Marine Pilotage in Australia: Sydney Ports Case Study
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Marine Pilotage in Australia: Sydney Ports Case Study Chris S Yuen* Solicitor and Barrister of the High Court of New Zealand and Solicitor of the Supreme Court of New South Wales 1. Introduction – A brief historical background This article seeks to introduce the legal framework of the pilotage service in Sydney Ports (Port Jackson and Botany Bay) and examine some legal issues particularly with respect to the responsibilities and liabilities of pilots and their employer. It will outline the statutory law governing the whole pilotage regime in Sydney Ports. It will then discuss issues relating to negligent liability with reference to statute law and common law. It argues that there are good reasons to preclude a pilot’s personal pecuniary liability for his negligent service but that the commercially oriented pilot companies and port authorities ought not to have the same immunity for their vicarious liability resulting from a pilot’s negligence. Since 30 June 1995 Sydney Harbour (Port Jackson) and Botany Bay have been under the management of the Sydney Ports Corporation (SPC) which is a State-owned Corporation.1 One of the key responsibilities of the SPC is the provision and management of port facilities and services in Sydney Harbour and Botany Bay.2 Until October 2002 Sydney Ports’ pilotage services were provided by pilots employed by the Sydney Sea Pilots Pty Ltd (SSP) which was under contract with the SPC to supply pilots for a pilotage service.3 Since 26th October 1995 the SSP has provided more than 4000 pilotage services every year to Sydney ports.4 This high level activity in part resulted from the requirement of compulsory pilotage in Sydney Harbour and Botany Bay.5 The first Sydney harbour master was appointed to control the port of Sydney in 1811. In 1901 the Sydney Harbour Trust was established to take over and develop the privately owned wharfs in Sydney. Other NSW ports were managed by the Department of Navigation until 1936. In that year the Maritime Services Board (MSB) was formed with the intention that it be the sole port authority for NSW. The MSB continued to be * Chris S. Yuen was in the shipping industry both at sea and ashore prior to his legal studies. He spent 8 years on ocean-going cargo ships as a navigating officer followed by a career in ship chartering, sales and purchase for a period of 10 years in Hong Kong. He graduated with an LLB from the University of Canterbury, Christchurch in 2000 and has recently completed an LLM at the University of New South Wales in Corporate and Commercial law. Mr. Yuen was admitted to the High Court of New Zealand and the Supreme Court of New South Wales in 2001. He is contactable via [email protected] 1 The establishment of the SPC was by virtue of the Ports Corporatisation and Waterways Management Act 1995 (NSW). (Ports Corporatisation Act) 2 Sydney Harbour and Botany Bay together form Sydney Ports. SPC and SSP websites, <www.sydneyports.com.au>, <http://members.ozemail.com.au/~seapilot/ssp.html> visited on 27th May 2002 3 SSP’s website, above. 4 Note 3. 5 All pilotage ports in NSW, namely, Sydney Harbour, Botany Bay, Newcastle, Port Kembla, Yamba and Eden, require compulsory pilotage: Ports Corporatisation Act 1995 (NSW) s78, see further discussion below. (2003) 17 MLAANZ Journal Marine Pilotage in Australia: Sydney Ports Case Study 81 the Sydney Ports’ authority until 30 June 1995 when it was abolished under the Ports Corporatisation and Waterways Management Act 1995 (NSW) (the Ports Corporatisation Act).6 Consequently a State-owned Corporation, the Sydney Ports Corporation (SPC) was established, and it, among other things, took control of the pilotage service in the Sydney Ports. 2. The Legal Framework 2.1 The State’s competence to legislate relating to its coastal waters The High Court of Australia on various occasions decided that the territory of the States ended at low-water mark so that they had no sovereign or proprietary rights in respect of the territorial sea.7 Until 1990 the territorial sea was the area between the low-water mark and three miles seaward. Thereafter Australia extended the limit of its territorial sea from three miles to twelve nautical miles by a proclamation pursuant to s7 of the Sea and Submerged Lands Act 1973. Case law, however, has recognized individual State’s competence to legislate on matters concerning territorial sea provided that they were thereby legislating for the peace, order and good government of their territory.8 This common law legal basis for States to legislate beyond the low-water mark created some problems. The nexus between the State and its legislation on matters concerning its adjacent territorial sea is a matter of degree. There were conflicting authorities.9 They created uncertainty as to the validity of some States’ legislation, particularly when it was inconsistent with the Commonwealth’s legislation. This uncertainty was resolved by the Premiers’ Conference of 1979. As a result of that conference what is commonly known as the “Offshore Constitutional Settlement” was established.10 One of the significant agreements in the Offshore Constitutional Settlement was to give the States a general legislative power in respect to their coastal waters. This agreement was put into effect by the Coastal Waters (State Powers) Act 1980.11 The Act provides that the States are given a general power to legislate with respect to their coastal waters but limiting it to three nautical miles.12 States are also given specific powers to legislate beyond the three-mile limit with respect to subterranean mining from land within the limits of the State, and with respect to ports, harbours and other shipping facilities.13 The latter power is significant because, as will 6 SPC’s website,< http://www.sydneyports.com.au/aboutUs/main.asp?pageid=222> visited on 24th May 2002. 7New South Wales v Commonwealth (1975) 135 CLR 337; Bonser v La Macchia (1969) 122 CLR 177; R v Bull (1974) 131 CLR 203; Robinson v Western Australian Museum (1977) 138 CLR 283. Davies, M., & Dickey, A., Shipping Law, (2nd ed.) LBC Information Services, 1995 at pp15-42. The point has been reiterated again in The Commonwealth v Yarmirr (2001) 75 ALJR 1582 8 Pearce v Florenca (1976) 135 CLR 507. The meaning of the expression “peace, order and good government” in relation to State legislation was discussed in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR at 8-10, 12-13. Also see Building Construction Employees and Builders’ Labourers’ Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 383-385. 9 Compare Gibbs J’s liberal interpretation in Pearce v Florenca (1976) 135 CLR 507 and the stricter view expressed by Barwick CJ in Robinson v Western Australian Museum (1977) 138 CLR 283. 10 Cullen, R., Australian Federalism Offshore, Parkville,Vic., Law School of Melbourne, (2nd ed) 1988, ch5 11 The legislation is a valid exercise of the power in s51(xxxviii) of the Constitution at the request of the State: Port MacDonnell Professional Fishermen’s Association Inc. v. South Australia (1989) 168 CLR 340; Butler, D., & Duncan, W., Maritime Law In Australia, Legal Books, 1992, pp 19-28. 12 Coastal Waters (State Powers) Act 1980 (Cth) ss 4 & 5. 13 Above, s 5(b)(ii) (2003) 17 MLAANZ Journal 82 Chris S Yuen be seen, the Sydney Ports’ boundaries under NSW legislation extend out four nautical miles seaward.14 2.2 The Commonwealth’s competence to legislate over the territorial sea The legislative power for shipping law under the Commonwealth Constitution can be found under the trade and commerce power of s51(i) which is specifically extended to navigation and shipping by s98. It has been said that ‘the combination of s51(i) with s98 gives the widest power to deal with the whole subject matter of navigation and shipping in relation to trade and commerce with other countries and among the States.’15 Section 51(xxix) of the Commonwealth’s external affairs power also gives the Commonwealth apparently unrestricted legislative power over the region. Prior to 1932 common law principles prohibited British colonies from enacting legislation that operated beyond their territorial seas. The decision of the Privy Council in Croft v Dunphy16 in 1932 abolished this old doctrine. It was then decided that a Dominion Parliament had power to legislate extra-territorially for the peace, order and good government of its State territory. One year before this decision, the Statute of Westminster 1931 (Imp) had made provision empowering the Commonwealth Parliament to make laws having extra-territorial operation but this Imperial Act was not adopted in Australia until 1942.17 Technically, prior to 1942 the source of the Commonwealth’s power to legislate extra-territorially had to be in accordance with common law principles but the 1942 adopting Act formalized Australia’s full power to legislate extra-territorially. Therefore there was some doubt as to the validity of legislation regarding extra-territorial operation that was passed prior to the decision of Croft v Dunphy in 1932.18 The technical difficulty was however removed when the Admiralty Act 1988 (Cth) was passed in that year. Section 48 retrospectively confirmed the validity of any previously invalid provisions of the Navigation Act 1912 (Cth).19 Having stated the source of legislative power for both the Commonwealth and the States we can now examine the substantive law governing Sydney Ports’ pilotage. 2.3 What is a pilot? Section 6 of the Navigation Act 1912 (Cth) provides that pilot means a person who does not belong to, but has the conduct of, a ship.