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Ship "Terukawa Maru" v Co-operated Dried Fruit Sales Pty Ltd [1972] HCA 29; (1972) 126 CLR 170 (17 May 1972)

CATCHWORDS

HEARING

DECISION

2. The action is brought in Admiralty. If it is within the jurisdiction of the Court, it is so by virtue of the Colonial Courts of Admiralty Act, 1890 (Imp.), s. 2 and not otherwise. The High Court is a Colonial Court of Admiralty and the question is whether the plaintiff's action would have been within the Admiralty jurisdiction of the High Court in England in 1890 ; i.e.,

(1) the jurisdiction which could have been exercised by the High Court of Admiralty before its incorporation into the High Court, and
(2) any further Admiralty jurisdiction conferred upon the High Court by statute prior to 1890. (at p173)

3. The plaintiff's action is for damages for the non-delivery of goods shipped in Melbourne for delivery at Georgetown in Guiana under a contract "contained in or evidenced by a Bill of Lading dated 26th day of June, 1970". It is implicitly alleged, I think, that the contract was between the plaintiff and the owners of the ship and that it was made in Melbourne. (at p173)

4. During the course of argument, it was conceded by counsel for the plaintiff that ss. 6 and 7 of the Admiralty Court Act, 1861, 24 & 25 Vict. c. 10 (U.K.) did not confer upon the High Court of Admiralty jurisdiction to hear an action such as the plaintiff's here. Accordingly, it was sought to establish jurisdiction to hear and determine this action as it stands by reference (1) to the jurisdiction of the High Court of Admiralty without any statutory addition ; and (2) the provisions of the County Court Admiralty Jurisdiction Acts, 1868 31 & 32 Vict. c. 71, and 1869, 32 & 33 Vict. c. 51 (U.K.) - which it was contended did confer jurisdiction upon the High Court of Admiralty to hear actions such as the plaintiff's. (at p173)

5. I will consider the second submission first. (at p173)

6. The Colonial Court of Admiralty Act, 1890, s. 2 (2) refers to the Admiralty jurisdiction of the High Court in England "existing by virtue of any Statute". It was pointed out that, by virtue of the County Court Admiralty Jurisdiction Acts, County Courts having Admiralty jurisdiction were given jurisdiction as to any claim arising out of any agreement made in relation to the carriage of goods in any ship provided that the claim did not exceed 300 Pounds (Act of 1869, s. 2), and that by virtue of ss. 6, 7 and 8 of the Act of 1868 such cause could, by order, be transferred to the High Court of Admiralty for hearing and determination. It was then contended that the present action is a claim arising under an agreement made in relation to the carriage of goods in a ship and so would fall within a description to be found in s. 2 of the 1869 Act and that by an order under s. 6 or s. 7 or s. 8 of the 1868 Act, the Court of Admiralty could have obtained jurisdiction to hear and to determine it. So it was sought to make out that this action was one within the Colonial Courts of Admiralty Act, 1890, s. 2. (at p174)

7. The short answer to the contention which I have just stated is that any jurisdiction conferred upon the High Court of Admiralty by the County Court Admiralty Jurisdiction Act, 1868 is limited to a cause originating in a County Court having Admiralty jurisdiction and the present action is not one of that description. The County Court Admiralty Jurisdiction Acts do not confer the jurisdiction upon the Court of Admiralty to hear and to determine claims arising out of agreements made in relation to the carriage of goods in ships generally, but only when such claims have been commenced in the County Court and transferred by an appropriate order. The submission therefore fails. (at p174)

8. Having so decided, it is unnecessary for me to consider whether to follow Gunnestad v. Price (1875) LR 10 Ex 65 in preference to Cargo ex "Argos" ; The "Hewsons" (1873) LR 5 PC 134 upon the construction of the County Court Admiralty Jurisdiction Acts. The former authority would exclude from the additional Admiralty jurisdiction of County Courts a claim such as is made in the present action ; the latter authority would, I think, bring it within that jurisdiction. (at p174)

9. The first submission harks back to the centuries old conflict between the civilians who were judges of the High Court of Admiralty and the common law judges which has often been recounted and is summarized in the Introduction to Roscoe's Admiralty Practice, 5th ed. (1931), pp. 4 et seq. It would, I think, be out of place for me to attempt to re-trace this conflict. It is sufficient to say that whereas it is likely that in times past the High Court of Admiralty would have asserted that a claim such as that now under consideration was in respect of a maritime matter within its jurisdiction, it is certain that the courts of common law would, by prohibition, have restrained the Court of Admiralty from hearing and determining it on the ground that to do so would be an excess of jurisdiction limited, as it had been, by various statutes against meddling by the Admirals. It was the common law courts and their interpretation of these limiting statutes that eventually prevailed. This was acknowledged by Dr. Lushington in The "Ironsides" [1862] EngR 509; (1862) Lush 458, at p 466 ; [1862] EngR 509; (167 ER 205, at p 209) , when, after referring to the Admiralty Court Act, 1861, he said :

"Antecedently to the passing of the statute, this Court
could not have exercised any jurisdiction at all in a case of
this kind. I do not say that it had not formerly such a
jurisdiction,
but it would not have ventured to exercise it." (at p175)

10. In my opinion, the reference in the Colonial Courts of Admiralty Act, 1890, s. 2 (2) to "the Admiralty jurisdiction of the High Court in England" is to the jurisdiction that was exercisable in 1890 and not the jurisdiction that the Court of Admiralty had unsuccessfully asserted in earlier times. It seems to me, moreover, that the limited extension to the jurisdiction of the High Court of Admiralty made by the Admiralty Court Act, 1861, ss. 6 and 7 - which, it is conceded, is not sufficiently wide to cover an action such as this - tells strongly against the contention that independently of the statute the High Court of Admiralty already had jurisdiction to entertain an action such as this.(at p175)

11. Accordingly, I reject the contention, advanced with both ingenuity and learning by counsel for the plaintiff, that this Court has jurisdiction in this action by virtue of s. 2 (2) of the Colonial Courts of Admiralty Act, 1890. (at p175)

12. There is, however, a further contention to be considered. Counsel for the plaintiff sought leave to amend the statement of claim in order to allege that the defendant ship was responsible in damages for a tort committed on the high seas in respect of the plaintiff's goods being carried as freight. The reason for seeking such leave was, I was informed, because a new action making such an allegation would probably be out of time. I reject this application. (at p175)

13. According to my decision the action as it stands is not one within the jurisdiction of this Court. The defect is not that what is lacking from the statement of claim is a sound claim in Admiralty which the facts actually alleged would support. It is rather that the facts alleged afford no basis for any claim that would be within the Admiralty jurisdiction. Indeed the allegations made are inconsistent with the suggestion that there may have been a tort committed on the high seas. (at p175)

14. It is on the narrow basis which I have stated that I refuse the application, and I do so without any impression that a case within Admiralty jurisdiction could have effectively been made. I accordingly refrain from deciding the question which was argued, viz., whether a tort such as the wrongful conversion or destruction of cargo upon the high seas would have been within the jurisdiction of the High Court of Admiralty. General statements can be found to the effect that the High Court of Admiralty did have jurisdiction with regard to torts committed upon the high seas but there are also very much more limited statements of the jurisdiction of that Court which would exclude for instance an action for the conversion on the high seas of cargo which a ship is carrying. The interesting, but hypothetical, question raised I leave for another day. (at p176)

15. For the foregoing reasons I must allow the application and set aside the writ. (at p176)

16. The order of the Court is that the writ of summons herein be set aside and that the plaintiff pay to the defendant the costs of the motion. (at p176)

ORDER