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Union Steamship Company of New Zealand Ltd v Ferguson [1969] HCA 73; (1969) 119 CLR 191 (5 March 1969)

CATCHWORDS

Shipping and Navigation - Colonial Courts of Admiralty - Personal injury to crew member while ship berthed at wharf - "Damage done by a ship" - "High seas" - Injury caused by negligent operation of ship's equipment - Admiralty Court Act, 1861 (24 & 25 Vict. c. 10) (U.K.), s.7 - Colonial Courts of Admiralty Act, 1890 (Imp.) (53 & 54 Vict. c. 27), s.2.

Master and Servant - Common employment - Application of doctrine to seamen - Navigation Act 1912-1961 (Cth), s. 59A.

HEARING

DECISION

2. The plaintiff issued his writ which commenced this action on 16th December 1963. The claim was thus made within the time allowed by s. 10A of the Seamen's Compensation Act. It is not disputed that if the plaintiff's claim for damages succeeds, the amount he can recover must be calculated by allowing the defendant the benefit of the abovementioned sum of $3,170, being the total of the abovementioned amounts. (at p193)

3. I may say at once that, in my opinion, there is no evidence at all that the plaintiff's fall was caused by the system of work in which he was engaged being unsafe or in any way improper, or that the equipment of the ship including the winch and gear was mechanically defective. I should add that, assuming that a breach of reg. 37 of the Navigation (Loading and Unloading Safety Measures) Regulations would give a civil action for damages, I am not satisfied that there was any breach of the regulation properly understood, or that, if there were any such breach, it was the proximate or direct cause of the casualty. (at p194)

4. The plaintiff's case on the facts thus depends upon, and stands or falls with, the allegations that the mishap was caused by the negligence of the fellow member of the crew, Bellgoerdt, and that for the consequences of this the defendant is vicariously liable. Put briefly, the relevant facts are that the practice in removing the covers of the hatch was to move each in turn aft and to stack them on deck against the after deck housing. This could be accomplished by means of a winch situated forward of the hatch. Each cover was connected in turn to a wire running from the winch through a block aft of the hatch. By operating the winch the cover to which the wire was then connected could be pulled aft and raised and stowed. The plaintiff's case is that he was one of a gang concerned in this work. He was in fact in charge of the gang in the absence of the bosun who was working elsewhere. Bellgoerdt was the winchman. The plaintiff says that in the course of the work he stood on one cover to connect the wire to the lug on it with a view to its being moved by the winch: that having done so he was about to step across a small gap on to the next cover forward when, without any signal to the winchman, the cover from which he was about to step forward unexpectedly moved aft: that he thus lost his balance and fell through the enlarged gap between the cover on which he was and the one to which he had intended to step. The plaintiff was working on the starboard side of the hatch before he got on top of a cover to hook the wire on the lug. Another man, Roberts, was on the port side. A third, Innes, was on the starboard side with the plaintiff. The covers are heavy but being on rollers they can sometimes be moved aft by men pushing them on each side. Sometimes a crowbar is needed to free them at the start. If a cover were moved by pushing it, the winch need be used only when it had reached a position at the after end of the hatch. It would then be raised by the winch and stowed on deck against the wall of the after deck housing. When the covers could not be conveniently moved by manpower, the winch was used to pull them into position. The evidence is somewhat conflicting as to exactly what was done on this occasion. Bellgoerdt's account differs considerably from that of the plaintiff. He denied having prematurely set the winch in motion. He gave his evidence in a vehement, dramatic and decided way. I do not think that he was consciously untruthful; but I do think that probably he had mistakenly thought that the plaintiff, when he saw him stand up, had in fact got clear and was ready for the cover to which he had attached the wire to be moved. Innes gave evidence which in essentials corroborated the plaintiff. He said definitely that he saw the cover move. (at p195)

5. Roberts was not called. He was at the time of the hearing in New Guinea, and had been there for some time. No application was made for his evidence to be taken on commission or given on affidavit. But letters which he had written in response to a request by the plaintiff were tendered in evidence. These, it was suggested, were admissible under s. 34C of the Evidence Act, 1929-1957 of South Australia. I rejected these letters for two reasons. First, if the South Australian provision were applicable and the witness was within the meaning of it "beyond the seas", I was not satisfied that the statutory conditions excusing his attendance had been met. He said in a letter that, being apprehensive that some action might be taken against him by his wife and by creditors if he came to South Australia, he would hide and evade service of a subpoena. Whether these statements, if true, would meet the statutory condition that it was "not reasonably practicable to secure his attendance" was I thought doubtful. Moreover I am not satisfied that the existence of the conditions for the admissibility of a written document relating to facts in issue can themselves be proved by an unverified written statement. Secondly, Mr. Zelling frankly brought to my notice that to admit the letters relying on the South Australian statute could be contrary to the Judiciary Act 1903- 1959 (Cth). As I was sitting in South Australia the South Australian laws relating to procedure, evidence and the competency of witnesses would be binding upon me (Judiciary Act, s. 79), but only "except as otherwise provided by the Constitution or the laws of the Commonwealth". And there is a law of the Commonwealth on the matter, the High Court Procedure Act 1903-1950, s. 21. This provides that, except as in that Act provided, testimony at the trial of causes shall be given orally in open court. This alone would require me to reject the letters of a witness who was not available for cross examination. The most that can be said in the circumstances is, I think, that it could not be suggested that the reason why Roberts was not called as a witness was that the plaintiff feared that his evidence would be hostile. (at p195)

6. The only contemporary record of the events is an entry in the ship's log made by the chief officer of the ship the same day. It reads:

"Whilst engaged in opening No. 3 hatch lids A. Ferguson AB.
slipped & fell a distance of twenty feet into the vessel's hold.
Removed from the vessel by St. John's Ambulance and
admitted to Burnie Hospital where he was found to have
sustained the following injuries - broken right wrist, broken
heel and suspected spinal injuries. Accident occurred at
1545."

7. It is enough to say that on the whole, although I was not free of all doubt and had some misgivings caused by significant discrepancies in the evidence, I thought that the account of the events on which the plaintiff relies should in its essentials be accepted as the more probable - that the winch was somehow set in motion before he was ready and that this moved the cover and caused him to lose his footing. (at p196)

8. The Jurisdiction of the High Court: The first question which then arises on the facts as I have found them is whether the case is within the jurisdiction of this Court. The action was, as I have said, started in December 1963, nearly a year after the events. The statement of claim then filed alleged that the action was within the original jurisdiction of the Court on the ground that the parties were residents of different States, it being said that "the plaintiff resides in the State of South Australia and the defendant resides in the State of Victoria". But the defendant, being a corporation, could not be a "resident" of Victoria within the meaning of s. 75 (iv.) of the Constitution: Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe [1922] HCA 50; (1922) 31 CLR 290 ; Cox v. Journeaux [1934] HCA 72; (1934) 52 CLR 282 . The action as framed was thus misconceived. However, nothing was done in the matter until 21st September 1965. The defendant then took out a summons to have the action dismissed. The plaintiff opposed this and made a counter application asking that the winchman, Bellgoerdt, be added as defendant. Bellgoerdt was a resident of New South Wales; and it was apparently thought that by making him an additional defendant the action would be saved and could proceed, with the defendant company still a party although not a "resident". This was a mistaken view: cf. Watson and Godfrey v. Cameron [1928] HCA 4; (1928) 40 CLR 446 . My brother Menzies who heard the application dismissed it. But, it being said that the plaintiff could sustain an action against the defendant company in the Admiralty jurisdiction of this Court, his Honour stood over the defendant's application to have the action dismissed and gave the plaintiff leave to amend his statement of claim to allege the facts he relied upon to bring the case within this Court's jurisdiction in Admiralty. (at p197)

9. The plaintiff then made extensive amendments amounting in effect to a new statement of claim. This quite changed the nature of the action. But no point was made of that. I think that I should consider the action as still instituted at the time of the writ. Neither party suggested otherwise. I must deal with the question of jurisdiction on the basis that I am sitting not to exercise the original jurisdiction of this Court under the Australian Constitution, but in the instance jurisdiction of the Court as a Colonial Court of Admiralty under the Imperial Act, the Colonial Courts of Admiralty Act, 1890. This makes the topic one of some complexity in our constitutional law: see the discussion and the references in Professor Cowen's book Federal Jurisdiction - Australia (1959), pp. 57- 65; and by Doctor Wynes in his Legislative, Executive and Judicial Powers in Australia, 3rd ed. (1962), pp. 623-627. (at p197)

10. Section 2 (2) of the above-mentioned statute of 1890 provides that:

"The jurisdiction of a Colonial Court of Admiralty shall,
subject to the provisions of this Act, be over the like places,
persons, matters, and things, as the Admiralty jurisdiction
of the High Court in England, whether existing by virtue of
any statute or otherwise, and the Colonial Court of Admiralty
may exercise such jurisdiction in like manner and to as full
an extent as the High Court in England, and shall have the
same regard as that Court to international law and the comity
of nations." (at p197)

11. It was held in Nagrint v. The "Regis" [1939] HCA 6; (1939) 61 CLR 688 , following The "Yuri Maru" (1927) AC 906 that the jurisdiction which this Court thus has is such jurisdiction in Admiralty as the High Court of Justice of England had when the Colonial Courts of Admiralty Act became law in 1890. At that date the High Court of Justice had, by virtue of the Judicature Acts, succeeded to the jurisdiction which the High Court of Admiralty formerly possessed. The above-quoted words in the Act of 1890, "the like places, persons, matters, and things, as the Admiralty jurisdiction of the High Court in England", must, I think, mean such jurisdiction in Admiralty as by the Judicature Acts or by any other statute enacted before the Colonial Courts of Admiralty Act, 1890 had become vested in the Admiralty Division as proper subjects for that Division. It is true that the Admiralty Division can, in an appropriate case, exercise the jurisdiction exercised by any other Division of the High Court of Justice. It has therefore been said that any action in personam may be brought in the Admiralty Division, although if it be not of a kind normally cognizable there it may be transferred: see Williams v. Bruce, Admiralty Practice, 3rd ed. (1902), p. 77. But, as I have said, the jurisdiction of a Colonial Court of Admiralty is in my view confined, both in actions in personam and in rem, to causes and matters which were, strictly speaking, subjects of Admiralty jurisdiction in England in 1890. Primarily these are causes and matters which would have been "within the exclusive cognizance" of the High Court of Admiralty if the Judicature Act of 1873 had not been passed: see s. 34 of that Act; and see McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. [1945] HCA 11; (1945) 70 CLR 175, at p 207 ; F. Kanematsu & Co. Ltd. v. The Ship "Shahzada" [1956] HCA 57; (1956) 96 CLR 477 . Mr. Zelling, who appeared for the plaintiff, accepted this position. He urged that this Court has jurisdiction in this case on one or other, or both, of two bases. These may be conveniently abbreviated in description as follows: one that the claim is for damages for a tort committed on the high seas; the other that it is for "damages done by a ship" within the meaning of s. 7 of the Admiralty Court Act, 1861 of the United Kingdom. I shall consider these separately and in turn. (at p198)

12. A tort on the high seas: The Court of Admiralty claimed an ancient and inherent jurisdiction over wrongs committed on the high seas to or by British subjects. As a result of the long continued struggle with the common law courts in England, the jurisdiction of the Admiralty became confined to certain events occurring on the high seas and not within the body of a county. I do not think I need relate the chequered history which had produced this result long before 1890. It has been explained by legal historians. It has been told too by distinguished judges; and it has sometimes led them to differing conclusions on the same or similar facts: see e.g. the judgments in The "Zeta", by Lord Esher M.R. and Fry L.J. (1892) P 285 ; by Lord Herschell L.C. (1893) AC 468 ; and see too per Lord Lindley in The "Mecca" (1895) P 95 . The claim in the present case is that the defendant is vicariously liable for a tort committed by its servant Bellgoerdt in the course of his employment and, it is said, "on the high seas". (at p198)

13. There is a preliminary question. It is whether the doctrine of common employment would stand in the plaintiff's way if he should make good his claim that the accident happened at a place which would bring it within Admiralty jurisdiction. The question is not I think altogether easy. In 1890 the doctrine of common employment was in full force in England. But it was a rule which denied a right of action in tort to a plaintiff, not a denial of jurisdiction and in Australia s. 59A of the Navigation Act, which was introduced by amendment in 1958, abolished the doctrine of common employment for seamen to whom the Act applies. The plaintiff is a person entitled to the benefit of this provision. I consider it abrogates for him the effect of the decision in Huddart Parker Ltd. v. Cotter [1942] HCA 34; [1942] HCA 34; (1942) 66 CLR 624 . The doctrine of common employment is thus, I consider, out of the way in this case. I mention it only because I raised this matter in the course of the argument and because I had in my judgment in the case of Parker v. The Commonwealth [1965] HCA 12; (1965) 112 CLR 295, at p 305 inadvertently used words suggesting that there is no Commonwealth Act dealing with the doctrine of common employment. That statement should have been confined to naval vessels, as were those in question in that case. They are outside the provisions of the Navigation Act, expressly so by s. 3. (at p199)

14. The question of jurisdiction, on the basis now under consideration, is thus whether the place where the tort was committed is a place within the Admiralty jurisdiction. For that to be so, the ship must have been on the high seas and not within the body of a county. (at p199)

15. It may seem a surprising proposition that a vessel lying alongside and made fast to a wharf at Burnie could be on the high seas. But, without going too far into history, the meaning of the words "the high seas" may, for present purposes, be gathered from two well-known passages which I shall cite. First, by Lord Lindley in The "Mecca" (1895) P, at p 107:

"The expression 'high seas'", his Lordship said, "when
used with reference to the jurisdiction of the Court of Admiralty,
includes all oceans, seas, bays, channels, rivers, creeks, and
waters below low-water mark, and where great ships could
go with the exception only of such parts of such oceans etc.
as were within the body of some county."

"I see no reason founded on expediency or authority to
induce us to say that a ship at anchor is within the jurisdiction,
and that a ship moored to the land is not."

16. The wharves at Burnie are within the shelter of Blackman Point at the western end of Emu Bay. They are protected by a breakwater. There are three wharves - known as Ocean Wharf, McCaw Pier and Jones Pier - each of which projects some 700 feet or more from the land into what if it were not for the breakwater would be an open roadstead. I do not doubt that if the question were simply whether when the Kootara was in the port of Burnie she was on the high seas, the answer would be that she was. But that is only one part of the requirement for Admiralty jurisdiction in respect of the place. The insistence of the common law courts that the Admiralty should not overreach them led to it being excluded from matters arising within the body of an English county. There the common law prevailed and the jurisdiction of the common law courts prevailed. (at p200)

17. As the jurisdiction of a Colonial Court of Admiralty is by the Act of 1890 over "the like places, persons, matters, and things" as the Admiralty jurisdiction in England, it seems to me that the Admiralty jurisdiction of this Court is likewise confined; and that, apart from statute, it does not extend to matters arising within the body of a county, or, using the words of s. 2 (4), "other like part of a British possession": see Union Steamship Co. of New Zealand v. The "Caradale" [1937] HCA 1; (1937) 56 CLR 277, at pp 280, 281 . Cases which were referred to in argument dealing with events in foreign ports, such as Alexandria and Port Said, have no decisive bearing on this case. Such places were not within the body of a county and the jurisdiction of the Admiralty Court was not limited by the competing claims of the common law. (at p200)

18. To say whether a place is, for relevant purposes, "within the body of a county" various criteria ancient and artificial have been adopted. The question is not, I think, the same as the question of the extent of territorial waters for the purposes of public international law. Observations in The "Fagernes" (1927) P 311 must be read with that in mind. As long ago as 1803 in East's Pleas of the Crown, vol. ii, p. 803, there is a reference to "the only difficulty . . . with respect to what shall be considered as the line of demarcation between the county and the high sea"; and the learned author said:

"It is plain that the admiral can have no jurisdiction in
any rivers or arms or creeks of the sea within the bodies of
counties, though within the flux and reflux of the tide: except
in the particular instances before shewn, of mayhem and
homicide done in great rivers beneath the bridges near the
sea; which depend on the stat. 15 Rich. 2 c. 3. In general, it
is said that such parts of the rivers, arms, or creeks, are deemed
to be within the bodies of counties, where persons can see
from one side to the other. Ld. Hale, in his treatise De Jure
Maris, says, 'That arm or branch of the sea which lies within
the fauces terrae, where a man may reasonably discern between
shore and shore, is, or at least may be, within the body of a
county'. Hawkins, however, considers the line more accurately
confined by other authorities to such parts of the sea where a
man standing on the side of the land may see what is done
on the other, and the reason assigned by Lord Coke in the
Admiralty case in support of the county coroner's jurisdiction,
where a man is killed in such places, because that the county
may well know it, seems rather to support the more limited
construction. But, at least where there is any doubt, the
jurisdiction of the common law ought to have the preference."

19. I therefore reject the plaintiff's first proposition that this Court as a Colonial Court of Admiralty has jurisdiction simply on the ground of the place where the matters complained of occurred. But before 1890 the ancient prohibition against the Admiralty Court in England entertaining any cause of action arising within the body of a county had been modified by the Admiralty Court Act, 1861. To this, the proposition secondly relied upon by the plaintiff, I now turn. (at p201)

20. The Admiralty Court Act, 1861: Section 7 of this Act reads:

"The High Court of Admiralty shall have jurisdiction over
any claim for damage done by any ship."

"the jurisdiction conferred by this Act on the High Court
of Admiralty may be exercised either by proceedings in rem
or by proceedings in personam".

21. What then is meant by "damage done by a ship"? It is settled that, notwithstanding some earlier observations to the contrary, this phrase extends to a personal injury suffered by a member of the ship's crew or other person if it was done by the ship: The "Sylph" (1867) LR 2 A & E 24 ; The "Theta" (1894) P 280 ; Nagrint v. The "Regis" [1939] HCA 6; (1939) 61 CLR 688 . It has been held that the phrase "done by a ship" postulates the ship as the active agent of the harm. The idea involved is not an easy one, as Dixon J. recognized in Nagrint v. The "Regis" [1939] HCA 6; (1939) 61 CLR 688 . But his Honour said the decided cases

"show that when the injury arises from some defect in the
condition of the ship considered as premises or as a structure
upon which the person injured is standing, walking or moving,
the ship is treated as no more than a potential danger of a
passive kind, a danger to the user, whose use is the active
cause of the injury. But where the injury is the result of the
management or navigation of the ship as a moving object or
of the working of the gear or of some other operation, then
the damage is to be regarded as done by the ship as an active
agent or as the 'noxious instrument'"
(1939) 61 CLR, at p 700

22. I must say that the validity of the proposition that anyone who is in any way hurt by the negligent operation of some part of a ship's equipment has a cause of action in the Admiralty jurisdiction of this Court is to me surprising and seriously far-reaching if it means that all industrial accidents occurring by the negligent use of any of a ship's equipment in the loading or unloading of cargo in Australian ports are within the original jurisdiction of this Court. I still have some doubts whether all such accidents are properly described as "damage done by the ship". However, sitting in this case in the instance jurisdiction of this Court as a Colonial Court of Admiralty, and looking to analogies in the decided cases, I think I must hold that the harm the plaintiff suffered as described by him was "damage done by the ship": see The "Minerva" (1933) P 224 ; and other cases mentioned in Nagrint v. The "Regis" [1939] HCA 6; (1939) 61 CLR 688 . This plaintiff did not merely fall into the hold as the plaintiff in The "Theta" (1894) P 280 did. His case is that he was by the operation of the winch caused to fall. (at p203)

23. Damages: The plaintiff was aged thirty-four at the time of the accident. He had been a seaman for many years. He was found in the Burnie Hospital to have multiple injuries consisting of crush fractures of the ninth and tenth dorsal vertebrae, a fracture of the right wrist and a fracture of the bone of the right heel. He was in Burnie Hospital for nine days and was then moved to the Spencer Hospital at Wynyard in Tasmania, where he was for about six weeks. From there he was brought to Adelaide. He was in the Royal Adelaide Hospital for a fortnight; and thereafter he attended for some time at the outpatients' department there for physiotherapy. On 19th May 1964 he was able to take work again as a seaman. Some disabilities, however, remained and these have affected the range of his recreational activities and produced at times discomfort and pain. I do not think it necessary that I state in medical terminology and in detail what is now the extent of his physical disabilities. The parties most commendably agreed to written reports by Sir Leonard Lindon and Dr. D. C. Paterson, both distinguished surgeons, being taken as evidence without the need to call the writers. They had examined the plaintiff several times - the former at the request of the solicitors for the plaintiff, the latter of the solicitors for the defendant. Their conclusions and predictions do not greatly differ and I have derived much help from what they have carefully written. I need say no more than that the plaintiff has indeed made a good recovery. He may get still better, but some occasional aches and pains will probably persist. There is a real possibility of post trauma arthritis, especially in his neck and right foot, becoming troublesome in the future. As a result of the injury to his foot, which prevents him standing for long periods and carrying heavy weights, he is not well able to undertake all the duties aboard ship which formerly he could. I have taken into consideration that there is some limitation of his earning capacity. But I am not disposed to measure it by the conditions of his employment now as compared with those in the past. He returned to service on sea-going ships trading between South Australia and Tasmania. He abandoned this in order to serve on a vessel which runs only short distances in South Australian waters. This employment is less remunerative than other employment might be as there are not the same opportunities to earn money by overtime work. But he went to work on this vessel mainly so that he could be more at home and see more of his family. For general damages, including past and prospective pain and suffering, diminished capacity both economic and in other ways, and the possibility of future medical expense I think he should be awarded a sum of $5,250. The special damages for outgoings - including doctors' fees etc. and $4,742 for loss of earnings from 26th December 1962 to 11th May 1964 after deduction of tax - are agreed at $5,675, making a total of $10,925. From this must be deducted the amounts paid by the defendant (Seamen's Compensation Act, s. 10A (3)). These, as I have said, amounted to $3,170. I therefore assess the total sum payable by the defendant to the plaintiff for damages as $7,755. I made no deduction on the basis of any negligence on the part of the plaintiff. It was suggested that his wearing "thongs" made him more likely to slip than if he had been wearing some other kind of shoes. This may be so ; but there was no evidence that his falling was in any way caused or contributed to by his footwear. (at p204)

24. I give judgment for the plaintiff in the sum of $7,755. As to the costs I reserve my order as to these until I have heard the submissions of the parties. (at p204)

25. Judgment for the plaintiff in the sum of $7,755. Further hearing adjourned to a date to be fixed for the determination of the incidence of costs.

B. H. (at p204)

26. From this decision the appellant appealed to the Full Court. (at p204)

27. R. G. Matheson, for the appellant. Windeyer J. was correct in deciding that there was no tort committed on the high seas but incorrect in finding for the respondent on the ground that damage was done by a ship within the meaning of s. 7 of the Admiralty Court Act, 1861 (U.K.). "Damage by a ship" means damage arising out of an act of navigation and does not apply to common accidents which happen on ships. Navigation in the relevant sense does not end until the ship is tied either by anchor in the stream or by ropes to a wharf, the engine has been cut off and the propeller has ceased to function. All the cases except The "Minerva" (1933) P 224 are cases where the damage was caused by some negligent navigation in that sense. The "Minerva" (1933) P 224 is distinguishable because the damage in that case was caused by a ship in a much more active and physical sense than was so in the instant case where the accident arises from some defect in the ship's equipment or by something negligently left about on the ship. Such an accident is not within the ambit of "damage by a ship". The damage must be physically caused by the ship. Although it intended to expand the jurisdiction in Admiralty, which the common law courts had whittled down, the British Parliament in 1861 did not intend that the Admiralty courts should have jurisdiction in respect of every accident: see Halsbury's Laws of England, 3rd ed., vol. 1, p. 1. "Damage" includes personal injury: The "Sylph" (1867) LR 2 Ad & Ecc 24 ; The "Theta" (1894) P 280 . (He also referred to The "Chr. Knudsen" (1932) P 153, at p 156 ; The "Vera Cruz" (No. 2) (1884) 9 PD 96; 10 App Cas 59 ; McEvoy v. The "Sneyd" (1895) Irish LTJo 317 (n) ; Currie v. M'Knight (1897) AC 97 ; The "Queen Eleanor" (1899) 18 NZLR 78 ; Wyman v. The "Duart Castle" (1899) 6 Can Ex CR 387 .) In Nagrint v. The "Regis" [1939] HCA 6; (1939) 61 CLR 688 the damage flowed from an act of navigation. (at p205)

28. H. E. Zelling Q.C. (with him M. E. E. Cleland), for the respondent. The damage in this case was caused by the ship. The distinction drawn by Dixon J. and applied by the trial judge between the ship being used as the active and as the passive agent is correct. The active cause of the damage in this case was the working of the winch. The "Industrie" (1871) LR 3 Ad & Ecc 303 is an example of liability for damage done by a ship though the ship itself did not come into contact with anything else. None of the cases cited by the appellant cast any doubt on the dictum of Dixon J. in Nagrint v. The "Regis" [1939] HCA 6; (1939) 61 CLR 688 . A ship may be liable although it is tied up and not in the course of being navigated: see The "Clara Killam" (1870) LR 3 Ad & Ecc 161 where there was no distinction between a ship at anchor and a ship at wharf. The wharf at Burnie is on the high seas and it is not a place where the common law courts of Tasmania have jurisdiction. The body of a county except where it was intra fauces terrae ended at low water mark: The "Pauline" [1845] EngR 563; (1845) 2 W Rob 358 (166 ER 790) . As the body of a county except in the case of intra fauces terrae ended at the low water mark, the ship was not within the body of a county but on the high seas. Thus the common law courts of Tasmania have jurisdiction down to the low water mark and the wharf at Burnie would be outside their jurisdiction. It does not matter that the ship may have been tied up. (He referred to The "City of Mecca" (1881) 6 PD 106 and The "Tolten" (1946) P 135 .) The Admiralty jurisdiction extends to anywhere on the ocean except estuary waters. (at p206)

29. R. G. Matheson, in reply. The Admiralty courts have jurisdiction only in respect of so much of the high seas as does not come within the body of an English county or other like part of a British possession: see Union Steamship Co. of New Zealand Ltd. v. The "Caradale" [1937] HCA 1; (1937) 56 CLR 277 and the cases there cited; McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. [1945] HCA 11; (1945) 70 CLR 175, at p 208 ; Reg. v. Cunningham [1859] EngR 102; (1859) Bell 72, at p 86 (169 ER 1171, at p 1177) . Intra fauces terrae is not limited to an estuary. In all cases cited it is accepted that where there is a bay the Admiralty courts do not have jurisdiction. It is possible to join two points in this case to form a bay which would take in the port at Burnie. Not every tort which takes place on the high seas is within the Admiralty jurisdiction: Reg. v. Judge of the City of London Court (1892) 1 QB 273, at pp 294, 298, 310 ; Nagrint v. The "Regis" (1939) [1939] HCA 6; 61 CLR 688, at p 692 .
Cur. adv. vult. (at p206)

1969, March 5.
The following written judgments were delivered: -
BARWICK C.J. The respondent at the time he was injured was a member of the crew of a steamship the property of the appellant. The ship was alongside a pier in the port of Burnie, Tasmania, and was being prepared for the intake of the cargo. Whilst engaged in removing the hatch covers of one of the holds of the ship, the respondent was injured. This operation involved the movement of sections of the hatch cover called "lids" by means of wires operated by a winch. According to the account which the learned trial judge accepted, a lid on which the respondent was standing was moved by the winch being set in motion without warning with the result that the respondent lost his footing and fell into the hold through the space between two lids. He was seriously injured. He sued the appellant in the Admiralty jurisdiction of this Court. My brother Windeyer who tried the action found a verdict for the respondent holding that the respondent's injury constituted damage done by the ship within the doctrines of the Court of Admiralty. (at p207)

2. On this appeal from that judgment, the appellant has submitted that this Court had no jurisdiction to try the action in that the incident out of which the injury arose did not take place on the high seas and that the injury sustained by the plaintiff was not damage done by the ship within the meaning of s. 7 of the Admiralty Court Act, 1861 (U.K.). (at p207)

3. It is clear that the only jurisdiction which this Court could exercise in the circumstances of the case was the jurisdiction derived from the Colonial Courts of Admiralty Act, 1890 (U.K.), this Court oddly enough still being a Colonial Court of Admiralty. (at p207)

4. It is also clear that this jurisdiction of the Court is the same as that exercised by the High Court in England in 1890, which, in turn, was the same as that formerly possessed by the High Court of Admiralty. It extended to causes of action in tort where the wrong was committed on the high seas and to causes of action for damage done by a ship, whether or not on the high seas. For these purposes the high seas includes:

"all oceans, seas, bays, channels, rivers, creeks, and waters
below low-water mark, and where great ships could go, with
the exception only of such parts of such oceans, &c., as were
within the body of some county. . . .
A foreign or colonial port, if it was part of the high seas
in the above sense, would be as much within the jurisdiction
of the Admiralty as any other part of the high seas."

5. Section 2 (2) of the Colonial Courts of Admiralty Act conferred the jurisdiction of the High Court upon the Colonial Courts of Admiralty. The precise terms of the section should be observed:

"The jurisdiction of a Colonial Court of Admiralty shall,
subject to the provisions of this Act, be over like places,
persons, matters, and things, as the Admiralty jurisdiction
of the High Court in England, whether existing by virtue of
any statute or otherwise, and the Colonial Court of Admiralty
may exercise such jurisdiction in like manner and to as full
an extent as the High Court in England, and shall have the
same regard as that Court to international law and the comity
of nations." (at p207)

6. This sub-section, in my opinion, in terms gave the Colonial Courts of Admiralty a concurrent jurisdiction with the High Court of Admiralty. But s. 3 allowed the local legislature to limit the Colonial Courts' jurisdiction territorially or otherwise. The Act did not merely give the Colonial Courts in relation to the colony a comparable jurisdiction to that exercisable in relation to Great Britain by the High Court of Admiralty. In other words, the exception of waters within the body of the English county was neither transmuted in relation to a Colonial Court of Admiralty to an exception of waters enclosed by the land of the colony nor added to by a further exception in the case of a colony. (at p208)

7. But the terms of s. 2 (4) may have a bearing on the jurisdiction of the Colonial Court. That sub-section is in these terms:

"Where a Court in a British possession exercises in respect
of matters arising outside the body of a county or other like
part of a British possession any jurisdiction exerciseable under
this Act, that jurisdiction shall be deemed to be exercised
under this Act and not otherwise." (at p208)

8. Does this sub-section work inferentially a limitation upon the jurisdiction given by sub-s. (2); or does it merely ensure that whenever jurisdiction is exercised by a Colonial Court in respect of matters occurring beyond the territorial limits of the colony, which would of course include enclosed waters, the jurisdiction shall exclusively be that conferred by the Act. There is, in my opinion, much to be said for the latter alternative, which if adopted would result in the Colonial Court of Admiralty having jurisdiction in the enclosed waters of the colony below low water mark, though the Colonial Court of general civil jurisdiction could also exercise its non Admiralty jurisdiction whether common law or statutory in those waters. Dixon J., however, in Union Steamship Co. of New Zealand Ltd. v. The "Caradale" [1937] HCA 1; (1937) 56 CLR 277 seemed to be of the view that sub-s. (4) operated to limit the jurisdiction of the Colonial Court of Admiralty by excluding the colonial port from its authority: however, the matter does not now call for resolution as, in my opinion, in any case the Port of Burnie cannot be regarded as enclosed waters of the State of Tasmania. The wharf where the appellant's ship was berthed stood into the open sea though protected by a breakwater. I agree with the learned trial judge that the configuration of the land will not warrant the conclusion that Emu Bay constitutes enclosed waters. (at p208)

9. But with due respect I am unable to accept his Honour's view that because the wharf and its environs were subject to the common-law jurisdiction of the Supreme Court of Tasmania, the wharf and the waters adjacent thereto were a part of a British possession like an English county within the meaning of s. 2 (4). It seems to me that the retention of common-law jurisdiction in the enclosed waters of a country depended upon the physical fact that the waters were enclosed and thus part of the realm. To decide that Emu Bay did not constitute enclosed waters on the assumption that sub-s. (4) does operate to limit jurisdiction is, in my opinion, to decide that any jurisdiction which the Tasmanian Court exercised there must necessarily be the jurisdiction given by the Act. Subsection (4) clearly ensures this and would deny the Tasmanian Court any authority to exercise the common law in the area so decided not to be enclosed waters, where the location of the events giving rise to the cause of action was the source of jurisdiction. (at p209)

10. In my opinion, therefore, the injury to the respondent took place on the high seas and for that reason this Court had jurisdiction in Admiralty in respect of it. (at p209)

11. Had I not been of this opinion, I would have been prepared to support his Honour's conclusion that the injury of the respondent was in the circumstances damage done by the ship. The question is one of fact and it was, in my opinion, open to his Honour to so find. I cannot say I find the criteria which are set out in the judgment of Dixon J. in Nagrint v. The "Regis" [1939] HCA 6; (1939) 61 CLR 688 easy of application nor productive at this trial of a satisfactory result. But on the footing that it was the movement of the lid which precipitated the respondent into the hold, I am content, though not without some hesitation, to accept the finding that the fall of the respondent was caused by the ship in the relevant sense. (at p209)

12. It is now too late judicially to arrest the development of the jurisdiction which has its inception in the Admiralty Court Act, 1861: but it is apparent from what I have written and from what has fallen from Justices of this Court in earlier cases that the jurisdiction in Admiralty now calls for examination resulting in clearer definition and appropriate limitation by the legislature. (at p209)

13. In my opinion, this appeal should be dismissed. (at p209)

KITTO J. In my opinion this appeal should be dismissed. I have nothing to add to what is said in the judgments of my brothers Menzies and Owen. (at p209)

MENZIES J. I would dismiss this appeal on the ground that the plaintiff established that the injuries in respect of which he sued in this Court for damages for negligence fell within the description of "damage done by any ship" and his claim was therefore within the jurisdiction of the Court as a Colonial Court of Admiralty (Admiralty Court Act, 1861, s. 7). (at p210)

2. Nagrint v. The "Regis" [1939] HCA 6; (1939) 61 CLR 688 which establishes, inter alia, that the High Court is a Colonial Court of Admiralty and that damage is done by a ship when the ship is the active agent of the damage, was concerned with injuries suffered by a passenger upon a ship by reason of negligent navigation, but the statement by Dixon J., as he then was, that

"where the injury is the result of the management or
navigation of the ship as a moving object or of the working
of the gear or of some other operation, then the damage is to
be regarded as done by the ship as an active agent or as the
'noxious instrument'
(1939) 61 CLR, at p 700
"

3. The appeal should, therefore, be dismissed. (at p210)

OWEN J. The sole question in this appeal is whether the plaintiff's claim falls within the Admiralty Jurisdiction of this Court. (at p210)

2. In 1962 the plaintiff was a member of the crew of s.s. Kootara, a ship of which the defendant was the owner. The ship was lying alongside a wharf at Burnie where she was to load cargo. The plaintiff and other members of the crew were engaged in removing the hatch covers from a hatch with the aid of a winch which was being worked by one of the crew. The plaintiff stood on one of the hatch covers in order to attach a wire leading from the winch to a lug on the hatch cover so that, by using the winch, the cover could be moved. He attached the wire to the lug and was about to step on to the adjoining hatch cover when the winchman negligently put the winch into motion with the result that the hatch cover upon which the plaintiff was standing moved and he lost his balance and fell into the hold, thereby suffering personal injuries. He took these proceedings claiming damages and Windeyer J., who heard the action, found in his favour and awarded him $7,755. (at p210)

3. The judgment of Dixon J. (as he then was) in Nagrint v. The "Regis" [1939] HCA 6; (1939) 61 CLR 688 makes it plain that this Court, sitting as a Colonial Court of Admiralty, has jurisdiction to hear and determine any claim for "damage done by any ship". The jurisdiction to try such cases was given to the High Court of Admiralty by s. 7 of the Admiralty Court Act, 1861 (U.K.) and became part of the Admiralty Jurisdiction of the High Court in England when the Judicature Act came into force. In 1890 the Colonial Courts of Admiralty Act (Imp.) was passed and under it this Court has jurisdiction over the like places, persons, matters and things as had the Admiralty Division of the High Court in England in 1890. (at p211)

4. Much of the argument which we heard was directed to the question whether the case was one of a tort committed on the high seas, in which case it was conceded that there would be jurisdiction to hear the plaintiff's claim. I think it unnecessary to decide that question since I am of opinion that the case is one in which the claim is for "damage done by a ship" and, if this be so, it is immaterial whether or not the ship was then on the high seas. In the judgment of Dixon J. to which I have referred, his Honour dealt at some length with the meaning to be given to the phrase "claim for damage done by any ship" and reviewed the relevant authorities. He concluded by saying that the cases showed

"that when the injury arises from some defect in the
condition
of the ship considered as premises or as a structure
upon which the person injured is standing, walking or moving,
the ship is treated as no more than a potential danger of a
passive kind, a danger to the user, whose use is the active
cause of the injury. But where the injury is the result of the
management or navigation of the ship as a moving object or
of the working of the gear or of some other operation, then the
damage is to be regarded as done by the ship as an active agent
or as the 'noxious instrument'". (at p211)

5. It was submitted on behalf of the appellant that this stated the test too widely and that the latter part of his Honour's statement should be confined to cases in which the "working of the gear" or "other operation" which causes damage takes place while the ship is in the course of navigation and not while it is berthed at a wharf. I can find nothing in the authorities which requires the words "damage caused by a ship" to be given this restricted meaning and the decision of Bateson J. in The "Minerva" (1933) P 224 points in the opposite direction. The plaintiff in the present case was thrown into the hold by the movement of the hatch cover on which he was standing, a movement caused by the starting of the winch. In these circumstances I think Windeyer J. rightly concluded that his injuries were caused by the ship as "an active agent". It was part of the ship - the winch - which, being carelessly put into motion by a member of the ship's crew in the course of the management of the ship and its gear, was, to use the words of Lord Shand in Currie v. M'Knight (1897) AC 97, at p 110 "the instrument which caused the damage". (at p212)

6. I would dismiss the appeal. (at p212)

ORDER