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

• In January last, the s.s. ‘Port Lyttelton’, a foreign-going ship registered in the United Kingdom, stranded on Middle Bank, in the Entrance to River Tamar, Tasmania, and sustained considerable damage to her hull.

2. The Harbour Master of Launceston, in his capacity as a detaining officer under the Marine Act 1921 of Tasmania, formally detained the vessel as unseaworthy, pending repairs.
3. The question has now been raised as to whether the provisions of the Marine Act of Tasmania, in so far as they purport to authorise the detention of ships engaged in trade with other countries and among the States, are valid and effectual.
4. The provisions of the Marine Act of Tasmania in regard to unseaworthy ships are contained in sub-Part III (sections 115–123) of Part XII. By section 115, the sub-Part mentioned is applied to ‘any vessel being at any place in Tasmania.’
5. The corresponding provisions of the Navigation Act are set out in Division 3 (sections 207–214) of Part IV. By Section 187, Part IV is applied to all ships, British or foreign. This application is presumably subject to the limitation contained in section 2 of the Act.
6. The case of the ‘Port Lyttelton’ mentioned above is typical of others that are constantly occurring at the port of Launceston. It is understood that the Tasmanian Crown Law Department has advised that, notwithstanding the operation of the Navigation Act, the provisions of the Marine Act of Tasmania in regard to the detention of unseaworthy ships are still operative in respect of interstate and foreign-going vessels in Tasmanian ports.
7. In order to obviate any conflict of authority in the matter, it is desired that the Solicitor-General will be good enough to advise on the point raised. I shall also be glad of his opinion as to whether, if in his opinion the provisions of the Marine Act referred to are valid in respect of interstate and foreign-going ships, in a case in which, after proper investigation, it was considered that the detention of a vessel was not warranted under the Navigation Act, it would be competent for the State authorities to step in and detain the vessel under the Marine Act, and conversely, if, after detention under the Navigation Act, a vessel was formally released (section 210(2)(c)) the State authorities could further detain the vessel under the State law.
8. It would appear that the provisions of Division 3 of Part IV of the Navigation Act 1912–1920 are adequate to supply all necessary means of dealing with unseaworthy ships. Insofar as Sub-Part III of Part XII of the Marine Act 1921 (Tasmania) purports to deal with unseaworthy ships and to authorise their detention and survey, that Act is superseded by the Navigation Act and is inoperative.

It is obvious that the provision of the Navigation Act relating to unseaworthy ships must apply to ships in the ports of the Commonwealth.

The fact that a ship is in port does not create, in the State in which the port is situated, power to legislate in respect of that ship as to matters covered by
Commonwealth legislation.

I accordingly advise that the provisions of the Marine Act 1921 above referred to are invalid in respect of interstate and foreign ships.

[Vol. 21, p. 33]