Opinion Number. 1080

Subject

NAVIGATION AND SHIPPING PERSON CARRIED FREE ON SHIP WITH KNOWLEDGE AND CONSENT: WHETHER A 'PASSENGER'

Key Legislation

NAVIGATION ACT 1912, ss. 6, 7: MERCHANT SHIPPING ACT 1854 (IMP.), s. 303: MERCHANT SHIPPING ACT 1894 (IMP.), s. 267: PILOTAGE ACT 1913 (IMP.)

Date
Client
The Comptroller-General of Customs

The Comptroller-General of Customs has submitted the following minute to me for advice:

Section 7 of the Navigation Act provides that a ship shall be deemed to engage in the coasting trade within the meaning of this Act if, inter alia, she takes on board passengers ... at any port in a State, or a Territory under the authority of the Commonwealth, to be carried to and landed at any other port in the same State etc., provided that a ship shall not be deemed to engage in the coasting trade by reason of the fact that she carries passengers who hold through tickets to or from a port beyond Australia etc., or pilots who are proceeding as passengers to or from their home stations in connection with the pursuance of their calling as pilots.

  1. The point involved in this question is, therefore, apparently whether a person given a free passage between two Australian ports as the guest of the owner or master of a ship is or is not a passenger within the meaning of the Navigation Act.
  2. 'Passenger' is defined in section 6 as follows:
  3. 'Passenger' means any person other than the master and crew or the owner, his family or servants, carried on board a ship with the knowledge or consent Of the owner, agent, or master thereof. This definition is substantially the same as that given in the Merchant Shipping Act 1894 (section 267) which reads:

    The expression 'passenger' shall include any person carried in a ship other than the master and crew, and the owner, his family and servants. The principal difference between the two definitions is that that in the Navigation Act is exhaustive whilst the other is merely inclusive.

  4. The meaning of the term 'passenger', as used in the Merchant Shipping Act, has been the subject of a number of cases in the British courts, and it would appear to be now definitely settled that the term as used in Part III of that Act, relative to passenger and emigrant ships, from which our definition is taken, presupposes that in all cases the person is carried in consideration of the payment of a fare.
  5. In one case, where the owner lent a steamer, without making any charge, to the members of a choir and their friends for a pleasure trip, it was held, notwithstanding that the party gave the master a gratuity for himself and the crew, and for the coals consumed, that they were not 'passengers', nor the ship a 'passenger steamer', and that she was not 'plying' within the meaning of the Merchant Shipping Act (Hedges v. Hooker (1889) 60 L.T. 822).
  6. In another case it was held that a person who did not pay passage money, but who messed with the captain and assisted in the working of the ship, was not a
  7. passenger {The Hanna (1866) L.R. 1 A. & E. 283). See also The Lion (1869) L.R. 2 P.C. 525.

  8. In other cases it has been decided that distressed seamen who are put on board a ship by order of a British consul, and for whom the Board of Trade pay maintenance, are not passengers within the meaning of the Merchant Shipping Act (The Clymene (1897) 8 Asp. M.L.C. 287; Hay v. The Corporation of Trinity House (1895) 8 Asp. M.L.C. 77).
  9. From the above it would appear that a person carried between ports otherwise than in consideration of payment of a fare would not be a passenger, and that consequently the carriage of that person would not in itself bring the ship within the scope of the coasting trade provisions of the Navigation Act.
  10. The matter is, however, one of considerable importance, as the question as to the meaning of the term 'passenger' will inevitably arise in connection with the administration of the Navigation Act, and as it is desirable that the Deputy Directors should be definitely instructed on the point, it is suggested that the file be referred, through the Comptroller-General, to the Attorney-General's Department for favour of advice.

Section 6 of the Navigation Act 1912-1920 defines 'Passenger' as meaning any person other than the master and crew or the owner, his family or servants, carried on board a ship with the knowledge or consent of the owner, agent or master thereof.

Section 303 of the Merchant Shipping Act 1854 provided:

For the purpose of the enactments herein contained with respect to surveys and certificates of passenger steam ships, the word 'Passengers' shall be held to include any persons carried in a steam ship, other than the master and crew and the owner, his family and servants.

The Merchant Shipping Act 1894 provides in section 267 that:

For the purposes of this Part of this Act-

The expression 'passenger' shall include any person carried in a ship other than the master and crew, and the owner, his family and servants.

In none of the cases submitted for consideration are the circumstances quite the same as those in relation to which advice is now sought. In the case of Hedges v. Hooker (1889) 60 L.T. 822 the vessel was lent to a pleasure party and it would appear that during the period of the loan the owner could not engage in carrying passengers or any other business. The person carried on The Hanna (1866) L.R. 1 A. & £. 283 assisted in working the ship and the judge said that in one respect he was a seaman.

In the case of The Lion (1869) L.R. 2 P.C. 525 the master carried without charge his wife and father-in-law. The judge in this case referred to the fact that there was no definition in the Merchant Shipping Acts of the word 'passenger' but that for the limited purposes of surveys and certificates of passenger steamships the word was given a specific meaning. The decision that the persons in question were not passengers appears to be based upon the fact that no fare was paid. This result was obtained by a reference to the Passenger Acts and to the common law relating to passenger traffic whereby it was considered that the status of 'passenger' was connected with the payment of a fare.

In the footnote to page 610 of Vol. 26 of Halsbury's Laws of England it is stated that the word 'passenger' in the Pilotage Act 1913 involves the principle of an agreement to carry with the privity of the owner and the payment of a fare. One of the authorities for this statement is the case of The Lion above referred to. No definition of 'Passenger' appears in the Pilotage Act 1913 and that in the

Merchant Shipping Act 1894 is only for limited purposes of the Act (Part III-Passenger and Emigrant Ships).

The definition in the Navigation Act 1912-1920 is conclusive and applies to the whole Act. By its terms it applies to a person not covered by the exception who is carried on a ship with the knowledge or consent of the owner agent or master whether or not any fare is paid.

The considerations which led to the decision in The Lion case do not, I think apply here, and the definition must be given the interpretation I have suggested above.

In my opinion, therefore, a person, not within the exception in the definition, who is carried free and with knowledge or consent, is a passenger.

[Vol. 17, p. 358]