liability to the owner, the general employer of the pilot is not liable. The premise on which this submission is based is that s. 410B makes the compulsory pilot a servant subject to the control of the owner. The rule to be derived from Mersey Docks and McDonald is not that two persons cannot be vicariously liable for the same damage or that an employee cannot be the servant of two masters, but that two employers of the same servant who negligently causes damage will not both be liable for the damage if one rather than the other has what Jordan C.J. called "the relevant control": McDonald [26] . If a shipowner were held to possess, by virtue of s. 410B, a measure of control over a pilot it would be necessary to consider whether s. 410B vests "the relevant control" in the shipowner to the exclusion of the pilot's general employer. But s. 410B goes directly to the imposition of liability; it does not impose that liability on the footing that it has vested in the shipowner a measure of control over the pilot.

1. 1925 S.C. 386. 2. [1947] A.C. 1. 3. (1945) 46 S.R. (N.S.W.) 129. 4. (1945) 46 S.R. (N.S.W.), at p. 132.

Section 410B(2) does not in terms purport to make a compulsory pilot a servant or to confer on the owner a power to control what a compulsory pilot does. Indeed, it is the authority of a pilot to navigate a ship without the authority of the owner or master which makes pilotage compulsory. Section 410B(2) does not purport to override any law of a State or Territory which makes pilotage compulsory and which thereby confers authority on a pilot to navigate a ship. The authority conferred on a compulsory pilot by a State or Territory law is unaffected by s. 410B(1), although sub-s. (1) provides that the pilot's conduct of the ship may be taken out of his hands by the authority of the master - an authority for the exercise of which the master must be prepared to show justification: see The Towerfield [27] . Section 410B(1) is consistent with and provides for a limit on the pilot's authority by reference to that narrow authority reserved to a master to supersede the instructions of a compulsory pilot. But s. 410B(1) does not purport to vest in the master of the ship any control over the pilot in the exercise of his authority. The pilot's authority may be superseded by the master, but its exercise is not subject to the master's control. As s. 410B does not extend the master's authority to control the pilot in his navigation of the ship while it is under compulsory pilotage, there is no question of choosing between the allocation of control to the pilot's employer and the allocation of control to the ship's owner or master for the purpose of allocating liability for damage caused by the pilot's negligence.

Section 410B(1) makes the master and through him the owner personally liable for damage done by the negligent navigation of the ship, though the negligence is that of the compulsory pilot and such negligence would not be attributed to the ship or to the owner or master at common law: Townsville Harbour Board v. Scottish Shire Line Ltd. [28] . What s. 410B(2) does is to impose a statutory liability on the owner or master for the loss and damage specified, and to define that liability on the hypothesis that pilotage is not compulsory. Although the hypothesis defines the liability, the hypothesis is not deemed to exist. Neither sub-s. (1) nor sub-s. (2) of s. 410B creates a relationship of master and servant between the shipowner and the compulsory pilot; neither provision needs to create that relationship to effect the sheeting home of liability to the owner or master. I do not stay to consider whether this view is consistent with the decision in Thom v. Owners of S.S. "Smerdis" or with Lord Normand's observation in The Towerfield, for I am quite unable to regard s. 410B as affecting the relationship between the master of the ship and the pilot in connection with the conduct of the ship by the pilot. As s. 410B does not give to the owner or master of the ship any control over the pilot in the piloting of the ship, that section cannot affect the vicarious liability of the pilot's general employer for negligence committed in the course of the pilot's employment. It merely creates a parallel, statutory liability in the owner or master. The owner of the ship and the general employer of the compulsory pilot are both liable to a plaintiff whose damage is caused by the negligence of the pilot in the conduct of the ship.

Pilbara, the general employer, is liable as a tortfeasor in respect of that damage, and the statutory liability in respect of the same damage, imposed by s. 410B on the shipping company, is of the same character: see Genders v. Government Insurance Office of N.S.W. [29] . A claim for contribution under s. 7(1)(c) of the Tortfeasors' Contribution Act may be made by either Pilbara or the shipping company against the other of them. The amount of contribution is a matter for judicial discretion and there is authority for the view that contribution may amount to a full indemnity: see the cases collected in McGrath v. Fairfield Municipal Council [30] .

1. (1959) 102 C.L.R. 363, at p. 382. 2. (1985) 156 C.L.R., at pp. 678-680.

It follows that Hamersley's action against Pilbara ought to have succeeded, that judgment should have been entered for Hamersley against Pilbara and the shipping company and that orders for contribution ought to have been made between Pilbara and the shipping company under s. 7(1)(c) of the Tortfeasors' Contribution Act. But when Pilbara's exoneration from liability to Hamersley was affirmed by the Full Court, the shipping company did not appeal against that part of the Full Court's judgment. So long as the judgment holding Pilbara not liable stands on the record, the shipping company is unable to assert that Pilbara is a tortfeasor who "is or would if sued have been liable" to Hamersley: George Wimpey & Co. Ltd. v. British Overseas Airways Corporation [31] ; W.H. Wright Pty.Ltd. v. Commonwealth [32] ; Castellan v. Electric Power Transmission [33] . The shipping company has now sought an order similar to that in Unsworth v. Commissioner for Railways [34] under O. 70, r. 29 of the High Court Rules. Such an order would provide for the joining of Hamersley as a respondent with a view to amending the record by having judgment entered in solidum against Pilbara and the shipping company. A similar order should be made here to permit the making of a contribution order unless, the judgment having been satisfied by the shipping company, it is too late to amend the record.

1. [1955] A.C. 169. 2. [1958] V.R. 318, at p. 321. 3. (1967) 69 S.R. (N.S.W.) 159, at pp. 177, 188, 189. 4. (1958) 101 C.L.R. 73.

In Castellan v. Electric Power Transmission [35] , a majority of the Court of Appeal held that no new trial could be ordered on the application of one tortfeasor to decide the liability of another alleged tortfeasor to the plaintiff when the first tortfeasor had satisfied the plaintiff's judgment against him and the plaintiff's claim against the other alleged tortfeasor had been dismissed by consent of those parties. The judgment for the alleged tortfeasor standing as a final judgment, he was immune from an order for contribution to the tortfeasor who had satisfied the plaintiff's judgment. Walsh J.A. dissented. In a passage with which I respectfully agree, his Honour said [36] :

In order that the rights of all parties should be properly determined in accordance with law, I am of opinion that this Court has the power and the duty to set aside any part of the result of the trial, if it was reached through error of law, and if it is such that, whilst it stands, it impedes the proper resolution of the rights of all parties. It was the automatic consequence of the entry of verdicts for B.H.P. in the plaintiff's action that, in the claims of E.P.T. for contribution against B.H.P., there must be verdicts for B.H.P. If this was erroneous and if, so long as it stands, the said claims of E.P.T. can never be duly determined according to law, it is proper for this Court to review the correctness of the entry of the verdicts for B.H.P. in the plaintiff's action. In any event, the present case is not one where entry of a judgment for Hamersley against Pilbara depends on the determination of contested issues of fact. The facts are not in dispute and the only question for the appellate court is: what judgment ought to have been entered on those facts by the trial judge? By ordering the entry of judgment for Hamersley against Pilbara on the footing of Pilbara's vicarious liability for Captain Hammonds' negligence, this Court would do no more than remove the procedural impediment to the making of a contribution order against Pilbara. 1. (1967) 69 S.R. (N.S.W.) 159. 2. (1967) 69 S.R. (N.S.W.), at p. 173.

It was assumed in argument that the contribution order, if made, should amount to an indemnity. That may be right, but it is not selfevident that, as between two parties who are innocent of personal fault and to whom liability is imputed by law, the party whose liability is imputed by statute ought to have an indemnity from the party whose liability is imputed by common law. The question has not been argued. I would allow the parties an opportunity to consider this judgment and, if they fail to agree on a contribution order, I would remit the matter to the Full Court of Western Australia to make such order as may be just under s. 7(1)(c) of the Tortfeasors' Contribution Act.

The order I would make, adopting the order made in Unsworth is as follows:

1. Appellant be at liberty to add Hamersley as a respondent to this appeal for the purpose only of setting aside the judgment dismissing Hamersley's claim against the respondent and entering judgment for Hamersley against the respondent in the sum of $625,362.36.

2. In the event of Hamersley failing or refusing to consent to be added as a respondent to this appeal, the appellant to be at liberty upon notice to Hamersley and to the respondent to restore the appeal to the list for such further or other order as may be appropriate.

3. Subject to Hamersley being added as a respondent and the appellant obtaining and filing a memorandum of Hamersley's consent hereto, order that the appeal be allowed, that the judgment of the Full Court be set aside so far as it affirmed the dismissal of Hamersley's claim against the respondent and the dismissal of the appellant's claim under s. 7(1)(c) of the Tortfeasors' Contribution Act against the respondent and in lieu thereof order that the judgment entered at the trial be varied by entry of - (a) a judgment for Hamersley against the respondent in the sum of $625,362.36; and (b) an order declaring that the appellant is entitled to contribution by the respondent in respect of the judgment entered against the shipping company by Hamersley in such an amount as is agreed or as may be determined by the Supreme Court in default of agreement and that the respondent pay the appellant's costs of the third party proceedings between them; (c) an order that the respondent pay the appellant's costs of the appeal before the Full Court.

5. The respondent to pay the appellant's costs of this appeal.

In Fowles v. Eastern and Australian Steamship Co. Ltd. [37] , the Judicial Committee of the Privy Council expressed entire agreement with Barton A.C.J.'s formulation of the essential question involved in that case. That formulation had been made when the matter was before this Court on a special case prior to the actual trial of the action [38] . It propounded a choice between two competing views of the scope of the Queensland Government's duty of care to the shipping owner in respect of the piloting activities of a licensed pilot who was a public servant in its employ. There, as here, pilotage by a pilot licensed for the relevant harbour or port was compulsory under the applicable statutory provisions. Barton A.C.J.'s formulation of the essential question was in these terms: "Was it, then, the duty [of the Queensland Government] to undertake with due care and skill the pilotage of such vessels, or was it only a duty to supply qualified pilots to those who were bound to accept the services of such officers?"

1. [1916] 2 A.C. 556, at p. 561. 2. (1913) 17 C.L.R. 149, at p. 167.

In this Court in Fowles' Case [39] , no decisive answer had been given to that question. Barton A.C.J. and Powers J. thought that the answer to it was that the Queensland Government had undertaken, through its employed pilot, the actual pilotage of the owner's ship and was under a duty of care to exercise, through its employee, due care and skill in that pilotage. Isaacs J. expressed the contrary view. His Honour considered that the pilot in that case, on being licensed for the Port of Brisbane, was thereby "appointed" for that port. He was "an independent pilot" [1] who was performing "functions specially entrusted to him personally" [2] and not as agent of his employer: "once the Government have placed the pilot on the vessel, they have reached the limit of their corporate action, and it is [the pilot's] personal duty and responsibility that then come into play" [3] . The Government was not "to be considered the principals in the piloting of ships" [4] . The other two members of the Court (Gavan Duffy and Rich JJ.) considered that the material in the special case was inadequate for the determination of the issue which it raised and refrained from expressing any conclusion about whether the Queensland Government was liable for the negligence of its employed pilot in the circumstances of that case.

1. (1913) 17 C.L.R. 149. 2. (1913) 17 C.L.R., at p. 188. 3. (1913) 17 C.L.R., at p. 189. 4. (1913) 17 C.L.R., at p. 193. 5. (1913) 17 C.L.R., at p. 183.

When the matter finally came before the Privy Council after the trial of the action, their Lordships, while accepting Barton A.C.J.'s formulation of the relevant question, rejected the answer which he and Powers J. had given to it. Their Lordships accepted the contrary approach of Isaacs J. in this Court. The starting point of that approach was the special status of a licensed pilot appointed to a port. That special status of port pilots was well-established ("old and familiar" [5] ). It had been examined and explained in judgments in previous cases from which some relevant general propositions could be extracted. The most important of those propositions had been summarized by Isaacs J. [6] by reference to the opinions of the learned Judges who had constituted the Court of Sessions in Holman v. Irvine Harbour Trustees [7] , "a licensed pilot is an independent public officer, the granting of the licence being his "appointment" and constituting him "duly qualified";" and " " a pilotage authority, having duly licensed a pilot, is not responsible for any fault he may commit. The licensing of a pilot is the appointment of a public officer." "

1. [1916] 2 A.C., at p. 562. 2. (1913) 17 C.L.R., at p. 180. 3. (1877) 4 R. (Ct. of Sess.) 406.

In Fowles [8] their Lordships pointed out that it was clear that the fact that pilotage was compulsory did not make the Government liable for the pilot's negligence. That being so, any liability of the Government "must be on the ground that they charge pilotage rates, which go into the Treasury, that they pay salaries to the pilots, whom they choose, dismiss, or reprimand, and that they class them in the Civil Service and supply them with boats, implements, and crews; also that they make regulations which control them, but not regulations interfering with their conduct and management of ships" [9] . Their Lordships expressed the view that those considerations would be "very cogent" if the crucial question had been whether or not the pilot was "in the service of [the Government], as might arise in an action of wrongful dismissal" [10] . They concluded, however, that where the question was, as they held it to be, whether or not "the defendants [scil. the Government] were bound to navigate the ship and employed [the pilot] to do for them the work which they were bound to do", it was not conclusive to say that the pilot "was in their service unless it can also be said that the Government were "the principals in the piloting of ships," to borrow the happy phrase of Isaacs J." [11] . Their Lordships concluded [12] that it could not be said that the pilot's employer, as distinct from the pilot himself, was a principal in the piloting of ships.

1. [1916] 2 A.C., at p. 561. 2. [1916] 2 A.C., at p. 562. 3. [1916] 2 A.C., at p. 561. 4. [1916] 2 A.C., at p. 562. 5. [1916] 2 A.C., at pp. 562-563.

As the generality of the statements to be found in the conflicting judgments in this Court and in the judgment of the Privy Council make plain, the basis of the Judicial Committee's decision in Fowles [13] extended beyond the particular legislative provisions and facts involved in that case. That basis was that the "old and familiar status" of a licensed pilot in a port where pilotage was compulsory was such that the functions which the pilot performed were properly to be seen as functions which were entrusted to him as a designated principal and which fell outside the ambit of any vicarious liability of his general employer. As their Lordships said [14] : " the original status of a pilot, is, in effect, that he must be regarded as an independent professional man in discharging his skilled duties. If it had been intended to alter this old and familiar status, it is to be supposed that the Legislature would have done it more explicitly."

1. [1916] 2 A.C. 556. 2. [1916] 2 A.C., at p. 562.

While one can point to distinctive characteristics of the legislative and factual context, the present case appears to me to fall within the wide scope of the reasoning of the Privy Council in Fowles . It follows that I consider that the learned primary judge and the majority of the Full Court were correct in their view that acceptance of the binding authority of that reasoning, if it be left unconfined, leads to the conclusion that the respondent Harbour Company was not vicariously liable for the negligence of a licensed pilot in the Port of Dampier in the performance of his function of piloting a ship of another within the port notwithstanding that the pilot was employed and paid by the Harbour Company to perform that very function. That being so, it becomes necessary to consider whether the full sweep of the Judicial Committee's reasoning in Fowles should continue to be accepted in this country. That question was not seen as an open one in the courts below. It is, however, open in this Court.

On the one hand, one must be conscious of the ordinary undesirability of declining to accept the effect of the reasoning underlying a decision of an ultimate Court of Appeal which has stood as authority for nearly seventy years in a specialised field of commercial activity. Commercial arrangements, including insurance cover, have, no doubt, been made and negotiated on the basis that Fowles established that a harbour authority is ordinarily not liable for the negligence of an employed licensed pilot in the actual performance of his piloting functions in a port where pilotage by a licensed pilot is made compulsory by statutory provision notwithstanding that "they [i.e., the particular harbour authority] charge pilotage rates, that they pay salaries to the pilots, whom they choose, dismiss, or reprimand, and that they supply them with boats, implements, and crews": see Fowles [11] . The considerations which militate against the judicial overruling of the reasoning underlying such a long-standing authority have been canvassed in many cases and learned writings and need not be repeated here: see, e.g.,Geelong Harbor Trust Commissioners v. Gibbs Bright & Co. [15] ; Morgans v. Launchbury [16] ; Lord Devlin, Judges and Lawmakers, Modern Law Review, vol. 39 (1976), 1, at pp. 10-11; but cf., e.g., William O. Douglas, Stare Decisis, Columbia Law Review, vol. 49 (1949), 735, at pp. 735-736, 747.

1. [1916] 2 A.C., at p. 562. 2. [1974] A.C. 810, at pp. 818-819. 3. [1973] A.C. 127, at p. 137.

On the other hand, the proposition that a general employer, be it public instrumentality or private company, is not vicariously liable for the negligence of the licensed pilots in its employ in carrying out the piloting duties which it employs and pays them to perform and for which the employer charges fees to the shipping owner is one which lies ill indeed with the ordinary principles governing vicarious liability in tort which, however uncertain they may have been in 1916 when Fowles was decided in the Privy Council, are now incontrovertible. In particular, the importance which Isaacs J. in this Court [17] placed upon "the principle that the alleged servant must be completely under the control and at the disposition of the alleged master before the latter can as such be held liable for the negligence of the former" and the emphasis which the Privy Council placed [18] upon the status of a pilot as "an independent professional man discharging his skilled duties" plainly indicate insistence upon a degree of control as a prerequisite of an employer's vicarious liability in tort which is simply inconsistent with contemporary law. The specialist employee - be he engineer, architect, lawyer, computer operator, airline pilot, ferry master or taxicab driver - has become almost as much the rule as the exception. He frequently performs his duties as an employee under the authority of a personal statutory licence. His specialist knowledge will commonly be such that it will be impracticable for his employer to do more than satisfy himself about, and rely upon, the qualifications, experience and reputed competence of the employee as a trained and licensed expert in the particular field. Nonetheless, the law is now clear that such a general employer will ordinarily be vicariously liable for such an employee's negligence in the course of the ordinary discharge of the duties of his employment.

1. (1913) 17 C.L.R., at p. 181. 2. [1916] 2 A.C., at p. 562.

If the reasoning in Fowles was open to criticism only on the ground of its discordance with the general principles governing vicarious liability for the tortious action of an employee, I would have inclined to the view that its authority should be left undisturbed even in the area where it is weakest, namely, where, as in the present case, the negligence is that of a licensed pilot in the employ of a non-government trading corporation in a port where pilotage is compulsory. The reasoning in Fowles is, however, open to criticism on the further ground that serious practical injustice could well flow from its application. Any such practical injustice may be more superficial than real in a case such as the present where what is involved is liability to a shipping company or the corporate owner of a port facility since the relationship between such corporations and the general employers of the pilots whose services they utilize or whose activities involve the use of such facilities is, even though pilotage is compulsory, amenable to definition by contractual arrangements between them and the presence or absence of vicarious liability in a general employer is likely to be reflected in pilotage rates and the extent of insurance cover. Where such practical injustice is likely to be of real substance is in the case of those who have neither the opportunity nor the economic standing to negotiate with the general employer of the licensed pilots of a port and who are likely to be uninsured against the injury to person or property which may be sustained as a consequence of the negligence of such pilots in the performance of their ordinary duties. A child in a pleasure boat which is overrun, a passenger on another ship who suffers injury in a collision, a person who is injured when a wharf on which he is standing is rammed provide some obvious examples. It would, so it seems to me, be quite contrary to ordinary notions of justice if such an injured party were unable to obtain redress from the trading corporation whose employed pilot had caused the injury by his negligence in the course of his ordinary duties performed for reward to the trading corporation merely by reason of the facts that pilotage in the port was compulsory and that the pilots in the port were appointed or licensed by the Crown or some government instrumentality. If that were so, such an injured party would, apart from the insignificant amount which (under understandable statutory limits) could be obtained from the pilot, be left to seek redress either from a ship which, if it was not on the bottom of the port, may well have long since departed the country or from a shipping owner who may well be in some foreign land whose laws are framed to afford maximum protection to those whose ships fly its flag.

The general approach appropriate to these circumstances is, in my respectful view, that suggested by Lord Loreburn L.C. in West Ham Union v. Edmonton Union [19] :

Great importance is to be attached to old authorities, on the strength of which many transactions may have been adjusted and rights determined. But where they are plainly wrong, and especially where the subsequent course of judicial decisions has disclosed weakness in the reasoning on which they were based and practical injustice in the consequences that must flow from them, I consider it is the duty of this House to overrule them Adopting that approach, I have come to the view that, on balance, the reasoning and decision of the Judicial Committee in Fowles should, at the very least, be confined in one respect to the particular facts of that case, namely, to the situation where the employer of a licensed port pilot is either the Crown or some government instrumentality. In particular, Fowles should not be treated as applying to a case such as the present where the employer is a trading corporation which employs the licensed port pilots to provide pilotage services to others for reward to itself. I shall briefly explain my reasons for that conclusion. 1. [1908] A.C. 1, at pp. 4-5.

As has been seen, the Privy Council's decision in Fowles was expressly based upon the "original status of a pilot" which was described as being, in effect, "that he must be regarded as an independent professional man in discharging his skilled duties" [20] (emphasis added). Their Lordships made plain [21] that they saw that "original status" as predating the appointment of pilots by the Crown and the employment of pilots in the public service and that the question whether the licensed pilot in that case was appointed by the Crown or "was in the service of the defendants" (i.e., the Crown or "Government") was simply not in point. That being so, the decision in Fowles cannot properly be seen as resting upon the status of the particular pilot as an appointee or servant of the Crown or Government. Nonetheless, once one moves away from the case where the licensed pilots in a port are employees of the Crown or some government instrumentality, the authority of Fowles is greatly weakened. The reason is that, probably because of the references in their Lordships' judgment to the fact that the particular pilot was appointed and remunerated by the Government, the decision in Fowles has tended to be subsequently seen and explained as turning upon the status of the particular pilot as a "public officer" or "servant of the Crown". Thus, in Field v. Nott [22] , Starke J. [23] and Dixon J. [24] each cited Fowles as authority for the proposition that "[w]hen a public officer, although a servant of the Crown, is executing an independent duty which the law casts upon him, the Crown is not liable for the wrongful acts he may commit in the course of his execution": per Dixon J. [25] . Again, inLittle v. The Commonwealth [26] , Dixon J., in considering a question of vicarious liability for the actions of police officers in the service of the Crown, referred to Fowles [27] as one of the authorities establishing "the doctrine that any public officer whom the law charges with a discretion and responsibility in the execution of an independent legal duty is alone responsible for tortious acts which he may commit in the course of his office ": see also Attorney-General (N.S.W.) v. Perpetual Trustee Co. Ltd. [28] ; and note Ramsay v. Larsen [29] . True it is that there are some obvious difficulties involved in sustaining the decision in Fowles on that basis even in a case where a licensed pilot is a servant of the Crown in that, in a modern context, it somewhat strains reality to treat every licensed pilot in the employ of some government department or instrumentality in a port where pilotage is made compulsory by law as a "public officer" of the type described in the above extracts from judgments in this Court. Be that as it may, it would, in my respectful view, be contrary to both reality and common sense to treat a licensed pilot who is employed by a private trading company to perform the pilotage services which that company provides for reward in such a port in circumstances such as those of the present case as such a public officer merely because his appointment or licence as a port pilot was made or granted by the Crown or some government instrumentality or authority.

1. [1916] 2 A.C., at p. 562. 2. [1916] 2 A.C., at pp. 560, 562. 3. (1939) 62 C.L.R. 660. 4. (1939) 62 C.L.R., at p. 672. 5. (1939) 62 C.L.R., at p. 675. 6. (1939) 62 C.L.R., at p. 675. 7. (1947) 75 C.L.R. 94, at p. 114. 8. [1916] 2 A.C. 556; (1913) 17 C.L.R. 149. 9. (1952) 85 C.L.R. 237, at pp. 265, 301. 10. (1964) 111 C.L.R. 16, at p. 26.

It should not be inferred from the above that I would leave the authority of Fowles undisturbed even in a case where the negligent pilot is employed by the Crown or by a government instrumentality. As I have indicated, there is room for arguing that it is unreal to see the role of a licensed pilot in a case such as Fowles as being that of a public officer entrusted with the performance of public duties in the sense referred to by Starke J. and Dixon J. in Field v. Nott and by Dixon J. in Little v. The Commonwealth and that the existence and extent of the liability of the Crown or a government instrumentality for the negligence of a pilot in its employ should be determined by reference to the principles of law and statutory provisions which govern the liability of the Crown or a government instrumentality for the negligence of an ordinary employee in a trading activity which is carried on for reward. Those are, however, questions which do not arise here and it is unnecessary that I express any view in relation to them.

Subject to the foregoing, I agree, for the reasons which he gives, with the following conclusions of Brennan J: (i) that, notwithstanding the provisions of s. 410B of the Navigation Act 1912 Cth, the respondent Pilbara Harbour Services Pty. Ltd. was vicariously liable in tort to Hamersley Iron Pty. Ltd. for the damage caused by the negligence of Captain Hammonds; (ii) that, that being so, the appellant Oceanic Crest Shipping Company was entitled to claim contribution from Pilbara Harbour Services Pty. Ltd. pursuant to s. 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 W.A.; and (iii) that any problem occasioned by the existence on the record of the judgment in Pilbara's favour against Hamersley can, and in the circumstances should, be overcome in the manner which Brennan J. suggests.

I have had the advantage of reading the reasons for judgment of Brennan J. and am indebted to him for his recitation of the facts and for his analysis of the issues in this case. They enable me to go straight to the question which, as he demonstrates, must determine the outcome of this appeal.

That question is whether the appellant Oceanic Crest Shipping Company ("Oceanic"), which is the owner of the ship "Oceanic Crest", is entitled to claim contribution against the respondent Pilbara Harbour Services Pty. Ltd. ("Pilbara") under s. 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 W.A. in respect of the damage suffered by Hamersley Iron Pty. Ltd. ("Hamersley") to its harbour installation. The damage was caused by the negligent pilotage of the "Oceanic Crest". The pilot, whose services were compulsory by statute, was Captain Hammonds, an employee of Pilbara.

Section 7(1)(c) is in common form and provides that where damage is suffered by any person as the result of a tort any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage. The question thus becomes whether Pilbara was liable to Hamersley by reason of the negligence of its servant, Captain Hammonds.

The answer to that question is in my view provided by s. 410B of the Navigation Act 1912 Cth which provides:

(1) A pilot who has the conduct of a ship is subject to the authority of the master of the ship and the master is not relieved from responsibility for the conduct and navigation of the ship by reason only of the ship being under pilotage.

(2) Notwithstanding anything contained in a law of the Commonwealth or of a State or Territory, the owner or master of a ship navigating under circumstances in which pilotage is compulsory under a law of a State or Territory is answerable for any loss or damage caused by the ship, or by a fault of the navigation of the ship, in the same manner as he would if pilotage were not compulsory.

It is under sub-s. (2) of that section that Oceanic has been held liable to Hamersley upon the basis that it is answerable for the damage caused by the "Oceanic Crest" and, as I see it, the crucial question in this appeal is whether the same sub-section excludes liability on the part of Pilbara for the negligence of its servant, Captain Hammonds, in the course of his employment. I have come to the conclusion that it does and it is therefore strictly unnecessary for me to reach any final view whether, apart from s. 410B, Pilbara would be vicariously liable for the negligence of Captain Hammonds. However, I have had the advantage of reading the reasons for judgment of Wilson J., and I accept the view which he expresses, namely, that this case is indistinguishable from Fowles v. Eastern and Australian Steamship Co. Ltd. [30] and that there is no sufficient reason to justify this Court departing from that decision. Thus, in addition to the effect of s. 410B, there is in my view another reason why there is no vicarious liability on the part of Pilbara for Captain Hammonds' negligence.

In Fowles' Case the compulsory pilot was employed by the Government of Queensland, that is, the Crown, but was regarded as occupying a public office in which he discharged his duties as a pilot independently and not in the course of his employment. Having regard to the citation of Fowles' Case [31] by Dixon J. in Field v. Nott [32] , and in Little v. The Commonwealth [33] , it is clear that he regarded the pilot as an example of a public officer who, although a servant of the Crown, was executing an independent duty which the law cast upon him so that the Crown was not liable for wrongful acts committed by him in the course of his doing so. The constable is the most familiar example of a public officer of this sort and Enever v. The King [34] perhaps the most familiar authority on the point.

1. [1916] 2 A.C. 556; (1913) 17 C.L.R. 149. 2. (1939) 62 C.L.R. 660, at p. 675. 3. (1947) 75 C.L.R. 94, at p. 114. 4. (1906) 3 C.L.R. 969.

Whether there is a distinction to be drawn when a constable - or a pilot - is privately employed giving rise to the result that the employer might be held liable for acts which would otherwise be performed independently, raises a question of some difficulty: Goff v. The Great Northern Railway Co. [35] ;Edwards v. Midland Railway Co. [36] ; Lambert v. Great Eastern Railway Co. [37] ; Fisher v. Oldham Corporation [38] . But in this case it is in my view not possible to regard Captain Hammonds as having been privately employed by Pilbara in such a way as to exclude the independent exercise of his functions as a pilot. He was appointed by the Governor of the State to be a pilot at the Port of Dampier. There were the arrangements, described by Wilson J., under which first Hamersley and then Pilbara as its assignee were able to nominate Captain Hammonds for the appointment and to receive in respect of his services the benefit of pilotage rates levied under the Shipping and Pilotage Act 1967 W.A.. Moreover the Government of Western Australia did not relinquish its final responsibility for the superintendence of vessels entering and leaving the port and for the provision of properly qualified pilots to enable them to do so. For the time being it carried out its responsibility through Hamersley or Pilbara, but that does not suggest that Pilbara undertook to provide something which the Government would not.

1. (1861) 3 El. & El. 672 [121 E.R. 594]. 2. (1880) 6 Q.B.D. 287. 3. [1909] 2 K.B. 776. 4. [1930] 2 K.B. 364.

Neither Pilbara nor the Government were in the business of piloting ships and Pilbara's responsibility to Oceanic was discharged when it provided a competent pilot, appointed by the Government, in the person of Captain Hammonds. Such a conclusion is not only required by Fowles' Case [39] but is supported by other authority: Holman v. Irvine Harbour Trustees [40] ; Otago Harbor Board v. Cates [41] ; Actieselskabet Bannockburn v. Williams [42] ; City of Los Angeles v. Standard Transportation Company [43] . Whilst it is not impossible to conceive of a company formed for commercial purposes such as Pilbara, undertaking through its servants the business of actually piloting ships, when one has regard to the circumstances in this case it is clear to my mind that Pilbara did not purport to provide a service which was different in kind to that which would otherwise have been provided by the government itself or an appropriate statutory authority.

1. [1916] 2 A.C. 556. 2. (1877) 4 Sess. Cas. (4th Ser.) 406. 3. (1883) 2 N.Z.L.R. (S.C.) 123. 4. (1912) 12 S.R. (N.S.W.) 665. 5. (1929) 32 F. (2d) 988.

No doubt in Fowles' Case and the other cases, absence of control was a significant factor in establishing the independent status of a pilot employed by the Crown or a harbour authority or its equivalent. But it is absence of control in a different or more fundamental sense than the practical absence of control which recent cases reject as a decisive indication that there is no relationship of master and servant. There is a difference between absence of control which, in the case of the pilot, arises from the fact that his status does not permit it and absence of control which, in the case of other employees, stems from the fact that the employer lacks the skill or training necessary to exercise control. True it is that in a technologically complex world the relationship of master and servant may exist notwithstanding the inability of an employer to exercise control over the manner in which a skilled employee performs his work (see Montreal v. Montreal Locomotive Works Ltd. [44] ; Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [45] ), but in those circumstances it is the practicality of the situation which robs the absence of control of its significance rather than anything else. It is not so much that there is no right of control, but that it is practically impossible to exercise it because of the skill involved, except in incidental matters: Zuijs v. Wirth Brothers Pty. Ltd. [46] . On the other hand, in the case of a pilot in the general employ of the Crown or a harbour authority or its equivalent, it is the very nature of the relationship and of the status conferred upon the pilot which is inconsistent with the exercise of control by his general employer over the manner in which he carries out his actual duties as a pilot.

1. [1947] 1 D.L.R. 161, at p. 169. 2. (1986) 160 C.L.R. 16, at pp. 37-38. 3. (1955) 93 C.L.R. 561, at p. 571.

The relationship is quite different, or at least the law regards it as being so, between the owners of a vessel and a pilot voluntarily employed by them and a clear distinction was, until it was removed by statute, drawn between a pilot voluntarily employed and one employed under compulsion. Dr. Lushington in The "Maria" [47] put it thus:

If the taking a pilot on board was compulsory, and the collision was occasioned by the fault of that pilot, I shall hold the owners of the "Maria" exempt from responsibility, upon general principle, without reference to Acts of Parliament, for in that case the pilot was not their servant, and the maxim qui facit per alium facit per se, does not apply. If, on the contrary, the taking a pilot was voluntary, then he was the servant of the owners, and the owners are responsible 1. (1839) 1 W.Rob. 95, at pp. 107-108 [166 E.R. 508, at p. 513].

The common law applied the maxim respondeat superior when a pilot was voluntarily taken on board because he was selected by or on behalf of the owners and there was between them and the pilot a contractual relationship of master and servant to which the maxim was applicable. Where a pilot was taken on board because of a statutory compulsion, there was no choice and no such relationship and for that reason the owners were said not to be responsible for the pilot's acts: see Steamship "Beechgrove" Co. Ltd. v. Aktieselskabet "Fjord" of Kristiania [48] ; The Towerfield [49] .

1. [1916] 1 A.C. 364, at p. 382. 2. [1949] P. 10 at pp. 22-23.

The common law position was expressed in s. 633 of the Merchant Shipping Act 1894 U.K., a section which was superseded by s. 15 of the Pilotage Act 1913 U.K.. It was upon s. 15(1) of the Pilotage Act that s. 410B(2) of the Navigation Act was based. Section 633 provided:

An owner or master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship within any district where the employment of a qualified pilot is compulsory by law. See The "Hector" [50] ; The "Halley" [51] ; The "Maria" [52] . 1. (1883) 8 P.D. 218, at p. 224. 2. (1868) L.R. 2 P.C. 193. 3. (1839) 1 W.Rob. 95 [166 E.R. 508].

Section 15 of the Pilotage Act, which came into force in 1918, was enacted for the purpose of abolishing the defence of compulsory pilotage and to bring the law of England into line with the law of other countries in accordance with Art. 5 of the International Convention for the Unification of Certain Rules of Law in Regard to Collisions (signed at Brussels, 23 September 1910). It was intended to have the effect of repealing s. 633 of the Merchant Shipping Act 1894. In saying that the owner is answerable for any loss or damage caused by the vessel or by any fault of the navigation of the vessel, in the same manner as he would be if pilotage were not compulsory, the section has been held to do more than merely shift liability. It has been held to create statutorily the relationship of master and servant between the shipowner and the pilot as if the pilot had been voluntarily employed by the shipowner.

In The Towerfield in the Court of Appeal [53] , Bucknill L.J., whose views were accepted on appeal to the House of Lords [54] , said:

So far as I know it has never been argued either in the Admiralty Court or in the Commercial Court during the thirty years that have passed since 1918 that the object of s. 15 was not to get rid of compulsory pilotage altogether as a defence; in other words it has always been assumed that s. 15, sub-s. 1, put on the shipowner the same responsibility for the acts of a compulsory pilot as he has always had for the acts of a voluntary pilot, namely "a contractual relation of service, to which the maxim of respondeat superior directly applies" as Lord Atkinson said in his speech in The Beechgrove [55] . In The Towerfield [56] , a case of compulsory pilotage, it was held in the House of Lords that the effect of s. 15 was to render the shipowner responsible so that he was both liable for the loss and damage caused to others and precluded from recovering any loss which he had suffered by reason of damage to his ship. In Thom v. J. & P. Hutchison Ltd. [57] the First Division of the Court of Session upheld, upon the basis of s. 15(1), the Scottish equivalent of the defence of common employment in an action by the representatives of a ship's engineer, who had drowned, against the owners. The ship had foundered because of the negligence of a compulsory pilot who was held, by reason of s. 15(1), to be in common employment with the deceased engineer so as to preclude the recovery of damages. 1. [1949] P., at p. 23. 2. [1951] A.C. 112. 3. [1916] 1 A.C. 364, at p. 383. 4. [1949] P. 10; [1951] A.C. 112. 5. 1925 S.C. 386.

There is no relevant difference between s. 15(1) of the Pilotage Act and s. 410B(2) of the Navigation Act and to depart from the view of the former section taken in the cases to which I have referred would be to create uncertainty in an area of law which has for a considerable time been regarded as settled. It is implicit in that view that under s. 15(1) a compulsory pilot must, for the purpose of imposing responsibility for loss or damage caused by his pilotage, be regarded as the servant of the shipowner. The vicarious liability imposed by the section is as if the pilotage were not compulsory, that is, as if it were voluntary. That means, fiction though it might be, that the position of the compulsory pilot as regards the owner is one in which the maxim respondeat superior applies, necessarily excluding the responsibility of some other person upon the same basis.

The result is that, by reason of the principles expounded in Fowles' Case and by reason of s. 410B(2) of the Navigation Act, Pilbara cannot be regarded as a tortfeasor in relation to the damage suffered by Hamersley and that there can therefore be no claim for contribution against Pilbara by Oceanic.