The Comptroller-General has forwarded me the following minute for advice:

Section 132 of the Navigation Act provides that where a seaman or apprentice belonging to a ship registered in Australia is left at any place in Australia by reason of illness or accident in the service of the ship, incapacitating him from following his duty, such seaman or apprentice shall be entitled to certain benefits in the way of continuance of wages, provision of a free passage to his home port, etc.

A deputation representing the Federated Seamen's Union has requested that the section be amended to extend its operation to cases of seamen left behind sick or injured at ports outside Australia. The Minister has promised that the question as to whether such was legally possible would receive consideration, and that they would be advised of the result. Section 132 was drafted to apply only to cases of seamen or apprentices left ashore in Australia from ships registered in Australia, in order to avoid conflict with the provisions of the Merchant Shipping Act in regard to the same subject-matter.

Section 261 of the Merchant Shipping Act 1894 provides that:

This Part (i.e. Part II) of this Act shall, unless the context or subject-matter requires a different application, apply to all sea-going British ships registered out of the United Kingdom, and to the owners, masters, and crews thereof as follows; (that is to say,)

(d) The provisions relating to the rights of seamen in respect of wages, to the shipping and discharge of seamen in ports abroad, to leaving seamen abroad and to the relief of seamen in distress in ports abroad, to the provisions, health, and accommodation of seamen . . . shall apply in every case except where the ship is within the jurisdiction of the government of the British possession in which the ship is registered.

Part IV (sections 28-49) of the Merchant Shipping Act 1906, which is construed as one with the Act of 1894 (vide section 86) deals with the relief and repatriation of distressed seamen and seamen left behind abroad. Section 34 defines the liability of the shipowner in respect of surgical and medical advice and attendance, medicine, maintenance, and return to proper home port of seamen and apprentices, belonging to British ships, left ashore sick or injured.

Section 265 of the Merchant Shipping Act 1894, dealing with conflict of law, provides as follows:

Where in any matter relating to a ship or to a person belonging to a ship there appears to be a conflict of laws, then, if there is in this Part of this Act any provision on the subject which is hereby expressly made to extend to that ship, the case shall be governed by that provision; but if there is no such provision, the case shall be governed by the law of the port at which the ship is registered.

I shall be glad to be advised, for the information of the Minister, whether, in view of the above-mentioned provisions of the Merchant Shipping Act, there is power to extend the operation of section 132 of the Navigation Act to apply to seamen belonging to ships registered in Australia left behind at ports outside Commonwealth jurisdiction.

Section 34 of the Merchant Shipping Act 1906 imposes liability upon the owner of 'a ship' in respect of the maintenance of and attention to the master and a seaman of that ship removed therefrom on account of illness.

Section 207 of the Act of 1894, the previous provision on the subject, is repealed by the Act of 1906, but the last-named Act does not incorporate section 34 in the Principal Act and consequently section 261 of the Principal Act does not affect the application of section 34.

The provisions of Part IV of the Merchant Shipping Act 1906 relating to the relief and repatriation of distressed seamen and seamen left behind abroad, in my opinion, extend to British ships, registered in Australia, and in ports or waters outside Commonwealth jurisdiction.

Section 34 of the Merchant Shipping Act 1906 is re-enacted in almost identical terms in the Navigation Act (section 127). I think it extremely doubtful that the Commonwealth could enact legislation in conflict with section 34, or imposing upon shipowners in respect of matters happening outside the Commonwealth, additional obligations to those imposed by section 34.

[Vol. 18,p. 164]