I am in receipt of your memorandum dated 6th September, 1946, concerning the application of laws of the Commonwealth to vessels of the British Phosphate Commission trading with Australia, New Zealand and Nauru.

By Section V of the Commonwealth of Australia Constitution Act it is provided that all laws of the Commonwealth shall be in force on British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

As the vessels of the British Phosphate Commission are British ships, the laws of the Commonwealth are applicable to these ships on any voyage if their first port of clearance and port of destination are in the Commonwealth.

It is claimed by the Secretary of the Maritime Transport Council that the first port of clearance and the port of destination of the ships of the British Phosphate Commission are in Australia and that the laws of the Commonwealth accordingly apply to them.

In order to examine this claim it is necessary to ascertain what is the meaning to first port of clearance and port of destination and to consider the particular trading activities of these ships in that connexion.

The meaning of the phrases ‘first port of clearance’ and ‘port of destination’ is dealt with at length in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners’ Association 16 C.L.R. 664. That case is authority for the proposition that these phrases, as used in covering section 5 of the Constitution, indicate the beginning and the end of an actual voyage which is in fact intended at the beginning of the voyage. The ships concerned in that case were the ‘Fiona’ and ‘Wanganella’ but, as evidence as to any given voyage or voyages of these vessels was not before the Court, no decision was given as to their ports of clearance or of destination.

In an earlier case, Merchant Service Guild of Australasia v. Archibald Currie and Co., 5 C.L.R. 737, concerning ships trading between Australia, India and South Africa, it was held that the ships so trading did not have their first port of clearance and their port of destination in Australia.

A similar conclusion was reached in regard to the ‘Moana’ trading between Sydney and San Francisco, in Clarke v. Union Steamship Co. of New Zealand, 18 C.L.R. 142. The ‘Moana’, empty at Sydney, took in passengers and cargo for San Francisco and, discharging them there, again became an empty ship. At San Francisco the ‘Moana’ again took in passengers and cargo for Sydney and sailed for that port. It was held, on these facts, that there were two voyages, one from Sydney to San Francisco and the other from San Francisco to Sydney. Consequently, in neither voyage was the first port of clearance and the port of destination in Australia.

The facts in the case of the ‘Moana’ and in the voyages of the ships of the British Phosphate Commission appear to me to be parallel. These ships, having discharged their cargoes of phosphates in Australia, take in passengers and stores for Nauru and there discharge them. They then take in a cargo of phosphates for Australia and New Zealand but at times are first engaged in duties at Nauru or neighbouring Pacific islands. I am of opinion that, on these facts, the vessels whose first port of clearance is in Australia have Nauru as their port of destination and when leaving Nauru with phosphates for Australia, Nauru is their first port of clearance. In each voyage the ships have not a first port of clearance and a port of destination in Australia. They do not therefore come within covering section 5 of the Constitution.

It is to be noted that all voyages may not conform to the above type. Possibly there are occasions on which a ship having discharged cargo in Australia from Nauru, leaves Sydney in ballast for Nauru, loads cargo at Nauru and returns with it to Sydney. It might be contended that in such a case there is a round voyage beginning and ending in Australia. To this contention there might be opposed the view that the round voyage commences at Nauru when the ship left there with a cargo of phosphates and returned in ballast to Nauru. As the ships sail from Nauru to various Pacific islands and to New Zealand as well as to Australia, there are good grounds for claiming that Nauru is the base from which the ships operate and I incline to the view that in the case of any such round voyage, the probability is that the first port of clearance and the port of destination is Nauru.

The port at which the ship’s crew sign their Articles does not, in view of the remarks of Isaacs J., Gavan Duffy, J., and Rich, J., (at pages 150 and 151) in the ‘Moana’ case, appear to be material.

[Vol. 37, p. 307]