F Kanematsu and Co Ltd v Ship "Shahzada" [1956] HCA 57

96 C.L.R.] OF AUSTRALIA. 477

[HIGH COURT OF AUSTRALIA.]

F. KANEMATSU AND COMPANY LIMITED . PLAINTIFF ; AND THE SHIP "SHAHZADA " '5 : . . DEFENDANT.

High Court—Admiralty jurisdiction—Foreign ship—Collision—Goods—Hides— 1. 0. ow A. Damage—Claim—Action—Bill of lading—Contract of carriage—* Goods carried 1956. into any port'—Goods carried out of port—Territorial limits of port—Deviation a ots from contract—Loss or damage—Cause—Proof—Waiver of breach—Admiralty SyDNuY, Court Act 1861 (Imp.), s. 6—Colonial Courts of Admiralty Act 1890 (Imp.), Sept. 13, 14,

8. 2—Sea Carriage of Goods Act 1924 (Cth.)—Rules, Art. IV, r. 2. us 18; et.

The admiralty jurisdiction of the High Court, exercisable by virtue of the provisions of the Colonial Courts of Admiralty Act 1890, is no more extensive Tylor J. than that which was exercisable in the admiralty jurisdiction of the High Court in England as it existed at the time when the Act was passed, and unless claims made are of such a character as to have been within the cognisance of the admiralty jurisdiction of the High Court in England in 1890, the High Court of Australia has no jurisdiction to entertain them.

The High Court is not by virtue of s. 6 of the Admiralty Court Act 1861 invested with jurisdiction in admiralty to entertain claims generally in respect of cargo damaged in foreign ships, which jurisdiction is limited to cargo "carried into any port" in such ships. The expression " goods carried into any port" does not include goods carried out of that port or goods in the course of being carried out of that port.

Where, unknown at the time to a cargo owner, there has been a wrongful deviation, the shipowner is not entitled to rely upon the exceptions prescribed by the rules under the Sea Carriage of Goods Act 1924. In such a case he will not escape liability for loss of or damage to cargo, unless he can show that the loss or damage was occasioned either by an Act of God, or by the Queen's enemies, or as the result of inherent vice in the goods and, in addition, that such loss and damage would have occurred even if there had been no deviation.