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

Further difficulties have arisen in the administration of the Navigation Act by reason of the fact that the Seamen's Award of the Arbitration Court (delivered 28.4.22) contains provisions which are apparently at variance with sections of the Navigation Act on the same subject-matters.

The following example is submitted for favour of consideration and advice:

Scale of Crew, Firemen and Trimmers, Schedules I & II: Navigation Act 1912-1920.

The s.s. Bopple, a vessel of 42 nominal horsepower is licensed to engage in the coasting trade as a limited coast-trade ship under 300 tons.

The total amount of bunker coal consumed per diem is 6 1/2 tons.

Thus the engine-room and stokehold manning scale for the vessel, which trades to places beyond 100 miles from her port of departure, would, under Schedules I and II of the Navigation Act, be:

1 Second-Class Coast Engineer.

3 Firemen.

(2) Under the Seamen's Award variation of 28.4.22 provision is made that as regards a vessel carrying three or more firemen and greasers but no donkeyman, one of such firemen and greasers shall be deemed a donkeyman and shall be signed on as such.

(3) The present engine-room and stokehold complement of the s.s. Bopple, carried in accordance with the Seamen's Award, is as follows:

1 Engineer

1 Donkeyman

2 Fireman-Greasers

(4) I shall be glad if the Solicitor-General will be so good as to advise as to the general principles to be observed where cases arise in which the Navigation Act Schedules and the Awards of the Commonwealth Arbitration Court are apparently conflicting.

The Award provides inter alia that In a ship carrying three or more firemen and greasers, but no donkeyman, one of such firemen and greasers shall be deemed a donkeyman, and shall be signed on as such'.

I understand that the duties of a donkeyman as such are intermittent and in those circumstances a seaman may be both fireman and donkeyman. This appears to be the position contemplated by the extract from the Award above quoted.

If a seaman is a fireman and performs the duties of a fireman the fact that he is signed on as a donkeyman and performs a donkeyman's duties in addition to those of fireman does not affect his status as fireman for the purposes of the Act.

Assuming these considerations apply to the duties of the 'donkeyman-fireman' on the Bopple, it appears that both Act and Award are complied with by the present manning, and I am of opinion that there is no conflict in this connection between Act and Award.

I do not think general principles to be observed in the case of 'apparent conflicts' between the Act and Awards can be laid down with safety. Each such matter should be dealt with on the circumstances as they arise. In this connection I invite your attention to my opinion of 13 June 1922(1), in which certain instances cf apparent conflict are dealt with.

[Vol. 18, p. 465]