Victrawl Pty Ltd v Telstra Corp Ltd

1. Navigation Amendment Act 1979 Cth, ss 2(5), 65(1) and Commonwealth Gazette No S7, 22 January 1981.

This appeal arises from a casualty occurring on 13 April 1991 when the " Lorna Dorn " under the command of Mr Coulston, an employee of the appellant Victrawl Pty Ltd, damaged the respondents' telecommunications cable. An application for a limitation decree was filed by Victrawl on 31 October 1991. A case was stated reserving questions as to whether s 333 of the Navigation Act and the Brussels Convention or the 1989 Act and the 1976 Convention govern the orders to be made on the determination of the application. Is the Brussels Convention applicable because the casualty occurred before 1 June 1991 or is the 1976 Convention applicable as the law now in force when the orders are to be made? A further question raised is whether Mr Coulston is entitled to avail himself of the limitation of liability of Victrawl irrespective of whether the loss resulted from conduct on his part falling within Art 4 of the 1976 Convention.

I respectfully agree with the majority of this Court that the jurisdiction of the Federal Court to determine the limitation proceedings was conferred on that Court by s 25 of theAdmiralty Act 1988 Cth. I agree also that limitation of liability under s 6 of the 1989 Act, like a limitation pursuant to s 333 of the Navigation Act, affects the substantive rights of the parties. But, in my respectful opinion, it is necessary to identify the manner in which a limitation of liability affects the rights of the parties in order to ascertain whether the 1976 Convention or the Brussels Convention applies. It is my misfortune to take a view of the operation of the Conventions different from that taken by the majority. I should state shortly the grounds of my dissent.

The 1976 Convention contains internationally agreed rules "relating to the limitation of liability for maritime claims". Rules for the limitation of liability have traditionally been seen as rules designed to encourage maritime commerce. At first the rules providing for the limitation of liability were enacted only in statutory form. When they were in that form, Dr Lushington observed in Cail v Papayanni; The Amalia [2] that "[l]imited liability was no part of the law of England until it was established by Statute The principle of limited liability is, that full indemnity, the natural right of justice, shall be abridged for political reasons". In The "Abadesa" [3] , Karminski J said: "By [political] I think Dr Lushington meant that limitation was a doctrine designed to assist international commerce, and not political in the common modern use of that word." As Lloyd J said in Mason v Uxbridge Boat Centre [4] :

The policy underlying the limitation provisions in the Merchant Shipping Acts, as the House of Lords made clear in The "Ruapehu" , is the encouragement of commerce by limiting the liability of those who have to do with ships, whether as shipowners or dock owners. The same view was taken in the United States where the Supreme Court said in Just v Chambers [5] : The statutory provision for limitation of liability, enacted in the light of the maritime law of modern Europe and of legislation in England, has been broadly and liberally construed in order to achieve its purpose to encourage investments in shipbuilding and to afford an opportunity for the determination of claims against the vessel and its owner. 1. [1863] 1 Moo NS 471 at 473 [15 ER 778 at 779]. 2. [1968] 2 All ER 726 at 729. 3. [1980] 2 Lloyd's Rep 592 at 598; The "Ruapehu" [1927] AC 523 at 539-540. 4. (1941) 312 US 383 at 385.

The inconvenience caused by disparity among the laws of the respective maritime nations relating to limitation of liability led to the conclusion of international Conventions to standardise the rules. The Limitation Convention of 1924 was followed by the Brussels Convention of 1957 and later by the 1976 Convention. The purpose of these Conventions was not only to protect shipowners and their servants, but also to provide for the equitable distribution among claimants who had suffered losses from a particular casualty of a fund that would be likely to be insufficient to meet their claims in full [6] . When a fund is constituted, the claims that theretofore might have been enforced against a shipowner personally or against the vessel in rem are limited to the recovery of an amount payable out of the fund, calculated proportionately to the losses sustained [7] .

1. Miller, International Law Association Report of the Fiftieth Conference held at Brussels (1963), p 632. 2. 1976 Convention, Art 13; The "Crathie" [1897] P 178 at 181.

An application for a limitation decree is quite distinct in purpose and procedure from a defence in a liability action. An application for a limitation decree is made by a shipowner who is given a personal right to limit liability [8] in personam and correspondingly to obtain protection from proceedings in rem [9] . Limitation proceedings have ordinarily been brought after the shipowner's liability in respect of the casualty has been admitted or determined [10] . Although, after the enactment of the Judicature Act 1873 UK, limitation of liability could be pleaded in England as a "defence" to a claim [11] and as a counterclaim in an action brought to enforce a shipowner's liability for a loss resulting from a casualty falling within a limitation statute [12] , that could be done safely only if there were a single claim. If there were multiple claims resulting from the casualty, a limitation decree pursuant to which a fund was constituted provided the only sure protection by way of limitation [13] . That is also the position under the 1976 Convention [14] .

1. The Inventor (1905) 10 Asp MLC 99; Roscoe, The Admiralty Jurisdiction and Practice of the High Court of Justice, 5th ed (1931), p 239. 2. 1976 Convention, Art 13. 3. James Patrick & Co Ltd v Union Steamship Co of New Zealand Ltd (1938) 60 CLR 650 at 674 Roscoe, The Admiralty Jurisdiction and Practice of the High Court of Justice, 5th ed (1931), p 239. 4. Wahlberg v Young (1876) 4 Asp 27n; but in the Admiralty jurisdiction in England limitation is seldom pleaded as a defence: The Supreme Court Practice (1995), vol 1, par 18/22/1. 5. Now falling within Art 2 of the 1976 Convention. 6. Meeson, Admiralty Jurisdiction and Practice (1993), p 235. 7. See Arts 11 and 13.

The relief available to shipowners and their servants to limit their liability to meet claims falling within the 1976 Convention and the relief formerly available under the Brussels Convention leave the common law rights of a claimant undiminished unless and until the shipowner or servant obtains a limitation decree. Protection against actions in rem is obtained by constituting a limitation fund with the Court of any State Party in which proceedings are instituted in respect of claims subject to limitation [15] . The relief granted by a limitation decree or obtained by the constitution of a limitation fund is not, in any meaningful sense, "attached" to the claims of those who have suffered loss as the result of a casualty falling within Art 2; rather, it cuts across those claims and, like a sequestration order in bankruptcy, it limits the overall liability of the defendants to the claims and entitles the claimants to distribution of a rateable share of a limited fund. The 1976 Convention, like the Brussels Convention, prescribes the rules to be applied in limitation proceedings [16] . It is not concerned with the laws which give rise to the claims which may be subject to limitation. Unless the jurisdiction of a competent court of a State Party to the Convention is exercised, the rights and liabilities of claimants and of the defendants to the claims remain unaltered.

1. 1976 Convention, Art 11, par 1, Art 13. 2. Brussels Convention, Art 4; 1976 Convention, Art 14.

The English procedure for invoking jurisdiction in limitation proceedings reflects the distinct nature of those claims recognised in a jurisdiction with a long experience of maritime claims. In England, when an application by writ for a limitation decree is uncontested, pleadings are not required [17] . Even when an application is contested, a party may apply to the court by summons for an order that the action be tried without pleadings [18] . In actions commenced by writ, the writ itself need not be served on all of those who have made, or are entitled to make, a claim in respect of the particular casualty [19] . Alternatively, actions in Admiralty for limitation of liability [20] may be commenced by originating summons [21] and continued, without pleadings, by way of affidavit evidence [22] . At least when an application for limitation of liability is uncontested, the plaintiff pays the costs of the proceedings [23] . It has been said [24] that contests under the 1976 Convention are likely to be unusual.

1. O 75, r 38 of The Supreme Court Practice (1995). 2. O 75, r 31; O 18, r 21. 3. O 75, r 3(6); O 75, r 37(4). 4. O 75, r 2(1)(b). 5. O 75, r 36. 6. O 28, r 1; O 28, r 1A. 7. The "Alletta" [No 2] [1972] 2 QB 399 at 405; and see Meeson, Admiralty Jurisdiction and Practice (1993), pp 246-247. 8. Meeson, Admiralty Jurisdiction and Practice (1993), pp 219-220.

Article 15 of the 1976 Convention defines the occasions when the rules prescribed by the Convention should be applied by the courts of the States Parties. Paragraph 1 of Art 15 provides:

This Convention shall apply whenever any person referred to in Article 1 seeks to limit his liability before the Court of a State Party or seeks to procure the release of a ship or other property or the discharge of any security given within the jurisdiction of any such State. Nevertheless, each State Party may exclude wholly or partially from the application of this Convention any person referred to in Article 1 who at the time when the rules of this Convention are invoked before the Courts of that State does not have his habitual residence in a State Party or does not have his principal place of business in a State Party or any ship in relation to which the right of limitation is invoked or whose release is sought and which does not at the time specified above fly the flag of a State Party. There was no reason to insert in the 1976 Convention, nor in the 1989 Act, any transitional provisions relating to claims in respect of losses resulting from casualties occurring prior either to the entry into force of the Convention (pursuant to Art 17, par 1) or to 1 June 1991 when the Convention entered into force for Australia (pursuant to Art 17, par 3). On and from 1 June 1991 the "uniform rules relating to limitation of liability for maritime claims" to which the States Parties had agreed acquired the force of municipal law in this country and have been, from that date onwards, the rules to be applied by competent courts whose jurisdiction to apply those rules is duly invoked.

The proposition that, on and after 1 June 1991, Australian courts were required to apply the Brussels Convention in limitation proceedings in respect of claims arising from casualties occurring prior to that time is, in my respectful opinion, at odds with both Art 17, par 4 of the 1976 Convention and with the repeal of Div 1 of Pt VIII of the Navigation Act. Article 17, par 4 provides that, in respect of the relations between States which have ratified, accepted or approved the 1976 Convention or have acceded to it, that Convention abrogates the Brussels Convention and the 1924 Convention. If Australia's international obligation under this paragraph is to apply the rules prescribed by the 1976 Convention to the exclusion of the rules prescribed by the Brussels Convention, the discharge of that obligation requires the application of the rules of the 1976 Convention so soon as Australia becomes bound by that Convention. The applicability of the rules of the 1976 Convention, or the rules of the Brussels Convention, is not dependent on the date of the casualty giving rise to a claim subject to limitation. In each Convention a specific provision sets out the occasions when the rules are to be applied.

A shipowner's liability is not limited by the Brussels Convention or by s 333 of the Navigation Act. Nor is a shipowner's liability limited by the 1976 Convention or by s 6 of the 1989 Act. The protection given to shipowners by the 1976 Convention, like the protection given by the Brussels Convention, is given only on the making of a decree limiting liability or, in the case of protection against claims in rem, on the constitution of a limitation fund. Thus Art 13 of the 1976 Convention bars claims only "[w]here a limitation fund has been constituted" and requires a State Party bound by the Convention to release arrested ships only "[a]fter a limitation fund has been constituted". Bearing in mind that a leading purpose of the Convention is the protection of shipowners and their ships against claims in rem [25] , obligations of the States Parties to apply the agreed rules are clearly intended to be mutual and contemporaneous. Yet those obligations would be radically incongruous if the application by each State Party of the rules relating to immunity from arrest and release from arrest of ships depended on whether the casualty occurred before or after the respective dates on which the Convention came into force for the respective States Parties. Article 15, par 1 provides that the 1976 Convention shall apply to proceedings for the release of a ship or the discharge of a security. If proceedings for release are governed by the 1976 Convention, the same Convention must have been intended to apply to the constitution of a limitation fund which precludes the arrest of a ship or the need to provide other security. It is impossible to suppose that the obligation of one State Party to release an arrested ship should arise when a limitation fund is constituted with a court of that State under the 1976 Convention while another State Party bound by the same Convention would be bound to release the ship if a limitation fund were constituted with its court under the Brussels Convention. Such a disparity of obligation would be anomalous.

1. See Brussels Convention, Arts 5 and 7; 1976 Convention, Arts 13 and 15.

A provision similar to Art 15, par 1 was to be found in Art 7 of the Brussels Convention, but when, on 1 June 1991, Div 1 of Pt VIII of the Navigation Act was repealed, the jurisdiction of the municipal courts to apply the rules prescribed by the Brussels Convention ceased. Although s 8(c) of the Acts Interpretation Act 1901 Cth provides that the repeal of part of an Act does not "affect any right privilege obligation or liability acquired accrued or incurred" under the repealed part unless a contrary intention appears, the repeal of s 333 of the Navigation Act created no work for s 8(c) to do. No claimant whose claim was subject to limitation under the Brussels Convention had acquired his cause of action under s 333 of the Navigation Act. No shipowner who had not already had its liability limited under the Brussels Convention had any accrued right under s 333 of the Navigation Act. No right had accrued to a shipowner under s 333 though that section entitled a shipowner to apply for a decree limiting liability and to constitute a limitation fund in accordance with the Brussels Convention [26] . A right to apply for a decree carrying a right to constitute a limitation fund pursuant to the decree cannot be classified as an accrued right for the purposes of s 8(c) [27] . Although the right to make an application under some statutes might be held to be an accrued right [28] , the right arising under the Brussels Convention as incorporated into municipal law by s 333 of the Navigation Act cannot be so classified. To classify a right to apply for a limitation decree under the Brussels Convention as an accrued right would be to disrupt the regime established by the Brussels Convention and by the 1976 Convention which calls for uniform and concurrent application of rules relating to limitation of liability, constitution of limitation funds and release of ships. That regime, to which s 333 of the Navigation Act and the 1989 Act gave effect in municipal law cannot be disrupted by attributing to the Conventions an operation derived from a municipal law of interpretation prima facie applicable to the operation of municipal statutes. No decree could be made nor could a limitation fund be constituted under the Brussels Convention on or after 1 June 1991.

1. Arts 5 and 7. 2. Director of Public Works v Ho Po Sang [1961] AC 901 at 921-922 3. Esber v The Commonwealth (1992) 174 CLR 430 at 440-441and cf 446-448.

In other words, no claimant had acquired any right under s 333 and no shipowner had an accrued right either to obtain a limitation decree or to constitute a limitation fund under the Brussels Convention when s 333 was repealed. And, if no right to a limitation decree had accrued, no right to constitute a fund in accordance with such a decree had accrued. Therefore, s 8(c) of the Acts Interpretation Act does not affect the question now under consideration. The 1976 Convention contains the rules to be applied when any step is taken by a shipowner to limit its liability against claims made by a claimant (within Art 1) in respect of a claim subject to limitation (within Art 2), irrespective of the date when the casualty giving rise to the claim occurred and irrespective of the date when an application for relief was filed in the Court.

It follows that the 1976 Convention and s 6 of the 1989 Act govern the making of all limitation decrees and the constitution of all limitation funds on and after 1 June 1991. There is no retrospective operation of the 1989 Act nor is there any interregnum between the periods covered by the two regimes established respectively by that Act and s 333 of the Navigation Act. To regard the 1989 Act as having a retrospective operation because steps taken under it may affect a limitation of liability in respect of a claim arising from an earlier casualty is to confuse the liability that arises from the casualty with the rights of limitation conferred by the Act. A shipowner, concerned to secure the release of a ship under Art 13, par 2 will constitute a limitation fund in the State where the arrest is made, though the initial liability might have been incurred in a different State which may not be a Party to the Convention. Liability may arise under the system of law of a State that does not acknowledge any limitation on liability while the rights conferred pursuant to the Convention may be enforced by the courts of a State Party bound by the Convention [29] .

1. See The "Titanic" (1914) 233 US 718 at 732-733 and the commentary by Schoenbaum, Admiralty and Maritime Law (1987), pp 483-485.

However, the English text of the 1976 Convention speaks of a limitation of liability being "invoked" and a limitation fund being "constituted" by depositing a sum or producing a guarantee. Does the 1976 Convention apply if an application for a decree of limitation is made before it comes into force but the decree is not made and the fund is not constituted until after that time? This question was raised by the decision of the Cour de Cassation of France in the case of The "Mariabel" [30] . In France, the 1976 Convention came into force on 1 December 1986. The Mariabel had been wrecked in 1980 and its owner had filed an application to constitute a limitation fund on 10 October 1986 but the limitation decree (described as "the order which opened the procedure of institution of the fund") was not made until 2 December 1986. The shipowner argued that Art 2 of the Civil Code had the effect of requiring the fund to be constituted in accordance with the Brussels Convention which was the relevant law when the casualty occurred and when the application was made [31] . The Court rejected the argument, holding:

Whereas the liability limitation fund, the institution procedure of which is governed by an order of the President of the Tribunal, is governed by the law currently in force, not by the law on the date when the damages were caused by the nautical event following which the fund was constituted, nor by the date of the filing of the application by the shipowner, but by the date when the order has been made; whereas it has been shown that the order which opened the procedure of institution of the fund was made on 2 December 1986, after entry into force, set at 1 December 1986, of the law of 1 December 1984, the Court of Appeal has correctly held that this law was applicable to the case. Thus, the French Court held the 1976 Convention to be applicable at the time when an order is made for the constitution of a fund, even though the proceedings that led to the making of the order were instituted prior to the date when the Convention was given effect in municipal law. The Cour de Cassation must have treated the order for the constitution of the limitation fund as an occasion, if not the occasion, when the shipowner "seeks to limit his liability before the Court" within the meaning of those words in Art 15, par 1. That construction gives to those words an operation that is logically consistent with the other provisions of the paragraph. 1. 28 May 1991, French Cour de Cassation, Jurisprudence Francaise 565. 2. Article 2 of the French Civil Code appears to correspond with the general rule of the common law. It provides: "The law applies only to the future, it has no retroactive effect."

In interpreting the Convention, it is desirable to avoid applying rules of interpretation that are peculiar to municipal systems of law but are not adopted internationally as rules governing the construction of international conventions [32] . Uniformity of application of conventions governing international mercantile transactions is important [33] . The interpretation of a convention attributed by the courts of the States Parties to a Convention thus has persuasive authority in the courts of this country and perhaps a conclusive authority if that interpretation is accepted by international practice [34] . In this case, I would adopt the interpretation of the 1976 Convention which guided the Cour de Cassation to its conclusion in The "Mariabel" . For these reasons, I would hold that Victrawl's entitlement to a limitation decree is to be determined under the 1989 Act and the 1976 Convention, not under s 333 of the Navigation Act and the Brussels Convention.

1. Fothergill v Monarch Airlines Ltd [1981] AC 251 at 281-282, 290. 2. Shipping Corporation of India Ltd v Gamlen Chemical Co A/asia Pty Ltd (1980) 147 CLR 142 at 159 3. McNair, Law of Treaties (1986), pp 427-429.

The next question is whether Mr Coulston, the master of the "Lorna Dorn" is entitled to avail himself of Victrawl's limitation of liability pursuant to Art 1, par 4 of the 1976 Convention. That paragraph reads as follows:

If any claims set out in Article 2 are made against any person for whose act, neglect or default the shipowner or salvor is responsible, such person shall be entitled to avail himself of the limitation of liability provided for in this Convention. That paragraph was inserted in the 1976 Convention in order to ensure that claimants could not circumvent the limitation available to a shipowner by suing the shipowner's servant in the expectation that the amount of the judgment recovered against the servant would be paid by the shipowner. The protection given to the servant is parasitic on the protection given to the shipowner. That being the purpose of par 4 of Art 1 as well as the natural meaning of its language, the conduct which will preclude the servant from entitlement to limit his liability is only that conduct which precludes the shipowner from limiting its liability.

A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result. A shipowner's servant is not a "person entitled to limit his liability" within the meaning of that term in Art 1. That term is used in Art 1 to describe only shipowners and salvors. The right of the servant is not to limit his liability but "to avail himself of the limitation of liability provided for in this Convention" - that is, to avail himself of the shipowner's or salvor's limitation. It follows that Mr Coulston is entitled to avail himself of Victrawl's limitation of its liability by reason simply of his relationship with Victrawl.

Accordingly, the four questions reserved by the case stated in the Federal Court in the proceedings brought by Victrawl should be answered as follows:

Q 1 Having regard to the date of the relevant occurrence, before the coming into effect of the Limitation of Liability for Maritime Claims Act 1989 Cth, is the plaintiff precluded from invoking the provisions of the Convention of 1976, set forth in the First Schedule to the said Act?

Q 2 Having regard to the date of the relevant occurrence, and the fact that the plaintiff first applied for limitation pursuant to the Convention of 1957, set forth in sch 6 to the Navigation Act 1912 Cth, after 31 May 1991, being that date on which the said sch 6 was repealed [sic], is the plaintiff precluded from invoking the provisions of the said Convention of 1957?

Q 3 If the answer to the first and second questions is in the negative, may the plaintiff elect as between the two limitation regimes before judgment in the proceedings?

Q 4 If the answer to the first question is in the negative, and if the plaintiff is able to limit its liability pursuant to the said Convention of 1976, may the defendant Coulston avail himself of the limitation of liability of the plaintiff, irrespective of whether it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result, within the meaning of Art 4 of the said Convention of 1976?

I would allow the appeal and answer the questions reserved in the manner above stated.

This is an appeal from the answers given by a Full Court of the Federal Court of Australia (Lockhart, Gummow and Cooper JJ) to questions asked in a case stated by a judge of that court in two proceedings instituted in the Federal Court which have been consolidated pursuant to an order of that court. In the first proceeding, Victrawl Pty Ltd (Victrawl) is plaintiff and the present respondents (the respondents) are defendants. In the second proceeding, the respondents are plaintiffs and Mr Daren Te Ariki Charles Coulston (Coulston), an employee of Victrawl, is the defendant. It will be convenient to refer to the consolidated proceedings as "the proceedings".

The background facts giving rise to the proceedings fall into a small compass and can be briefly stated. On 13 April 1991, the fishing vessel " Lorna Dorn " owned by Victrawl and skippered by Coulston damaged a cable owned by the respondents. At some time after 1 June 1991, Victrawl, while not admitting liability for the loss caused to the respondents by the occurrence, sought to limit the amount of any such liability by invoking the limitation provided for in the Convention on Limitation of Liability for Maritime Claims done at London in 1976. That Convention (the 1976 Convention) constitutes sch 1 to the Limitation of Liability for Maritime Claims Act 1989 Cth (the 1989 Act) which provides, in s 6, that, subject to presently irrelevant exceptions [35] , the provisions of the Convention "have the force of law in Australia".

The respondents disputed Victrawl's entitlement to invoke the limitation of liability contained in the 1976 Convention. In October 1991, Victrawl instituted the first proceeding. In it, Victrawl seeks (among other relief) declarations that it is entitled so to limit its liability and that, upon the establishment of a limitation fund, the respondents will be barred from proceeding "against any other asset of" Victrawl. In their defence to Victrawl's statement of claim, the respondents dispute the applicability of the 1976 Convention on the single ground that "the event giving rise to this claim [occurred] on or about 13 April 1991". The respondents also cross-claim for damages in the first proceeding and claim damages from Coulston in the second proceeding. For his part, Coulston, while disputing liability, claims to be entitled to avail himself of any limitation of liability which Victrawl is entitled to invoke.

In the result, the primary question in the case stated and on this appeal is that raised by the respondents' above-mentioned defence in the first proceeding. In substance, that question is whether, under the law of this country, the limitation of liability contained in the 1976 Convention is applicable to an event which occurred on 13 April 1991. The members of the Full Federal Court were unanimous in concluding that the 1976 Convention does not apply to such an event.

The principle of the limitation of shipowners' liability to an amount calculated by reference to the relevant ship's tonnage (as distinct from actual value) had become firmly established in British law, pursuant to Imperial statutes [36] , by the time when the first of the Brussels Conferences aimed at formulating standard international limitation laws was convened in 1897. Some nine conferences afterwards, a compromise between differing approaches emerged in the Limitation Convention of 1924. That Convention, which was not ratified by the United Kingdom and to which Australia was never a party, was the forerunner of the International Convention relating to the limitation of the liability of owners of sea-going ships done at Brussels in 1957 (the Brussels Convention) which was ratified by Australia on 30 July 1980. The Brussels Convention was, in turn, the forerunner of the 1976 Convention.

1. See the Merchant Shipping Act Amendment Act 1862 and the Merchant Shipping Act 1894 (cf the Merchant Shipping Act 1854). The international statutory limitation of liability in the United Kingdom had been by reference to the value of ship, equipment and freight charges: 7 Geo 2 c 15 (1734).

Australia did not accede to the 1976 Convention until 20 February 1991. Under Art 17.3, the Convention entered into force for Australia on 1 June 1991, that being the first day of the month following the expiration of ninety days after the deposit of Australia's instrument of accession. That was also the day on which the 1989 Act commenced operation, being the first day after the end of the period of eighteen months beginning on the day (30 November 1989) on which it received the Royal Assent [37] . It follows that, at the time of the occurrence on 13 April 1991, the 1976 Convention was not in force for Australia and the 1989 Act had not commenced operation.

At that time, a notification of denunciation of the Brussels Convention which had been given by Australia on 30 May 1990 had not taken effect [38] and that Convention remained in force for Australia. The result was that the applicable limitation provisions at the time of the occurrence were those of the Brussels Convention which, subject to a presently irrelevant exception [39] , had been given "the force of law as part of the law of the Commonwealth" in 1979 by s 333 of the Navigation Act 1912 Cth [40] . That means that, immediately after the occurrence, any entitlement of Victrawl under the law of this country to limit its liability to the respondents by reference to the provisions of a "Liability Convention" fell to be determined by reference to the Brussels Convention.

1. Under Art 13 of the Brussels Convention, the notification "only [took] effect one year after" the date on which it was received. 2. Art 1(1)(c). 3. Introduced by the Navigation Amendment Act 1979 Cth, s 65.

As at the time of the occurrence, the State and Territory Supreme Courts possessed jurisdiction to entertain applications in relation to limitation of liability under the Brussels Convention. That jurisdiction was conferred by s 335(1) of the Navigation Act which read:

Where a claim is, or claims are, made against or apprehended by a person in respect of any liability of that person that he may limit in accordance with the applied provisions of the Convention, the person may apply -

(a) in the case of a claim or claims made in proceedings in the Supreme Court of a State or Territory - to that Court; or

(b) in any other case - to the Supreme Court of any State or Territory,

to determine the limit of that liability in accordance with those provisions, and the Court may so determine the limit of that liability and may make such order or orders as it thinks fit with respect to the constitution, administration and distribution, in accordance with those provisions, of a limitation fund for the payment of claims in respect of which the person is so entitled to limit his liability. Section 335 was in Div 1 of Pt VIII of the Navigation Act. Section 330, also in Div 1, defined "Convention" for the purposes of the Division as meaning the Brussels Convention. The 1989 Act repealed Div 1 of Pt VIII in its entirety and, by s 9(1) and (2), conferred a generally corresponding jurisdiction upon the State and Territory Supreme Courts with respect to limitation of liability under the 1976 Convention.

It is common ground between the parties that the Federal Court has, at relevant times, possessed jurisdiction to entertain proceedings in relation to limitation of liability. There is, however, disagreement about the source of that jurisdiction. It is convenient to identify it at this stage.

The Full Court of the Federal Court held, and the respondents submit, that the jurisdiction is directly conferred by s 25 of the Admiralty Act 1988 Cth. Victrawl submits that the Federal Court's jurisdiction results not from the Admiralty Act but from the operation of s 4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 Cth in the context of the jurisdiction of the State and Territory Supreme Courts under s 335(1) of the Navigation Act (with respect to the Brussels Convention) and s 9(1) and (2) of the 1989 Act (with respect to the 1976 Convention).

(1) A person who apprehends that a claim for compensation under a law (including a law of a State or a Territory) that gives effect to provisions of a Liability Convention may be made against the person by some other person may apply to the Federal Court to determine the question whether the liability of the first-mentioned person in respect of the claim may be limited under that law.

(3) On an application under subsection (1), the Federal Court may, in accordance with the law referred to in that subsection:

(a) determine whether the applicant's liability may be so limited and, if it be so limited, determine the limit of that liability;

(b) order the constitution of a limitation fund for the payment of claims in respect of which the applicant is entitled to limit his or her liability; and

(c) make such orders as are just with respect to the administration and distribution of that fund.

(4) Where a court has jurisdiction under this Act in respect of a proceeding, that jurisdiction extends to entertaining a defence in the proceeding by way of limitation of liability under a law that gives effect to provisions of a Liability Convention.

Section 3(1) of the Admiralty Act defines "Liability Convention" as meaning:

(c) any other international convention that is in force in relation to Australia and makes provision with respect to the limitation of liability in relation to maritime claims.

As originally enacted, s 3(1) defined "Limitation Convention" as meaning the Brussels Convention and the 1957 Protocol thereto. The 1989 Act amended s 3(1) by removing that definition of "Limitation Convention" and introducing a new definition under which "Limitation Convention" means the 1976 Convention.

The basis of Victrawl's argument that s 25 of the Admiralty Act neither conferred jurisdiction with respect to limitation of liability under the Brussels Convention nor confers jurisdiction with respect to the limitation of liability under the 1976 Convention is the word "under" where first used in s 25(1). Neither the Brussels Convention nor the 1976 Convention confers a right to make a claim for compensation. The essential operation of each is to limit and confine claims which exist independently of the Convention. That being so, it is argued on behalf of Victrawl that there can be no claim for compensation "under" either of the laws giving effect to the Conventions with the consequence that the condition precedent for there to be standing to invoke the jurisdiction conferred by s 25(1) - ie apprehension of such a claim - can never be satisfied.

As a matter of strict language, there is considerable force in Victrawl's construction of s 25(1). It is at least arguable that the prima facie meaning of the word "under" in a phrase such as "a claim for compensation under a law" is "having its source in" or "arising under" the relevant law. Even when converted into claims against a specific limitation fund, the claims against a shipowner affected by the Brussels or 1976 Conventions do not, strictly speaking, arise "under" a law giving effect to the terms of the relevant Convention in that sense. However, the word "under" in the phrase "claim under a law" can be understood in a broader and less exact sense which comprehends claims which are the subject of, in the sense of being defined and qualified by, the relevant law. This is particularly so in a case where, as under the Brussels and the 1976 Conventions, affected claims against a shipowner (and the shipowner's property) are effectively transformed into claims against a limited fund established under that law [41] . Examination of the overall context provided by the Admiralty Act discloses a clear legislative intent that the jurisdiction conferred upon the Federal Court by s 25(1) would include jurisdiction with respect to limitation of liability under the Brussels Convention or, after the amendments made by the 1989 Act, the 1976 Convention. The effect of that clear legislative intent is that the phrase "claim for compensation under a law" in s 25(1) must be understood in that broader and less exact sense. There is a number of considerations which combine to make that legislative intent clear. We turn to identify them.

First, as has been seen, the definition of Liability Convention in s 3(1) of the Admiralty Act, when read with the definition of "Limitation Convention" in the same sub-section, has, at all times since the enactment of the Admiralty Act, expressly included the Brussels Convention or the 1976 Convention as a "Liability Convention". Both those definitions in s 3(1) are directed solely to s 25 since the phrase "Limitation Convention" is used in the Admiralty Act only in the body of the definition of "Liability Convention" while the phrase "Liability Convention" is used only in s 25. Accordingly, the two definitions unmistakably evidence a legislative intent that s 25(1) would confer jurisdiction with respect to limitation of liability under the Brussels Convention or the 1976 Convention. If s 25(1) did not confer such jurisdiction, there would simply be no point in the existence of either of the successive definitions [42] of the phrase "Limitation Convention" in the Act. Indeed, the inclusion of "Limitation Convention" in the definition of "Liability Convention" would be inappropriate and potentially misleading.

1. ie the original definition and the definition as amended by the 1989 Act.

Secondly, s 25(1) must also be read in the context of ss 9 and 10 of the Admiralty Act which confer general Admiralty jurisdiction upon the Federal Court. In the context of the conferral of that general jurisdiction, it would be surprising if s 25(1)'s specific conferral of jurisdiction upon the Federal Court with respect to limitation of liability was not intended to encompass jurisdiction with respect to limitation of liability under the Brussels Convention or the 1976 Convention. In that regard, it is relevant to note that s 9(1)'s conferral of jurisdiction in personam upon the Federal Court and "the courts of the Territories, and the courts of the States" was qualified by s 9(2) which reads:

Subsection (1) does not confer on a court other than the Federal Court or a Supreme Court of a Territory, or invest a court of a State other than the Supreme Court of a State with, jurisdiction in respect of limitation proceedings. Section 3(1) defined a "limitation proceeding" as meaning: a proceeding under:

When it is appreciated that s 335 of the Navigation Act conferred jurisdiction with respect to the Brussels Convention upon the State and Territory Supreme Courts, the inference is clear that s 25 was intended to confer a corresponding "jurisdiction in respect of limitation proceedings" upon the Federal Court. Predictably, in the context of that legislative intent, the 1989 Act amended that definition of "limitation proceeding" by substituting in cl (b) a reference to s 9 of the 1989 Act.

Thirdly, as regards the position since the amendment of the definition of "Limitation Convention" by the 1989 Act took effect, it is significant that s 9(5) of the 1989 Act expressly provides that that section's conferral of jurisdiction upon the Supreme Court of a State or Territory with respect to limitation of liability under the 1976 Convention "does not exclude or limit the operation of section 25 of the Admiralty Act ". That provision, in an Act which amended the Admiralty Act, serves to confirm that it was the Parliament's understanding and intent that s 25(1) conferred, and would continue to confer, co-ordinate jurisdiction upon the Federal Court. Moreover, if s 25(1) did not confer jurisdiction upon the Federal Court with respect to limitation of liability under the "Limitation Convention" referred to in the Admiralty Act's definition of "Liability Convention", there would have been no point in the 1989 Act's substitution of the 1976 Convention for the Brussels Convention (and Protocol) in that Act's definition of "Limitation Convention" since, as has been seen, the only use in the Admiralty Act of the phrase "Limitation Convention" is in the definition of "Liability Convention" and the only use of that phrase is in s 25(1).

It follows that the Full Court of the Federal Court was correct in treating s 25(1) of the Admiralty Act as the source of the Federal Court's jurisdiction.

The effect of the foregoing is that the two critical dates for the purposes of this appeal are 13 April 1991, being the date of the occurrence, and 1 June 1991, being the date when the 1976 Convention came into force for Australia and the 1989 Act commenced operation. As has been seen, s 6 of the 1989 Act provided that the relevant provisions of the 1976 Convention "have the force of law in Australia". At the same time, the 1989 Act repealed Div 1 of Pt VIII of the Navigation Act which contained the statutory provision (s 333) which had imparted "the force of law as part of the law of the Commonwealth" to the relevant provisions of the Brussels Convention [43] . Plainly, the limitation provisions which are applicable under Australian domestic law to occurrences occurring after 1 June 1991 are those of the 1976 Convention. Equally plainly, the limitation provisions of the 1976 Convention were not applicable under Australian law to occurrences in respect of which proceedings had been determined and a fund constituted prior to that date. The circumstances of the present case fall in the gap between those two areas where the position is plain. Ultimately, the answer to the question whether the provisions of the 1976 Convention are applicable in the present case depends upon whether, in circumstances where no relevant limitation fund had already been established under the Brussels Convention, s 6 of the 1989 Act applies the provisions of the 1976 Convention to events which occurred before the date on which the provisions of the 1989 Act commenced operation and the 1976 Convention came into force for Australia. The word "retrospective" is commonly used in this country as encompassing such an operation of a statutory provision [44] . It is used in this judgment in that sense.

1. See 1989 Act, s 13 and sch 3. 2. See, eg, Maxwell v Murphy (1957) 96 CLR 261 at 285 Rodway v The Queen (1990) 169 CLR 515 at 518-519And note that the word "retroactive" would seem to be generally preferred in most other countries and in international tribunals to refer to the application of a provision of a statute or treaty to preexisting events.

Does s 6 of the 1989 Act have a retrospective operation?

It was argued on behalf of Victrawl that the provisions of the 1976 Convention, as incorporated in Australian domestic law by s 6 of the 1989 Act, are procedural in character in that their operation is to limit the damages which can be recovered from a shipowner under the claims to which it applies [45] . The relevant question for the purpose of determining whether it is to be presumed that a statutory provision was not intended to have retrospective operation in the sense of applying to past events is not, however, whether it can be broadly characterised as a procedural provision. It is whether the provision's operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in that narrow sense that the ordinary presumption against retrospective operation is inapplicable. As the Court explained in Rodway v The Queen [46] :

The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. Accordingly, the question arises whether the conferral by s 6 of the 1989 Act of the force of domestic law on the 1976 Convention would, if given unconfined operation, affect pre-existing substantive rights or liabilities. For the reasons which follow, that question should be answered in the affirmative. As will be seen, the 1976 Convention, in its domestic operation pursuant to the 1989 Act, constitutes a significant part of the local substantive law defining the rights and liabilities of claimants and shipowners [47] in respect of the claims which are subjected to its provisions. 1. See Stevens v Head (1993) 176 CLR 433 at 457 2. (1990) 169 CLR 515 at 518, per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ. 3. Under the 1976 Convention, "shipowner" or "salvor".

In some respects, there is broad correspondence between the provisions of the Brussels and the 1976 Conventions. Neither confers a positive right to claim compensation. Each confers upon a shipowner an entitlement to limit his total liability in respect of relevant claims arising independently of the Convention from a particular occurrence. In the context of s 25 of the Admiralty Act and s 9 of the 1989 Act, that entitlement to limit total liability can found an action in the Federal Court or a Supreme Court for a limitation declaration or decree and can itself be raised as a substantive defence against proceedings by an affected claimant [48] .

Each Convention provides for the establishment by the shipowner of a limitation fund pursuant to the national laws of the State Party in which the fund is constituted and, once such a fund is established, for the confinement of relevant claimants to the exercise of rights against that fund. That confinement of claims has been held, when adopted in domestic law, to entitle the protected shipowner to the entry of a caveat against the issue in Admiralty of a warrant of arrest of any of his ships at the suit of an affected claimant [49] . Each Convention substantially defines the claims to which it applies by identifying designated categories of occurrence in respect of which a claim or claims might be brought. The limits of liability prescribed by each Convention are limits of total liability in respect of all relevant claims arising on a "distinct occasion" [50] . In short, and subject to particular exceptions or exclusions, each Convention, when properly invoked by a shipowner who establishes the appropriate limitation fund, effectively transforms the rights of affected claimants to recover full compensation from the shipowner (or the shipowner's property) into rights to payment of a proportionate amount of a limited fund. To adopt the phraseology of some of the United States cases [51] , the overriding limitation imposed by each Convention "attaches to", and limits and confines, the rights of affected claimants to recover compensation throughout the international regime which the Convention establishes. Conversely, each Convention confers upon the protected shipowner the right to limit total liability throughout that regime. Neither Convention can properly be seen as confined either to the procedure of the courts of a particular country or to matters of mere procedure. Each operates to require all of the State Parties to it to participate in and observe an international regime controlling and limiting substantive rights and liabilities in respect of the claims which are subjected to its provisions.

1. See The "Bowbelle" [1990] 1 WLR 1330; [1990] 3 All ER 476; [1990] 1 Lloyd's Rep 532. 2. Brussels Convention, Art 2; 1976 Convention, Arts 6 and 7. Under the Brussels Convention, separate limits are imposed in respect of "personal claims" and "property claims" (see Art 3). Under the 1976 Convention, separate limits are imposed in respect of "claims for loss of life or personal injury" and "other claims" (see Arts 6 and 7). 3. See, eg, Black Diamond v Stewart & Sons (The "Norwalk Victory" ) (1949) 336 US 386 at 395; Complaint of Geophysical Service Inc (The "Arctic Explorer" ) (1984) 590 F Supp 1346 at 1355-1357.

When one turns to the more detailed content of rights and obligations, one finds that there are important differences between the provisions of the two Conventions both as regards the maritime claims to which each is applicable and the maximum amounts of the limitations which each imposes. In particular, and presumably of critical significance in the present case, the Brussels Convention did not allow a shipowner to limit liability in respect of claims arising from an occurrence which "resulted from the actual fault or privity of the owner" [52] . The 1976 Convention contains no such wide exclusionary provision [53] . By way of counterbalance [54] , total liability and the amount of any limitation fund under the 1976 Convention will commonly be considerably greater than was the case under the Brussels Convention. That being so, the 1989 Act's repeal of s 333 of the Navigation Act (which, prior to repeal, gave the force of domestic law to the Brussels Convention) and conferral of the force of domestic law upon the 1976 Convention involved a significant alteration of substantive law. If the 1989 Act has the retrospective operation for which Victrawl contends, it constitutes a retrospective and significant alteration of pre-existing rights and liabilities. That point is best illustrated by hypothetical example.

1. Brussels Convention, Art 1(1). 2. cf, Art 4 of the 1976 Convention: "if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result." 3. See, eg, Sir Barry Sheen, Limitation of Liability: The Law Gave and the Lords Have Taken Away, Journal of Maritime Law and Commerce, vol 18 (1987) 473 at 484-485.

Let it be assumed, solely for the purpose of illustration, that the occurrence in the present case involved a ship owned by S and a submarine cable owned by C, that the occurrence resulted from S's actual fault or privity falling short of an intentional or reckless infliction of loss by personal act or omission, that C had a good claim at common law against S for all the damage sustained by reason of the occurrence and that the quantum of those damages would, if assessed, be $20m. Let it also be assumed that the requisite funds under the respective Conventions corresponded with those which the Court was informed were the actual figures in the present case, namely $2.7m if the Brussels Convention were applicable and $7.6m if the 1976 Convention were applicable. Under that hypothetical example, C had, at the time of commencement of the 1989 Act, a right of action for unliquidated damages of a value of $20m against S which, by reason of S's actual fault or privity, was removed from the reach of the Brussels Convention. That position would be completely altered if s 6 of the 1989 Act retrospectively conferred the force of domestic law upon the 1976 Convention with the result that that Convention applied to C's claim against S. S's actual fault or privity would not prevent it from invoking limitation of liability under the 1976 Convention in respect of the occurrence. The result would be that S, upon the commencement of the 1989 Act, would acquire a new right to limit its total liability pursuant to the 1976 Convention in respect of an occurrence which had occurred both before the commencement of that Act and before that Convention came into force for Australia. C's common law right to recover damages equivalent to $20m which had previously been unqualified would be made subject to S's right to limit liability and would be effectively reduced to a right to recover damages of a maximum (depending upon other claims) amount of $7.6m. From being a claim for $20m which, after judgment, could be enforced against S or its assets, C's claim would be converted into a claim which could, after limitation of liability and establishment of an appropriate fund, be enforced only against a fund of $7.6m which was also liable to meet, ratably, any other claims [55] arising from the same occurrence.

1. Including a proportionate part of any relevant claims which are not in fact reduced in accordance with the Convention: see The "Giacinto Motta" [1977] 2 Lloyd's Rep 221 at 227-228.

The fact that a statutory conferral of a right to limit liability in respect of all relevant maritime claims arising from a particular occurrence transcends mere procedure and is a matter of substantive law and substantive right was recognised by Dixon J in James Patrick & Co Ltd v Union Steamship Co of New Zealand Ltd [56] . In that case, the owner of the S S Caradale brought proceedings in the Admiralty jurisdiction of this Court seeking a decree limiting its liability pursuant to the Merchant Shipping Act 1894 Imp in respect of the loss or damage caused by the collision of that ship with the S S Kakariki. The owner of the Kakariki opposed the making of a limitation decree on the ground that the owner of the Caradale had not pleaded its right to limit liability in a collision action in which the Caradale was pronounced to blame. In rejecting that ground of defence [57] , Dixon J examined the nature of the statutory right to limit liability (originally by proceeding in Chancery) conferred by the Merchant Shipping Act operating as part of the domestic law of this country. His Honour said [58] :

But the foundation of the relief, administered first in Chancery and afterwards in admiralty, is the provision on the part of the shipowner of the fund representing his maximum liability. The court then administers the fund brought into court by the shipowner. The court ascertains the claims upon it, marshals them and distributes the fund ratably among the claimants. In principle the title to relief of such a nature is a substantive right enforceable by independent proceedings. It is more than one of the conditions affecting the amount of the loss or damage to be awarded in the collision action. (Emphasis added.) Similarly, the statutory right to limit liability conferred by the 1976 Convention operating as part of our domestic law is "a substantive right enforceable by independent proceedings". As has been seen, the effect of the conferral of that statutory right is, in cases where it is availed of, to limit and transform the "existing substantive right" [59] of an affected claimant. 1. (1938) 60 CLR 650. 2. Note that the Merchant Shipping Act 1894, unlike s 25(4) of the Admiralty Act, did not provide for the raising of a right to limit liability as a defence. 3. (1938) 60 CLR 650 at 673. 4. See Maxwell v Murphy (1957) 96 CLR 261 at 279, per Williams J, and the cases there cited.

It should be mentioned that one can find support in some decisions of courts in other countries [60] , particularly the courts of the United States of America [61] , for the view that limitation provisions such as those of the Imperial Merchant Shipping Acts, the United States Limitation of Shipowners' Liability Act and the Brussels and 1976 Conventions are merely procedural. Conversely, one can find support in other decisions of overseas courts [62] , including other United States cases [63] , for the view accepted by Dixon J in James Patrick & Co Ltd v Union Steamship Co of New Zealand Ltd [64] that such provisions cannot properly be seen as merely procedural but are concerned with substantive rights and liabilities. That latter view seems to us to be correct for the purposes of both the common law and international law. It should be accepted by the courts of this country.

1. See, in particular, The "Mariabel" , 28 May 1991, French Cour de Cassation, Jurisprudence Francaise 565. 2. See, eg, Bowoon Sangsa Co Ltd v Micronesian Industrial Corporation [1984] AMC 97 at 101-103 Complaint of Compania Gijonesa de Navegacion SA (1984) 590 F Supp 241 at 244-245. See also The "Steelton" [1977] 1 Lloyd's Rep 310. 3. See, in particular, The "Stylt 1" , High Court, The Hague, 18 December 1990. 4. See, eg, Petition of Chadade Steamship Co (The "Yarmouth Castle" ) (1967) 266 F Supp 517 at 521-522; The Complaint of Geophysical Service Inc (The "Arctic Explorer" ) (1984) 590 F Supp 1346 at 1355-1357, citing Livesley v E Clemens Horst Co [1925] 1 DLR 159 5. (1938) 60 CLR 650 at 673.

(b) The presumption against retrospective operation

The conclusion that conferral of the force of domestic law upon the 1976 Convention by s 6 of the 1989 Act affected substantive rights and liabilities means that the presumption against the retrospective operation of a statutory provision is applicable. "The general rule of the common law" in that regard was formulated by Dixon CJ in Maxwell v Murphy [65] :

a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. In the same case [66] Fullagar J described that general rule as being "perhaps as well established as anything in English law". His Honour went on [67] to identify and explain its content: It is that a statute is prima facie to be construed as not having a retrospective operation. Two typically succinct statements of the rule may be cited. In Moon v Durden [68] Alderson B said that in construing statutes the general rule is that "They are not to be supposed to apply to a past, but to a future, state of circumstances" [69] . In Gardner v Lucas [70] , Lord Blackburn said: "Prima facie, any new law that is made affects future transactions, not past ones" [71] . It is worthy of note that the word "retrospective" does not occur in either of these statements, but it has been used in many statements of the general rule. It may, of course, be said with some force that to construe the statute of 1953 in the present case as extending to all actions commenced after it came into force is not really to give it a retrospective operation. But this is simply a matter of terminology. I think that the word "retrospective" has acquired an extended meaning in this connection. It is not synonymous with "ex post facto", but is used to describe the operation of any statute which affects the legal character, or the legal consequences, of events which happened before it became law. 1. (1957) 96 CLR 261 at 267. 2. Maxwell (1957) 96 CLR 261 at 285 3. Maxwell (1957) 96 CLR 261 at 285 4. (1848) 2 Ex 22 [154 ER 389]. 5. Moon (1848) 2 Ex 22 at 40[154 ER 389 at 397]. 6. (1878) 3 App Cas 582. 7. Gardner (1878) 3 AppCas 582 at 603.

It follows that s 6 of the 1989 Act should not be construed as having a retrospective operation, in the sense of applying to facts or events that have already occurred, "unless the language of the statute expressly or by necessary implication requires such construction" [72] . That means that, in the absence of a clear legislative intent to the contrary, s 6 should not be construed as having the effect that the 1976 Convention is applicable to an occurrence, such as that giving rise to the present case, which took place before 1 June 1991. Accordingly, it becomes necessary to consider whether it is possible to discern such a contrary legislative intent in the provisions of the 1989 Act, including the 1976 Convention which the 1989 Act sets out in its Sch 1 and enacts as domestic law. It is convenient to consider initially the operation of the 1976 Convention under international law.

In the absence of a contrary intention, an international treaty does not, in so far as a particular State Party to it is concerned, apply to facts or events which occurred before the entry into force of the treaty for that State Party [73] . That rule was accurately expressed in Art 28 of the Vienna Convention on the Law of Treaties of 1969 (the Vienna Convention) which, while not in force at the time when the terms of the 1976 Convention were settled and signed [74] , constitutes an authoritative statement of customary international law [75] . Article 28 reads:

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. 1. See Ambatielos Case [1952] ICJR 28 at 40; Elias, Modern Law of Treaties, (1974), pp 46-49; O'Connell, International Law, 2nd ed (1970), vol 1, p 233; Waldock, Third report on the law of treaties [1964] YB Intl L Commn, vol 2, UN Doc A/CN 4/167 and Add 1-3, at 10 (Art 57). 2. The Vienna Convention was acceded to by Australia in June 1974 but did not come into force until 27 January 1980 and directly applies only to treaties "concluded" after that date: Vienna Convention, Art 4. In that regard, the preferable view would seem to be that, for the purposes of Art 4, "concluded" refers to the stage at which the text is settled and the treaty is signed rather than to the subsequent stage when the treaty comes into force either generally or for a particular State party on satisfaction of the requirements of ratification (see, eg, the 1976 Convention, Arts 17.1 and 17.2). 3. See, eg, The Golder Case (1975) 57 ILR 201 at 213-214; Kingdom of Belgium v Federal Republic of Germany (Young Loan Arbitration) (1980) 59 ILR 495 at 529 Fothergill v Monarch Airlines Ltd [1981] AC 251 at 282 The Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 222; Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349, 356; and, generally, Elias, Modern Law of Treaties (1974), p 13.

As has been said, the 1976 Convention did not come into force for Australia until 1 June 1991. That means that, under customary international law, there is a presumption that, in so far as Australia is concerned and subject to any contrary intention, the provisions of the 1976 Convention are not applicable to occurrences, such as that giving rise to the present case, which occurred prior to that date. The question arises whether that presumption is overcome by (in the words of Art 28 of the Vienna Convention) "a different intention [appearing] from the treaty or otherwise established". A different intention may be "otherwise established" by the existence of some contextual fact or "special object necessitating retroactive interpretation" [76] .

There is no transitional clause in the 1976 Convention. Nor is there any special clause expressly providing whether the Convention binds a State Party thereto with respect to facts or events which had occurred before that State Party was bound thereby. The three provisions which might arguably be seen as favouring or militating against a retrospective operation of the Convention are Art 15.1, Art 17.3 and Art 17.4. All three are, upon examination, at best equivocal. Article 15.1 provides that "[t]his Convention shall apply whenever any person referred to in Article 1 seeks to limit his liability". The persons referred to in Art 1 are, however, described by the heading to that Article as "Persons entitled to limit liability" and are shipowners who "may limit their liability in accordance with the rules of this Convention for claims set out in Article 2". In that context, Art 15.1 is controlled by the operative provisions of Arts 1 and 2 and the use of the word "whenever" in Art 15.1 does not suffice to indicate an intention that the ordinary presumption against the retrospectivity of those operative provisions should be overridden. Article 17.3 provides that, for a State such as Australia which became a party to the Convention after it commenced operation, "the Convention shall enter into force on the first day of the month following the expiration of ninety days after the date when such State deposited its instrument" of ratification, acceptance, approval or accession. That provision does not suffice to indicate a positive intention that the Convention should not, once it enters into force for a particular State Party, apply to events occurring before that time. Article 17.4 provides that, as between State parties to it, the 1976 Convention replaces and abrogates the Brussels Convention. That provision does not indicate a positive intent that the 1976 Convention should replace the Brussels Convention with respect to occurrences which occurred while the Brussels Convention was in force and the 1976 Convention was not in force for the affected State Party.

Nor can one properly discern anything in the objectives or the general context of the 1976 Convention which suffices to rebut the presumption against retrospective operation. The primary objective was the introduction of a new international regime of limitation of the total liability of a shipowner in respect of relevant claims arising from a specified occurrence. The achievement of that objective did not necessitate that the new regime should govern facts and events which had taken place before it came into force. The main general contextual consideration was the existence of the different international regime operating under the Brussels Convention. As has been seen, the 1976 Convention abrogated and replaced the Brussels Convention only as between State Parties to it [77] . Presumably, it was envisaged that, even after the 1976 Convention came into force, the Brussels Convention would remain operative between those State parties which remained bound by it and were not mutually bound by the 1976 Convention. That being so, the continuing existence of the Brussels Convention establishing the earlier and significantly different regime between the State Parties to it of whom some were, but others were not, to become parties to the 1976 Convention provided, if anything, a contextual consideration militating against the retrospective application of the 1976 Convention to occurrences which were governed, when they occurred, by the earlier Convention.

There being no contrary intention evidenced by the 1976 Convention itself or otherwise established, that Convention does not, as a matter of international law, bind this country as regards an occurrence which took place before it came into force for this country on 1 June 1991. As regards such an occurrence, the Brussels Convention remains, as a matter of international law, binding between Australia and other States who were parties to the Brussels Convention when the occurrence took place.

If the 1976 Convention had, in so far as Australia is concerned, applied under international law to occurrences which took place before it came into force for Australia on 1 June 1991, that fact would, of itself, have constituted a strong contextual reason for discerning a contrary intention overriding the ordinary presumption that the 1989 Act's conferral of the force of domestic law upon the 1976 Convention was not intended to have a retrospective operation. Conversely, the conclusion that the 1976 Convention does not, for Australia, apply as a matter of international law to events occurring before 1 June 1991 constitutes a consideration confirming that, in accordance with the ordinary presumption against retrospectivity, the 1989 Act does not itself apply to events occurring before its commencement on that day. Indeed, if the conclusion were reached that the 1989 Act applied to events which occurred before its commencement, the somewhat anomalous position would exist that the effect of a legislative enactment that the 1976 Convention has the force of law in Australia was to apply that Convention to events to which it was not, when construed as an international treaty, applicable at all.

There is, in our view, no provision of the 1989 Act which could properly be seen as expressly or impliedly overriding the ordinary common law presumption against retrospectivity. Nor is there any contextual consideration which could justify the application of the provisions of the 1989 Act to an occurrence which took place prior to its commencement. It follows that neither the 1989 Act nor the 1976 Convention is applicable to the occurrence giving rise to the proceedings in the present case.

Question 2 in the stated case was amended in the Full Court of the Federal Court. As so amended, the questions asked in the stated case and the answers which the Full Court gave to them are as follows:

1. Having regard to the date of the relevant occurrence, before the coming into effect of the Limitation of Liability for Maritime Claims Act 1989 Cth, is the plaintiff precluded from invoking the provisions of the Convention of 1976, set forth in the First Schedule to the said Act?

2. Having regard to the date of the relevant occurrence, and the fact that the plaintiff first applied for limitation pursuant to the Convention of 1957, set forth in sch 6 to the Navigation Act 1912 Cth, after 31 May 1991, being the date on which the said sch 6 was repealed, is the plaintiff precluded from invoking the provisions of the said Convention of 1957?

Answer: The Court finds it inappropriate to deal with this question.

3. If the answer to the first and second questions is in the negative, may the plaintiff elect as between the two limitation regimes before judgment in the proceedings?

4. If the answer to the first question is in the negative, and if the plaintiff is able to limit its liability pursuant to the said Convention of 1976, may the defendant Coulston avail himself of the limitation of liability of the plaintiff, irrespective of whether it is proved that the loss resulted from his personal act or omissions, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result, within the meaning of Art (4) of the said Convention of 1976?

In the light of what has been written above, the Full Court's affirmative answer to question 1 was correct. The answers which the Full Court gave to questions 3 and 4 necessarily flowed from that answer to question 1.

The reason why the Full Court of the Federal Court declined to deal with the substance of question 2 was that their Honours understood that both parties "agreed that [that] question should be answered "No" " and, in that context, considered that it would be "inappropriate to deal with the question, save to the extent that it may be necessary to do so in considering the first question". It was submitted on behalf of Victrawl that the Full Court fell into error in that regard. The Court was informed that, in the original submissions to the Full Court, both parties had been in agreement that the Brussels Convention was applicable with the result that question 2 should be answered in the negative but that, subsequently, Victrawl had made supplementary submissions "which took a different view of the matter". When pressed about whether Victrawl sought in this Court an affirmative answer to question 2, that is an answer that Victrawl was precluded from invoking the provisions of the 1957 Convention, even if (as is the case) the answer to question 1 be to the effect that Victrawl was precluded from invoking the 1976 Convention, Mr Rayment QC (who appeared for Victrawl) indicated that the position would be subsequently clarified. Subsequently, the Court was informed that the parties were "content" that the Court answer question 2. No party has, however, advanced a substantive argument to the Court in support of the proposition that, if Victrawl is precluded from invoking the 1976 Convention for the reason that the relevant occurrence took place prior to the date on which the 1989 Act commenced and on which that Convention came into force for Australia, Victrawl is also precluded from invoking the 1957 Convention.

The arguments accepted in this judgment in holding that the 1989 Act did not operate retrospectively in the sense of applying to past occurrences and was inapplicable to the occurrence giving rise to the respondents' claim also support the conclusions that, under our domestic law, the Brussels Convention remains applicable to that occurrence and that, notwithstanding the amendments effected by s 25 of the Admiralty Act by the 1989 Act, the Federal Court retains its jurisdiction to entertain proceedings in relation to Victrawl's entitlement to limit liability pursuant to the Brussels Convention [78] . Support for those conclusions can also be derived, in a context where the 1989 Act's repeal of the Navigation Act's conferral of the force of domestic law upon the Brussels Convention affected substantive rights and liabilities, from s 8(c) of the Acts Interpretation Act 1901 Cth which provides that, in the absence of a contrary intention, repeal of an Act "shall not affect any right privilege obligation or liability acquired accrued or incurred" under the repealed Act [79] . The conclusion that the Brussels Convention remains applicable as a matter of domestic law is also supported by the view expressed above that, as a matter of international law, Australia remains bound, by the provisions of that Convention, with respect to occurrences which took place before 1 June 1991. Notwithstanding the unavailability of the views of the Full Court of the Federal Court on that particular issue, we consider that it is appropriate to give a negative answer to question 2.

1. cf Willmott v Kaufline (1909) 9 CLR 36 Colonial Sugar Refining Co v Irving [1905] AC 369 Australian Coal & Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 175, 178, 185. 2. See n 110. And note Esber v The Commonwealth (1992) 174 CLR 430 at 440

The appeal should be allowed to the extent that the answer given by the Full Court to question 2 in the stated case should be altered to read: "No." Otherwise, the Full Court's answers and its order with respect to the costs of the proceedings before it should stand. Victrawl should be ordered to pay the respondents' costs of the appeal to this Court.