Switzerland Insurance Australia Ltd v Mowie Fisheries Pty Ltd [1997] FCA 231

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG863 of 1996 ) GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SWITZERLAND INSURANCE AUSTRALIA LIMITED Appellant AND MOWIE FISHERIES PTY LIMITED Respondent CORAM: BEAUMONT, HILL & SACKVILLE JJ. PLACE: SYDNEY DATE: 10 APRIL 1997 CORRIGENDA Order 2 of the Minutes of Order should read: "2. The appellant pay the respondent's costs of the appeal."

CATCHWORDS INSURANCE - marine insurance - appeal on whether appellant liable to indemnify respondent for loss of fishing vessel which sank off Victorian coast during voyage from Eden in New South Wales to Portland in Victoria - whether respondent breached express warranties in policy relating to survey and manning requirements - whether respondent in breach of the implied warranty in s 47 of the Marine Insurance Act 1909 (Cth) that the adventure on which it embarked should be carried out in a lawful manner. STATUTORY CONSTRUCTION - construction of Victorian Marine Regulations - whether reg 402 was intended to refer to the Uniform Shipping Law Code as enacted, or as amended from time to time. SUBORDINATE LEGISLATION - validity of reg 402 of the Victorian Marine Regulations - statutory requirements met where a subordinate instrument incorporates matter contained in another document. STATUTORY CONSTRUCTION - whether the Marine Act (Tas) applied to the fishing vessel - whether the vessel was plying to seaward from a "port" in Tasmania. Interpretation of Legislation Act 1984 (Vic) ss 3, 22, 23, 31(a), 32(1),(2) and (3) Marine Act 1988 (Vic) Marine Act 1976 (Tas), ss 4(1), (2), 118, 119, 142, 143(1), 148(1), 149 Marine Insurance Act 1909 (Cth), ss 3(1), 39(1) and (3), 47, 105, 106, 417 Marine (Limits of Operational Areas) Regulation 1985 (Tas), regs 3, 5 Marine (Safety Manning) Regulations 1992 (Tas) regs 16, 20, Schedule 3, Table 2 Marine (Vessels) Regulations 1988 (Vic), regs 103(4), 402 Uniform Shipping Laws Code Bank of New South Wales v Commonwealth (1948) 76 CLR 1 Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Limited (1984) 157 CLR 149 R v Burgess; Ex parte Henny (1936) 55 CLR 608 Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 SWITZERLAND INSURANCE AUSTRALIA LIMITED v MOWIE FISHERIES PTY LIMITED NG 863 of 1996 Beaumont, Hill, Sackville JJ Sydney 10 April 1997