Opinion Number. 940

Subject

NAVIGATION AND SHIPPING
WHETHER RIVER AND BAY SHIPS ARE REQUIRED TO CARRY GREASERS: DISCREPANCY BETWEEN SECTION OF ACT AND SCHEDULE

Key Legislation

ACTS INTERPRETATION ACT 1901, s. 13: NAVIGATION ACT 1912, ss. 6, 14, 43; Schedules I, II

Date
Client
The Comptroller-General of Customs

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

Objection has been taken by one of the principal owners of river and bay ships-the Sydney Ferries Ltd-to the requirements of Schedule I of the Navigation Act in respect of greasers to be carried on such vessels, the ground of the objection being that, in view of the conditions under which their boats operate, greasers are quite unnecessary. The requirement in question is set out in Schedule I of the Act-scale of engine-room officers and greasers.

There is considerable doubt, to my mind, as to whether the provisions of Schedule I are valid in so far as they purport to prescribe the number of greasers to be carried by river and bay steamships.

Schedule I depends for its enforcement upon section 14 of the Act. This section comes under Division 3 of Part II, 'Officers', and provides that if a ship registered in Australia or engaging in the coasting trade goes to sea without a duly certificated master and officers according to the scale set out in Schedule I, or as prescribed, the master and owner of the ship shall be guilty of an offence.

The term 'officer' is defined in section 6 as meaning the master, mates, and engineers of the ship, and clearly does not include greasers.

Section 43, relating to the crew, prescribes that ships registered in Australia or engaging in the coasting trade shall carry as crew the number and description of persons specified in the scale set out in Schedule II, or as prescribed etc. Schedule II provides, under the heading of 'Greasers', that the minimum numbers of greasers to be carried on steamships shall be as provided in Schedule I in the last column of the engine-room manning scale. The effect of this is practically to make the last column of Schedule I referred to part of Schedule II.

But the note at the heading of Schedule II 'This Schedule does not apply to river and bay ships' has, it is considered, application in respect of all the ratings dealt with in the Schedule, inclusive of greasers, and, notwithstanding that Schedule I specifies certain greasers to be carrried by river and bay ships, has the effect of exempting those vessels from such requirements.

There is some disconformity between the sections of the Act and the Schedules.

Schedule I expressly provides that Australian-registered or coast trade steamships (including river and bay ships of 15 tons g.r.t. and upwards) 'shall be provided with duly certificated engine-room officers and with greasers according to the following scale'; and includes a scale of greasers for river and bay steamships 100 N.H.P. and over.

But the only reference in the body of the Act to Schedule I is in section 14, which refers to officers only.

Section 43 provides for crew as set out in Schedule II.

Schedule II is expressed not to apply to river and bay ships; and contains the following provision as to greasers: 'The minimum number of greasers to be carried on steam-ships shall be as provided in Schedule I in the last column of the Engine-room Manning Scale'.

Therefore, neither section 14, section 43, nor Schedule II can be relied on, as fixing the scale of greasers for river and bay ships.

The only question is whether Schedule I by itself can be so relied on.

The Acts Interpretation Act 1901, section 13, provides that every schedule to an Act shall be deemed to form part thereof.

It may be, therefore, that if the sections of the Act were silent on the subject, Schedule I would have effect, of itself, to fix the scale of greasers.

But in view of the provisions of sections 14 and 43 and Schedule II, which are inconsistent with that interpretation, I am of opinion, though not without some doubt, that Schedule I is inoperative so far as greasers on river and bay ships are concerned.

[Vol. 16, p. 304]