The following memorandum has been submitted to me for advice:

With reference to my minute of 19 November last relative to the interpretation of section 289 of the Navigation Act regarding payment of wages, which minute was referred to the Secretary, Attorney-General's Department, on 28 November for favour of advice: on looking further into the matter I am doubtful as to whether the view I took in the matter and the opinion I gave to the Manager of the Orient Company were correct. The following facts relevant to a case decided in the New Zealand courts appear to have an important bearing on the matter.

2. Section 289 of the Navigation Act was taken from the New Zealand Act of 1908, section 75 of which provides, inter alia:

75 (1) Notwithstanding anything in this Act, it is hereby declared that where the master, owner, or agent of any ship-

1. Engages seamen in New Zealand; or
2. Having engaged them abroad employs them in New Zealand-

those seamen while so employed shall be paid and may recover the current rate of wages for the time being ruling in New Zealand . . .

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3. The Collector of Customs shall detain the final clearance of such ship until he is satisfied that the crew has been paid the current rate of wages ruling in New Zealand, or any difference between the agreed rate of such seamen's wages and the New Zealand rate of wages.

[In these instructions as set out in the Opinion Book there is no paragraph (3).]

4. The validity of this provision of the New Zealand Act was called into question in the New Zealand courts in 1910 on grounds which, it would appear, have equal application in regard to section 289 (2) of our Navigation Act.
5. The case referred to is that of Huddart-Parker & Co. Proprietary v. Nixon 29 N.Z.L.R. 657. The facts in so far as they are relevant to the matter under discussion are shortly as follows:

Huddart-Parker & Co. was the owner of ships registered in Victoria and carrying seamen on articles signed in Melbourne. Certain of these ships engaged in the coasting trade in New Zealand, and as a consequence the seamen became entitled, under the provisions of section 75 of the New Zealand Shipping and Seamen Act to wages at the current rates payable in New Zealand, which latter rates were in some instances higher than those provided for in the agreement. One of the questions put to the Court of Appeal was whether seamen of such ships could sue in New Zealand for the current rates of wages ruling, notwithstanding that a different rate of wages was fixed by the ship's articles.

6. It was argued by Counsel for the plantiff Company that section 75 of the New Zealand Act referred to was ultra vires as being repugnant to the provisions of the Merchant Shipping Act 1894. Sections 264 and 265 of the latter Act are as follows:

264 If the legislature of a British possession, by any law, apply or adapt to any British ships registered at, trading with, or being at, any port in that possession, and to the owners, masters, and crews of those ships, any provisions of this Part of this Act which do not otherwise so apply, such law shall have effect throughout Her Majesty's dominions, and in all places where Her Majesty has jurisdiction in the same manner as if it were enacted in this Act.

265 Where in any matter relating to a ship or to a person belonging to a ship there appears to be a conflict of laws, then, if there is in this Part of this Act any provision on the subject which is hereby expressly made to extend to that ship, the case shall be governed by that provision; but if there is no such provision, the case shall be governed by the law of the port at which the ship is registered.

7. Pursuant to the provisions of section 264 above quoted, the legislature of the State of Victoria had applied section 166 of the M.S.A. 1894 to British ships registered in that State. Section 166 referred to provides that: 'Where a seaman is engaged for a voyage or engagement which is to terminate in the United Kingdom, he shall not be entitled to sue in any court abroad for wages . . . ' except under certain circumstances which did not arise in the case before the Court. Under the provisions of section 264,section 166 as applied in the Victorian Act had effect throughout the British dominions and in all places where Her Majesty had jurisdiction in the same manner as if it had been enacted in the Merchant Shipping Act.
8. On this point it was held by the Court that seamen on Huddart-Parker's ships could sue in New Zealand for the difference between the current rate of wages ruling in New Zealand and the rate of wages fixed by the ship's articles, but that so far as section 75 of the New Zealand Shipping and Seamen Act 1908 purported to give the right to sue in New Zealand for the total wages payable it was void as repugnant to section 166 of the Merchant Shipping Act.
9. In the case of the Orient vessels referred to in my previous memorandum, the crews are engaged for a voyage to terminate in the United Kingdom, and their right to recover wages in Australia, except in the special circumstances provided for in section 166 of the M.S.A. 1894, would be barred by the provisions of that section.
10. Apart from the purely legal aspect of the matter, it would appear to be both unnecessary and undesirable to require, in the case of British ships engaged upon a voyage to terminate in the United Kingdom, that the wages earned on the coast shall be paid before the ship leaves Australia.
11. Section 290 of the Navigation Act provides that if the seamen employed on any British ship have not been engaged in Australia, the master shall, before the ship engages in the coasting trade, make and sign before a superintendent an endorsement or memorandum on the agreement specifying the wages to be paid to the seamen while the ship engages in the coasting trade, and that endorsement or memorandum when countersigned by a superintendent shall have effect as an agreement between the master and those seamen. Such endorsement would receive official recognition by the Superintendent of the Mercantile Marine Office in the United Kingdom where the crew was ultimately discharged and, quite apart from the sanction given to the endorsement by section 290 of the Navigation Act, would no doubt be enforceable in the British courts, under the Merchant Shipping Act, as an agreement between the master and seamen concerned.
12. Even if the endorsement had no legal value (which it has) there is no cause whatever to fear that the wages to which the men had become entitled would not be paid. In the first place, no reputable British shipowner could afford on a mere legal quibble to refuse to pay the wages which as an applicant for a licence he had contracted to pay. In the second place, if such an owner existed he would soon be brought to book by the maritime unions concerned. Mr Wallace, Member for West Sydney, and, it is understood, a member of the Seamen's Union, speaking on the second reading of the Navigation Bill 1919 said, with reference to the enforcement of the Navigation Act in regard to payment of coastal wages to oversea seamen: 'There would be no trouble as far as white crews are concerned. As we have a chain of Seamen's Unions stretching from one side of the globe to the other, it would be impossible for a master, in the event of his refusing to pay the difference in wages, to obtain a second crew at the port of discharge'.
13. It is undesirable that the whole of the money earned on the coast, or any considerable part of it, should be paid to the seamen before the ship leaves the last port, for the reason that such would inevitably lead to trouble. As is well known, whenever seamen of a certain type come into possession of money they immediately use every means in their power to obtain drink. In Fremantle the vessels berth alongside the wharf, and it would be a very simple matter-whatever precautions were taken-for such men, after payment, to get ashore and to the hotels. As soon as these men get a few drinks they are quite indifferent to all claims of duty, and the inevitable result would be vexatious and expensive delays whilst the stragglers were rounded up or substitutes obtained. The Branch Manager of the Orient Company informs me that in the case of the Orient liners the time occupied on the coast, from Fremantle to Brisbane and back, would be about five weeks, and the total earnings of the crew of a vessel during that period would aggregate, on the average, between £3,000 and £4,000 per trip.
14. In view of the importance of the matter, it is suggested that the file be referred to the Secretary, Attorney-General's Department, with a request that early advice be furnished on the question raised, viz. whether, in the case of a British ship licensed to engage in the coasting trade, having a crew which had been engaged for a voyage to terminate-
1. in the United Kingdom, or
2. in some British possession, the legislature of which has adapted or applied to ships registered in or trading with that possession the provisions of section 166 of the Merchant Shipping Act 1894-

the wages payable and recoverable under section 289 of the Navigation Act would be the total amount earned during the time the ship had been engaged in the coasting trade, or merely the difference, if the Australian rate is the higher, between such rate and the rate provided for in the articles of agreement.

Sub-section (1) of section 166 of the Merchant Shipping Act 1894 is as follows:

166 (1) Where a seaman is engaged for a voyage or engagement which is to terminate in the United Kingdom, he shall not be entitled to sue in any court abroad for wages, unless he is discharged with such sanction as is required by this Act, and with the written consent of the master, or proves such ill-usage on the part or by authority of the master, as to warrant reasonable apprehension of danger to his life if he were to remain on board.

This provision extends to the British colonies: see Huddart-Parker & Co. Proprietary v. Nixon 29 N.Z.L.R. 657; Ex parte Brown 19 N.S.W. Weekly Notes 193.

Section 289 of the Navigation Act 1912-1919 is as follows:

289 (1) Every seaman employed on a ship engaged in any part of the coasting trade shall, subject to any lawful deductions, be entitled to and shall be paid, for the period during which the ship is so engaged, wages at the current rates ruling in Australia for seamen employed in that part of the coasting trade, and may sue for and recover those wages.

(2) In the case of ships trading to places beyond Australia, the wages to which a seaman is entitled under this section shall be paid before the departure of the ship from Australia, and the master shall produce to the satisfaction of the Collector at the last port of departure in Australia evidence of their payment.

Section 264 of the Merchant Shipping Act declares that where the legislature of a British possession has by any law applied or adapted Part II of that Act to British ships registered at or trading with a port in that possession, that law shall have effect throughout His Majesty's dominions.

In my opinion, section 289, to the extent to which it authorises a seaman, engaged for a voyage to terminate in the United Kingdom or in some British possession which has passed the law referred to in section 264 of the Merchant Shipping Act, to sue in the Commonwealth for the wages due under his contract or engagement, is repugnant to section 166 of the Imperial Act and, subject to the exceptions mentioned in that section, it would probably be regarded as a bar to any proceedings by the seaman taken in the Commonwealth to recover those wages.

Where the 'current rates ruling in Australia' are in excess of those for which the seaman was engaged, I think that a power provided in the Act to sue in Australia for payment of the difference between those rates is not repugnant to section 166, Merchant Shipping Act 1894.

The Navigation Act is to be read and construed so as not to exceed the legislative powers of the Commonwealth so that where a provision of that Act is considered to be in excess of that power, it is nevertheless to be treated as a valid enactment to the extent to which it is not in excess of that power (section 2 (2)).

In the light of Huddart-Parker v. Nixon, I am of opinion that the provisions of section 289 which authorise a seaman, employed on a vessel of the classes above

referred to, to sue for wages at the current rates ruling in Australia, would be held to be a valid authority to sue for the amount of excess of Australian rates over those for which the seaman was engaged.

[Vol. 16, p. 359]