China Ocean Shipping Co. and Others v. South Australia1
| Author | Phillipa C. Weeks |
| DOI | 10.1177/0067205X8001100205 |
| Published date | 01 June 1980 |
| Date | 01 June 1980 |
| Subject Matter | Article |
1980] Case Notes
229
CHINA
OCEAN SHIPPING CO.
AND
OTHERS v. SOUTH
AUSTRALIAl
Constitutional
law-Applicability
of
Imperiallawin
Australia-
Whether
Merchant Shipping
Act
1894-1900 (U.K.) extends to South
Australia-
Whether U.K.
Act
applies to the Crown
of
its own force or by virtue
of
Judiciary
Act
1903 (Cth) -Merchant Shipping
Act
1894 (U.K.) -
Merchant Shipping(Liability 0/Shipowners and Others)
Act
1900 (U.K.)
-Judiciary
Act
1903 (Cth)
Proceedings before the High Court comprised astated case removed
from the Supreme Court of South Australia in the course of litigation
arising from the collision of aship with
port
facilities in South Australia
which were the property of the Crown. The Minister of Marine of South
Australia brought actions in the Supreme Court claiming damages under
the Harbors Acts 1936-1974 (S.A.) against the owner of the ship,
China Ocean Shipping Co., its "agent" in Australia, Patrick Operations
Pty Ltd, and its master; the defendants thereupon commenced an action
in the Supreme Court seeking declarations under section 504 of the
Merchant Shipping Act 1894-1900 (U.K.) that their liability for damages
was, by virtue of section 503 of the Act, limited to an amount of £8 stg.
per
ton of the registered tonnage of the ship. The parties agreed to state
aspecial case to resolve three questions of law:
1. Did section 504 of the Merchant Shipping Act entitle the plaintiffs
or
any of them to make an application relating to alleged liability
in respect
of
damage to property on-shore (disregarding the owner-
ship of the property for the purposes of this question)?
2. Did section 503 of the Merchant Shipping Act apply to the Crown
in right of South Australia so as to entitle the plaintiffs to limit
their liability for damages to that defendant?
3. If section 503 did not apply of its own force to the Crown, did it
apply by virtue of section 64 of the Judiciary Act 1903
(Cth)?
The High Court by majority decided that at least the owner of the
ship was entitled to invoke section 504 of the Imperial
Act
to limit
liability for damage to on-shore property,
but
that the identity of the
claimant for damages, the Crown in right of South Australia, was fatal
to the limitation proceedings, because section 503 neither of its own
force
nor
by virtue of the Judiciary
Act
(Cth)
bound the Crown.
Specifically the Court held:
(1)
The
Merchant Shipping Act, 1894 (U.K.) and the Merchant
Shipping (Liability of Shipowners and Others) Act, 1900
(U.K.)
were operative in South Australia by paramount force at the date of
the collision and the institution of the Minister's suits. Murphy J.
dissented, and consequently expressed
no
opinion
on
the following
two findings of the majority.
1(1979)
27
A.L.R.
1.
High Court of Australia; Barwick C.l., Gibbs, Stephen,
Murphy and Aickin JJ.
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