3. The particulars of the claim given in the writ are as follows:

"Damages for breach of a joint venture agreement

dated 18 September 1975 as subsequently amended

on 8 February 1984 made between the plaintiff

and (YSL) relating to the ship Seven Seas

Conqueror now named Shin Kobe Maru, arising out

of YSL's refusal to transfer the ownership of

the ship in accordance with the provisions of

the amended joint venture agreement."

4. In about August 1989 the ship was in the Australian territorial sea and entered or was about to enter an Australian port, namely, Port Hedland. Empire agreed not to arrest the ship pending determination by this Court of its claim upon two conditions. First, YSL's solicitors agreed to accept service of the writ (rule 37 of the Admiralty Rules), such service to stand in place of service on the ship within Australia and to be deemed to place YSL in the same position as if service of the writ had been effected on the ship within Australia, but without prejudice to any rights and/or defences which YSL might have. The second condition was that YSL agreed to provide security in an amount acceptable to Empire. The ship has since continued to trade to Australian ports with regularity.

5. Empire was incorporated in Panama. YSL was incorporated in Japan. On 1 June 1989 YSL changed its name to Navix Line. On 16 July 1974 Empire and YSL agreed by what they called their "basic agreement" that Empire would sell and YSL would purchase one-half of the issued shares in United Transport Investment Inc. ("UTI"), a Liberian company, "for the purpose of owning vessels jointly".

6. On 18 September 1975 Empire and YSL entered into a written agreement headed "Joint Venture Agreement" ("the JVA") under which they acquired the ship through Seven Seas, a company which they jointly owned. Under the JVA for the first fifteen years each party was obliged to give the other the right of first refusal if it wished to sell its interest in the ship. During that period YSL was obliged to charter the ship from Seven Seas. Thereafter YSL had a discretion to cause Seven Seas to sell the ship with the proceeds to be shared equally between Empire and YSL.

7. On 8 February 1984 YSL and Van Shipping Co. Limited ("Van"), a company apparently acting as agent for Empire, amended the JVA to enable the ship to transfer from the Liberian to the Japanese flag. Title to the ship was transferred from Seven Seas to YSL to facilitate this. However, it was agreed that Van would remain beneficially entitled to half of the ship. It was also agreed that YSL would assume responsibility for repaying a loan on the ship, and, when it had done so, the ship would be sold back to Seven Seas or another company jointly owned by YSL and Van.

8. The issues before the learned primary Judge were and on appeal are as follows:-

1. Whether, on a motion to set aside originating process in an

admiralty matter, on the ground that the Court has no

jurisdiction, what must be established on the motion? In

particular, is the correct test the plaintiff must show that there

is a strong argument that the Court has jurisdiction, or must he

satisfy the Court that it has jurisdiction on the same balance of

probabilities that would apply at the trial?

2. Does a claim by a plaintiff of a beneficial interest in a ship

answer the description, within the meaning of s. 4(2)(a)and (b) of

the Admiralty Act 1988 (Cth) ("the Act"), of a claim (a) relating

to possession of or title to or ownership of a ship or (b) between

co-owners of a ship relating to the possession, ownership,

operation or earnings of a ship.

3. Is the matter before the Court of a kind mentioned in s. 76(iii)

of the Constitution?

9. The Act provides for the exercise of admiralty jurisdiction by Australian courts both in actions in rem and in personam. It is the first comprehensive enactment by the Australian Parliament of a uniform law governing the exercise of admiralty jurisdiction by the courts of this country. The Act replaced previous Imperial legislation.

10. The need for reform of the admiralty law of Australia had been recognised for a long time. This led to the Maritime Law Association of Australia and New Zealand and the Law Council of Australia forming a joint committee, with Zelling J. as its Chairman. In 1982 the committee produced a joint report on the reform of admiralty jurisdiction. Following that report, on 23 November 1982, the Acting Attorney-General of the Commonwealth referred to the Law Reform Commission of Australia the question of admiralty jurisdiction in Australia. The Commission was requested to have regard to the report of the joint committee of the Law Council and the Maritime Law Association. The Commission issued its report No. 33 in 1986. This led to the enactment of the Act which commenced on 1 January 1989. Before the commencement of the Act, admiralty jurisdiction in Australia was derived from The Colonial Courts of Admiralty Act 1890 (UK) ("the 1890 Act"), an Imperial statute which commenced operation in the Australian colonies, except New South Wales and Victoria, on 1 July 1891. It came into force in New South Wales and Victoria on 1 July 1911. Until the commencement of the Act, the 1890 Act remained the principal source of civil jurisdiction in admiralty in Australia, another source being s. 39 of the Judiciary Act 1903 (Cth) to the extent that it invested admiralty and maritime jurisdiction under s. 76(iii) of the Constitution in courts of the States. Later Acts, both Imperial and Australian, conferred further jurisdiction on Australian courts only in limited circumstances: see The Merchant Shipping Act 1894 (UK), the Navigation Act 1912 (Cth), the Shipping Registration Act 1981 (Cth) (which established for the first time an Australian register of ships and of interests in ships, including mortgages), the Seamen's Compensation Act 1911 (Cth), the Historic Shipwrecks Act 1976 (Cth) and the Protection of the Sea (Civil Liability) Act 1981 (Cth).

11. It is necessary to refer to the relevant sections of the Act. Section 5(1) provides that, subject to sub-ss. (2) and (3) (which are immaterial for present purposes), the Act applies in relation to all ships, irrespective of the places of residence or domicile of their owners, and to all maritime claims wherever arising.

12. In a matter of admiralty or maritime jurisdiction, a proceeding shall not be commenced as an action in rem against a ship or other property except as provided by the Act (s. 14). A proceeding on a maritime lien or other charge in respect of a ship or other property subject to the lien or charge may be commenced as an action in rem against a ship or property (s. 15(1)). Section 16 is material to the present case: it provides that a "proceeding on a proprietary maritime claim concerning a ship or other property may be commenced as an action in rem against the ship or property".

13. Reference in the Act to a "maritime claim" is a reference to a "proprietary maritime claim" or a "general maritime claim": s. 4(1). Section 4(2), the critical provision in this case, states that a reference to a "proprietary maritime claim" is a reference, inter alia, to:

"(a) a claim relating to:

(i) possession of a ship;

(ii) title to, or ownership of, a ship or

a share in a ship;

(iii) a mortgage of a ship or of a share

in a ship; or

(iv) a mortgage of a ship's freight; (or)

(b) a claim between co-owners of a ship

relating to the possession, ownership,

operation or earnings of the ship;

(c) ...

(d) ..."

14. Jurisdiction is conferred on the Federal Court and on the Supreme Courts of the Territories, and the Supreme Courts of the States are invested with federal jurisdiction, in respect of proceedings that may under the Act be commenced as actions in rem (s. 10). Subject to an exception in the case of the arrest of a foreign ship which would be inconsistent with a right of innocent passage that is being exercised by the ship (s. 22(4)), initiating process in a proceeding commenced as an action in rem in the Federal Court may be served on a ship or other property and a ship or other property may be arrested in such a proceeding, in each case at any place within Australia including a place within the limits of the territorial sea of Australia (s. 22(1)).

15. In a proceeding on a maritime claim between co-owners of a ship relating to the possession, ownership, operation or earnings of a ship, the orders that the Court may make include orders for the settlement of accounts outstanding and unsettled; and an order directing that the ship, or a share in the ship, be sold (s. 33).

16. The Act does not confer jurisdiction on a court or invest a court with jurisdiction in a matter that is not of a kind mentioned in paragraph 76(ii) or (iii) of the Constitution (s. 13).

17. Finally, there is s. 6 which provides that the provisions of the Act (other than s. 34) do not have effect to create (a) a new maritime lien or other charge or (b) a cause of action, that would not have existed if the Act had not been passed. Section 34 creates a cause of action (irrelevant for present purposes) where there has been an unreasonably excessive demand for security or an unreasonable arrest.

18. The primary Judge made the following findings (his Honour's judgment is reported at [1991] FCA 499; (1992) 32 FCR 78):

. a claim may relate to possession of a ship or to title to or

ownership of a ship within the meaning of s. 4(2)(a) of the Act

where the source of the entitlement upon which the claim rests is

a beneficial interest in the ship which is asserted by the

claimant. Whereas here the beneficial interest in a ship is

divided between two parties, one of whom is also the registered

owner, then a dispute between them may give rise to a claim

between co-owners within the meaning of s. 4(2)(b). His Honour

rejected the submission of YSL that, whilst there may be an action

by Empire for damages for breach of contract, there is no

proprietary maritime claim in respect of the ship.

. The correct approach to be taken in Australia in admiralty

matters, where a motion is brought to set aside the writ on the

ground that the Court has no jurisdiction in the matter, is that

the plaintiff (Empire) has the burden of establishing on the

motion that there is a strong argument for the conclusion that the

Court has jurisdiction.

. By applying that test, Empire had shown a strong argument for the

existence of the Court's jurisdiction in respect of a matter of a

kind mentioned in s. 76(iii) of the Constitution. There are

various other elements forming the substantial subject matter of

the controversy between the parties; and, as a question of

jurisdiction, whatever the position on the merits, the claims by

Empire against YSL in respect of those further elements would fall

within the accrued or pendent jurisdiction of the Court.

. The use of the expression "admiralty and maritime jurisdiction" in

s. 76(iii) of the Constitution obviates argument that the power of

the Parliament is restricted to the jurisdiction of the High Court

of Admiralty in England at any particular time. This provision

extends to empower the Parliament to make laws conferring

jurisdiction with respect to "matters" arising out of

controversies relating to or dealing with the commerce or

navigation of the sea, including the means by which or with the

assistance of which those activities are or may be conducted.

19. I turn first to the question whether the claim propounded by Empire answers the description, for the purposes of s. 4(2) of the Act, of a claim "relating to possession of a ship" (para. (a)(i)) or "relating to title to or ownership of a ship or a share in a ship" (para. (a)(ii)) or of a claim "between co-owners of a ship relating to the possession, ownership, operation or earnings of a ship" (para. (b)).

20. It is well established that the words "relating to" (or "in relation to") are of wide import. In the Eschersheim (1976) 1 WLR 430 (also known as the Jade) the House of Lords considered the words "any claim arising out of any agreement relating to the carriage of goods in a ship ..." in s. 1(1)(h) of the Administration of Justice Act 1956 (UK). Lord Diplock, in whose speech the other four members of the House of Lords concurred, said (at 438) that he could see no reason for not giving those words their ordinary wide meaning.

21. In Gatoil International Inc v Arkwright-Boston Manufacturers Mutual Insurance Co [1984] UKHL 8; (1985) 1 AC 255 the House of Lords heard an appeal relating to an action commenced by the respondent against the appellants claiming payment of premiums on a policy of insurance which it was stated was effected with them by the appellants over a cargo of oil shipped from Iran to various destinations. In order to found jurisdiction over the appellants, a Panamanian company, and also to obtain security for their claim, the respondents arrested the ship The Sandrina in the Shetland Islands. Neither that ship nor any other ship owned by the appellants had been concerned with the carriage of the oil cargo which was the subject of the insurance policy. Subsequently the appellants sued the respondents seeking recall of the arrestment. They denied ownership of the Sandrina and pleaded that the arrestment was incompetent because the respondent's claim was not one of those specified in s. 47(2) of the Administration of Justice Act 1956. The case concerned the interpretation of that sub-section, paragraph (e) of which gave rise to the question whether the words "any agreement relating to the carriage of goods in any ship whether by charterparty or otherwise" covered an agreement to pay premiums on a policy of insurance under a War Risk Open Cover on cargo.

22. At first instance it was held that on the proper construction of s. 47(2)(e) the respondent's claim for payment of premiums on a policy of insurance over goods to be carried by sea fell within its terms. On appeal by the appellants, the Second Division of the Court of Sessions dismissed the appeal. The House of Lords allowed the appeal. Lord Wilberforce, in whose speech Lord Fraser, Lord Scarman and Lord Roskill agreed, said (at 262):

"Taking the statutory words by themselves, it is

obvious enough that they are, in a legal sense,

ambiguous, or as I would prefer to state it,

loose textured. It is not possible to ascribe a

precise or certain meaning to words denoting

relationships without an indication what the

criterion of relationship is to be. Must the

agreement be directly 'for' carriage of goods in

a ship, or is it enough that it involves

directly or indirectly, or that the parties

contemplated that there would be, such carriage

as a consequence of the agreement? How close,

in such a case, must the relationship be between

the agreement and the carriage? Is any

connection of a factual character between the

agreement and some carriage in a ship

sufficient? If not, what is the test of

relevant connection? Even when paragraph (e) is

read in conjunction with the other paragraphs in

section 47(2), the statute provides no guidance:

the courts are left with a choice of a broad or

a narrow interpretation."

23. Lord Keith of Kinkel, in whose speech Lord Fraser, Lord Scarman and Lord Roskill also agreed, said (at 270-1):

"It is necessary to attribute due significance to the circumstance

that the words of the relevant paragraphs speak of an agreement

'in relation to' not 'for' the carriage of goods in a ship and the

use or hire of a ship. The meaning must be wider than would be

conveyed by the particle 'for'. It would, on the other hand, be

unreasonable to infer from the expression actually used, 'in

relation to', that it is intended to be sufficient that the

agreement in issue should be in some way connected, however

remotely, with the carriage of goods in a ship or with the use or

hire of a ship, and I think there is much force in the view

expressed by Lord Wylie in The Aifanourios, 1980 SC 346 as to

the inference to be drawn from the presence of certain other

paragraphs in section 47(2). There must, in my opinion, be some

reasonably direct connection with such activities. An agreement

for the cancellation of a contract for the carriage of goods in a

ship or for the use or hire of a ship would, I think, show a

sufficiently direct connection. It is unnecessary to speculate

what other cases might be covered. Each case would require to be

decided on its own facts. As regards the contract of insurance

founded on in the instant appeal, I am of opinion that it is not

connected with the carriage of goods in a ship in a sufficiently

direct sense to be capable of coming within paragraph (e)."

24. Applying the words of Lord Keith (at 270-1) to the present case, there must be a reasonably direct connection between the claim propounded by Empire and possession of, title to or ownership of the ship or a share in the ship. But the words "in relation to" must be given their ordinary wide meaning. I see nothing in the speeches of Lord Wilberforce or Lord Keith which seeks to impose a restriction or fetter upon the ordinary wide meaning of the words "in relation to"; but whether the requisite nexus between the claim and its subject matter exists is a question of fact to be determined in each case.

25. The judgment of the House of Lords in Gatoil was followed by the Court of Appeal of the United Kingdom in two cases: "The River Rima" (1987) 2 Lloy'd Rep 107, especially at 113; and Bain Clarkson Limited v Owners of Sea Friends (1991) TLR 193; and by Phillips J. in Petrofina SA v AOT Limited (1991) 3 All ER 161.

26. The Court was referred in argument to cases in which courts exercising admiralty jurisdiction have heard claims of equitable ownership; but many of those cases were actions in rem brought to recover the expenditure for necessaries where the defendant was not the owner of the ship but the charterer or equitable owner whom the expenditure for necessaries was alleged to benefit: see for example Shell Oil Company v The Ship Lastrigoni [1974] HCA 27; (1974) 131 CLR 1 and Foong Tai and Co v Buchheister and Co (1908) AC 458, a case described by Menzies J. in Lastrigoni (at 6) as "not an easy one", which was explained by Kriewaldt J. in Dalgety and Co Limited v Aitchison; The Rose Pearl (1957) 2 FLR 219, an explanation with which Menzies J. agreed in Lastrigoni (at 6). I have considered all these cases to which we were referred and others, but I have not found more than two of them helpful in resolving the question before the Court which is essentially one of construction of s. 4(2)(a) and (b) of the Act. I turn to the first of the two cases.

27. In the Bineta (1967) 1 WLR 121; (1966) 3 All ER 1007 Brandon J. held that the High Court of Justice had jurisdiction to hear an action which answered the description of a "claim to the possession or ownership of a ship" within the meaning of s. 1(1)(a) of the Administration of Justice Act 1956 (UK). The action was one for a declaration that the plaintiff was entitled to be registered as the owner of a ship in circumstances in which the registered owner had sold the ship to a purchaser who had defaulted and then, exercising the rights of an unpaid seller, had resold the ship to the plaintiff who sought to be registered in place of the defaulting purchaser. The plaintiff obtained a declaration that he was the owner of the ship and entitled to be registered in the place of the defaulting purchaser. The relevant legislation mentioned above with which the Bineta was concerned did not contain the words "relating to". Nevertheless the equitable claim of the plaintiff was sufficient to answer the description of "a claim to the possession or ownership" of the ship; a fortiori it would have done so if the wider words "relating to" had been present in the statute.

28. The second case is the decision of the Supreme Court of Canada in Antares Shipping Corporation v The Ship "Capricorn" (1979) 111 DLR (3d) 289. The Supreme Court of Canada allowed an appeal from the Federal Court of Appeal and held that the Federal Court had jurisdiction to entertain an action for the enforcement of a concluded contract for the sale of a ship by delivery and by the execution of a bill of sale thereof. The Supreme Court held that the jurisdiction was conferred by a statutory provision which permitted the Federal Court to entertain claims with respect to "any claim as to title, possession or ownership of the ship". Delivering the judgment of the Supreme Court, Ritchie J. said (at 298) that the relevant Canadian provision should not be "so restrictively interpreted as to exclude from its ambit actions claiming specific enforcement of a contract entitling the claimant to 'title, possession or ownership of a ship'". Ritchie J. referred to a number of American and English authorities, as well as Canadian authorities and disagreed with the decisions of American courts which were adopted by the Federal Court of Appeal of Canada in support of its conclusion that the statutory provision should not be construed as including an action for the specific performance of a contract of sale. Ritchie J. relied on a number of English authorities to support his conclusion. He relied also, as a separate head of power, upon s. 44 of the Federal Court Act which entitled the Federal Court to grant an order for specific performance. Like the present case, the Capricorn was not concerned with the merits of the plaintiff's claim, the sole question at issue being whether the Federal Court had jurisdiction to entertain the claim.

29. Report No. 33 of the Law Reform Commission referred at para. 149 (note 14) to the Capricorn and noted that the

"Canadian Supreme Court has rejected the view expressed by the

Federal Court based on decisions of admiralty courts in the

United States that the equivalent language in the Federal Court

Act 1970 (Canada) s. 22(2)(a) should be construed as covering

only petitory and possessory actions. It looked instead to

English decisions and treated the Federal Court's admiralty

jurisdiction under s. 22(2)(a) as extending to awards of damages

and orders of specific performance in actions for breach of

contract to sell a ship ..."

30. In my opinion a claim of entitlement to a beneficial interest in a ship or a share in a ship alleged by a plaintiff may answer the description of a claim relating to possession of a ship or title to or ownership of a ship or a share in the ship within the meaning of s. 4(2)(a)(i) and (ii) of the Act.

31. Where a dispute exists between two persons between whom the beneficial interest in a ship is divided, and one of them is also the registered owner of the ship, the dispute may answer the description of a claim between co-owners of a ship relating to its possession or ownership within the meaning of s. 4(2)(b) of the Act. In neither case (i.e. paragraph (a) or (b) of sub-section (2) of s. 4) is the claim restricted to legal titles or registered titles to ships where they may include beneficial titles.

33. I turn to the question whether the assertions by Empire in this case seek to establish a cause of action that would not have existed if the Act had not been passed and is thus outside the reach of the Act by reason of s. 6, the terms of which were mentioned earlier.

34. As appears from the Second Reading Speech of the Attorney-General of the Commonwealth when introducing the Admiralty Bill 1988 (which became the Act) the Act was not intended to "attempt a substantial overhaul of the law. It does not, for instance, create new causes of action or, with the exception of clause 34, create new substantive rights, as distinct from creating new procedures." See also the explanatory memorandum with respect to clause 6 and the notes to s. 6 in Hetherington's Annotated Admiralty Legislation (at 54).

35. Empire's claim in this case is made pursuant to s. 16 of the Act as "a proceeding on a proprietary maritime claim concerning a ship" and as an action in rem against the ship. Section 4, so far as relevant, defines the expression "proprietary maritime claim" in the terms mentioned earlier. Section 4 is essentially an interpretation provision; and it must be construed in accordance with ordinary principles of interpretation. Section 4 does not create new causes of action, new maritime liens or other charges. What s. 6 is concerned with (as is made clear by the exclusion of s. 34 from its ambit, which expressly creates a cause of action where there has been an unreasonably excessive demand for security or an unreasonable arrest) is to ensure that no provision, other than s. 34, is construed, either alone or in combination with other sections, to create a new cause of action or a new maritime lien or other charge. This is the intent of the introductory words to the section "The provisions of this Act (other than section 34) do not have effect to create ...". Section 4 does not create causes of action at all. It designates claims which may be brought under the Act, but assumes that they arise from or are created by other sources. Section 4 does not create substantive rights. The cause of action asserted by Empire in this case is not created by any section of the Act at all. It is a claim in admiralty which arises from a source other than the Act but falls within the interpretation provisions, s. 4(2)(a) and (b). Section 6 does not operate to bar the claim of Empire.

36. As mentioned earlier the primary Judge held that Empire had shown a strong argument for the existence of the Court's jurisdiction in this matter. His Honour rejected the argument of YSL that, whilst there may be an action by Empire for damages for breach of contract, there is no "proprietary maritime claim" in respect of the ship. His Honour summarised the claim of Empire as an assertion of "a joint activity carried out through the medium of joint beneficial ownership of an asset, the legal title to which was, pursuant to the JVA, retained in Seven Seas" (at 98).

37. Gummow J. summarised (at 97-100) the terms on which the parties held the joint beneficial ownership asserted by Empire and referred to the relevant Articles of the JVA. In all the circumstances he found that Empire had shown a strong argument for the existence of the Court's jurisdiction in respect of a matter of a kind mentioned in s. 76(iii) of the Constitution, reference to which is made in s. 13 of the Act. His Honour then found at 100:

"There are various other elements forming the substantial subject

matter of the controversy between the parties, and as a question

of jurisdiction, whatever the position on the merits, the claims

against YSL in respect of those further elements would fall within

the accrued or pendent jurisdiction ..."

38. His Honour's finding that Empire had shown a strong argument in its favour is a finding of the kind with which this Court exercising its appellate jurisdiction should be slow to interfere. His Honour's findings rest on his expressions of opinion as to the applicable law and to some extent on the exercise of his discretion. I discern no error in the findings or approach made by his Honour which led him to conclude that there was a strongly arguable case in favour of Empire; indeed I agree with his findings at conclusion.

39. Section 76(iii) of the Constitution must be construed broadly and liberally and as ensuring that the grant of power which it confers upon the Parliament is capable of adjustment to the constantly changing forces and conditions in Australia. As O'Connor J. said in Jumbunna Coal Mine NL v Victorian Coalminers' Association (1908) 6 CLR 309 (at 367-8):

"... it must always be remembered that we are

interpreting a Constitution broad and general in

its terms, intended to apply to the varying

conditions which the development of our

community must involve.

For that reason, where the question is whether

the Constitution has used an expression in the

wider or the narrower sense, the Court should,

in my opinion, always lean to the broader

interpretation unless there is something in the

context or in the rest of the Constitution to

indicate that the narrower interpretation will

best carry out its object and purpose."

40. This passage was applied by the High Court in R v Coldham; Ex parte Australian Social Welfare Union [1983] HCA 19; (1983) 153 CLR 297 (at 314) and in The Commonwealth v Tasmania ("The Tasmanian Dams Case") [1983] HCA 21; (1983) 158 CLR 1 per Mason J. (at 128) and Brennan J. (at 220-1). See also Russell v Russell (1976) 134 CLR 495 per Mason J. at 539.

41. In Australian National Airways Pty Limited v Commonwealth [1945] HCA 41; (1945) 71 CLR 29, Dixon J. said (at 81) (in an oft cited passage):

"... it is a Constitution we are interpreting,

an instrument of government meant to endure and

conferring powers expressed in general

propositions wide enough to be capable of

flexible application to changing circumstances."

42. A similar note was sounded in Lansell v Lansell [1964] HCA 42; (1964) 110 CLR 353 by Taylor J. (at 366-7):

"This argument is based upon misconceptions. It

may, no doubt, be true to say that the ordinary

principles of interpretation require that

constitutional provisions conferring authority

upon Parliament to make laws shall bear the

meaning which they had at the time of Federation

but it is beyond question that, although the

meaning of these terms does not change, their

denotation must extend as new concepts develop."

43. In Bourke v State Bank of New South Wales [1990] HCA 29; (1990) 170 CLR 276 the Full Bench of the High Court said (at 284), with respect to s. 51 of the Constitution:

"It is, of course, well settled that the various paragraphs of s.

51 are not to be construed in a narrow or pedantic manner, but are

plenary grants of legislative power to be construed with all the

generality which the words used will admit ..."

44. I turn to the question whether the scope of the jurisdiction conferred by s. 76(iii) of the Constitution is restricted to the admiralty jurisdiction which existed in England in 1900, in particular limiting it to the jurisdiction which existed under the 1890 Act.

45. Quick and Garran in their Annotated Constitution of the Australian Commonwealth said (at 800):

"Under this Constitution, however, the

Parliament has power independently of the

Colonial Courts of Admiralty Act, to confer

Admiralty and maritime jurisdiction on the High

Court; and it seems clear that the limitations

imposed by that Act on the jurisdiction of

'Colonial Courts of Admiralty' within the

meaning of that Act ... cannot be read into the

plenary powers conferred by this section.

Nevertheless, whatever may be the legal powers

of the Commonwealth, it would probably be

inexpedient in conferring Admiralty jurisdiction

on the High Court or other courts of federal

jurisdiction, to go outside the limits defined

by that Act, which may be taken as a guide to

the reasonable limits of the jurisdiction."

To much the same effect were the observations of Cowen and Zines in Federal Jurisdiction in Australia, 2nd ed. (at 66-69).

46. Isaacs J. averted to the question in John Sharp and Sons Limited v The Katherine Mackall [1924] HCA 37; (1924) 34 CLR 420 (at 427-9). His Honour said (at 428):

"It is not, therefore, to be supposed the Constitutional power to

confer jurisdiction on this Court in matters of admiralty and

maritime law is a power in respect of merely a stereotyped common

law admiralty jurisdiction, which at the date of the Constitution

had already been extended for more than forty years in England."

47. In McIlwraith McEacharn Limited v Shell Co of Australia Limited [1945] HCA 11; (1945) 70 CLR 175 Dixon J. said (at 208-9):

"The jurisdiction of Court under the Colonial Courts of Admiralty

Act may not be co-extensive with the jurisdiction that s. 76(iii)

of the Constitution empowers the Commonwealth Parliament to confer

upon this Court. The power given by that provision is to make

laws conferring original jurisdiction on the High Court of

Australia in any matter of admiralty and maritime jurisdiction.

The observations made by Isaacs J. in John Sharp and Sons Limited

v The Katherine Mackall indicate on the one hand the objections

that exist to following American doctrine and treating the words

as covering a wide field of maritime causes, and on the other hand

the grounds that may be urged for not confining them to the narrow

jurisdiction conceded by the common law courts to admiralty."

48. In China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172 Gibbs J. considered s. 76(iii) of the Constitution and s. 39(2) of the Judiciary Act which invested State Courts with federal jurisdiction "in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it". His Honour said (at 204):

"Moreover, there seems to me no possible justification for

confining the admiralty jurisdiction mentioned in s. 76(iii) to

that which existed in England in 1900, so that as Dixon J. said in

McIlwraith McEacharn Limited v Shell Co of Australia Limited, the

jurisdiction under the Colonial Courts of Admiralty Act may not be

co-extensive with that which may be conferred under s. 76(iii)."

49. The jurisdiction conferred upon the Parliament by s. 76(iii) is to make laws conferring original jurisdiction on the High Court not only in a matter of admiralty, but also of "maritime" jurisdiction. The addition of the words "and maritime" was designed to ensure that the power was not confined to the jurisdiction of the Courts of Admiralty and was intended to confer jurisdiction with respect to all matters that may be said to reasonably relate to admiralty or maritime law. Nor is the power of the Parliament confined to the jurisdiction of the High Court of Admiralty in England at any particular time. I agree with Gummow J. (at 106) that the words "and maritime" are words of extension rather than surplusage to the word "Admiralty". The words "Admiralty and maritime jurisdiction" in s. 76(iii) confer upon the Parliament a power to confer federal jurisdiction with respect to matters arising from disputations relating to or dealing with commerce and navigation on the sea.

50. I therefore reject the argument that the scope of the jurisdiction conferred by s. 76(iii) of the Constitution is to be restricted to the admiralty jurisdiction which existed in 1900 in England.

51. In my opinion the controversy between the parties to this proceeding plainly fulfils that description. Empire's claim as framed in the writ and the amended statement of claim includes matters of controversy that answer the description of a "proprietary maritime claim" as defined in s. 4 of the Act. There is a dispute between Empire and YSL relating to possession of, title to or ownership of the ship and to its possession and operation. This Court has jurisdiction to determine that claim.

I agree, for the reasons set out in the judgment of Lockhart J., that the appeal should be dismissed.