Opinion Number. 1124



Key Legislation

NAVIGATION ACT 1912, s. 77

The Comptroller-General of Customs

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

With reference to the Solicitor-General's opinion of 21.7.21(1), relative to the above, it is considered highly desirable that the method of computing seamen's wages under the Navigation Act be brought into line with the practice under the Merchant Shipping Act, as laid down in the Court of Appeal in the case of Migotti v. Colvill (1879) 4 C.P.D. 233, namely, that the calendar month is the period from the day of the first month to the day numerically corresponding to that day in the following month, less one; also that, for periods of less than a complete month, the odd days be reckoned, in accordance with what is understood to be the universal maritime practice, as each equal to one thirtieth of a calendar month.

Will the Solicitor-General please advise as to the manner in which this can most conveniently be effected.

The following proposals, mentioned in order of preference, are suggested for consideration:

  1. By means of a clause in the agreement between masters and seamen. This agreeement is to be in a form prescribed (section 46) and possibly a clause could be inserted in the form dealing with the matter; or
  2. By means of a regulation under section 425 dealing with the matter as being one 'convenient to be prescribed for carrying out or giving effect to this Act or for the conduct of any business under this Act'; or
  3. By an amendment of the Navigation Act itself.

If action in any of these or any other direction is possible, I shall be glad if the Solicitor-General will advise as to the form of the clause, regulation, or amendment recommended.

Section 77 requires that the wages of a seaman shall be paid monthly, whether the seaman is engaged at a monthly rate of wages or not, and, with certain exceptions, payment must be made on the first day of each month.

On 21 July 1921, I advised that the word 'month' meant calendar month and that payment for a period of less than a month must be estimated in proportion to the number of days in the calendar months in which the period falls.

The adoption of the principle laid down in Migotti v. Colvill and of the practice of reckoning a period of less than a month as a fraction of a month of 30 days in each case would, in my opinion, be inconsistent with the provisions of section 77.

The proposal cannot, therefore, be effected by a provision in the agreement or the regulations.

The only alternative is an amendment of the Act.

It is suggested the proposals mentioned in the above memorandum may be attained by the addition to section 77 of the following sub-sections:

(4) For the purposes of this section a month shall in respect of any seaman be deemed to commence upon the day upon which he commenced duty or in respect of which he is entitled to receive wages, and to end upon the day prior to the corresponding day of the next succeeding calendar month.

(5) The wages payable in respect of a period of less than one month as defined in the last preceding sub-section shall bear the same proportion to the amount of wages for one month as the number of days in respect of which he is entitled to receive wages bears to thirty days.

[Vol. 18, p.27]

(1)Opinion[Vol. 17, p. 461] not published.