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

Section 132 of the Navigation Act 1912-1920 provides, inter alia, that:

(1) Where a seaman or apprentice belonging to a ship registered in Australia is left on shore at any place in Australia, in any manner authorized by law, by reason of illness or accident in the service of the ship incapacitating him from following his duty, he shall be entitled-

(a) if landed at his home port, as specified in the agreement, to receive wages, at the rate fixed by his agreement, up to the expiration of one week after the date of his recovery, as certified by his medical attendant or by a medical inspector of seamen.

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(5) The illness, hurt or injury which shall entitle a seaman or apprentice to the benefits provided for in this section shall-

(a) be such as wholly to incapacitate him from the performance of his duty, and

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A case has arisen in which a seaman having been injured aboard a vessel, and having received medical treatment ashore, the Medical Inspector of Seamen certifies that he is 'fit for light duty; to report again in two weeks' time'.

The view taken by the owner of the ship is that, under the circumstances, the man should return aboard the ship and perform light duty. The Seamen's Union, which has made representations on behalf of the man, contends that he is under no obligation to return aboard the ship until he is fully recovered and capable of again fully discharging the duties of his position and that, until he has been certified as being so fully recovered, the owner is under an obligation to continue to pay him wages as provided in sub-section (1) (a) of section 132 of the Act.

I shall be glad if the Solicitor-General will advise as to the meaning to be placed upon the word 'recovery' as used in the sub-section mentioned, and as to whether, when a sick or injured seaman is certified as being fit for light duty, the owner can require him to return aboard the ship and discharge such duties and can discontinue his wages should he refuse to obey.

Unless the seaman is wholly incapacitated from the performance of his duty he is not entitled to the benefits provided by the section in the event of the illness hurt or injury of a seaman.

This applies to the case of a seaman who is incapacitated but not to the extent of preventing his carrying out some of the work upon which he is usually engaged. A seaman may be wholly unfit to perform such work but yet fit to perform work which is not part of his usual work. In such a case he is, in my opinion, wholly incapacitated within the meaning of sub-section (5) (a).

If at any time the seaman is by reason of illness or accident totally incapacitated from performing his duty, he becomes entitled to the benefits of the section and remains so entitled until recovery and in certain cases return to his home port.

Recovery means complete recovery and I do not think paragraph (a) of sub-section (5) operates to require a seaman to return to duty until completely recovered if, in the first instance, the seaman was totally incapacitated through illness or accident.

[Vol. 18, p. 189]