Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd - [1986] HCA 34 - HCA 1978 case summary — Zoe

CTHHCA

Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd

[1986] HCA 34

High Court of Australia|1978-08-08|Before: Dawson JJ

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Court

High Court of Australia

Decision date

1978-08-08

Before

Dawson JJ

Source

Original judgment source is linked above.

Judgment (170 paragraphs)

[1]

High Court of Australia Gibbs C.J. Wilson, Brennan, Deane and Dawson JJ. Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34

[2]

The appellant, Oceanic Crest Shipping Company ("Oceanic"), is the owner of a ship which on 8 August 1978, while berthing in the Port of Dampier in Western Australia, struck with considerable force a dolphin - a structure consisting of a number of steel piles capped with a steel platform and faced with a fender system, designed to protect a wharf - and damaged it. The dolphin was the property of Hamersley Iron Pty. Ltd. ("Hamersley") which had constructed the harbour and wharf facilities. The damage was caused by the negligence of the pilot, Captain Hammonds, who had been provided to the ship by the respondent, Pilbara Harbour Services Pty. Ltd. ("Pilbara"), a company which had, under statutory authority, the entire control of all port services (including pilotage), facilities and installations in the Port of Dampier. It is a curious, but irrelevant, feature of the case that the right of control and the obligation to provide pilotage services were originally those of Hamersley (see cl. 10(2)(f) of the agreement made on 30 July 1963 and cl. 12 of the supplementary agreement made on 27 October 1964 approved under the Iron Ore (Hamersley Range) Agreement Act 1963 W.A., as amended, and cll. 3(15), 29(1) and 78 of the Hamersley Iron (Port of Dampier) By-laws made under that Act) but were assigned to Pilbara, a company associated with Hamersley, under the power given by cl. 20 of the agreement of 30 July 1963, by an agreement, made on 30 September 1974. By cl. 3(1) of the last-mentioned agreement, it was provided that Pilbara should:

[19]

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.

[35]

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.

[37]

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.

[42]

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] .

[48]

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.

[54]

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.

[72]

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.

[77]

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] .

[87]

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."

[92]

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.

[107]

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.

[138]

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.

[141]

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.