Commonwealth Numbered Acts

NAVIGATION AMENDMENT ACT 1979 No. 98, 1979 - SECT 65

65. (1) Part VIII of the Principal Act is repealed and the following Part is
substituted:

      ''PART  VIII-LIMITATION  AND  EXCLUSION  OF  SHIPOWNERS'  LIABILITY


''Division 1-Limitation of Liability Interpretation
''330. (1) In this Division, unless the contrary intention appears-

'applied provisions of the Convention' means the provisions of the Convention
that, by virtue of section 333, have the force of law as part of the law of
the Commonwealth;

'Convention' means the International Convention relating to the limitation of
the liability of owners of sea-going ships signed at Brussels on 10 October
1957, a copy of the English text of which is set forth in Schedule 6.

''(2) In this Division, except so far as the contrary intention appears, a
word or expression used in this Division has the same meaning as in the
Convention. Extension to external Territories
''331. This Division extends to the External Territories. Application
''332. (1) Section 2 does not have effect in relation to the provisions of
this Division.

''(2) Section 3 does not have effect in relation to the provisions of this
Division except to the extent that that section refers to vessels belonging to
the naval, military or air forces of a country other than Australia.

''(3) The provisions of this Division do not apply in relation to an
intra-State vessel to the extent that a law of a State or of the Northern
Territory makes provision giving effect to the Convention in relation to that
vessel.

''(4) The provisions of this Division shall be read subject to a law of the
Commonwealth, a State or the Northern Territory to the extent that, by giving
effect to an international agreement to which Australia is a party, it
excludes or limits the right of the owner of a sea-going ship to limit his
liability in accordance with the Convention.

''(5) A reference in this section to the provisions of this Division shall be
read as including a reference to the applied provisions of the Convention and
the provisions of any regulations made for the purposes of section 336.
Convention to have force of law
''333. The provisions of the Convention, other than sub-paragraph (1) (c) of
Article 1 of that Convention, have the force of law as part of the law of the
Commonwealth. Certain ships to be treated as sea-going ships
''334. (1) A ship, not being a sea-going ship, that-

   (a)  is engaged in trade or commerce with other countries or among the
        States or with or among the Territories or, being a ship in the course
        of construction, is intended for use in trade or commerce with other
        countries or among the States or with or among the Territories; or

   (b)  belongs to, or is under the control of, the Commonwealth (including a
        ship that belongs to an arm of the Defence Force) or a body
        established for a public purpose by or under an Act or a law of a
        Territory (other than a prescribed law of the Northern Territory) or
        (being a ship in the course of construction that does not belong to,
        or is not under the control of, the Commonwealth or such a body) is
        being built by, or on behalf of, or to the order of, the Commonwealth
        or such a body, shall, for the purposes of this Division and the
        applied provisions of the Convention, be treated as if it were a
        sea-going ship.

''(2) A reference in sub-section (1) to a ship in the course of construction
shall be read as a reference to a ship that has been launched, but not
completed and delivered under the building contract. Application to determine
liability
''335. (1) 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, to
        determine the limit of that liability in accordance with those
        provisions, 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.

''(2) The Supreme Court of a State or Territory to which an application has
been made under sub-section (1) may, if the Court thinks fit, at any stage in
the proceedings, upon application or of its own motion, by order, transfer the
proceedings to another Supreme Court.

''(3) Where proceedings are transferred from a Court in pursuance of
sub-section (2)-

   (a)  all documents filed of record, and moneys lodged, in that Court shall
        be transmitted by the Registrar or other proper officer of that Court
        to the Registrar or other proper officer of the Court to which the
        proceedings are transferred; and

   (b)  the Court to which the proceedings are transferred shall proceed as if
        the proceedings had been originally instituted in that Court and as if
        the same proceedings had been taken in that Court as had been taken in
        the Court from which the proceedings were transferred. Regulations,
        &c.
''336. (1) The regulations may prescribe matters that are necessary or
convenient to be prescribed for the purposes of carrying out or giving effect
to the applied provisions of the Convention and, for or in connection with
those purposes, may make provision for and in relation to-

   (a)  the ascertainment of the tonnage of ships, including the estimation of
        the tonnage of ships in circumstances where it is not possible or
        reasonably practicable to measure their tonnage;

   (b)  the conversion of amounts of money expressed in the franc mentioned in
        Article 3 of the Convention into amounts of money expressed in the
        currency of Australia; and

   (c)  such matters as, under the Convention, are to be governed by the
        national law of a country that is a party to the Convention.

''(2) Sub-section (1) shall not be taken as limiting the power of a judge or
judges of the Supreme Court of a State or Territory to make rules of court
with respect to a matter that is not provided for in regulations made by
virtue of sub-section (1). Evidence of certain matters
''337. (1) The Minister may, by notice published in the Gazette, declare-

   (a)  that a country specified in the notice has ratified or acceded to the
        Convention or has ratified or acceded to the Convention subject to
        reservations specified in the notice, as the case may be, and that the
        Convention has, or will, come into force or has, or will, come into
        force subject to those reservations, as the case may be, in respect of
        that country on a date specified in the notice;

   (b)  that a country specified in the notice has, at the time of deposit of
        its instrument of ratification or accession to the Convention or at
        any later time, declared that the Convention extends to a territory or
        territories specified in the notice and that that extension of the
        Convention has, or will, come into force on a date specified in the
        notice;

   (c)  that a country specified in the notice has denounced the Convention
        and that that denunciation has taken, or will take, effect on a date
        specified in the notice; or

   (d)  that a country specified in the notice has declared that the
        Convention shall cease to extend to a territory or territories
        specified in the notice and that that denunciation has taken, or will
        take, effect on a date specified in the notice.

''(2) A notice under sub-section (1) is, for all purposes, prima facie
evidence of the matters declared.

''Division 2-Exclusion of Liability Shipowner not to be liable in certain
cases of loss of, or damage to, goods
''338. The owner of a ship, other than a foreign ship, shall not be liable to
make good to any extent whatever any loss or damage happening without his
actual fault or privity where-

   (a)  any goods, merchandise or other things whatsoever taken in or put on
        board the ship are lost or damaged by reason of fire on board the
        ship; or

   (b)  any goods, being gold, silver, diamonds, watches, jewels or precious
        stones taken in or put on board the ship, the true nature and value of
        which have not, at the time of shipment, been declared by the owner or
        shipper thereof to the owner or master of the ship in the bills of
        lading or otherwise in writing, are lost or damaged by reason of any
        robbery, embezzlement, making away with or secreting thereof.''.

(2) If sub-section (1) of this section comes into operation before the
commencement of section 80 of this Act, section 336 of the Principal Act as
amended by sub-section (1) of this section has effect until the commencement
of section 80 of this Act as if sub-section (1) were omitted and the following
sub-section were substituted:

''(1) The regulations may prescribe matters that are necessary or convenient
to be prescribed for carrying out or giving effect to the applied provisions
of the Convention and, in particular, without limiting the generality of the
foregoing, may make provision for and in relation to-

   (a)  the ascertainment of the tonnage of ships that are not registered or
        of ships that are registered but are included in a class of ships
        prescribed for the purposes of this paragraph;

   (b)  the conversion of amounts of money expressed in the franc mentioned in
        Article 3 of the Convention into amounts of money expressed in the
        currency of Australia; and

   (c)  such matters as, under the Convention, are to be governed by the
        national law of a country that is a party to the Convention.''.

(3) If sub-section 4 (3) comes into operation before the commencement of
sub-section (1) of this section, section 332 of the Principal Act as amended
by this Act has effect after the commencement of sub-section 4 (3) and until
the commencement of sub-section (1) of this section as if the reference in
sub-section (1) to a Commonwealth country were a reference to a prescribed
country.