Opinion Number. 1894



Key Legislation

NAVIGATION ACT 1912 ss 3, 356, 364

The Secretary of the Department of External Territories

The Secretary, Department of External Territories has submitted the following memorandum to me for advice:

I refer to the discussion today concerning the above matter.

The ‘Fairwind’, a Navy vessel designated M.S.L. 251, of about 300 tons was obtained on loan to the Administration of Papua and New Guinea from the Department of the Navy for the purpose of carrying out a fisheries survey of the waters of the Territory.

The terms of the loan of the vessel by Navy were:

‘(I)  Loan of vessel to be free of charge.

(II)  ‘On Survey’ of vessel to be made.

(III)  Loan of vessel to be for a pre-determined period, but in the event of an emergency, my Department to reclaim the vessel at any time.

(IV)  On termination of loan your Department to reinstate the vessel to its original condition as per ‘on Survey’.

(V)  Inventory of permanent and consumable stores to be made and your Department to pay my Department for consumable stores handed over.

(VI)  Alterations to the vessel may be made by your Department but such alterations to be subject to approval by Officers of my Department.

(VII)  In event of total loss of the vessel my Department to be reimbursed its capital cost less 5% depreciation, on a reducing balance, for the age of the craft.’

The vessel was taken over from the Navy in Sydney early in May, 1948.

Having completed the fisheries survey of Territory waters the vessel left Port Moresby on 15th June, 1950, en route to Sydney.

A radio message dated 23rd June, 1950, 4.30 p.m. was sent by the Captain of the vessel to the Official Representative of this Department in Sydney in the following terms:

‘Fairwind hove to off North Solitary. Very bad weather. Desire call Coff’s Harbour for fuel. Please arrange.’

Sydney radio station was in contact with the vessel at 5.5 p.m. on 23rd June when the radio officer of the vessel stated ‘try to make run to Newcastle, strong wind. Can we arrange for a call every hour’. Sydney radio agreed to do this.

The next contact was at 6 p.m. when ‘Fairwind’ reported ‘making southerly course, fairly good weather. S.E. winds, high seas’. At 6.4 p.m. ‘Fairwind’ stated they would call Sydney radio at 7 p.m. Although efforts were made by Sydney radio at 7.5 p.m., 8.5 p.m., 9.10 p.m., 11 p.m. and throughout the night, further contact could not be made with the vessel.

In the Sydney Morning Herald of 27th June, a report from Nambucca Heads bearing Monday’s date line (26th June) stated that a 13 ft. lifeboat bearing the name ‘Fairwind’ and some other wreckage had been found on the beach four miles south of Nambucca Heads.

Immediate arrangements were made for an Air search by R.A.A.F. ‘plane and arrangements were made also for all ships in the vicinity to keep a look out for the ‘Fairwind’, and subsequently for a search along the coast.

The Air search covered a wide range from South West Rocks to Byron Bay and 150 miles out to sea, but did not produce any result. A great deal of wreckage came ashore at various points, including lifeboats, and the coastal areas were checked by the Police and Military authorities and civilians, but no bodies were discovered.

In view of the extensive search made for the vessel without result, it must be concluded that the ‘Fairwind’ was lost at sea, with all hands.

The crew consisted of 5 Australians and 12 natives of Papua.

It is desired to hold an inquiry into the loss of the vessel and your advice is sought as to the way in which this might be carried out.

The Administrator has been asked to look into the matter, but no advice has yet been received from him.

Although the last port of departure was Port Moresby, and evidence as to the crew who sailed on the vessel, how the vessel was loaded, what fuel she carried and her condition, etc., could be given only by persons at Port Moresby there would, perhaps, be difficulty in getting persons in Australia concerned in the search etc., to the Territory to give evidence at an enquiry held there. However, in this connection you might examine the laws of Papua which may have relevance e.g. Royal Commissions Ordinance of 1906, the Marine Board Ordinance of 1908, the Navigation Ordinance 1889–1938, the Commissions of Inquiry (Papua) Ordinance 1948.

I am aware that the Commonwealth Navigation Act does not apply in the case of vessels belonging to the Navy. It may be, however, that the ‘Fairwind’ may be a vessel that, because of the circumstances of the case, did not at the time of loss belong to the Navy and, therefore, the inquiry could be held under the Navigation Act.

The matter is most urgent and it would be appreciated if you could arrange for it to have immediate attention.

(2)  In my opinion, a Court of Marine Inquiry constituted under section 356 of the Navigation Act 1912–1942 would have jurisdiction to inquire into the loss of the ‘Fairwind’.

(3)  Section 364 of the Navigation Act provides that—

(1)  A court of Marine Inquiry shall have jurisdiction to make inquiries as to all casualties affecting ships, or entailing loss of life on or from ships … in the following cases, namely:

(a)  where a shipwreck or casualty occurs to a ship on or near the coast of Australia, or in the course of a voyage to a port within Australia;

(4)  The circumstances surrounding the loss of the ‘Fairwind’ would bring an inquiry into that loss within the scope of this section unless the jurisdiction of the Court of Marine Inquiry is excluded by some general provision of the Act. The only relevant section appears to be section 3 which provides that the Act shall not apply to ships belonging to the Navy of the Commonwealth.

(5)  The words ‘belonging to’ are popularly understood as meaning ‘owned by’. This, no doubt, is their primary natural meaning when referring to physical objects as belonging to a person (see per Isaacs and Rich, JJ. in Myerson v. Collard and the Commonwealth (1918) 25 C.L.R. 154 at p. 164) but, as will be seen from the definitions in the Oxford English Dictionary, the words have secondary meanings, which refer to something less than absolute ownership.