Saturday, December 21, 2013


International Commercial Law and Arbitration Conference

Sydney, 22 August 2013 Steven Rares*

1. Chief Justice Allsop, I know, would very much have liked to have been able to give this commentary. Prof Derrington mentioned in her paper[1] that he has previously spoken about s 76(iii) in his characteristically scholarly 2006 Justice Richard Cooper Memorial Lecture[2]

2. As Professors Davies’[3] and Derrington’s excellent papers have noted, the first voyage in the High Court of s 76(iii) in Owners of the SS Kalibia v Wilson (1910) 11 CLR 689 was as propitious for Admiralty and maritime jurisdiction in this country as the first voyage two years later of the Titanic was for transatlantic travel. The principal ground on which the Court held that the Parliament of the Commonwealth could not pass a law of general application providing for compensation for injured seafarers was under s 51(i) as extended by s 98 of the Constitution[4]. Only Barton and Isaacs JJ considered the scope of s 76(iii). They observed that it was not a grant of general legislative power[5].

3. Isaacs J distinguished the United States’ jurisprudence on a narrow basis. He said of s 76(iii): "The interpretation and enforcement of admiralty and maritime law, as it is found to exist, is one thing; the alteration of that law is quite another."[6] But, Barton J reasoned in a way that cannot be valid since the enactment of the Australia Acts 1986 (Cth and UK) removed all British legislative power to make laws with respect to Australia. He rejected the American jurisprudence on the basis that, unlike Australia in 1910, the United States was an independent sovereign nation, separate from the United Kingdom.  He said of the Australian context[7]:
"The power to legislate on matters of admiralty and maritime laws, if it existed in the several States at the time of federation, remains reserved to them by force of sec. 107 of the Constitution. But there would be, and there is, an over-riding power to legislate on the subject in the Parliament of the United Kingdom, and the grant in sec. 76 (III.) cannot be construed as an implied transfer, or even delegation, of that legislative power to the Parliament of the Commonwealth in respect of Australia." (emphasis added)
4. Of course, since the Australia Acts came into force, a domestic Australian Parliament can be the only source of any new or replacement substantive jurisdiction[8] that can be exercised under s 76(iii). The Constitution created numerous heads of legislative power to make laws concerning matters that on any view are capable of being in Admiralty or maritime jurisdiction. First, under ss 51 and 52, the Parliament has express legislative power to make laws with respect to trade and commerce, including navigation and shipping, with other countries and among the States[9], lighthouses, lightships, beacons and buoys[10], foreign corporations and financial or trading corporations formed within the Commonwealth[11], fisheries in Australian waters beyond territorial limits[12], external affairs – and hence international conventions and treaties[13], matters incidental to any legislative power[14], and matters declared in the Constitution to be within the exclusive power of the Parliament[15]. The last power could relate to the power to make laws under ss 76 and 77. Secondly,there is s 76 (iii) itself that enables the Commonwealth to confer on the High Court in rem and in personam original jurisdiction in all matters of Admiralty and maritime jurisdiction, and ss 77(i) and (ii) enable that jurisdiction to be conferred exclusively on other federal courts. 

5. One intriguing question that Barton J’s analysis raises, is whether s 76(iii) picks up, and so creates, federal jurisdiction over all matters, including matters that arise wholly within an intra-State activity or under the law of a State or that arose under the now repealed Colonial Courts of Admiralty Act 1890 (UK). Barton J proceeded on the basis that in 1910 Britain could make laws that were binding on the Commonwealth and the States in our federation. He denied that s 76(iii) was a source of substantive Commonwealth legislative power to amend what were matters of Admiralty and maritime jurisdiction. However, he appears to have accepted that section as a source of federal jurisdiction over disputes that arose under laws made by other legislatures in the former Australian Colonies, the new States and, of course, Britain.

6. The reasoning employed by Barton J begged the question as to why a new sovereign, island, trading nation would have no freestanding legislative power to make its own laws about matters of Admiralty and maritime jurisdiction that its courts could decide. Thus, if he were right, a court exercising jurisdiction of the third arm of our federal government under s 76(iii) could make law in the way it decided a case, that the first arm of that government, namely the Commonwealth Parliament, could not. The incongruousness of such a position provided the slipway for the Supreme Court of the United States in The Lottawanna[16] to reason, as Prof Davies has explained, that Art III §2 cl 1, referred to a system of law that operated uniformly throughout the United States and hence provided Congress with the legislative power to make and change such laws. Any other view would have led to chaos for inter-State and international sea trade and commerce.

7. It seems that s 76(iii) will apply to matters that do not arise under the Constitution or any laws made by the Parliament because those two very broad areas of jurisdiction are created by ss 76(i) and (ii). If this is so, whatever else s 76(iii) does, it can be used with s 77(i) and (ii), to enable the Parliament of the Commonwealth to make all matters of Admiralty and maritime jurisdiction, however they arise in Australia, justiciable only in a federal court. And if that is so, it is hard to comprehend why the same construction should not be given to s 76(iii) as the Supreme Court of the United States gave to its progenitor in Art III §2 cl 1.

8. As early as 1681, in Hughes v Cornelius[17]the Court of Kings Bench treated the judgment of the French Court of Admiralty that a British trading ship was a lawful prize of France in its war with Holland as a decision in rem. The Court held, quaintly, that the domestic courts should recognize "a sentence in the admiralty … for otherwise the merchants will be in a pleasant condition!" The Oxford English Dictionary[18] tells us that in the 17th century "pleasant" meant "ridiculous".

9. Blackstone[19] wrote that Admiralty or maritime courts had "jurisdiction and power to try and determine all maritime causes; or such injuries, which, though they are in their nature of common law cognizance, yet being committed on the high seas, out of the reach of our ordinary courts of justice, and therefore to be remedied in a peculiar court of our own." He identified the defining characteristic of the jurisdiction as a cause of action "arising wholly upon the sea, and not within the precincts of any country."[20] There was an exception for articles of agreement, or contracts for seaman’s wages, which were justiciable in the courts of admiralty even though the contracts were made on land; but Blackstone said that a dispute about a charterparty was only justiciable in the courts of common law[21].

10. This suggests that by the late 18th century, the Lord High Admiral’s Court applied a body of law in resolving disputes that was both of general application to matters arising on land and sea and also of specialist maritime jurisprudence.

11. There is good reason to think that s 76(iii) was intended to ensure, if the Parliament so decided, that there would be one jurisdiction in Australia to hear and determine all maritime disputes, wherever they occurred and whatever the source of the law to be applied. But, that then begs the question, that our two speakers identified, why s 76(iii) could not be also a source of substantive law.

12. In Owners of "Shin Kobe Maru" v Empire Shipping Co Inc[22] Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said that the Admiralty Act 1988 (Cth) "was intended to reform the law with respect to the Admiralty jurisdiction"[23]. They held that the Act’s definitions made maritime claims justiciable in proceedings in rem, or generally. In a frequently cited sentence, they said that it was inappropriate to construe provisions conferring jurisdiction on, or granting powers to, a court by making implications or imposing limitations not found in the express words[24]. And, they concluded that the (modern) principles of constitutional interpretation accorded with that principle of statutory construction.

13. The High Court held that "maritime" in s 76(iii) served to expand what was Admiralty jurisdiction, as it existed in 1901, and that s 76(iii)[25]:
"extends to matters of the kind generally accepted by maritime nations as falling within a special jurisdiction, sometimes called Admiralty and sometimes called maritime jurisdiction, concerned with the resolution of controversies relating to marine commerce and navigation."
14. Accordingly, the Court refused to confine the jurisdiction under s 76(iii) to jurisdictional divisions peculiar to English law, but held that it extended to that of maritime nations generally[26]. In other words, the subject matter over which the Parliament could make laws conferring original jurisdiction under s 76(iii) extended as broadly as what maritime nations generally treat as marine trade and commerce. In Blunden v The Commonwealth[27] Gleeson CJ, Gummow, Hayne and Heydon JJ referred to Lord Diplock’s explanation of maritime law in The Tojo Maru[28].  He said that outside the special field of prize, despite the international sources of its derivation, rights and liabilities in maritime law were derived from the internal municipal law of a particular sovereign state and not from "a maritime law of the world".

15. I doubt that their Honours were seeking to dilute the breadth of vision infused into s 76(iii) in Shin Kobe Maru[29]. Rather, they recognized that individual nations, ordinarily, would provide in their domestic legislation for their maritime law, cognizant of the principled evolution of international conceptions of maritime law over the millennia.

16. As Profs Davies and Derrington suggested, international conventions dealing with matters of Admiralty and maritime jurisdiction have the capacity to inform the scope of s 76(iii). Such conventions did not exist in 1910. Today they abound plentifully. At some point now that the Kalibia[30]is 100 years behind us, the Parliament may seek to test the waters on its powers under s 76(iii) once again. I suspect that if it does, sailing conditions may be found to be more propitious for the development of an harmonious and coherent Australian Admiralty and maritime jurisdiction.

 * A judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory. The author acknowledges the assistance of his associate, Venetia Brown, in the preparation of this paper. The errors are the author’s alone.

This paper was presented on 22 August 2013 at the International Commercial Law and Arbitration Conference, held at the Federal Court of Australia, Sydney.

[1] Prof SC Derrington, Admiralty and Maritime Jurisdiction in Australia: "They builded better than they knew", delivered 22 August 2013

[2] JLB Allsop, Australian Admiralty and Maritime Law – Sources and Future Directions (2007) 26(1) UQLJ 179

[3] Prof M Davies, Admiralty and Maritime in the United States: "Same same but different", delivered 22 Augsut 2013

[4] This decision is an interesting contrast to the decision of the Supreme Court of the United States in Southern Pacific Co v Jensen 244 US 205 (1917) referred to by Prof Davies. There a longshoreman’s widow failed in her claim for worker’s compensation payable under New Youk law because he suffered a fatal injury while on the ship’s side, and hence over, navigable waters.

[5] 11 CLR at 703-704, 715

[6] 11 CLR at 715

[7] 11 CLR at 704

[8] Australia Act 1986 (Cth) & (UK) s 1

[9] ss 51(i) and 98

[10] s 51(vii)

[11] s 51(xx): see New South Wales v The Commonwealth (The Work Choices Case) (2006) 229 CLR 1 (as the Hon William Gummow AC, QC pointed out in his commentary today)

[12] s 51(x)

[13] s 51(xxix); see The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1

[14] s 57(xxxix)

[15] s 52(iii)

[16] 88 US 558 at 575 (1874) 

[17] (1681) 2 Show 242

[18] online sense 5

[19] Commentaries on the Laws of England (15th ed: 1809) Vol 3, A Strahan: London, at 106

[20] ibid 106

[21] ibid 107

[22] (1994) 181 CLR 404 at 420-422

[23] 181 CLR at 420

[24] 181 CLR at 421

[25] 181 CLR at 424

[26] 181 CLR at 425-426

[27] (2003) 218 CLR 330 at 337-338 [13]

[28] [1972] AC 242 at 290-291

[29] 181 CLR at 424

[30] (1910) 11 CLR 689

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