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High Court of Australia |
VICTRAWL PTY LIMITED v. TELSTRA CORPORATION LIMITED AND OTHER CO-OWNERS OF
ANZCAN CABLE
F.C. 95/033
Number of pages - 26
[1995] HCA 51; (1995) 183 CLR 595
(1995) 131 ALR 465, (1995) 69 ALJR 755
HIGH COURT OF AUSTRALIA
BRENNAN J(1), DEANE, DAWSON, TOOHEY AND GAUDRON JJ(2)
CATCHWORDS
HEARING
CANBERRA, 8-9 November 1994ORDER
1. Appeal allowed to the extent that the answer given by the Full Court of the Federal Court to Question 2 in the stated case should be altered to read: "No".DECISION
BRENNAN J This appeal is brought from judgments of the Federal Court in proceedings in which a party seeks to limit its liability in accordance with the provisions of the Convention on Limitation of Liability for Maritime Claims 1976 ("the 1976 Convention"). Subject to some immaterial exceptions, s 6 of the Limitation of Liability for Maritime Claims Act 1989 (Cth) ("the 1989 Act") provides that the 1976 Convention provisions "have the force of law in Australia". The 1989 Act commenced on 1 June 1991. Prior to 1 June 1991, Div 1 of Pt VIII of the Navigation Act 1912 (Cth) was in force. Subject to some immaterial exceptions, s 333 (a section in that Division) provided that the provisions of an earlier Convention - the International Convention relating to the limitation of the liability of owners of sea-going ships 1957 ("the Brussels Convention") - "have the force of law as part of the law of the Commonwealth". Division 1 of Pt VIII of the Navigation Act was inserted by an amending Act and came into operation on 31 January 1981(1). It was repealed by s 13 of the 1989 Act after Australia had denounced the Brussels Convention. The denunciation became effective on 31 May 1991. On the following day, the 1976 Convention entered into force for Australia. Thus the Brussels Convention bound Australia and had "the force of law as part of the law of the Commonwealth" prior to 1 June 1991 and the 1976 Convention binds Australia and has "the force of law in Australia" on and after that date.
2. 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 Limited, 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.
3. 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 the Admiralty 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.
4. 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."
5. 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).
6. 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).
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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).
15. 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.
16. 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.
17. 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.
Article 4 provides:
"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.
18. 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?
A 1 No.
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 Schedule 6 to the Navigation Act 1912 (Cth), after 31 May 1991,
being that date on which the said Schedule 6 was repealed (sic), is the
plaintiff precluded from invoking
the provisions of the said Convention of
1957?
A 2 Yes.
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?
A 3 Unnecessary to answer.
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 Article 4 of the said Convention of 1976?
A 4 Yes.
19. I would allow the appeal and answer the questions reserved in the manner
above stated.
DEANE, DAWSON, TOOHEY AND GAUDRON JJ 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 Limited ("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".
2. 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
Schedule 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".
3. 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.
4. 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.
Rights as at time of the occurrence
5. 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.
6. 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.
7. 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.
Jurisdiction of Australian courts
8. 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,
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.
9. 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.
10. 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).
11. Section 25 of the Admiralty Act relevantly reads:
"(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 limitedand, if it be so limited, determine the limit of that liability;
(b) order the constitution of a limitation fund for the payment ofclaims 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 administrationand distribution of that fund.
(4) Where a court has jurisdiction under this Act in respect of aproceeding, 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."
12. Section 3(1) of the Admiralty Act defines "Liability Convention" as
meaning:
"...
(b) the Limitation Convention; or(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".
13. 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.
14. 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.
15. 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.
16. 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:
(a) section 25 of this Act;
(b) section 335 of the Navigation Act 1912; or
..."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.
17. 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).
18. 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.
Position after 1 June 1991
19. 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.
Does s 6 of the 1989 Act have a retrospective operation?
(a) Is s 6 a "merely procedural" provision?
20. 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 characterized 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.
21. 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).
22. 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 its 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.
23. 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.
24. 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.
25. 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 recognized by Dixon
J in James Patrick and 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.
26. 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 and 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.
(b) The presumption against retrospective operation
27. 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 connexion. 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."
28. 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
Schedule 1 and enacts
as domestic law. It is convenient to consider initially
the operation of the 1976 Convention under international law.
(c) The operation of the 1976 Convention
29. 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."
30. 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).
31. 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.
32. 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.
33. 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.
(d) The operation of the 1989 Act
34. 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.
35. 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.
Answers to Questions
36. 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:
Question 1
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?
Answer: Yes.
Question 2
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 Schedule 6 to the Navigation Act 1912 (Cth), after 31 May 1991, being
the date on which the said Schedule 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.
Question 3
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?
Answer: This question does not arise.
Question 4
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 Article (4) of the said Convention of 1976?
Answer: This question does not arise.
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.
37. 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.
38. 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.
39. 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.
Footnotes:
1 Navigation Amendment Act 1979 (Cth), ss 2(5), 65(1) and Commonwealth
Gazette No S7, 22 January 1981.
2 (1863) 1 Moo NS 471 at 473 [1863] EngR 842; (15 ER 778 at 779).
3 (1968) 2 All ER 726 at 729.
4 (1980) 2 Lloyd's Rep 592 at 598; The "Ruapehu" (1927) AC 523 at 539-540.
5 (1941) 312 US 383 at 385.
6 Miller, The International Law Association Report of the Fiftieth Conference
held at Brussels, (1963) at 632.
7 1976 Convention, Art 13; The Crathie (1897) P 178 at 181.
8 The Inventor (1905) 10 Asp 99; Roscoe, The Admiralty Jurisdiction and
Practice of the High Court of Justice, 5th ed (1931) at
239.
9 1976 Convention, Art 13.
10 James Patrick and Co Ltd v Union Steamship Co of New Zealand Ltd [1938] HCA 22; (1938) 60
CLR 650 at 674; Roscoe, The Admiralty
Jurisdiction
and Practice of the High
Court of Justice, 5th ed (1931) at 239.
11 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.
12 Now falling within Art 2 of the 1976 Convention.
13 Meeson, Admiralty Jurisdiction and Practice, (1993) at 235.
14 See Arts 11 and 13.
15 1976 Convention, Art 11 par 1, Art 13.
16 Brussels Convention, Art 4; 1976 Convention, Art 14.
17 O 75 r 38 of The Supreme Court Practice (1995).
18 O 75 r 31; O 18 r 21.
19 O 75 r 3(6); O 75 r 37(4).
20 O 75 r 2(1)(b).
21 O 75 r 36.
22 O 28 r 1; O 28 r 1A.
23 The Alletta (No 2) (1972) 2 QB 399 at 405; and see Meeson, Admiralty
Jurisdiction and Practice, (1993) at 246-247.
24 Meeson, Admiralty Jurisdiction and Practice, (1993) at 219-220.
25 See Brussels Convention, Arts 5 and 7; 1976 Convention, Arts 13 and 15.
26 Arts 5 and 7.
27 Director of Public Works v Ho Po Sang (1961) AC 901 at 921-922.
28 Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440-441; and cf 446-448.
29 See The Titanic [1914] USSC 171; (1914) 233 US 718 at 732-733 and the commentary by
Schoenbaum, Admiralty and Maritime Law, (1987) at 483-485.
30 Cour de Cassation, 28 May 1991. (Jurisprudence Francaise at 565).
31 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 retro-active effect".
32 Fothergill v Monarch Airlines [1980] UKHL 6; (1981) AC 251 at 281-282, 290.
33 Shipping Corporation of India Ltd v Gamlen Chemical Co A/Asia Pty Ltd
[1980] HCA 51; (1980) 147 CLR 142 at 159.
34 McNair, Law of Treaties, (1986) at 427-429.
35 ie Art 2, pars 1(d) and (e).
36 See the Merchant Shipping 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).
37 See 1989 Act, s 2(2).
38 Under Art 13 of the Brussels Convention, the notification "only (took)
effect one year after" the date on which it was received.
39 Art 1(1)(c).
40 Introduced by the Navigation Amendment Act 1979 (Cth), s 65.
41 See below.
42 ie the original definition and the definition as amended by the 1989 Act.
43 See 1989 Act, s 13 and Schedule 3.
44 See, eg, Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 285; Rodway v The Queen
(1990) 169 CLR 515 at 518-519.
And 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
pre-existing events.
45 See Stevens v Head [1993] HCA 19; (1993) 176 CLR 433 at 457.
46 [1990] HCA 19; (1990) 169 CLR 515 at 518 per Mason CJ, Dawson, Toohey, Gaudron and McHugh
JJ.
47 Under the 1976 Convention, "shipowner" or "salvor".
48 Admiralty Act, s 25(4); 1989 Act, s 9(1).
49 See The Bowbelle (1990) 1 WLR 1330.
50 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).
51 See, eg, Black Diamond v Stewart and Sons ("The Norwalk Victory") [1949] USSC 74; (1949)
336 US 386 at 395; Complaint of Geophysical Service
Inc ("The Arctic
Explorer") (1984) 590 F Supp 1346 at 1355-1357.
52 Brussels Convention, Art 1(1).
53 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".
54 See, eg, Sir Barry Sheen, "Limitation of Liability: The Law Gave and the
Lords Have Taken Away" (1987) 18 Journal of Maritime
Law and Commerce 473 at
484-485.
55 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.
56 [1938] HCA 22; (1938) 60 CLR 650.
57 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.
58 [1938] HCA 22; (1938) 60 CLR 650 at 673.
59 See Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 279 per Williams J and the cases
there cited.
60 See, in particular, The "Mariabel", 28 May 1991, French Cour de Cassation,
Jur Fr 565.
61 See, eg, Bowoon Sangsa Co Ltd v Micronesian Industrial Corporation [1983] USCA9 1759; (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.
62 See, in particular, The "Stylt 1", High Court, The Hague, 18 December
1990.
63 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 Horst
Co (1925) 1 DLR 159.
64 [1938] HCA 22; (1938) 60 CLR 650 at 673.
65 (1957) 96 CLR 261 at 267.
66 [1957] HCA 7; (1957) 96 CLR 261 at 285.
67 [1957] HCA 7; (1957) 96 CLR 261 at 285.
68 [1848] EngR 285; (1848) 2 Ex 22 (154 ER 389).
69 [1848] EngR 285; (1848) 2 Ex 22 at 40 [1848] EngR 285; (154 ER 389 at 397).
70 (1878) 3 App Cas 582.
71 (1878) 3 App Cas 582 at 603.
72 Rodway v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 518.
73 See Ambatielos Case (1952) ICJR 28 at 40; Elias, The Modern Law of
Treaties, (1974) at 46-49; O'Connell, International Law, 2nd
ed (1970), vol 1
at 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).
74 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, Art 17.1 and 17.2).
75 See, eg, The Golder Case (1975) 57 ILR 201 at 213-214; The Kingdom of
Belgium v The Federal Republic of Germany (Young Loan Arbitration)
(1980) 59
ILR 495 at 529; Fothergill v Monarch Airlines Ltd [1980] UKHL 6; (1981) AC 251 at 282; The
Commonwealth v Tasmania (The
Tasmanian Dam
Case) [1983] HCA 21; (1983) 158 CLR 1 at 222;
Thiel v Federal Commissioner of Taxation [1990] HCA 37; (1990) 171
CLR 338 at 349, 356; and,
generally, Elias, The
Modern Law of Treaties, (1974) at 13.
76 Ambatielos Case (1952) ICJR 28 at 40.
77 Art 17.4.
78 cf Willmott v Kaufline [1909] HCA 49; (1909) 9 CLR 36; Colonial Sugar Refining Company v
Irving (1905) AC 369; Australian Coal
and Shale Employees
Federation v
Aberfield
Coal Mining Co Ltd (1942) 66 CLR 161 at 175, 178 and 185.
79 See note 78. And note Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at
440.
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