In the recent decision of Balnaves v Smith & Anor; Malone v Smith & Or  QSC 39, the Queensland Supreme Court rejected the previous school of thought that section 247 of the Supreme Court Act 1995 (Qld) mandates an equal apportionment regardless of the degree of fault in Queensland maritime collisions. The Court also held that where the claim relates to certain types of vessels in Queensland waters the Limitation of Actions Act 1974 (Qld) limitation period of three years will apply and not the two year limitation under section 396 of the Navigation Act 1912 (Cth).
Mr Balnaves and his passenger, Mr Malone, were travelling upstream on the Coomera River in a 6.1 metre Bayliner Capri Runabout. At the same time, Mr Smith was travelling downstream in a 5.4 metre Haines Hunter speedboat. At around 2.40pm the boats collided at a bend in the river and all three individuals were badly injured.
Although the facts were strongly contested, the Court held Balnaves' vessel was on the wrong side of the river and both vessels were travelling too fast, in the order of 30 knots. Although a course change was made by both vessels immediately prior to the collision, clearly neither took sufficient evasive action.
Both parties were held in breach of the Collision Regulations in failing to proceed at a safe speed and failing to pass to starboard. The degrees of fault were assessed at 65/35 to Balnaves and Smith respectively.
Apportionment Under Statute
Prior to this decision the commonly held opinion has been that marine collisions in Queensland were almost always subject to an automatic 50/50 apportionment. The argument was enunciated by authors Martin Davies and Anthony Dickey in the third edition (2004) of their text 'Shipping Law' at page 428.
Section 247 of the Supreme Court Act 1995 (Qld), reads:
'In any cause or proceeding for damages arising out of a collision between two ships if both ships shall be found to have been in fault the rules hitherto in force in the High Court of Admiralty so far as they have been at variance with the rules in force in the courts of common law shall prevail.'
It is suggested this section was not re-enacted upon being moved from the Judicature Act 1876 (Qld) to the Supreme Court Act 1995 (Qld). Therefore it crystallised for all time the application of the rules of Admiralty as they were in 1876 to Queensland marine collisions, namely an equal apportionment between vessels, regardless of the degree of fault. However this hypothesis had never been authoritatively confirmed by a court.
Justice Applegarth rejected the hypothesis. His Honour held it was unlikely the intent of Queensland Parliament in moving the provision in 1995 was to limit the contributory negligence provisions of the Law Reform Act 1952 (Qld). Consequently an apportionment of liability must be made in accordance with the degree of fault of the parties.
A further point of interest was that the defendant sought to rely on a two year limitation period under section 396(1) of the Navigation Act 1912 (Cth). The Court found this section inapplicable to the collision in question because section 258 of the Navigation Act preserved Queensland law in relation to trading ships and pleasure craft on intra-state voyages connected with Queensland. The relevant Queensland law although adopting the Collision Regulations did not adopt the limitation period provisions of the Navigation Act.
In coming to this conclusion Justice Applegarth grappled with difficult principles of statutory interpretation, acknowledging that the law on limitation periods for collisions at sea was 'extremely complex'. His Honour ultimately held that section 396 did not apply to the present proceedings. In any event, the Court held no prejudice would be suffered by an extension of the period under section 396(3).
It would seem the ancient practice of default equal sharing of liability for marine collisions has finally been put to rest in Queensland. Ordinary principles of contribution will apply to marine collisions in Queensland, as in other States and Territories. Nonetheless, as has been long established, high duties of care apply to all vessels at sea, and it is rare that a vessel involved in a marine collision is not found at least partially if not significantly to blame.
Although the Navigation Act limitation period of two years still has wide application, in certain circumstances it can be avoided for purely State based collisions and the court retains its discretion to extend the limitation period where no significant prejudice is shown to flow.
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