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

Sub-sections (2) and (3) of section 77 of the Navigation Act provide:

2. In cases where the seamen are engaged on time or running agreement on an Australian-trade or limited coast-trade ship, all wages earned shall be paid monthly not later than the first day of each month, or thereafter within twenty-four hours after the ship first arrives at any port in Australia at which there is a banking institution (other than a savings bank).
3. Every master or owner who, without sufficient cause, fails to make payment at any prescribed time, shall pay to the seaman a sum not exceeding the amount of two days' pay for each of the days during which payment is delayed beyond that time, and that sum shall be recoverable in the same manner as wages.

Section 36 of the Acts Interpretation Act 1901 reads as follows:

36 (1) Where in an Act any period of time, dating from a given day, act, or , event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of each day or of the day of such act or event.

(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Sunday, or on any day which is a public or a bank holiday throughout the Commonwealth, or throughout the State or part of the Commonwealth in which the thing is to be or may be done, the thing may be done on the first day following which is not a Sunday or such public or bank holiday. The following questions as to payment of seamen on ships coming within sub-section (2) of section 77 have been submitted for favour of advice:

1. The ship is in port. The day on which the monthly payment of wages should be made falls on a Sunday or public holiday. Can payment be made on the first day following without rendering the master or owner liable to payment of compensation to the seamen as provided for in sub-section (3)?
2. The month's wages fall due to the seamen whilst the ship is at sea. She arrives at an Australian port in which there is a bank at 6 a.m. on a Saturday. When does the period of 24 hours within which claim must be made commence to run? From the time of her arrival (6 a.m.) or from midnight of that day?
3. The month's wages fall due whilst the ship is at sea. She arrives at an Australian port after banking hours on Saturday, and is scheduled to leave before banking hours on Monday. Must the wages be paid to that port, and, if so, when?
4. Wages become due whilst the ship is at sea. She arrives in an Australian port in which there is a bank on a Sunday, and departs the same day. Must the wages be paid on that day? If payment is not compulsory, but the master desires to make payment, would the transaction be legal and the receipts given by the seamen valid?

The answers to the questions submitted are as follows:

1. As section 77 (2) has the effect of prescribing a period of which the last day is the first day of the month, section 36 (2) of the Acts Interpretation Act 1901 applies, and payment can be made on the first day following the Sunday or public holiday.
2. The 24 hours commence to run at 6 a.m. on Saturday. Section 36 (1) of the Acts Interpretation Act 1901 does not apply where the period of time is reckoned in hours. It is considered that, in such cases, the 'contrary intention appears'.
3. The wages should be paid on the Monday; failing that, as soon thereafter as possible. Possibly the fact that the master had not sufficient cash on board to pay the wages and was unable to get any more while in port owing to the banks being closed would be 'sufficient cause' within the meaning of section 77 (3), but this would depend on the facts of the particular case, as for instance the date when the master was previously in port and the question whether he had reasonable cause to believe that his vessel would be in port during banking hours.
4. If the master has the means of paying wages on Sunday, he should do so. The payments and receipts therefor would be valid.

[Vol. 18, p. 75]