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

The following examples of cases of illness which have occurred since the proclamation of Navigation Act, section 132, are forwarded for the favour of an opinion on the meaning of the words 'contracted on board the ship' appearing in section 132, sub-section (5) (c):

To obtain the benefit of section 132 of the Navigation Act a seaman must be suffering, so far as can be ascertained, from an illness contracted on board the ship, or in the service of the ship or her owner.

The words 'contracted on board the ship' are open to difference of opinion to their meaning.

Example (1): For example a seaman recently was taken ill on board a ship and conveyed to the Melbourne Hospital where he was found to be suffering from appendicitis for which he underwent an operation.

Example (2): Another seaman who was taken ill on board his ship was on admission to hospital operated upon for gallstones.

Both of these men became acutely ill 'on board the ship'. It is very probable in the case of example (1) and certain in the case of example (2) that the cause of the acute illness had existed some considerable time and the need for hospital treatment might just as easily have occurred on shore as on board the ship.

Example (3): A fireman was taken ill with subacute pleurisy on the day following that on which he joined his ship. He was off duty two days then returned to work. A similar course was followed two or three weeks later. Again he was taken ill (3rd occasion) and was admitted to hospital for six days in New Zealand for pleurisy. Examination four months after his first attack showed him to be suffering from thickened pleura following a chronic pleurisy of tubercular origin. There is no doubt that tuberculosis was the cause of his illness and was present prior to his joining the ship.

Was such a tubercular pleurisy 'contracted on the ship' because it was first complained of there? It is suggested that legal opinion might be obtained as to whether the words 'illness contracted on board the ship' mean illness manifesting itself on the ship or illness due to causes not present so far as can be ascertained before the man joined the ship.

In construing the paragraph referred to a distinction must be drawn between illness and the cause of illness. The cause of illness may be a disease caught or acquired long prior to the seaman being engaged on the ship in the service of which his disease assumed an acute form.

The paragraph refers to the contracting of an illness, not a disease, and I think that the context, which describes the illness as one which incapacitates the seaman, or requires medical treatment, favours the construction that the contracting of the illness has reference, not to the origin of the disease, but to the manifestation of the symptoms in such a degree as to cause incapacity or to require medical attention.

I am therefore of opinion that, for the purposes of paragraph 132 (5) (c) an illness is 'contracted' when, to use the language of the examples quoted, the seaman is 'taken ill'. The circumstance that the disease from which the illness arises existed prior to service on the ship does not affect the question.

[Vol. 18, p. 461]