Morrison v Peacock

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,McHugh,Gummow,Kirby,Hayne JJ
• Judgment Date: 09 October 2002
• Neutral Citation: [2002] HCA 44,2002-1009 HCA B
• Date: 09 October 2002
• Docket Number: S184/2001

[2002] HCA 44

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ

S184/2001

Anthony Morrison

Appellant

and

Harold Anthony Peacock & Anor

Respondents

Representation:

R J Ellicott QC with A L Hill for the appellant (instructed by Abbott Tout)

C G Gee QC with G J Nell for the respondents (instructed by Ebsworth & Ebsworth)

Intervener:

R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

Marine Pollution Act 1987 (NSW), ss 7, 8, 8(2)(b).

International Convention for the Prevention of Pollution from Ships 1973, Annex 1, reg 11.

Morrison v Peacock

Environmental law — Marine pollution — Discharge of oil from ship — Exception where discharge in consequence of damage other than intentional damage.

Statutes — Construction — Damage — Damage to the ship or its equipment — Wear and tear.

Words and phrases — ‘damage’.

ORDER

1. Appeal allowed.

2. Set aside order of the New South Wales Court of Criminal Appeal made on 30 October 2000 in so far as it ordered that question (i)(a) of the questions reserved be answered ‘Yes’, and in its place order that question (i)(a) be answered as follows:

Question (i)(a):

As a matter of law can the wear and tear in consequence of which oil escapes come within the word ‘damage’ under s 8 of the Marine Pollution Act 1987 (NSW)?

Answer to question (i)(a):

In that section, ‘damage’ means a sudden change in the condition of the ship or its equipment that was the instantaneous consequence of some event, whether the event was external or internal to the ship or its equipment. The Court considers the question otherwise not appropriate to answer.

1 Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ. The Land and Environment Court of New South Wales stated a case to the Court of Criminal Appeal of that State asking inter alia:

‘(i)(a) As a matter of law can the wear and tear in consequence of which oil escapes come within the word “damage” under s 8 of the Marine Pollution Act 1987?’

2 The Court of Criminal Appeal (Spigelman CJ, Wood CJ at CL and Barr J) answered the question in the affirmative 1.

3 In our opinion, the question stated did not formulate the issue that arose upon the facts of the case. The true issue was not whether wear and tear that results in the escape of oil is ‘damage’ under s 8 of the Marine Pollution Act 1987 (NSW) (‘the Act’). It was whether, upon the facts of the case, the expression ‘damage … to the ship or its equipment’ in s 8 covered the rupture of the ship's hose that was brought about by the abrading and chafing of the hose over a period of time. In our opinion the expression ‘damage … to the ship or its equipment’ in s 8 did not cover the rupture of the ship's hose in the present case.

The material facts

4 In December 1996, the vessel Sitka II was using a crane to unload cargo at a jetty on Lord Howe Island. During the unloading, an hydraulic hose that was fitted to the crane ruptured. The rupture caused 15 litres of oil to escape. Five litres went into the sea. The hose ruptured because it turned in excess of 400 degrees. The turning caused a sawing motion at the base of a steel sleeve in the crane column. Because the sleeve was heavily corroded and rough, the turning caused abrasion and chafing of the hose and its eventual rupture.

5 The appellant prosecuted the respondents in the Land and Environment Court alleging that the discharge of oil was a breach of s 8(1) of the Act. The first respondent was the master of the Sitka II; the second respondent was its owner.

6 Section 8(1) of the Act provides:

‘Subject to subsections (2) and (4), if any discharge of oil or of an oily mixture occurs from a ship into State waters, the master and the owner of the ship, and any other person whose act caused the discharge, are each guilty of an offence punishable, upon conviction, by a fine …’

7 ‘State waters’ means the territorial sea adjacent to the State of New South Wales, the sea on the landward side of the territorial sea that is not within the limits of the State, and waters within the limits of the State that are prescribed by regulation for the purpose of the definition 2.

8 The respondents asserted that s 8(2)(b) of the Act gave them a defence to the charge. It states:

‘Subsection (1) does not apply to the discharge of oil or of an oily mixture from a ship:

…

• (b) if the oil or oily mixture, as the case may be, escaped from the ship in consequence of damage, other than intentional damage, to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimising the escape of oil or oily mixture, as the case may be …’

9 The respondents contended that the oil had escaped in consequence of damage to the ship's equipment. They asserted that the rupture of the hose constituted damage to the ship's crane, that the oil had escaped because of the damage and that the damage was not intentional damage. Section 8(3) of the Act declares that damage to a ship or to its equipment is to be taken to be intentional damage if, and only if, the damage arose in circumstances in which the master or owner of the ship:

‘(a) acted with intent to cause the damage, or

(b) acted recklessly and with knowledge that damage would probably result.’

10 The respondents bore the onus of proving the matters referred to in s 8(2)(b). Section 8(6) declares:

‘In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that a discharge of oil or of an oily mixture occurred from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection ( 2) or (4), subsection (1) does not apply in relation to the discharge.’

11 The appellant denied that the facts came within s 8(2)(b). He contended that ‘damage … to the ship or its equipment’ refers to damage caused by a force external to the ship or its equipment.

The genesis of the Act

12 The Act is based on the International Convention for the Prevention of Pollution from Ships 1973 (‘the 1973 Convention’). Australia is a party to that Convention. Ordinarily, the Commonwealth and not the States would enact legislation to give effect to the Commonwealth's obligations under the 1973 Convention. However, in accordance with a co-operative agreement between the Commonwealth and the States, the States have legislated to give effect to the 1973 Convention for waters within their jurisdiction 3.

13 Section 7 of the Act provides:

‘Except in so far as the contrary intention appears, an expression that is used in this Part or in Part 6 and in Annex I to the Convention (whether or not a particular meaning is assigned to it by that Annex) has, in this Part and in Part 6, the same meaning as in that Annex.’

14 Section 8 of the Act and equivalent sections in other State legislation are based upon reg 11 of Annex I of the 1973 Convention. Regulation 11 declares:

‘Regulation 11

Exceptions

Regulations 9 and 10 of this Annex shall not apply to:

• (a) the discharge into the sea of oil or oily mixture necessary for the purpose of securing the safety of a ship or saving life at sea; or

• (b) the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment:

  • (i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the discharge; and

  • (ii) except if the owner or the Master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result; or

• (c) the discharge into the sea of substances containing oil, approved by the Administration, when being used for the purpose of combating specific pollution incidents in order to minimize the damage from pollution. Any such discharge shall be subject to the approval of any Government in whose jurisdiction it is contemplated the discharge will occur.’

15 The direction in s 7 of the Act requires that the word ‘damage’ be given the same meaning in s 8 as it has in the 1973 Convention, unless the contrary intention appears 4. Article 31 of the Vienna Convention on the Law of Treaties 1969 declares:

‘(1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

…’

16 The effect of Art 31 is that, although primacy must be given to the written text of the 1973 Convention, the context, objects and purpose of the treaty must also be considered 5. The need to give the text primacy in interpretation results from the tendency of multilateral treaties to be the product of compromises by the parties to such treaties. However, treaties should be interpreted in a more liberal manner than that ordinarily adopted by a court construing exclusively domestic legislation 6.

17 In this Court, as in the Court of Criminal Appeal, the appellant submitted that ‘damage … to the ship or its equipment’ did not include a defect in a part that resulted from wear and tear. The appellant relied on the definition of ‘to’ in the Shorter Oxford English Dictionary, which defines ‘to’ as ‘expressing motion directed towards and reaching. (The opposite of from.)’ Accordingly, the appellant contended that the phrase ‘damage … to the ship or its equipment’ signified harm brought about by an external force that is directed towards and reaches the ship or its equipment. The Court of Criminal Appeal thought that neither the preposition ‘to’ nor anything in the Regulations in the...