Opinion Number. 1388


Shipping shipping: collision between intrastate and interstate ships: collision in waters used by ships engaged in trade or commerce with other countries and among the States: application of commonwealth and state regulations relating to collisons between ships: inconsistency

Key Legislation

Navigation Act 1912 ss 258, 394, 413(1)(c), 413(1)(e): Navigation (Collision) RegulationS 1923 reg 4, Schedule art 19: Navigation Act 1901 (NSW) Schedule 7: Regulations for Preventing Collisions at Sea (NSW) art 18: Constitution s 109

The Comptroller-General, Department of Trade and Customs

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

  • On 1st February last, a collision occurred in Sydney Harbour between the s.s. ‘Wear’, an interstate trader, and s.s. ‘Kuramia’, a ferry steamer plying between Circular Quay and Milson’s Point.
  1. A preliminary Inquiry was held by the Deputy Director of Navigation, Sydney, exercising, by authority of the Minister, the powers conferred by section 413(1)(c) and (e) of the Navigation Act.
  2. The Deputy Director, in his report, stated that in his opinion article 19 of the Navigation (Collision Regulations (S.R. 1923 No. 100) had been contravened by the Master of the s.s. ‘Wear’, in that, when the two steam vessels were crossing, so as to involve risk of collision, the s.s. ‘Wear’, which had the other vessel on her starboard side, failed to keep out of the way of the latter.
  3. The case was not, however, considered of sufficient importance to warrant its reference to a Court of Marine Inquiry, with a view to action in the direction of cancelling or suspending the Certificate of the Master of the ‘Wear’.
  4. The Superintendent of the State Navigation Department, after conferring with the Deputy Director, then instituted proceedings in the Local Courts against the Master of the s.s. ‘Wear’ for a breach of article 18 of the Regulations for Preventing Collisions at Sea, contained in the Seventh Schedule to the State Navigation Act 1901 (Act No. 60, 1901). Article 18 referred to, it may be mentioned, is identical in its terms with Article 19 of the Navigation (Collision) Regulations made under the Commonwealth Navigation Act. As a result, the master of the ‘Wear’ was fined £10, with costs and fees amounting to £19.18.0.
  5. In the course of the proceedings, objection was taken by Mr F. P. Evans, appearing on behalf of the master of the ‘Wear’, to the jurisdiction of the Court, on the grounds, shortly, that the s.s. ‘Wear’ was a vessel engaged in trade between the States and consequently subject to Commonwealth jurisdiction; that the offence with which the master was charged was one dealt with by Commonwealth law, and that any State legislation purporting to deal with the same offence was consequently invalid. A transcript of the notes of the proceedings, so far as they related to this matter, is attached. As will be seen, the Court overruled the objection and proceeded with the case.
  6. The Solicitor-General has already advised, on two occasions, as to the application of the provisions of the Navigation Act relative to inquiries into casualties as affecting intrastate and interstate ships (vide Opinion No. 94 of 1923, and memo, A.G. 54/7/119).1 In the opinion mentioned, reference is made to the fact that the application of Part IX of the Navigation Act (which relates to Courts of Marine Inquiry) to cases in which intrastate vessels are concerned, is supported by the necessity of regulating traffic in waters used by ships engaged in trade or commerce with other countries and among the States. So far as is known, however, the point has not yet been touched upon as to whether the Commonwealth and State Regulations for the prevention of collisions may have concurrent operation, or whether the enactment of the Commonwealth Collision Regulations under the Navigation Act has had the effect of rendering, within the limits of waters just mentioned, any State regulations of a similar character wholly inoperative and invalid.
  7. As the matter is one of very great importance to this Department and to the shipping community, I shall be glad if the Solicitor-General will kindly advise on the point.
  8. Incidentally, advice is also requested as to whether, in cases of breaches of the Commonwealth Collisions Regulations within those waters, in respect of any class of ship, whether foreign-going, interstate or intrastate, legal proceedings for the infliction of a monetary penalty might not be properly be taken by this Department under section 258 of the Navigation Act. Sub-section (2) of this section provides, inter alia, that no master of a ship shall, under a penalty of £100, in any way contravene the regulations for the prevention of collisions. Regulation 4 of the Navigation (Collision) Regulations, made under the section, provides that the rules contained in articles 1 to 31 inclusive of the Schedule to those Regulations shall, for the purpose of section 258 of the Navigation Act, be the regulations to be observed for the prevention of collisions, and that the contravention by a master of any of those rules shall be deemed to be a contravention of the Regulations. Apparently, in view of section 394 of the Act, proceedings for a penalty for the breach of article 19 of the Commonwealth Collision Regulations could, in the case of the master of the ‘Wear’, have been instituted in the Sydney Police Court, the Court in which action was taken by the local Authorities under the State Act.

Section 258 of the Navigation Act 1912–1923 authorises the Governor-General to make regulations for the prevention of collisions, and regulations have been made under that authority. The section makes it a penalty punishable by a fine of £100 to contravene those regulations.

For the reasons stated in my opinion No. 94 of 11th May, 1923,2 the section and regulations apply to cases in which intrastate ships are concerned arising in waters used by ships engaged in trade or commerce with other countries and among the States.

I assume the collision between the ‘Wear’ and the ‘Kuramia’ took place in such waters. The State Act and regulations have been applied to an offence arising out of the collision and created by the regulations. The matter is dealt with also by the Commonwealth regulations, and accordingly section 109 of the Constitution applies.

The State Act and regulations so far as they purport to deal with a matter dealt with by the Commonwealth Act and Regulations are invalid.

The answers to the questions contained in paragraph 9 of the above memorandum are in the affirmative.

[Vol. 22, p. 557]