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

Under the Navigation Act, ships may not carry passengers between Commonwealth ports unless licensed to do so.

'Passenger' is defined as meaning any person other than the master and crew or the owner, his family or servants, carried on board a ship with the knowledge or consent of the owner, agent, or master thereof.

The word 'crew', used in this definition, is not itself defined in the Act. In its usual application, it may however be considered to mean the seamen and apprentices of a ship.

'Seaman' is defined as meaning every person employed or engaged in any capacity on board a ship, except masters, pilots and apprentices and persons temporarily employed on the ship in port.

Prior to the commencement of the licensing provisions of the Navigation Act, it was a common practice for representatives of shipping and forwarding agents, known as 'baggage agents', to board incoming mail steamers from the United Kingdom at either Adelaide or Melbourne for the purpose of arranging with the incoming passengers, during the run to the later ports, for the handling and delivery of the passengers' baggage and effects on arrival at their destination. These persons were, for official purposes, treated as passengers and their names included in the passenger lists.

As unlicensed vessels cannot now carry passengers between Commonwealth ports, the question has been raised as to whether these baggage agents might be 'signed on' as members of the ship's company and carried between ports without involving a breach of the licensing provisions of that Act. The question appears to resolve itself into one as to whether such persons could properly be regarded as members of the crew and seamen within the meaning of the Navigation Act.

If these baggage agents were bona fide in the employment of, and drew their remuneration solely from, the ship, they would, it is presumed, come within the definition of 'Seaman', which is very wide and includes persons employed or engaged 'in any capacity'. As a matter of fact, however, they would be only nominally employees of the ship, signed on at the nominal wage of Is per month, their actual wages being paid by the shipping and forwarding agents in whose interests they would be working. It is doubtful whether, under the circumstances, they could properly be regarded as members of the crew.

I shall be glad if the Solicitor-General will be good enough to advise in the matter. The words 'employed or engaged in any capacity on board a ship' in my opinion refer to employment in the service of the ship. Unless the baggage agents are employed in the service of the ship they do not come within the definition of 'seaman'.

The ordinary work of a baggage agent consists of making arrangements with passengers for the transport of their effects after the ship reaches port. This work is no part of the duty of the shipowner towards the passengers.

The signing on of such agents at a nominal wage of Is per month does not in the absence of the requirement from the agents of the performance of any duty connected with the work of the ship constitute them members of the crew. Such persons are not, in my opinion, covered by the exception in the definition of passenger.

[Vol. 18, p. 238]