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

The attached copy of the judgment of the High Court in the appeal case Bruhn v. Australian Steamships Proprietary Ltd 31 C.L.R. 136 is forwarded for the Secretary's information.

1. The judgment, it will be observed, affirms the right of a seaman left ashore sick or injured at a port other than his home port to wages during the period of his illness, reversing the ruling of the Supreme Court of Victoria on this point. The judgment confirms the opinion given by the Solicitor-General in his memoranda of 7.9.21 and 2.11.21.⁽¹⁾
2. A complaint has been made by the General Executive of the Seamen's Union that certain shipping companies are displaying a reluctance to pay wages due under the judgment in respect of cases occurring since 1 July 1921, when section 132 came into operation, and the question has been raised as to whether the taking of action to enforce payment rests with the seamen concerned or is an obligation on the Department.
3. Sub-section (2) of section 132 provides for either the deposit with the superintendent of an amount sufficient, in his opinion, to cover the liability of the owner in respect of a seaman left behind sick or injured or the giving of security by the owners for the payment on demand of the actual amount of their liability.
4. The Department holds general securities from the principal steamship owners trading on the coast binding them 'from time to time and at all times to pay forthwith on demand to each and every person who is or hereafter may be entitled thereto the actual amount of the liability of (the shipowner) under section 127 and/or section 132 of the Navigation Act as owner of a ship'.
5. Sub-section (6) of the section also provides that the master of a ship registered in Australia who fails to comply with any requirements of this section shall be guilty of an offence and liable to a penalty of £100. In this latter regard I shall be glad to be advised as to whether the neglect or refusal to pay on demand wages due under the section would constitute an offence within the meaning of sub-section (6).

In my opinion it is open to the Department, where any specific case has been brought to its notice in which it appears that the shipowner has not met his liability to any seaman or apprentice under sub-section (1) of section 132, to have recourse against the general securities mentioned in paragraph (5) of the above memorandum. Before such action is taken it is desirable that the shipowner be notified of the proposed course and his explanation invited.

With regard to the question raised in paragraph (6) it appears that the only direct requirement on the master is to give security under sub-section (2) and here the obligation rests alternatively on the master, owner or agent. The section specifies rather the rights of the seaman than the obligations of the master. The case submitted does not appear to be one for action under sub-section (6).

[Vol. 19, p. 284]

(1) Opinions [Vol. 18, pp. 38 and 136] not published.