Amarantos Shp v. State of SA
Mr AW Street SC and Mr MB Manetta, instructed by Wallmans Lawyers, for the Appellant, Amarantos Shipping
Mr C Northrop instructed by Mouldens for the Respondent State of South Australia
Mr G J Nell instructed by Thomson Playford for the interveners, Centre State Exports Pty Ltd, ABB Grain Ltd, AWB Ltd, Ausbulk and Noble Grain Australia Pty Ltd
Mr C Kourakis QC and Mr C Jacobi, instructed by the Crown Solicitor for the intervener, Attorney General for South Australia
SHIPPING AND NAVIGATION: COLLISION OF VESSEL WITH JETTY WHILE UNDER COMPULSORY PILOTAGE: LIABILITY OF SHIPOWNER FOR ACTS OF PILOT: LIMITATION OF LIABILITY: IMPERIAL, STATE AND COMMONWEALTH LAWS: INCONSISTENCY OF LAWS: PRIMACY OF COMMONWEALTH ENACTMENTS
In this decision, a number of issues of law arose relating to the applicability of various instruments governing liability for damage caused by the vessel "Amarantos" while under compulsory pilotage. The Court held that South Australian legislation making the owner of a vessel strictly liable was operative at the time of collision. The Court rejected the argument that in the event the shipowner was strictly liable for damage caused by the collision, it was entitled to limit its liability to the rate of eight pounds sterling per ton of the Amarantos, which was the limitation of liability set under Imperial legislation. The Court found that the Imperial legislation was repealed by the enactment by the Commonwealth of Australia in 1979 of the Limitation Convention of 1957 which set up a replacement regime for limiting liability
DMC Rating Category: Confirmed
This case note has been contributed by Danella Wilmshurst, Partner, and Amy Lay, Solicitor, of Ebsworth & Ebsworth Lawyers, Sydney. Ebsworth & Ebsworth Lawyers are International Contributors to the website for Australia
The 1900 Act was an amendment to the British Merchant Shipping Act 1894 (the 1894 Act). The 1894 Act introduced a scheme limiting liability of shipowners for loss of life, personal injury or damage to property on a ship. The scheme extended to the British colonies by virtue of an express provision applying the relevant Part of the 1894 Act enacting limitation of liability to "the whole of Her Majesty’s dominions". The 1900 Act extended the categories of cases to all incidents where property is damaged by reason of the improper navigation or management of a ship. The 1894 Act was repealed by the Commonwealth in 1979 by the Navigation Amendment Act 1979 (Cth) (Navigation Act).
Justice Debelle at first instance held that the 1900 Act did not apply and that the plaintiff could be held strictly liable for the damage even though the ship was under compulsory pilotage. The plaintiff appealed to the Full Court of the Supreme Court of South Australia.
At common law, the owner of a ship was liable for the negligence of the pilot if the pilot was engaged voluntarily, but was not liable for the negligence of a compulsory pilot. South Australian state legislation, the Harbors and Navigation Act 1993 (SA) (Harbors and Navigation Act) imposed a strict liability for damage to harbour works, which applied irrespective of whether the vessel was under compulsory pilotage at the time the damage was caused. The Appellant Shipping Company pointed to Commonwealth legislation making a shipowner vicariously liable for the acts of a compulsory pilot1 and submitted that this legislation impliedly enacted a negligence [emphasis added] standard of proof before the owner is liable for the acts of a voluntary and compulsory pilot. If the State legislation were found to be inconsistent with Commonwealth legislation – in this case by providing for strict liability - then the Commonwealth legislation would override the state legislation to the extent of any inconsistency.
The Court of Appeal also rejected the argument that the plaintiff was entitled to limit its liability under the 1900 Act at the rate of eight pounds sterling per ton of the "Amarantos". The Court held that the Imperial limitation of liability provisions in the Merchant Shipping Act 1894 (UK) (the 1894 Act) were repealed in 1979 when the Commonwealth of Australia enacted the provisions of the 1957 Limitation Convention by the Navigation Amendment Act 1979 (Cth) (Navigation Act). Although the Navigation Act did not specifically refer to the 1900 Act, the 1900 Act simply amended the 1894 Act and was not an independent enactment that could survive the repeal of the 1894 Act.
Before the Court of Appeal, Counsel for the Appellant raised a
further submission which the Appellant argued provided for an alternative basis
for applying the 1900 Act limitation scheme to any liability to borne by the
Appellant. The Appellant submitted that the repeal of the 1900 Act by the
Commonwealth Navigation Act applied only to the Commonwealth, and that it
did not affect the operation of the 1900 Act within South Australia as part of
the law of the State of South Australia. This was because the limitation scheme
introduced into the British colonies in 1894, and extended in 1900, applied
equally to the Commonwealth and each of the States of Australia, in effect as an
independent enactment within the Commonwealth and equally within each of the
States. The Appellant then submitted that there was no inconsistency between the
Commonwealth and the State limitation schemes, permitting the 1900 Act
limitation scheme to operate alongside the Commonwealth limitation scheme
because the Navigation Act, did not purport to "cover the
field" of limitation of liability.
"Notwithstanding anything contained in an Act or State Act; the owner or master of a ship navigating under circumstances in which pilotage is compulsory under a law of a State or Territory is answerable for any loss or damage caused by the ship, or by a fault of the navigation of the ship, in the same manner as he would if pilotage were not compulsory"
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