McIlwraith McEacharn Limited v Shell Company of Australia Limited [1945] HCA 11

70 C.L.R.] OF AUSTRALIA. 175

(HIGH COURT OF AUSTRALIA.)

McILWRAITH McEACHARN LIMITED .~ . APPELLANT; DrFENDANT, AND THE SHELL COMPANY OF Meo Tes LIMITED af PLaIntirr,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

High Oourt—Admiralty jurisdiction—Colonial Courts of Admiralty— British H.C. or A. possession" —" Local appeal" —State Supreme Court—Appeal therefrom to 1945. High Court—Competency—Colonial Courts of Admiralty Act 1890 (53 & 54 ee Vict. ¢. 27), 88. 2, 5, 6, 15, 16 (1)—Interpretation Act 1889 (52 & 53 Vict. c. 63), SYDNEY, s. 18—The Constitution (63 & 64 Vict. c, 12), 8, 73—Judiciary Act 1903-1937 May 2-4; (No. 6 of 1903—No. 5 of 1937), ss. 30 (b), 30a—Judiciary Act 1939 (No. 43 of June 27.

1939), 8. 3. Latham ©.J., Starke, Dixon, Shipping—Limitation of liability—' Owner" —Person in possession and control— MeTiernan and

Merchant Shipping Act 1894 (51 & 58 Vict. c. 60), 88. 2, 503, 504, 508—Merchant ms 14- Shipping (Liability of Shipowners) Act 1898 (61 & 62 Vict. c. 14), ss. 1, 4— Merchant Shipping Act 1906 (6 Edw. VII. c. 48), ss. 70, 71, 85—Merchant

'Shipping Act 1921 (11 & 12 Geo. V. c. 28), 8. 1 (2).

As a result of the Judiciary Act 1939, the Supreme Courts of the States, as well as the High Court, are now Colonial Courts of Admiralty under the Colonial Courts of Admiralty Act 1890 (Imp.). 'The Supreme Court of a State exercises its admiralty jurisdiction as the Supreme Court and not as a distinct court created by the Colonial Courts of Admiralty Act, and an appeal lies from its judgment to the High Court. Per Latham C.J., Dizon, MeTiernan and Williams JJ. (Starke J. doubting) :—Such an appeal is a "local appeal" within the meaning of s, 5 of the Colonial Courts of Admiralty Act because the Common- wealth is, for relevant purposes, the " British possession" within the meaning of that term as defined by s. 18 of the Interpretation Act 1889 (Imp.) and used in the Colonial Courts of Admiralty Act.