The Comptroller-General of Customs has submitted to me the following questions for advice:

(a) Whether persons temporarily employed on Australian-registered ships of the classes enumerated in section 4 of the Seamen's Compensation Act 1911, and sustaining injuries by accident arising out of employment connected with the working of the ship, are entitled to compensation under that Act; and

(b) Whether the handling of cargo is employment in connection with the working of the ship.

As to (a): The Seamen's Compensation Act 1911, section 5(1) provides that: If personal injury by accident arising out of and in the course of the employment is caused to a seaman, his employer shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act. Section 3 of the Act defines 'Seaman' as follows:

'Seaman' includes master, officer, apprentice, pilot, or other person employed or engaged in any capacity on board a ship in connexion with the navigation or working of the ship.

A person employed in connection with the working of the ship is entitled to compensation under the Act, and the question of the permanence or otherwise of the employment is not, I think, material.

As to (b): The question asked in this paragraph is whether the handling of cargo is employment in connection with the working of a ship.

So far as regards persons who handle cargo solely on the wharf, it is I think clear that they are not seamen within the meaning of the Seamen's Compensation Act 1911 since that Act limits the meaning of seamen to those employed or engaged on board a ship.

The question as to whether persons who are actually engaged in handling cargo on the vessel itself, e.g. in the stowing of cargo in the hold, are to be regarded as seamen as defined in the Seamen's Compensation Act 1911 is somewhat more difficult.

In several cases in British courts the question of whether stevedores were seamen within the meaning of the Merchant Shipping Act has been the subject of dicta by the Judges. For example, in Reg. v. Judge of City of London Court and Owners ofS.S. Michigan (1890) 25 Q.B.D. 339, at p. 342 Lord Coleridge C.J. stated that the definition of seaman in that Act would undoubtedly include such a person as a stevedore. On the other hand, in Corbett v. Pearce [1904] 2 K.B. 422, at p. 425 Lord Alverstone C.J. said:

I do not say, and it is not necessary for our decision to consider, whether a person who was only temporarily on board a ship in port for the purpose of doing work there would come within the expression 'seaman' as so defined. I mention that in order that it may not be supposed that we are expressing any opinion that painters who go on board to paint the ship, or stevedores who go there to stow or trim cargo, are seamen within the meaning of the Act.

The definition of 'seaman', in relation to which these remarks were made, was as follows: ' "Seaman" includes every person . . . employed or engaged in any capacity on board any ship'.

In the Commonwealth Seamen's Compensation Act 1911, however, the definition is more restricted, since the words 'in connexion with the navigation or working of the ship' are added.

In my opinion the expression 'working of the ship', used in the above collocation, does not include the operation of loading or unloading cargo, but relates merely to duties in connection with the ship as a means of transit or of transport of goods.

[Vol. 13, p. 208]