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

In accordance with the ruling given in the Solicitor-General's opinion of 21.7.21⁽¹⁾, relative to the above, the Oversea Shipping Representatives' Association was recently informed that agents in the Commonwealth of oversea shipping lines, and their staffs, do not come within the exception in the definition of 'Passenger' contained in section 6 of the Navigation Act.

The Secretary to the Association has replied as follows:

I beg to acknowledge your letter of 26th ultimo relative to our contention that agents and their staffs when travelling on ships of the companies they represent come within the exception in the definition of 'Passenger' contained in section 6 of the Navigation Act.

I am directed to again submit in this connection that agents of owners of ships not registered in Australia do come within the exception in the definition referred to above, inasmuch as they come under the category of owners' servants, it being the opinion of my members that an agent who is subject to the control of an owner in respect of that owner's steamers to his agency is a servant in the sense in which the expression 'servants' is used in the Act.

I shall be glad if the Solicitor-General will be so good as to further advise me in the matter.

The fact that an agent of a shipping company is, in a measure, subject to the control of the company, does not, in my opinion, constitute the agent a servant of the owner within the meaning of the definition of passenger.

Control by a principal exercised over an agent is a circumstance common to cases in which the relationship of principal and agent exists.

You will note that my opinion of 21 July 1921 was based upon the assumption that the 'agents' in question were not wholly engaged upon the work of a shipping company.

[Vol. 18, p. 67]

(1)Opinion No. 1108.