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

Section 100 of the Navigation Act provides that:

The acts specified in Column 1 hereunder shall be offences against discipline, and
a seaman or apprentice committing any one of them shall be liable to a punishment
not exceeding the punishment set opposite to the offence in Column 2 hereunder:

Any forfeiture under this section (except where expressed to be of accrued wages) shall be out of such wages as have accrued or may accrue to the person committing the offence; and wages shall not be deemed to include salvage.

2. Five members of the crew of the s.s. Westralia who were recently charged before the Central Police Court, Sydney, with disobedience to a lawful command at sea, were convicted and ordered to forfeit ten days' wages, the payment to be made in fourteen days.
3. The convictions are, however, the subject of pending appeals to the New South Wales Quarter Sessions. No further action in the matter can be taken at present.
4. The Seamen's Union, having intimated to the owners of the vessel (Huddart Parker Ltd) that if they were compelled to comply with the order of the Court, the vessel would not be manned, the owners agreed not to deduct the amount of the forfeiture from the men's wages.
5. Section 407 provides that forfeitures, etc. received under the Act shall be paid to the Consolidated Revenue Fund.
6. Section 398 empowers the Court to direct that the whole or a portion of the forfeiture shall be paid to the master or owner of the ship as a recoup for loss occasioned. No such direction was, however, given in the present case.
7. The Acting Clerk of Petty Sessions, Central Police Court, Sydney, states that it appears that the order as to forfeiture cannot be enforced under the Justices Act nor by any other process from that Court.
8. The favour of advice is requested as to what action should be taken to recover the amount of forfeitures involved; and also as to whether in the event of Huddart Parker Ltd failing to deduct the amount of forfeitures from the seamen's wages, the Company itself becomes liable for the amount.

The consequences arising out of a forfeiture of wages imposed under section 100 of the Navigation Act are not clear. Forfeiture is not expressed to be forfeiture to the Crown and it appears that prima facie forfeiture means the loss of the right of the seaman to receive wages for the period to which the forfeiture relates.

There appears to be no provision in the Act whereby the obligation of effecting the forfeiture is cast upon the shipowner and it seems that the shipowner can waive the forfeiture if he sees fit.

Where forfeiture is enforced by the shipowner, he cannot retain the amount which becomes a forfeiture recovered or received within the meaning of section 407, and it should, in the absence of a direction under section 398, be paid to the Consolidated Revenue Fund.
I am of opinion that no action can be taken against either the shipowner or the seaman to recover the amount of a forfeiture which has not been enforced by the former⁽¹⁾.

[Vol. 19, p. 115]

(1)In the preparation of this opinion for publication certain other material concerning the effect of a forfeiture of wages under the Navigation Act 1912 was found. An unsigned note headed-'Navigation Act 1912-Notes by Sir R. Garran on Effect of Forfeiture of Wages' and dated 11 November 1922 reads:

'The Navigation Act is not clear about forfeitures.

In the Merchant Shipping Act, it seems clear that forfeiture is forfeiture of the right to receive wages, and that it enures to the benefit of the owner, except where the statute makes other provision (e.g. in case of desertion, where the owner, after deducting his expenses, must pay the balance to the Exchequer; see M.S. Act 1894, section 232).

And apparently the owner can waive the forfeiture.

See Abbott, pp. 271-4; The Baltic Merchant (1809) 1 Edw. Adm. 86.

In the Australian Act, it appears the intention was to alter the British rule so as not to allow the owner to retain or apply any forfeiture to his own use, except where the Court allowed this; in all other cases they are to go to the consolidated revenue.

In section 100, it is not expressed that forfeiture is to the Crown, and it would seem that prima facie forfeiture means, as in the English Act, forfeiture by the seaman of the right to receive wages. This is confirmed by section 109, which appears to contemplate deduction by the owner on account of forfeitures.

On the other hand, section 398 appears to assume that the wages have not been (or may not have been) retained by the master or owner. (Perhaps this may be explained as including such a case as that provided for in section 232 (2) of the M.S. Act.)

Then section 407 refers only to forfeitures "recovered or received". This section presumably includes forfeitures of wages-and seems to imply their recovery or receipt by the Crown.

Perhaps forfeitures "recovered or received" can be construed as including forfeited wages in the hands of the master or owner, and sections 398 and 407 can be reconciled by assuming that the procedure is for the master or owner to pay the Crown, and the Crown, in pursuance of any order of the Court, to make repayment to the master or owner'.

The same material contains an expression of opinion by the Crown Solicitor, Mr Castle, dated IS November 1922 (addressed personally to Sir Robert Garran) contrary to the views of the latter as to the effect of forfeiture. Mr Castle was of opinion that in respect of offences against section 100 forfeiture was to the Crown; hence there was no question of the shipowner being in a position to waive it.