New South Wales Supreme Court CITATION : Visscher v BHP Petroleum Pty Limited & Ors [2002] NSWSC 65 revised - 7/03/2002 CURRENT JURISDICTION: Equity Division Admirality List FILE NUMBER(S) : SC 10/00 HEARING DATE(S) : 4 - 5 February 2002 JUDGMENT DATE : 21 February 2002 Timothy Troy Visscher (Plt) PARTIES : BHP Petroleum Pty Limited (1st def) BHP Petroleum (Australia) Pty Limited (2nd def) The Broken Hill Proprietary Company Limited (3rd def) JUDGMENT OF : McClellan J COUNSEL : F Corsaro SC/D Carolan (Plt) D Hammerschlag SC/G Nell (1st & 2nd Def) SOLICITORS : Turnbull Hill Lawyers (Plt) Holding Redlich (1st & 2nd Def) CATCHWORDS : ADMIRALTY - claim for salvage - expiration of limitation period - court's discretion to extend time for commencement of claim - onus lies on plaintiff to demonstrate lack of prejudice - whether services were rendered as an employee or as a volunteer Navigation Act 1912 (Cth) s 396(1) LEGISLATION CITED : Limitation Act 1969 (NSW) s 22(3) Admiralty Act 1988 (Cth) s 37 Smith v Australian National Line Ltd (1998) 159 ALR 431 Burns Philp & Co v Nelson Robertson Pty Limited (1958) 98 CLR 495 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Seaspeed America (1990) 1 Lloyd's Rep 150 Al Tabith and Alanfushi (1995) 2 Lloyd's Rep 336 Kennedy's Law of Salvage 5th ed paras 302, 431, 438 The Aztecs (1870) 3 Asp MLC 326 CASES CITED : The Mount Cynthos (1937) 58 Lloyd's Rep 18 Akerblom v Price Potter Walker & Co (1881) 7 QBD 129 The Sappho (1871) LC 3 PC 690 The Neptune (1824) 1 Hagg. Adm. 227 Vickerson v Crowe (1914) 1 KB 462 McKernan v Fraser (1931) 46 CLR 343 Liosatos v Australian National Line (1964) 111 CLR 282 DECISION : See paras 46 - 47 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADMIRALITY LIST McCLELLAN J THURSDAY, 21 FEBRUARY 2002 10/00 - VISSCHER v BHP PETROLEUM PTY LIMITED & ORS JUDGMENT 1 HIS HONOUR: The plaintiff sues three companies, being associated companies, within the Broken Hill Proprietary Company Limited group of companies ("BHP group"). He claims an award of salvage arising from actions that he took in May 1994, which he alleges saved the tanker, the Griffin Venture, from imminent destruction. The Griffin Venture which was owned by BHP Petroleum Pty Ltd ("BHP Petroleum") was at the time, being used as part of the crude oil recovery processes off the coast of Western Australia. 2 The parties agreed last year that there should be a separate determination of some issues. Accordingly, the court made orders on 18 May 2001 reflecting that agreement which provides for the determination of two questions pursuant to Pt 31 r 2 of the Supreme Court Rules 1970 (NSW). Although I have some reservations as to whether the second question was appropriate for separate determination, I have, nevertheless, proceeded to hear the matter. 3 The separate questions are as follows: 1. (a) Whether the plaintiff's claim in these proceedings (being a claim for a award of salvage) is not maintainable and both that claim and these proceedings ought be dismissed by reason of the proceedings having been commenced on a date following the expiration of the limitation period provided for in s 396(1) of the Navigation Act 1912 (Cth) alternatively s 22(3) of the Limitation Act 1969 (NSW) alternatively s 37 of the Admiralty Act 1988 (Cth). (b) If the plaintiff's claim is not maintainable by reason of the limitation provisions referred to in (a) above, whether the time for commencement of the plaintiff's claim ought to be extended to provide that the plaintiff's claim was brought within time. 2. (a) By whom the plaintiff was employed on 29 May 1994; and (b) Whether as at 29 May 1994 the plaintiff was: (i) a volunteer and not an employee in respect of the services alleged to have been rendered by him to the Griffin Venture and which are the subject of his claim for salvage in these proceedings; or (ii) an employee and by reason of his contract of employment and the obligations that he owed thereunder, the plaintiff is precluded from claiming an award by way of salvage in respect of the services alleged to have been rendered by him to the Griffin Venture and which are the subject of his claim for salvage in these proceedings, with the result that both the plaintiff's claim for salvage and these proceedings ought therefore be dismissed. The relevant facts 4 The parties do not agree as to the identity of the plaintiff's employer. Otherwise the facts relevant to the separate questions do not appear to be in dispute. 5 The plaintiff is a merchant naval officer having qualified in 1983. He holds a certificate of Master Class One. Accordingly, he is qualified to be the Master on Australian registered oil tankers of unlimited tonnage. 6 The plaintiff has been employed by a number of shipping companies. By letter dated 11 December 1992, addressed to "Personnel Officer, BHP Petroleum, Darwin", the plaintiff applied for a job with BHP Petroleum and was offered a position by that company in a letter dated 8 January 1993. The letter, which was written on the letterhead of BHP Petroleum, the first defendant, offered him a position as "2nd Mate on one of BHP Petroleum's Floating Production Facilities in the Timor Sea." The letter made plain that apart from being paid his remuneration he would be entitled to join the BHP Superannuation Fund. 7 The plaintiff accepted the offer by letter dated 15 February 1993 which, on that occasion, he addressed to the "Superintendent Recruiting, BHP Petroleum." When he later applied for admission to the BHP Superannuation Fund, he was identified as being employed by BHP Petroleum. Later, when his services were terminated after the events giving rise to this litigation, his termination payments were made by BHP Petroleum. 8 The evidence includes a copy of the plaintiff's 1994 group certificate. In that document the employer is identified as "The Broken Hill Proprietary Co Ltd – Sea-Going", although there is apparently no company of this name. The Australian company number recorded in the document is 006480548, which is the company number of BHP Transport Pty Limited ("BHP Transport"). The employment declaration form of the plaintiff dated 1 March 1993 also in evidence, discloses the plaintiff's employer's business name as BHP Transport Limited. 9 Evidence was given by Mr Rex Beale, the Payroll Officer of BHP Transport. He provides an explanation for these documents. Apparently within the BHP group of companies, BHP Transport (now known as BHP Transport & Logistics Pty Limited) provides various support services, including payroll services, for seafarers employed by BHP companies including BHP Petroleum. The Griffin Venture was a ship engaged in the Jabaru venture, a BHP Petroleum project, for which the payroll system was administered by BHP Transport. Although Mr Beale believes there would have been a written agreement evidencing the arrangements between BHP Petroleum and BHP Transport, that agreement cannot now be located. 10 The plaintiff was cross-examined in relation to his claim in these proceedings that he was employed by BHP Transport. In earlier proceedings in which he sought remuneration for work he had undertaken, he claimed that his employer was BHP Petroleum. When questioned about that matter, he responded that "this was written in general terms, I was employed by BHP Transport." The plantiff had also identified, in correspondence related to his long service entitlement, that his employer was BHP Petroleum. 11 Although it is apparent that administrative processes were carried out by BHP Transport, the evidence discloses that the plaintiff's wages were in fact paid by BHP Petroleum and I am satisfied that it was the latter company which was the plaintiff's employer. 12 If the plaintiff does genuinely hold the view that he was employed by BHP Transport, this is no doubt because of the internal administrative arrangements in the BHP group, but I am satisfied that view is not correct. 13 Pursuant to his employment the plaintiff served on vessels within the BHP group. In May 1994 he was requested to return to the Griffin Venture, on which he had previously served. He returned to the ship on 26 May 1994 from which, at the end of an earlier swing, he had previously signed off the Articles of Agreement. He did not sign on to the Articles on his return. When asked by the Master to sign on 2 June 1994, he declined. 14 The plaintiff had been on leave and was requested to return early from his leave in order to assist with a proposed gas freeing operation with respect to two crude oil storage tanks on the vessel. When the plaintiff arrived on the Griffin Venture he had a discussion with the Master of the ship, Mr Fuata Jione, as to the manner in which the operation was to be conducted. There is no doubt that the gas freeing operation is a dangerous activity for which safety regulations and careful planning are essential. 15 During the course of the discussion, the Master provided the plaintiff with a document entitled "Temporary Work Instruction" which outlined the procedures, conduct and sequence of the work which the Master had planned. Gas was to be freed from crude oil cargo tanks identified as 1C and 3C crude oil tanks. The procedures proposed by the Master included the use of gas detection instruments which, I infer, is a conventional part of the process. 16 The plaintiff gave a detailed account of the events which followed, in a letter he wrote to the Hon Peter Morris MHR, dated 9 January 1995, when he sought a parliamentary inquiry into the matter. The account is as follows: "In May of 1994, I was the 2nd Mate on the Griffin Venture. I was called back early from leave to help with the planned gas freeing operations, arriving on board on 26 May 1994. On arrival I inquired as to the type of instruments we were going to use to measure the hydrocarbon gases in the cargo oil tanks. I was told by the 1st Mate (Mr Ray Boswell) that we had three MSA LV instruments and a single MSA Tankscope instrument. The LV instruments belonged to the Griffin Venture and the Tankscope was being loaned from the Skua Venture in the Timor Sea. I then inquired of Boswell if the appropriate calibration gas was available on board to check the operation of the gas detection instruments. Boswell informed me that the appropriate calibration gas was not on board and would not be available. I informed Boswell that I was not happy with respect to not having the appropriate calibration gas available so as to be able to check the operation of the instruments. Boswell replied that we had four instruments to measure the hydrocarbon gas in the tanks and that we therefore did not require the calibration gas. Boswell also told me that two new Tankscope instruments with the appropriate calibration gas were on order. However, these items of equipment would not arrive until after the completion of the gas freeing operations. I repeated my earlier concerns to Boswell and restated that I was not happy. Boswell told me to bring my concerns to the attention of a pre-work 'toolbox' meeting to be held later that day. The purpose of the meeting was to outline the work instruction plan which was authored by the vessels Master (Mr Fuata Jione) and Boswell. The 'toolbox' meeting was attended by all personnel involved with the planned gas freeing operations. The meeting was conducted by Jione. At this meeting I raised several issues with respect to the planned tank operations. The major point raised was that I was not happy about not having the appropriate calibration gas available to check the operation of the gas detection instruments. On this point I was talked down by the Master and the Chief Engineer (Mr Paul Lees). The Master said that the calibration gas was not a requirement and the Chief Engineer said that if need be, the readings of the instruments would be averaged. I was not satisfied with the response to my concerns. The Griffin Venture discharged crude oil to the offtake tanker 'Sea Falcon' on the following day. The discharge was completed and Griffin Venture personnel, previously deployed to the 'Sea Falcon', arrived back on board at 0130 hrs on 29 May 1994. At this time the tanker operations commenced. The planned tanker operations were as follows: i. IG purging 1C and 3C so that concentrations of hydrocarbon gas were no greater than 2% by vol. ii. Hot water washing 1C and 3C. iii. Gas freeing 1C and 3C. iv. Manual repairs to the internal deepwell pumps in 1C and 3C. v. Re-inerting 1C and 3C with IG for the safe reception of crude oil. … Oil production was planned to be shut down during the IG purging, hot water washing and gas freeing. To allow safe man entry into 1C and 3C tanks, 2C and 4C tanks were also emptied of crude oil, … I was on duty during the initial IG tank purging. I took gas samples from 3C tank using the Tankscope instrument. The Tankscope is a purpose designed instrument for this application and is specifically designed to measure hydrocarbon gas by percentage volume in the cargo oil tanks of crude oil tankers which use scrubbed flue gas as inert gas (IG). This is the case on the Griffin Venture. During my watch I determined that a depressed hydrocarbon layer had formed in 3C. From this I also determined that the purging operations would take longer than planned. My watch on deck ended at 29/0830 when I was relieved by another 2nd Mate, Mr Jim Ho. I left the deck and performed duties for helicopter operations until about 29/1100, after which I slept. I turned to on deck again at 29/1830. At this time I relieved Ho who was at 1C. Ho informed me that both tanks had been hot water washed and that 3C was completed being IG purged and that 1C was nearly completed IG purging. Ho also informed me that as soon as 1C was IG purged, gas freeing of 3C and 1C would commence. Ho told me that the hydrocarbon gas concentrations in 3C was 0% throughout the tank and that the hydrocarbon gas concentrations in 1C was 1% at the top of the tank to 4% at the bottom of the tank. The IG purging operations indeed took longer than planned. Due to the extra time needed for IG purging, the operational plan had been altered to allow oil production to resume earlier than planned. To allow the further IG purging of 1C and gas freeing of 1C and 3C, temporary purge pipes were fitted to the tanks. The purge pipe to 3C had been fitted prior to 29/1830. IG purging to 1C had been suspended whilst the purge pipe for 1C was being modified by the vessels engineers as it did not fit properly. I noticed that Ho was not using the Tankscope and that he was using the LV instrument to read the hydrocarbon gas in 1C. I asked Ho as to why he was using the LV instrument. Ho replied that the Tankscope was no good as it (Tankscope) was reading too much hydrocarbon gas. I asked Ho how he knew that the Tankscope was reading too much hydrocarbon gas (note: the only way of determining the correct operation of the gas detection instruments is by reading the appropriate calibration gas. This gas was not on board). Ho replied that the Tankscope had been compared to the three LV instruments and that all LV instruments read the same. At the time of the comparison each LV instrument indicated 6% lower hydrocarbon gas than the Tankscope. This was the basis on which the Tankscope was discarded and the LV instrument relied upon for all future readings. This was a major departure from the work instruction which specified that the Tankscope was to be used to measure hydrocarbon gases. Ho told me that the Tankscope had been discarded at 29/0900 which was ½ hour after Ho relieved me earlier that morning. The Master, 1st Mate and the other 2nd Mate (Mr Murray McColl), had agreed to discard the Tankscope and rely solely on the LV instrument. The Field Superintendent (Mr Terry Hewett) and person in charge of the facility, had not been informed of the change in gas detection instrument. I then informed the Master and the 1st Mate that I was not happy with the instruments being changed. The 1st Mate refused to discuss the matter. When informing the Master, I asked permission to check both types of instrument with another type of calibration gas that was on board. The Master told me not to check the instruments. I decided that the issue was too important and checked the instruments with the other calibration gas. The check revealed that both types of instrument were reading the calibration gas correctly. From this data I correctly determined that the Tankscope would most likely give the correct readings in the cargo oil tanks (as the Tankscope had been purposely and specifically designed for this application), and that the LV instrument should be ignored. Note: the LV instrument is specifically designed for the measurement of hydrocarbon gas in air, not in the cargo oil tanks. I measured the hydrocarbon gas at the top of 3C with the Tankscope. The LV instrument had indicated that there was no hydrocarbon gas in 3C some 3 1/12 hrs previously. During this time 3C was isolated from other sources of hydrocarbons. The Tankscope indicated that 3C had 9% hydrocarbon gas by volume. This witnessed reading was later proven to be correct and that if 3C had been gas freed in this condition, the atmosphere in the tank would have passed well within the explosive range. I informed the 1st Mate, then the Master of the 9% reading. Both of these officers refused to take any action over the reading. I then informed the Field Superintendent of the situation. The Field Superintendent then told me that the planned gas freeing operation would not go ahead (as planned) until the appropriate calibration gas arrived on board and that way we would be sure that it was safe to gas free. At this time, from the evidence, the Master and the 1st Mate were in a fatigued condition. Both senior officers were thinking on their feet and keeping the Field Superintendent advised as best as they could. There had been major departures from the planned work instruction, the approved gas detection instrument had been discarded, none of the other Deck Officers were certain as to the operation of the LV instrument, and there was operational pressure to complete the planned tasks within a tight time schedule. In many respects, the Griffin Venture was heading for a catastrophe. The need for the additional IG purging in 3C prevented the completion of the planned work in both tanks within the allotted time. The Field Superintendent then decided to abort the work in 1C. The new Tankscopes and appropriate calibration gas arrived the following morning. During this time, 3C was IG purged for an additional 5 ½ hours. 3C was then accurately measured with a maximum hydrocarbon gas reading of 2% by volume (compared with 0% at all levels measured with the LV instrument some 14 hours earlier). 2% hydrocarbon gas by volume is the maximum hydrocarbon gas permissible to safely allow gas freeing. Gas freeing then took place safely and without further incident. At the time of the planned gas freeing, the Griffin Venture had some 70,000 m ³ of crude oil, other tanks contained some 30,000 m ³ of crude oil. I have had confirming advice from several none related experts in this field, that if gas freeing had been attempted through the explosive range, it is very possible that the Griffin Venture would have exploded and been destroyed with the loss of the 37 lives on board, and that the explosive force would have been equivalent to about 8,000 lbs of high explosive. … The Griffin Venture was placed into a position of jeopardy and, but for my intervention, could have been destroyed on the evening of 29 May 1994." 17 The report of the Master in relation to the incident, dated 2 June 1994, was tendered by the plaintiff. He clearly disagrees with the assertion by the plaintiff as to the existence of significant danger: "At 1830 hours T. Visscher commenced duty. He had queried the reasons for the presence of the tankscope and MSA model LV. At this point in time T. Visscher failing to obey orders from the Master and proceeded to calibrate of both instrument with 2% by volume methane gas. Of concern to me is the action of the officer in the lack of knowledge and experience on the calibration methods of both types of instrument. After T. Visscher had carried out calibration of the instruments and the readings were now found to be unreliable. No gas freeing was carried out as a result of Mr Visscher's action. The purging was left until the supply vessel was called in at 0730 to offload two new tankscope and test gas supplied. 30/5/94 Tankscope instruments were brought onboard and gas tests that were carried out. No 3 cargo tank confirmed 2% by volume hydrocarbon as the highest reading taken at three levels and four areas of the cargo tank. Gas freeing of No 3 cargo tank commenced using the IG blower and venting through the purge pipe. All other cargo tanks were commoned on the IG vent line and venting through the forward vent riser. At no time was the atmosphere in the cargo tank taken into the explosive range as alleged by T Visscher. His claims would be more in my opinion lack of knowledge of such operation and lack of knowledge of the limitations of the equipment available for this type of work. On June 1st 1994. After completion of tankwork No. 3 cargo tank was re-inerted and the following observations were made. Mr Visscher was told to take oxygen readings of No 3 cargo tank instead he carried over pressuring of the tank to 1200mmwg. I am disturbed that T Visscher claims to have experience where in his judgment cargo tanks are to be left pressed up with inert gas at 1000mmwg." 18 But for the matter of the possible danger to the ship, the material facts are not disputed. The intervention of the plaintiff led to the interruption of the process and the intervention of the Field Superintendent. The plaintiff left the Griffin Venture at his own request on 2 June 1994. Following the plaintiff's departure, he made complaint and the matter was the subject of inquiry, both within the BHP group and by the Federal Department of Primary Industry and Energy. All inquiries were concluded by 1998. 19 The plaintiff says that following the incident his primary concern was to ensure that there was a reform of the work practices on the Griffin Venture and he devoted his efforts to publicly exposing those practices by agitating for inquiries at the corporate and government level. He says, and I accept his evidence, that he came to the view that if he was to commence legal proceedings seeking monetary compensation, his demands for inquiries to consider safe work practices and appropriate reforms, would be compromised. He held the view that the existence of the proceedings might be used as an argument by witnesses of the defendant at any inquiry not to give evidence because to do so might prejudice the hearing of any legal proceedings. 20 The plaintiff also says, and I accept his evidence, that he was not aware of the special statutory limitation period relevant to this matter. He was aware of the general limitation period of six years and in filing his statement of claim, believed he was within the defined statutory period. He says that, although he had various legal advisers after the incident occurred, he had received no legal advice that his claim was technically in the nature of salvage and accordingly, the subject of special limitation provisions. He only turned his mind to those matters in 1998. The first question 21 The defendants concede that the proceedings are not subject to the provisions of the Admiralty Act 1988 (Cth). However, it is submitted that both s 396 of the Navigation Act 1912 (Cth) and s 22(3) of the Limitation Act 1969 (NSW) have the effect that the claim, as presently pleaded, is statute barred unless the court grants leave to commence it out of time. 22 Because it is conceded by the plaintiff that s 22(3) of the Limitation Act 1969 (NSW) applies to the present matter, it is unnecessary to determine whether the defendants' claim that s 396(1) of the Navigation Act 1912 (Cth) also applies, is correct. It is accepted that the provisions have the same effect. 23 The submission of the plaintiff is that the words, in s 396(1) of the Navigation Act 1912 (Cth), "or in respect of any salvage service" should be understood as applying only to the circumstance where there may have been a collision between two or more ships and salvage occurs. The plaintiff submits that this follows from the decision of the Full Court in Smith v Australian National Line Ltd (1998) 159 ALR 431 at 441 and 464. 24 If I was required to determine the matter I would not accept the plaintiff's submission. Although s 396 of the Navigation Act 1912 (Cth) undoubtedly deals with collisions, in my opinion, it also deals with situations of salvage, however arising. With respect to the latter, it is not necessary that another ship be the cause of the salvage operation. This approach is consistent with the decision of the High Court in Burns Philp & Co v Nelson Robertson Pty Limited (1958) 98 CLR 495. 25 In any event, I must consider whether the plaintiff has demonstrated sufficient grounds for the court to exercise its discretion to allow him to bring the proceedings beyond the limitation period. The purpose of limitation provisions was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 where the court made plain that an applicant in these circumstances carries the onus of showing that the justice of the case requires that the discretion should be exercised in a manner favourable to the claim. The plaintiff must also demonstrate that an extension beyond the limitation period would not result in significant prejudice to the defendant. See also Seaspeed America (1990) 1 Lloyd's Rep 150 and Al Tabith (1995) 2 Lloyd's Rep 336. 26 In the present case the plaintiff submits that the failure to commence the proceedings within time was occasioned by two factors. Firstly, he says he mistakenly believed that a limitation period of six years applied. He was unaware of the particular provisions made in relation to shipping matters either in the Limitation Act 1969 (NSW) or in the Navigation Act 1912 (Cth). However, a plaintiff's mistake has never been accepted as a good reason for the exercise of the court's discretion. See Al Tabith and Alanfushi (1995) 2 Lloyd's Rep 336. This is not a case where the plaintiff received mistaken advice. Rather he deliberately chose to delay the institution of proceedings, he being unaware of the special provisions of the legislation in relation to salvage matters. 27 The plaintiff further submits that a substantial reason for the delay was because he did not wish to prejudice the outcome of inquiries in relation to the difficulties on the Griffin Venture which might compromise any prospect of reform of the existing work practices. Although I accept this submission, in my opinion it should be given little weight. The process of inquiry came to an end by 1998 and the plaintiff delayed bringing these proceedings for two years after this potential impediment had been removed. Although no doubt the plaintiff had difficulties framing his claim, a delay of a further two years is significant. 28 The plaintiff submits that an onus lies upon the defendants to demonstrate that prejudice arises from the plaintiff's delay. However, this submission cannot be accepted. It is plain that the legislature intended that proceedings, claiming an award for salvage, should be brought within two years. No doubt this was because of a concern that, amongst other reasons, memories in relation to sea-going events may fade and personnel may be redistributed to other parts of the world thereby inhibiting a defendant's capacity to gain evidence and effectively prosecute a defence. 29 The High Court emphasised in Taylor's case that a defendant may not know that it is being prejudiced by delay because it will not be aware of the evidence which might have been available had inquiry been made at an early date. 30 The onus lies on the plaintiff to satisfy the court that the defendants will not be prejudiced. In the present case because of the inquiry process which was instituted, I am satisfied that early, detailed and comprehensive investigations were conducted and accordingly, the defendants would be aware of all of the material which would be available to it to defend itself in the proceedings. Accordingly, I am satisfied that the plaintiff has discharged the onus of demonstrating that the defendants would not be prejudiced by the delay. 31 The further important consideration which must inform the exercise of the court's discretion, is the strength of the plaintiff's case. This requires consideration of the second question. The second question 32 Although the plaintiff agreed to the formulation of the questions to be separately determined, he submitted that the court should not make any finding as to the identity of his employer at the relevant time. However, the matter is of possible relevance to the plaintiff's capacity to sustain a claim for salvage and it is appropriate that I determine the issue. As I have already stated, I am satisfied, at the relevant time, the plaintiff was employed by BHP Petroleum. 33 The law relating to salvage is authoritatively considered in Kennedy's Law of Salvage. The conventional definition of a salvor is a "person who, without any particular relationship to a ship in distress, proffers useful service, and gives it as a volunteer adventurer, without any pre-existing covenant that connected him with the duty of employing himself for the preservation of that ship." (Kennedy 5th ed para 431). 34 The critical question is whether the plaintiff, in acting as he did, was discharging obligations which he owed, arising out of his employment, to secure the safety of the Griffin Venture or whether he was acting as a volunteer. 35 Undoubtedly, an employee of the owner of a ship which undertakes the salvage of another vessel which is endangered, may recover an amount of salvage but the situation is otherwise if the terms of his employment require him to serve on that endangered ship and secure its safety. 36 To determine whether the plaintiff is entitled to claim as a salvor, it is necessary to determine the elements of his relationship to the Griffin Venture. The plaintiff accepts that a claimant of salvage must generally be classifiable as a volunteer which would ordinarily exclude an employee. However, it is submitted that if his rendering of a salvage service goes beyond the performance of his normal duties, he may maintain a claim. It is accepted that if the plaintiff had drawn attention to the dangerous situation and remedial action had been taken in consequence of his urgings, he would have had no claim. However, because he refused to accept the directions of the Master and persevered to stop the crew from following the directed procedures, it is submitted that he is entitled to an award as a salvor. 37 The essential elements of the plaintiff's submissions are: · The plaintiff was brought on board the Griffin Venture to assist with the gas freeing operation. · When the plaintiff arrived on board, he took the unusual step of refusing to sign the Articles of Agreement, following his initial discussion with the Master, during which he formed the view that the procedure established by the Master, was unsafe. · By not signing the Articles, the plaintiff believed he was entitled to refuse to follow a direction given by the Master. · His decision to defy the direction of the Master that he test the instruments against the only available calibration, was an act of defiance which put him outside his employment relationship. · Beyond this action, the crucial act of defiance was the taking of his complaint to the Field Superintendent, thereby circumventing the overall command and authority of the Master. · It must be accepted that unless the plaintiff had acted as he did, the ship was in danger of explosion which is sufficient to generate a salvage claim (Kennedy 5th ed p 302, The Aztecs (1870) 3 Asp MLC 326, The Mount Cynthos (1937) 58 Lloyd's Rep 18 at 25). · The plaintiff's evidence that the ship was in imminent danger should be accepted in the absence of evidence to the contrary and his status as a salvor should be determined accordingly. (see Akerblom v Price Potter Walker & Co (1881) 7 QBD 129 at 135). 38 Having regard to these matters the plaintiff submits that the right to a salvage award should be determined by the justice of the situation after consideration of all the circumstances, including his legal position, the obligation of his employment, the actions of other participants and public policy. 39 It may be accepted, for the purpose of determining the separate issues, that at the point at which the plaintiff defied the Master, the ship was in imminent danger. No doubt if the matter proceeded to a full hearing, this issue would require further examination. The only issue raised by the separate question is the consequence of the plaintiff's employment. 40 I have found that employment to be with BHP Petroleum. However, I do not believe the identity of the particular employer would matter. It is plain that the plaintiff was present on board the Griffin Venture at the request of his employer and was bound by his obligations as an employee to do all within his power to ensure that the ship's functions were carried out efficiently and safely. It would be intolerable if a member of the ship's crew, even if not employed by the ship owner, carrying out his duties, could claim as salvor. 41 The point emphasised by the plaintiff is that in order to make the ship safe he was required to defy the Master and go to the Field Superintendent who took control of the situation. However, in the event that the Master proved incompetent, for whatever reason, and there may be many, an employee in the plaintiff's position was duty bound to do whatever he could to ensure that appropriate steps were taken. If this required him to question a direction with a superior he was duty bound to take that course. 42 The fundamental principle is, that if the action taken is in the performance of a contractual or official duty, a salvage award may not be claimed (Kennedy 5th ed para 438). The reason is obvious. A salvage award is made by way of remuneration for services voluntarily extended. Although extraordinary circumstances can arise where a person engaged as crew is entitled to a salvage award this could only be where the terms of original engagement have been lawfully terminated. If, as in the present case, one of the fundamental terms of his engagement was to secure the safety of the ship during the tank purging operation, his actions, even in ignoring the Master and going to the Field Superintendent, are consistent with the duties he was bound to perform. 43 This must be particularly so when he was directed to go on board in order that his experience in the tank purging operation would be available to the ship. The Sappho (1871) LR 3 PC 690 at 694; The Neptune (1824) 1 Hagg. Adm. 227. 44 The plaintiff submits that his failure to sign the Articles gave him the status of a volunteer on board the ship. However, he remained an employee within the BHP group, with continuing obligations in relation to the duties to which he had been assigned. One of those duties, indeed his fundamental duty, was to provide for the safety of the Griffin Venture. That obligation was not diminished by his failure to sign the Articles. In fact, notwithstanding that failure, the plaintiff took no steps to remove himself from the ship but, to the contrary, remained on board and actively discharged various functions until he was relieved on 2 June 1994. He attended the toolbox meeting on 26 May and at all relevant times conducted himself as the second mate of the vessel. 45 No doubt the failure by the plaintiff to sign the Articles would have had consequences under the Navigation Act 1912 (Cth) but the status of the plaintiff as an employee of BHP Petroleum and the obligations which fell upon him would not be affected by that failure. See Vickerson v Crowe (1914) 1 KB 462, McKernan v Fraser (1931) 46 CLR 343 and Liosatos v Australian National Line (1964) 111 CLR 282. It is untenable that a person assigned as crew to a ship could, by his unilateral decision not to sign the Articles, thereby recover as salvor when undertaking the very duties which his original assignment required of him. Such an outcome would conflict with the policy rationale for an award of salvage which is as a recompense for undertaking the voluntary task of saving a vessel in peril. 46 For these reasons Question 2 should be answered as follows: 2(a) BHP Petroleum Pty Limited. 2(b) By reason of the fact that the plaintiff was an employee, he cannot maintain the action for salvage as presently pleaded. 47 Having regard to my finding in relation to the second question, it is inevitable that I would refuse the application for an extension of time in which to commence the proceedings. However, the plaintiff seeks to further amend the statement of claim to avoid the problem raised by question two and accordingly I will defer the final consideration of the first question until I have determined the application for the amendment. ********** Last Modified: 03/07/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.