Opinion Number. 1086

Subject

NAVIGATION AND SHIPPING
WHETHER ISSUE OF LICENCE TO ENGAGE IN COASTING TRADE IS MANDATORY: CONDITION RELATING TO ACCOMMODATION OF OFFICERS AND SEAMEN

Key Legislation

NAVIGATION ACT 1912, ss. 135, 136, 287, 288: NAVIGATION (MANNING AND ACCOMMODATION) REGULATIONS 1921, regs 15, 16, 17, 18, 19

Date
Client
The Comptroller-General of Customs

The Comptroller-General of Customs has forwarded the following memorandum for advice:

From reports received from the Deputy Directors of Navigation in the several States, it is obvious that, on 1 July next, on which date the coasting trade provisions (among others) of the Navigation Act come into operation, there will be a large number of vessels in regard to which the provisions of sections applicable to ships 'engaged in the coasting trade', e.g. sections 135 and 136, relating to the accommodation for officers and seamen, will not have been complied with.

  1. The question arises as to the issue of licences to ships in such cases-whether there is any power to withhold a licence where the provisions of the Act referred to have not been fully complied with.
  2. From a consideration of section 288, relating to the licensing of ships to engage in the coasting trade, and of the relative regulations, Nos 15 to 19 of the Navigation (Manning and Accommodation) Regulations 1921, it would appear that, on application made in the proper form, payment of the prescribed fee, and the furnishing of security under section 288 (5) (if such is required by the Minister), the Department has no option but to issue a licence, irrespective of whether the provisions of the Act in regard to accommodation, etc. have or have not been complied with, and that the Department cannot refuse a licence when applied for (except perhaps, to a ship subsidised by a foreign Government-vide section 287) without laying itself open to an action for damages. For enforcement of those provisions of the Act, not included in Part VI, which apply to ships engaged in the coasting trade, it is apparently necessary to rely upon proceedings for penalties in the courts.
  3. I shall be glad if the Solicitor-General will kindly advise in the matter. As it is necessary that instructions be issued to the Deputy Directors within the next week at the latest, it is requested that the Solicitor-General will be so good as to treat the matter as very urgent.

Section 288 of the Navigation Act 1912-1920 provides that no ship shall engage in the coasting trade unless licensed to do so, and that licences to ships to engage in the coasting trade may be granted as prescribed.
The conditions which must be attached to the issue of each licence relate to the

payment of wages, the use of the ship's library by seamen and apprentices and, in the case of a foreign ship, require that the manning and accommodation of and for officers and seamen shall be as required for a British ship registered in Australia or engaged in the coasting trade.

The regulations prescribe the form of application for licences and of the form of licences.

In the form of application the applicant is required to certify (inter alia) that the vessel shall be provided with officers and seamen and with approved accommodation therefor, in accordance with the requirements of the Navigation Act 1912-1920.

The form of licence contains a condition in similar terms to the certificate.

Both the certificate and condition of licence apply irrespective of whether the ship is foreign or not (see section 288 (3) (b)).

The obligations to obtain a licence and to provide accommodation as specified in sections 135 and 136 are distinct from one another and provision is made for the appropriate penalty in each case.

Section 288 is not mandatory as regards the issue of licences, but their issue does not absolve the respective shipowners of their liability under sections 135 and 136.

In view of the conditions embodied in the form of licence, a ship in respect of which such licence had been issued and which was not provided with the accommodation required by the Act would, upon engaging in the coasting trade, break the conditions of the licence and would be liable to penalty as an unlicensed ship as well as to the penalties specified in sections 135 and 136.

[Vol. 17,p. 377]