Australian Coastal Shipping Commission v PV Wyuna (Owners, etc) [1964] HCA 76

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Owen JJ. Australian Coastal Shipping Commission v PV Wyuna (Owners, etc) [1964] HCA 76

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 4 Barwick C.J.

In my opinion the tug "Walumba" fouled her propeller "whilst towing" the "Wangara", within the meaning of cl. 1 of the United Kingdom Standard Towage Conditions. I am also of opinion that the subsequent jeopardy of the tug and its salvage therefrom were consequences of the damage done to its propulsion gear "whilst towing". It follows, in my opinion, that the amount payable by the owners of the tug to the master and crew of the pilot vessel P.V. "Wyuna" was within the indemnity given to the tug owner by the Australian Coastal Shipping Commission (the hirer) by cl. 3 of those conditions.

I have had the advantage of reading the judgments of my brothers Menzies and Owen and I agree with what each has written. As I do not wish to qualify any of their reasons or conclusions, it is sufficient for me to adopt them.

The appeal should be dismissed.

McTiernan J.

I am of the opinion that this appeal should be dismissed. I agree with the reasons of Owen J.

Kitto J.

The S.S. "Wangara" being grounded on a reef, the tug "Walumba" was engaged by the appellant, her owner, on terms which included certain towage conditions, to endeavour to get her off. A tow-line was passed from the "Wangara" to the tug and the tug put strain on the line; but wind and tide swung the tug sideways, and before she could recover her position the tow-line carried away. The tug was being swept towards a reef and her master chose the lesser of two evils by going ahead, away from the reef, notwithstanding the danger of fouling the broken tow-line. Unfortunately the propeller caught the tow-line and such damage was done that the tug was without motive power. In this situation the pilot vessel "Wyuna" came to her rescue and saved her from the reef. For the services thus rendered the owners, master and crew of the "Wyuna" were awarded £10,000 salvage against the owners of the tug. The latter then claimed to be indemnified by the appellant against their salvage liability, and Adam J., who decided the case in the Supreme Court of Victoria, gave judgment in their favour. The appeal before us is from that judgment.