![which allows a limited right to deviate from the voyage route. A charter party
normally stipulates that the vessel will sail and proceed with reasonable
despatch expressed as ‘with all convenient speed’ or some other similar
expression. The common law obligation to be diligent is not generally
extended by these stipulations.75
54. The principal implied undertaking by a charterer under a voyage
charter party is that it will not ship dangerous goods.76 A charterer will be
liable for any loss or damage caused even by the master’s acceptance of
dangerous goods on board, unless the master has acted unreasonably in
carrying them. A charter party may expressly prohibit the loading of
dangerous goods, although an express term may entitle a charterer to load
provided due notice is given to the master. Goods may be dangerous not only
because they may create a danger to the vessel,77 but also because they are
liable to cause detention of the ship by authorities.78
II. The ‘Near’ Clause
55. An undertaking by a shipowner to perform a voyage is usually
expressed in the charter party in terms of a ‘near’ clause in relation to the
specified port for loading and discharging cargo. The ‘near’ clause is usually
expressed in the following terms:
[T]he said vessel shall proceed to … (loading port) or so near thereto as
she may safely get and lie always afloat and there load … and being so
loaded the vessel shall proceed to … (loading port) or so near thereto as
she may safely get and lie always afloat and there deliver the cargo.79
A charterer is obliged to furnish the required orders to the ship’s master to
proceed within the time specified or within a reasonable time if none is
specified. If a charterer does not give orders within the required time then the
ship has to await orders until the delay is such to constitute frustration of the
voyage. Until frustration occurs, the ship’s master is not entitled to proceed to](https://image.slidesharecdn.com/16430340-250523043034-9afaedb0/85/Transport-Law-In-Australia-Second-Edition-John-Livermore-52-320.jpg)
Transport Law In Australia Second Edition John Livermore
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- 7. Transport Law in Australia
- 8. Transport Law in Australia Second Edition John Livermore This book was originally published as a monograph in the International Encyclopaedia of Laws/Transport Law. General Editor: Roger Blanpain Associate General Editor: Michele Colucci Volume Editors: Marc Huybrechts, Eric Van Hooydonk
- 9. Published by: Kluwer Law International PO Box 316 2400 AH Alphen aan den Rijn The Netherlands Website: www.kluwerlaw.com Sold and distributed in North, Central and South America by: Aspen Publishers, Inc. 7201 McKinney Circle Frederick, MD 21704 United States of America Email: [email protected] Sold and distributed in all other countries by: Turpin Distribution Services Ltd. Stratton Business Park Pegasus Drive, Biggleswade Bedfordshire SG18 8TQ United Kingdom Email: [email protected] DISCLAIMER: The material in this volume is in the nature of general comment only. It is not offered as advice on any particular matter and should not be taken as such. The editor and the contributing authors expressly disclaim all liability to any person with regard to anything done or omitted to be done, and with respect to the consequences of anything done or omitted to be done wholly or partly in reliance upon the whole or any part of the contents of this volume. No reader should act or refrain from acting on the basis of any matter contained in this volume without first obtaining professional advice regarding the particular facts and circumstances at issue. Any and all opinions expressed herein are those of the particular author and are not necessarily those of the editor or publisher of this volume. Printed on acid-free paper ISBN 978-90-411-5342-5 This title is available on www.kluwerlawonline.com © 2014, Kluwer Law International BV, The Netherlands All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
- 10. transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from the publisher. Permission to use this content must be obtained from the copyright owner. Please apply to: Permissions Department, Wolters Kluwer Legal, 76 Ninth Avenue, 7th Floor, New York, NY 10011-5201, USA. Email: [email protected] Printed and Bound by CPI Group (UK) Ltd, Croydon, CR0 4YY.
- 11. The Author John Livermore lives in Hobart, Tasmania, Australia. He retired in 2002 as Senior Lecturer in Commercial Law in the School of Accounting and Finance, Faculty of Commerce and Economics, University of Tasmania after appointment in 1974. He holds an LL.B. (Bristol, 1959), a Diploma in Social Studies (Sheffield, 1961), an LL.M. (Tasmania) 1988 and a Professional Certificate in Arbitration (Adelaide) 2002. He served as Dean of the Faculty of Economics and Commerce 1986–1988. He is a Fellow of the Chartered Institute of Logistics and Transport and a former Chairperson of the Tasmanian Branch 1992–1994. He is also a Fellow and Certified Practising Marketer of the Australian Marketing Institute, a Graded Arbitrator and Accredited Experienced Mediator, Institute of
- 12. Arbitrators and Mediators Australia and former Chair of the Tasmanian Chapter. He has presented papers on commercial law at Australia and New Zealand universities and on maritime law to the International Congress of Comparative Law Montreal 1990, Athens 1994 Bristol 1998 and papers on aviation policy and law at the Asian Institute of Air and Space Law Taipei 1991, Beijing 1995, Seoul 1997, 2008 Shanghai 1999. Since 1990 he has been Editor of Transport: Laws of Australia with contributing chapters on carriage by road, rail and sea and limitation of liability. Publications include the Australian reports in Ocean Bills of Lading: Traditional Forms, Substitutes and EDI Systems (editor Yiannapoulos, AN Kluwer Law International, 1998) and Multimodal Transport: Carrier Liability and Issues Related to Bills of Lading (editor Kiantou-Pampouki, A Bruylant, 2000). Other publications include chapters on road, rail, and air carriage in Palmer, N Bailment (Law Book Company, 1979), Exemption Clauses and Implied Obligations in Contracts (Law Book Company, 1986) and Marketing Law (with Clarke, E Law Book Company, 1994). He enjoys bushwalking, relaxing in the company of family and friends, travelling overseas whenever possible, unravelling historical mysteries, fossicking through second hand bookshops. E-mail: [email protected] Website: www.johnlivermo.com Australia
- 13. Table of Contents The Author List of Abbreviations Preface General Introduction §1. BACKGROUND INFORMATION ON THE COUNTRY I. Geography and Climate II. The Economic Setting III. The Constitutional, Political, and Legal Systems IV. The Road and Rail Systems V. Australian Transport Safety Bureau VI. Inland Waterways VII. Airports and Civil Aviation VIII. Pipelines Part I. Introduction §1. INSTITUTIONS REGULATING THE TRANSPORT SYSTEM
- 14. I. The Department of Transport and Regional Development II. The Australian Transport Advisory Council III. The Bureau of Transport and Communications, Economics IV. Australian Maritime Safety Authority V. Australian Transport Safety Bureau VI. The National Transport Commission VII. The Ministerial Council for Road Transport VIII. The Australian Road Transport Advisory Committee IX. Austroads X. The Australian Road Research Board XI. The National Rail Corporation XII. Airservices Australia XIII. Civil Aviation Safety Authority XIV. The International Air Services Commission §2. OUTLINE OF CHAPTERS Part II. Maritime Law Chapter 1. Carriage by Sea §1. GENERAL §2. DEMISE CHARTER PARTIES §3. VOYAGE CHARTER PARTIES I. ‘Gencon’ Provisions II. The ‘Near’ Clause III. Safe Ports IV. Loading V. Demurrage §4. TIME CHARTER PARTIES I. General Provisions
- 15. II. Anti-technicality Clauses III. Cessation of Hire IV. Speed Warranties V. Redelivery VI. Cancelling Clauses §5. SPECIAL CLAUSES AND FRUSTRATION I. War, Ice, and Penalty Clauses II. Frustration of Charter Parties §6. BILLS OF LADING I. Principal Functions II. Evidence of Quantity Shipped III. Good Order and Condition IV. Transfer of Ownership V. Authority to Sign Bill of Lading VI. Cessation §7. THE HAGUE-VISBY RULES I. Application of the Hague-Visby Rules II. The Carrier’s Obligations III. Exemptions from Liability IV. Duty Not to Deviate V. Dangerous Goods VI. Limitation of Actions VII. Limitation of Liability VIII. Third Party Liability on a Bill of Lading §8. REFORM OF BILLS OF LADING LEGISLATION §9. CARGO OWNER’S RIGHTS IN TORT TO SUE A CARRIER §10. INTERNATIONAL LINER AND CARGO SHIPPING LEGISLATION
- 16. Chapter 2. Shipping Law §1. INTRODUCTION §2. REGISTRATION OF SHIPS §3. LIMITATION OF LIABILITY §4. MARINE POLLUTION I. MARPOL II. Sea Dumping III. Intervention IV. Civil Liability V. Fund: The 1992 Protocol and the National Plan VI. Preparedness and Response VII. The 2001 Bunker Oil Pollution Convention §5. COLLISION §6. SALVAGE §7. TOWAGE §8. PILOTAGE §9. ADMIRALTY Part III. Other Transport Chapter 1. Carriage by Road §1. GENERAL §2. COMMON AND PRIVATE CARRIERS
- 17. I. Common Carriers II. Private Carriers A. General B. Liability for Negligence C. Contracting Out D. Subcontractors E. Liability of the Carrier as a Warehouseperson F. Delay G. Deviation H. Misdelivery I. Transit and Stoppage in Transit J. Measure of Damages §3. CARRIAGE OF PASSENGERS §4. FEDERAL ROAD TRANSPORT LEGISLATION AND REGULATION I. Freedom of Interstate Trade II. The Interstate Commission III. Trade Practices Act 1974 (Cth) and Road Transport IV. Uniform Road Transport Law §5. OPERATION OF MODEL LEGISLATION I. Heavy Vehicles II. Vehicle Charges III. Vehicle Operations IV. Australian Road Rules V. Dangerous Goods VI. Compliance and Enforcement VII. State and Territory Law Chapter 2. Carriage by Rail §1. FEDERAL LEGISLATION
- 18. I. Commonwealth and Railway Management II. State Authorities: Rail Provision A. New South Wales B. Queensland C. South Australia D. Tasmania E. Victoria F. Western Australia III. Standard Conditions of Rail Carriage §2. AUSTRALIAN RAIL TRACK CORPORATION AGREEMENT Chapter 3. Carriage by Air §1. INTRODUCTION §2. WARSAW CONVENTION (AMENDED) §3. SUCCESSIVE CARRIERS §4. BAGGAGE CHECK §5. AIRWAY BILL §6. LIABILITY FOR DESTRUCTION, DAMAGE, OR LOSS §7. WILFUL MISCONDUCT AND THE CARGO CARRIER §8. LIABILITY FOR CARGO LOSS AND DAMAGE DUE TO DELAY §9. LIMITATIONS OF LIABILITY AND SPECIAL DECLARATIONS §10. RECOURSE BETWEEN SUCCESSIVE CARRIERS §11. LIMITATION OF CARRIER’S LIABILITY
- 19. §12. PASSENGER TICKET §13. LIABILITY FOR PASSENGER INJURY AND DEATH §14. BILATERAL AIRLINE AGREEMENTS §15. DOMESTIC AIRLINE DEREGULATION Table of Cases Table of Statutes Selected Bibliography Index
- 20. List of Abbreviations ABLR Australia Business Law Review AC Appeal Cases ACCC Australian Competition and Consumer Commission ACT Australian Capital Territory AGPS Australian Government Printing Service All ER All England Reports ALJ Australian Law Journal ALJR Australian Law Journal Reports ALR Australian Law Reports ALRC Australian Law Reform Commission ALT Australian Law Times AMSA Australian Maritime Safety Authority ARTC Australian Rail Track Corporation ATPR Australia Trade Practices Reporter ATS Australia Treaty Series BC British Columbia BIMCO Baltic and International Maritime Conference CA Court of Appeal CA (Ont) Court of Appeal Ontario CCH Commercial Clearing House CCR (Vic) County Court Reports Victoria
- 21. Ch Chancery Division (Law Reports) CLR Commonwealth Law Reports CPD Common Pleas Division CRISTAL Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution Cth Commonwealth (Australia) Dist Ct District Court DLR Dominion Law Reports ER English Reports FLR Federal Law Reports HC High Court HCA High Court of Australia HL House of Lords IASC International Air Services Commission IATA International Air Transport Association ICLQ International Commercial Law Quarterly IMDG International Maritime Dangerous Goods Code Imp Imperial IR Irish Reports ITOPF International Tanker Owners Pollution Federation JBL Journal of Business Law JCL Journal of Contract Law JMLC Journal of Maritime Law and Commerce KB King’s Bench Division Lloyd’s Rep Lloyd’s Law Reports LOF Lloyd’s Open Form LQR Law Quarterly Review LT Law Times Mal LR Malaysian Law Review MIA Agreement on Measures to Implement the IATA Intercarrier Agreement
- 22. Mod LR Modern Law Review NRC National Rail Commission NRTC National Road Transport Commission NSW New South Wales NSWLR New South Wales Law Reports NT Northern Territory NYPE New York Produce Exchange NZ New Zealand NZLJ New Zealand Law Journal NZLR New Zealand Law Reports P Probate Division PC Privy Council QB Law Reports, Queen’s Bench Division QBD, QB Queen’s Bench Division Qld Queensland SA South Australia SALR South Australian Law Reports SASR South Australian State Reports SC Supreme Court SDR Special Drawing Rights SR(NSW) State Reports of New South Wales St RQ State Reports (Queensland) Tas Tasmania TR Tasmanian Reports TLR Times Law Reports TOVALOP Tanker Owners Voluntary Agreement concerning Liability for Oil Pollution Vic Victoria VR Victorian Reports WA Western Australia
- 23. WALR Western Australian Law Reports WLR Weekly Law Reports WN Weekly Notes (Law Reports)
- 24. Preface I would wish to acknowledge, in the completion of this work, those who have made it possible. First, to my wife Netta who has been supportive of me during what seemed a long process of arriving at the final version. Second, to Catherine Roberts of Thompson Laws of Australia, Sydney who secured permission for me to include material from ‘Carriage’ in Transport: Laws of Australia of which I am Editor and draw on my entry under ‘Shipping’ in the same publication. Readers are referred to Transport: Laws of Australia as fuller reference for Australian transport law. I appreciate the permission given by Thomsonreuters, publishers of Laws of Australia for permission to include material from ‘Carriage’ in ‘Transport: Laws of Australia ‘of which I am Editor and draw on my entry in ‘Shipping’ in the same publication. Readers are referred to ‘Transport Laws of Australia’ as a fuller reference for Australian Transport Law. I am grateful to Professor Marc Huybrechts and Joeri Lauwers for continued support for updating this entry for the ‘International Encyclopaedia of Laws’. I am honoured by the original request (at the suggestion of Dr Kristian Bernauw to Professor Blanpain) to produce the original Australian contribution. I also wish to thank Debra Bowring, Head Librarian, Law School, University of Tasmania, for help in accessing research facilities and Harry Bown of Thomson Reuters for assistance in using the Westlaw database. No one ever produces any written work without the support and criticism
- 25. of friends and colleagues. I have been fortunate to have attended international conferences where I could meet others specialists in this complex but vital field of research. To them I owe a great debt of gratitude for their good humour and encouragement. I would particularly mention Professors Doo Hwan Kim, Yianapolous, Aliki Kiantou-Pampouki, Bin Cheng, and Norman Palmer. The law as stated-is this September or November 2013.
- 26. General Introduction §1. BACKGROUND INFORMATION ON THE COUNTRY I. Geography and Climate 1. Australia is situated between the Indian, Pacific and Southern Oceans, and lies between latitudes 10 41’S (Cape York) and 43 39’S (South East Cape), and longitudes 113 09’E (Steep Point) and 153 39’E (Cape Byron). The latitudinal distance between the two points is 3,680 kilometres and the longitudinal distance about 4,000 kilometres. The overall area of Australia is almost as great as that of the continental United States of America and thirty- two times greater than the United Kingdom. By far, the greatest land area of the country is made up of the largest island, ‘the mainland’. However, other significant islands off the coast are the State of Tasmania, Kangaroo Island in South Australia (SA), Melville Island in the Northern Territory (NT), and Fraser Island in Queensland (Qld). There are also a large number of out-lying islands including Christmas Island, Macquarie Island, and Norfolk and Lord Howe Islands. 2. A wide range of climatic zones are present in Australia, from the tropical north, the dry interior, to the temperate south. Eight per cent of Australia has a median rainfall of less than 600 millimetres per year, with 50% having less than 300 millimetres. The rainfall pattern is strongly seasonal, with a winter (May–October) regime in the south, and a summer
- 27. (November–April) regime in the north. Fluctuations in temperature can be great, from above 50 °C to well below freezing. However, average annual air temperatures range from 28 °C along the Kimberley coast of Western Australia (WA) to 4 °C in the alpine areas of South-eastern mainland Australia. The absence of extensive mountainous terrain and the surrounding oceans prevent minimum temperatures dropping to levels recorded elsewhere. However, droughts, floods, cyclones, and bushfires are all common in Australia due to Australia’s physical geography and climate. II. The Economic Setting 3. Australia’s geographic setting means that it is crucially dependent on international shipping for the bulk of its exports.1 Reforms in the transport sector have been closely tied with government economic policies such as the full sale of Qantas by the Federal Government. Related measures included the sale of Federal airports, and on the waterfront a package of measures designed to enhance the efficiency and international competitiveness of the Australian shipping industry. In relation to the road network, the introduction of charges for heavy vehicles was designed to ensure the application of user pays principles.2 III. The Constitutional, Political, and Legal Systems 4. Australia is a constitutional monarchy with parliamentary government under the Westminster tradition. The Australian Constitution of 1901 established a Federal Parliament and the six Australian colonies transferred specified powers to it while retaining residual powers for State responsibility.3 Most of the Federal powers are contained within section 51 of the Constitution. The Commonwealth (Federal) Parliament is one of three branches of government established by the Constitution. The Executive and Judicature are the other two branches. A division of powers exists between the three branches. The scheme of government was, therefore, broadly based on the Westminster model of responsible government.
- 28. 5. The Parliament of the Commonwealth exercises the legislative power of the country. The Parliament itself consists of the Queen’s representative (the Governor-General), the Senate and the House of Representatives. The Senate is the Upper House, an elected body with each State electing an equal number of Senators regardless of electorate size. The House of Representatives is the Lower House and is elected by the people of the entire nation. By convention both the Prime Minister and Leader of the Opposition are drawn from this House. The size of the House of Representatives must be as close as possible to twice that of the Senate. This excludes Territory Senators who have the same terms of office as Representatives, and was designed to maintain the relative strength and importance of the Senate. 6. The Senate largely exercises a review function over the House of Representatives, although there are limitations on its power over financial matters. In order to give it a degree of independence from the Lower House, Senators have a longer term of office than Representatives, and that office is rotated. Therefore, the term of office of State Senators is twice that of Representatives, and half the Senators for each State retire at 30 June every three years. Like the House of Representatives also, since 1949 the Senate has been elected under a system of proportional representation. This operates to give voice to a wide range of views across the entire community. Voting is compulsory in Federal elections. 7. With the exception of Qld, all of the States mirror the Federal Parliament in being bicameral legislatures. In addition, each of the States has a representative of the Queen, the Governor. However, since 1986 the Parliament of the United Kingdom has ceased to exercise any powers over the Commonwealth, and the Australian electorate is becoming aware of its right to choose an Australian Head of State in the future to replace the Queen. At present the Queen’s role is primarily limited to the exercise (through the Governor-General and Governors, and on the advice of the respective governments), to give Royal Assent to Acts passed by the Commonwealth and State and Territory Parliaments. However, under certain specified
- 29. conditions, the Governor-General may dissolve both Houses if the Senate fails to pass a Bill from the House. The possible exercise of this power has generated great national debate in relation to Australia’s ties with the British Crown and the issue of Australia becoming a republic.4 8. Australia is a Common Law jurisdiction. The most important sources of the law consist of Acts passed by the Commonwealth Parliament, together with regulations, rules and orders made under those Acts; Acts passed by the State and Territory Parliaments, together with regulations, rules and orders made thereunder; some common law or statute law of England still applicable to Australia and un-revoked by domestic legislation; and common law principles developed by Australian judicial decisions. 9. Under the Australian Constitution, the Commonwealth of Australia is empowered to make laws in relation to matters specified, such as trade and commerce, taxation, defence and external affairs. Some of these matters may be exercised by either the Commonwealth or the States and Territories. With regard to some matters the Commonwealth’s power is absolute, and Commonwealth laws are binding on the States and Territories if exercised within the area of federal jurisdiction. States and Territories retain independent legislative power on a wide range of matters however, and it is this statute and common law that has the greatest impact upon the majority of Australians. 10. The High Court of Australia (HCA) is the highest court in the land, exercising both original and appellate jurisdiction. Original jurisdiction may be exercised in respect of treaty matters, suits between States or relating to States, suits by the Commonwealth or relating to the Commonwealth, or writs of mandamus or prohibition. The High Court can also remit matters to other courts, and is the Court of Disputed Returns. Appellate jurisdiction permits the High Court to grant leave to appeal from decisions of the State Supreme Courts, State courts exercising federal jurisdiction, the Federal Court of Australia, and the Family Court of Australia. It is, therefore, the final Court
- 30. of Appeal (CA) in Australia. The Federal Court of Australia was created in 1976. As is necessary, it sits in each State and Territory. Concurrent with the High Court, it is also able to deal with matters in which a writ of mandamus or prohibition or an injunction is sought, where these are against an officer of the Commonwealth of Australia. It also exercises a limited appellate function, for example, in relation to the decisions of individual judges of the Court. 11. Specialist courts at the Federal level include the Industrial Relations Court of Australia. The Industrial Relations Reform Act 1993 transferred matters from the Federal Court in this regard to the Industrial Relations Court of Australia. The Family Court of Australia is the other specialist court, being established under the Family Law Act 1975 to deal with matrimonial and related proceedings. The Administrative Appeals Tribunal is another specialist court. It was created as an independent body to review the decisions made by Commonwealth Ministers and authorities. 12. In the States and Territories, courts have original jurisdiction on all matters brought under State and Territory laws and matters under federal laws where jurisdiction has not been reserved to the courts of federal jurisdiction. Within each State and Territory there are courts with general, appellate and specialist jurisdiction. The Federal Constitution gives Federal Parliament power to create Federal courts or to invest a state court with jurisdiction.5 The Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) in 1988 provided a cross vesting scheme between the States and Commonwealth. However, in 1999 the High Court declared the scheme invalid under the Constitution in Wakim; ex parte McNally (1999) 73 LJR 839.6 Cross vesting can only be resorted by an amendment to the Constitution by a national referendum or reference of powers by the States to the Commonwealth in certain areas. IV. The Road and Rail Systems 13. Australia is a physically vast country with large sparsely settled inland
- 31. area and population concentrated around the coast. The road system is in three categories; federal highways, state highways and local roads. The road network totals 913,000 kms (353,330 kms sealed, 559,669 kms unsealed).7 Australia has the second highest car ownership in the world and has nine times more road length per capita than Asia. Canberra and Darwin have only bus based public transport as the other capital cities have multimodal networks. Light rail has been developed in Adelaide, Gold Coast, Melbourne, Perth and Sydney. Canberra is in the process of planning light rail as is Hobart. 14. The large rail network totals 35,819 kms of which 2,450 kms is electrified. All mainland capital cities are linked by standard gauge rail. Interstate rail services include the Great Southern Railway, owned by Serco Asia Pacific which operates the Indian Pacific (Sydney-Adelaide-Perth), the Ghan (Adelaide-Alice Springs-Darwin) and the Overland (Melbourne- Adelaide). Country Link services link Brisbane, Canberra and Melbourne via Sydney. Tasmania through Tasrail owns and operates a government freight only service since 2009.8 15. State and city services are operated by both government and private companies. These include V/Line( regional trains and buses in Victoria);Metro Trains Melbourne operates the Melbourne rail network; RailCorp runs passenger rail services in NSW including Sydney Trains and CountryLink; Queensland Rail(QR) operates the City train network, SE Queensland passenger network Translink and Transwa operates train and bus services in Western Australia. High Speed Rail in Australia has been under investigation since the 1980’s. The Australian Government has undertaken a study of implementation of high speed rail on the east coast of Australia, linking Melbourne, Canberra, Sydney and Brisbane. A feasibility study into the project began in 2010. The second in April 2013 found to the project a cost of $114 billion with a completion date by 2065.9
- 32. V. Australian Transport Safety Bureau 16. The Australian Transport Safety Bureau (ATSB) contributes to transport safety by independently investigating, analysing and openly reporting on transport safety matters.10 The ATSB was established by the Transport Safety Investigation Act 2003 (Cth) and conducts its investigations in accordance with the Act’s provisions which allow the ATSB to investigate transport safety matters in the aviation, marine and rail transport modes within the Australian Government’s jurisdiction.11 Under the Transport Safety Investigation Act, it is not a function of the ATSB to apportion blame or provide a means for determining liability. The ATSB does not investigate for the purpose of taking administrative, regulatory or criminal action. The independence of the ATSB is integral to the Bureau’s safety investigations. The Act allows the ATSB to investigate transport safety matters in aviation, marine and rail transport modes within the Australian Government’s jurisdiction. The Act contains powers for the release of transport safety information, including investigation reports that detail the findings and significant factors that led to a particular safety occurrence. The ATSB is a member of key safety bodies which include the International Transportation Safety Association, the International Society of Air Safety Investigators, the Flight Safety Foundation and the Marine Accident Investigators’ International Forum. VI. Inland Waterways 17. The longest river system in Australia is the Murray-Darling that drains part of Qld, the major part of NSW and a large part of Vic. It finally flows into an arm of the sea called Lake Alexandria, on the eastern side of the South Australian coast. The Murray is about 2,520 kilometres long, and the Darling and Upper Darling are collectively about 2,000 kilometres long. There are also other rivers of considerable size, including those of the north- west coast of Australia, and rivers in the NT and Qld. The largest of the
- 33. Australian lakes are drainage sumps for its rivers. There are, however, many other types. Australia is affected by both droughts and floods which impact upon the inland waterways. With south-eastern Australia containing about 75% of the nation’s population, droughts affecting this region have a severe affect on the economy. Widespread flood rainfall is particularly common in the north and eastern coastal areas and is most economically damaging along the eastern uplands eastward towards the seaboard of Qld and NSW. Floods also occur in the great Fitzroy and Burdekin river basins of Qld, and the Murray itself is often affected by flood rains. As a consequence of these natural conditions and the location of the population and port facilities, most of Australia’s inland waterways are not used for transport and traffic is essentially that of private recreational craft. VII. Airports and Civil Aviation 18. Airports are all now privatized or held by local authorities or locally based boards. In 1990, the Federal Government deregulated the domestic airline market. This market is currently dominated by three companies, Qantas, Jetstar and Virgin Airlines, all of which also operate international airlines. VIII. Pipelines 19. Natural gas pipelines are some of the more significant in Australia. These include those running from Bunbury to Dampier through the Perth and Carnarvon Basins in WA; from the Amadeus Basin, near Alice Springs, to Darwin in the NT; from the Cooper Basin near Moomba in SA to Adelaide and Whyalla, and from there also to the NSW coast; and from Wallumbilla to Brisbane and Gladstone. In general, infrastructure investment in the gas industry has been small except for the construction of the North-West Shelf to Perth pipeline in the early 1980s and the Moomba pipeline in 1976. The construction of the North-West Shelf to Perth pipeline in the early 1980s has been followed by a large export contract for liquefied gas from the North-
- 34. West Shelf to China.12 The pipeline systems carry crude oil (2,500 kms);petroleum products (500 kms); natural gas (5,600 kms). Water is carried in pipelines; Perth to Kalgoorlie-Goldfields Water Supply Scheme; Morgan on the Murray River to Adelaide, Wyalla, Port Lincoln; Waranga Western Channel, near Colbainabbin to Bendigo and Ballarat-Goldfields Superpipe. Other completed water pipelines in Victoria link the Goulburn River to Melbourne, Melbourne to Geelong, Wimmera to Malle and the Hamilton-Grampians pipeline. 1. For current export statistics see Australian Bureau of Statistics www.abs.gov.au under International Trade Statistics. 2. See ch. 2. 3. See Commonwealth of Australia Constitution Act 1900 (Imp); for the legislative powers of the Commonwealth see sec. 1, the executive power see sec. 61, the judicial power see sec. 71. See also the Statute of Westminster Adoption Act 1942 (Cth) and the Australia Act 1988 (Cth). See also Australian Government Publishing Service, Final Report of the Constitutional Commission (Canberra, 1988). 4. The issue of the Vice Regal (Governor-General’s) power has already been actively discussed since the dismissal of the Whitlam Government in 1975 by the then Governor-General Sir John Kerr. For the current law-making powers of the Federal Parliament acting for a sovereign independent nation see the Australia Act 1986 (Cth); Australia Act 1988 (UK). 5. Constitution sec. 77(iii). 6. See P. Latimer, Australian Business Law 14–15 (20th ed., CCH 2001). 7. For infrastructure statistics see Australian Infrastructure Statistics-Yearbook 2012 at Department of Transport and Regional Services at www.dotars.gov.au. 8. See D 86, p. 50. 9. See AECOM Australia Pty Ltd (2013) ‘Phase 2 high speed rail study’ wwwinfrastructure.gov.au/rail/ trains/high_speed/index.aspx. 10. See website www.atsb.gov.au. 11. See G. Heilbronn, Aviation Regulation and Licensing 101–123 (Thomson: Law Book Co 2008) for a detailed account of the ATSB’s functions and powers in relation to air accident and safety investigation. 12. For current energy statistics (including gas) see Australian Bureau of Statistics at www.abs.gov.au.
- 35. Part I. Introduction §1. INSTITUTIONS REGULATING THE TRANSPORT SYSTEM I. The Department of Transport and Regional Development 20. The Department of Transport and Regional Services administers the Government’s domestic and international aviation policies. Previously the Department of Transport and Communications, it has taken on functions of regional development also.13 II. The Australian Transport Advisory Council 21. This comprises the Commonwealth, State and Territory ministers responsible for transport, roads, marine and ports matters. Its main role is to review and coordinate particular aspects of transport policy, development, and administration. It does this through biannual meetings, initiating discussion and reports on issues raised by members. It thereby provides advice on policies which will promote better coordination and development of transport in Australia. III. The Bureau of Transport and Communications, Economics 22. This is a centre for applied economic research in the Department of Transport and Regional Services.14 It undertakes research to contribute to greater understanding of these industries. It is particularly concerned with the factors influencing the efficiency and growth of the transport and
- 36. communications sectors, and the development of effective transport and communications policies. It has been involved in a number of matters recently, including studies of the international air industry and shipping reform. IV. Australian Maritime Safety Authority 23. Established under the Australian Maritime Safety Authority Act 1990 (Cth), it is responsible for maritime safety activities in Australia, and for providing the Australian maritime navigational aids network. It operates the Maritime Rescue Coordination Centre, which coordinates major maritime search and rescue activities in Australian waters. It is also responsible for pollution prevention and clean-up, and for the registration of Australian ships.15 V. Australian Transport Safety Bureau 24. The ATSB contributes to transport safety by independently investigating, analysing and openly reporting on transport safety matters.16 The ATSB was established by the Transport Safety Investigation Act 2003(Cth) and conducts its investigations in accordance with the Act’s provisions which allow the vATSB to investigate transport safety matters in the aviation, marine and rail transport modes within the Australian Government’s jurisdiction.17 Under the Transport Safety Investigation Act, it is not a function of the ATASB to apportion blame or provide a means for determining liability. The ATSB does not investigate for the purpose of taking administrative, regulatory, or criminal action. The Act contains powers for the release of transport safety information, including investigation reports that detail the findings and significant factors that led to a particular safety occurrence. The ATSB is member of key safety bodies which include the International Transport Safety Association, the International Society of Air Safety Investigators, the Flight Safety Foundation and the Marine Accident
- 37. Investigators’ International Forum. VI. The National Transport Commission 25. Established as a result of legislation agreed at the Special Premiers Conference in 1991, the National Transport Commission has responsibility for road vehicles, drivers, other road users and related matters. It is concerned with developing uniformity in road transport law, and for improvements in road safety and transport efficiency. It is also concerned to see reductions in the cost of the administration of road transport. The Commonwealth has power to legislate in relation to interstate road transport pursuant to the trade and commerce power in the Constitution, section 51(i), subject to the restriction of section 92 that provides that trade and commerce between the States shall be absolutely free. 26. The Special Premiers Conference of 1991 envisaged the development of uniform and consistent road transport law by the Commission, to overcome the inconsistencies that different State and Territory legislation had brought. The Commission is created by the Act, together with the Ministerial Council for Road Transport (below). The Act, therefore, defines the legal status of the Commission and sets out its functions in relation to the Ministerial Council. Following legislation enacted for the Australian Capital Territory (ACT) by the Commonwealth, it was agreed that each of the States and the NT would pass legislation providing for the automatic repeal, amendment, or modification of existing legislation to avoid conflict with the Act. Other incidental powers were designed to ensure its further effective functioning. Until that time, however, the States and the NT will continue to exercise powers under their existing legislation. VII. The Ministerial Council for Road Transport 27. The Ministerial Council, as created under the Act, is required to perform four main functions: it is required to consider and where appropriate
- 38. disallow legislative proposals made by the Commission (within two months); it has the power to allow exemptions for certain jurisdictions from particular aspects of the package, which are known as Application and Emergency Orders; it is required to make decisions as to budget and funding; and it is required to oversee the administration of the legislation by the States and Territories. VIII. The Australian Road Transport Advisory Committee 28. The Australian Road Transport Advisory Committee was established in April 1990 as part of continuing reforms to the road transport sector. Its role is to provide the Minister for Transport and Regional Services with direct industry-based advice on all aspects of the road transport industry. Its specialist advice also helps in the task of integrating road and rail with other types of transport. IX. Austroads 29. Austroads is a national association of road and traffic authorities, which provides strategic direction for the development, management and use of Australia’s road system through consultation with stakeholders. It coordinates research, prepares guides and standards, and is concerned with improvements in and harmonization of practices within an agreed national policy framework.18 X. The Australian Road Research Board 30. The Australian Road Research Board is a non-profit making national group owned by the Department of Transport and Communications, the State and Territory authorities and the Local Government Association. As well as conducting research into all aspects of roads and their use, it also provides an information service to government in general, industry, educational and research organizations and the general public.
- 39. XI. The National Rail Corporation 31. The National Rail Corporation was established by the Commonwealth Government to achieve coordinated development of the national rail system, replacing the National Railways Commission which was established in 1983. In 1991 an agreement was made between the Commonwealth, NSW, Vic, Qld and WA which was given effect by the National Rail Corporation Agreement Act 1992 (Cth). This Act set up the National Railway Corporation which took over the assets of the Australian National Railway Commission which were assets of the Commonwealth and other assets acquired by the company under the 1991 Agreement. The National Rail Corporation carried out its operations over the interstate network to Sydney, Melbourne, Brisbane, Perth, and Alice Springs. The great majority of the National Rail Corporation’s shares were owned by the Commonwealth Government. This reflected that most of the shares transferred to the National Rail Corporation consisted of interstate rail freight operations of the Australian National Railways Commission. The National Rail Corporation was wound down and sold by the Australian National Railways Commission Sale Act 1997 (Cth) which repealed the Australian National Railways Commission Act 1983 (Cth). The 1997 Act provided for the assets of the Australian National Railway Commission to pass to the Commonwealth. While the Commonwealth does not have direct constitutional power over railways (other than for military purposes), it can acquire and construct railways in a State either by agreement or with its consent. XII. Airservices Australia 32. The Civil Aviation Authority (CAA) was established by the Civil Aviation Act 1988 (Cth) which was set up to deal with the safety regulation of civil aviation in Australia and of Australian registered aircraft overseas. It also provided air traffic control, search and rescue and other facilities to the industry. It was replaced by Air Services Australia in 1995 under the Air Services Act 1995 (Cth). The Civil Aviation Legislation Amendment Act 1995
- 40. (Cth)19 transferred the assets, liabilities and staff to the new body. Air Services Australia continues to provide the functions of the CAA in a cost- effective way. Although it regards the safety of air navigation as its most important consideration, it is also required to act in a manner that ensures, as far as practicable, that the environment is protected from the effects of aircraft operations. There are three operating divisions: Air Traffic Services, Rescue and Fire Fighting Service and Facilities Management. There are also five support divisions. XIII. Civil Aviation Safety Authority 33. The Civil Aviation Safety Authority (CASA) established in July 1995 by the Civil Aviation Act 1988 (Cth) is the most important aviation safety regulatory body in Australia. It shares with Airservices Australia (AA) most of the functions previously carried out by the now defunct CAA and the Federal Airports Corporation (FAC) which CASA and AA replaced in 1995 under the responsibility of the relevant Commonwealth department. This is now the Department of Infrastructure, Transport, Regional Development and Local Government which retains more or less direct powers over air accident investigation and aviation security. In 2007, CASA acquired the regulatory authority that AA previously exercised over airspace, and CASA now exercises regulatory supervision over most AA functions, importantly airports and air traffic control. CASA has taken over the only remaining regulatory role that AA previously exercised in airspace regulation and administration. As a result, CASA has been responsible since mid-2007 for designation of air routes and controlled and prohibited areas.20 XIV. The International Air Services Commission 34. This body was set up under the International Air Services Commission Act 1992 (Cth). It is an independent body with the duty of allocating international aviation capacity and route entitlements among Australian international carriers. The Commission works with wide-ranging public
- 41. benefit criteria set by the Minister for Transport and Regional Services. In 2003, the Federal Government made changes to the International Air Services Commission Act 1992 (Cth) and issued new regulations. The Minister also issued a new policy statement to the Commission. The main aim of the new regulations were to: (a) make the object of the Act focus more strongly on competition benefits; and (b) speed up decision-making by providing for the delegation of Commission powers and functions to an officer of the Department of Transport and Regional Services (the delegate) in circumstances set out in the regulations. Under these arrangements, the delegate can make a range of determinations previously made by the Commission. However, the more complex matters continue to be dealt with by the Commission.21 §2. OUTLINE OF CHAPTERS 35. Chapter 1 provides a concise account of carriage of goods by sea. The contractual arrangements provided by demise, time, and voyage charterparties are illustrated by reference to standard clauses litgated over time and put in the context of common shipping practice. The principal features of bills of lading are outlined and the main issues confronting the shipper, the carrier and the consignee are dealt with. The problem of third- party liability under a bill of lading is appraised in the light of key cases. The provisions of the Hague-Visby Rules enacted in Australian municipal law by the Carriage of Goods by Sea Act 1991(Cth) are noted as modernizing the Australian maritime carriage liability regime. The chapter concludes with a summary of statutory provisions governing the regulation of overseas liner shipping by the Commonwealth. 36. Chapter 2 concisely reviews aspects of the general law relating to
- 42. shipping which deals with the operation of maritime vessels. The chapter gives the constitutional context of the role and powers of the Commonwealth to regulate shipping. Shipping registration and the coverage of the Shipping Registration Act 1981(Cth) are noted, as is the right of shipowners, managers, operators, and salvors to limit their liability. Marine pollution, which has increased both in its potential for environmental and economic loss, is largely regulated by a range of international conventions to which Australia is party. The National Plan to Combat Pollution of the Sea by Oil 1973 provides a coordination of Commonwealth and State resources to deal with specific oil pollution threats and actual spills. Collision is governed by international convention given effect by the Navigation Act 2012(Cth). Salvage, apart from some statutory provisions, is generally regulated by private standard form agreements. 37. Admiralty law is only briefly summarized regarding its provisions dealing with actions against vessels under the Admiralty Act 1988(Cth).This reform in Australian admiralty law replaced and repealed the Colonial Courts of Admiralty Act 1890(Imp) and provided a more modern statute and much needed reform. 38. Chapter 1 deals with carriage by road. The law of carriage by road is regulated by standard form contracts between the parties and increasingly, by Federal legislation and enacted international conventions. In the early law of carriage, the position of the common carrier was crucial. Although the common carrier has ceased to exist for all practical purposes in the regime of land, sea, and air transport, the distinction between common and private carriers has moulded the law significantly. Modern standard form contracts provide a detailed framework for the law of carriage and the rules governing such contracts are those that apply to standard form contracts and exemption clauses. The general position is that once the courts accept a document as contractual in nature and its terms protect the carrier from a range of liabilities, then the consignee will normally bear the risks of carriage. However, statute has made inroads into this principle, particularly in relation
- 43. to consumer protection under the Competition and Consumer Act 2010(Cth). 39. The impact of Federal legislation on road transport has been significant. This is illustrated by the Interstate Road Transport Act 1985(Cth), the Interstate Road Transport Charges Act 1985(Cth), the National Road Transport Commission Act 1991(Cth), the Road Charges (ACT) Act 1993(Cth), and the Road Transport Reform(Vehicles and Traffic) Act 1991(Cth).The development of the Uniform Road Transport Law on a cooperative basis between the Federal, State, and Territory Governments is accordingly set out. The laws of the States and Territory are referenced to Laws of Australia: Transport. 40. Chapter 2 provides an account of the law of rail carriage. The role of the Commonwealth was strengthened by the creation of the National Railways Commission in 1983 and its successor, the National Rail Corporation (since wound down) with increased power to the Commonwealth as a result of the National Rail Corporation Agreement Act 1992(Cth), a cooperative agreement between the Commonwealth Government and the States. In 1998 the Australian Rail Track Corporation was formed which took over the National Rail Corporation. As a result the Commonwealth has retreated from direct rail management in Australia. 41. Chapter 3 is concerned with the framework of air carriage law, with particular reference to the provisions of the amended Warsaw Convention implemented to establish various liability regimes by the Commonwealth and related State legislation. The position of the air carrier is detailed with reference to the issues of liability for loss of and damage to cargo (including baggage), delay, wilful misconduct, required air ticket and waybill provisions, and time limits for claims. Air carriage, while still in its technological infancy, was subjected to an early attempt to secure uniformity of law affecting the liability of air carriers to passengers and shippers in the shape of the International Convention for the Unification of Certain Rules relating to International Carriage by Air(Warsaw Convention Warsaw 1929.
- 44. Since then the law governing air carriage has grown in coverage and complexity .These developments in Australia have occurred against a background of transport deregulation, including the domestic airline system, the rise of the international airline’ megacarriers’ and national economic reform in general. 42. The Civil Aviation(Carrier’s Liability Act 1991(Cth) ratified the Montreal Protocols Three and Four. These Protocols raised the limit of a carrier’s liability to international carriage of passengers by air and cargo and registered baggage. In relation to liability for passenger injury and death, which has seen much litigation, the position has changed radically with the adoption by a large number of IATA carriers (including Qantas) of the Intercarrier Agreement on Passenger Liability and the supplemental agreement to it outlined in the chapter. 13. For current Federal Government transport policy and information see www.dotars.gov.au. 14. See http://btre.gov.au. 15. See www.amsa.gov.au. 16. See website www.atsb.gov.au. 17. See G. Heilbronn, Aviation Regulation and Licensing 101–123 (Law Book Co 2008) for a detailed account of the ATSB’s functions and powers in relation to air accident and safety investigation. 18. See www.austroads.com.au. 19. For a detailed description of AA and its administrative and legal status see G. Heilbronn, Aviation Regulation and Licensing 54–57 (Law Book 2008). 20. For a detailed description of CASA’s administrative context and legal status see G. Heilbronn, Aviation Regulation and Licensing 45–53 (Law Book Co 2008). 21. The object of the International Air Services Commission Act 1992 (Cth) is to promote economic efficiency through competition in the provision of international air services resulting in: (1) increased responsiveness by airlines to the needs of consumers, including an increased range of choices and benefits; (2) growth in Australian tourism and trade; and (3) the maintenance of Australian carriers capable of competing effectively with airlines of foreign countries. For the IASC website see www.iasc.gov.au.
- 45. Part II. Maritime Law Chapter 1. Carriage by Sea §1. GENERAL 43. The carriage of goods by sea may be conducted by adopting one of two courses. The first course is that the services of a ship and its crew may be chartered for a specified time or voyage and arrangement made for the carriage of goods by that ship. This hire of services is often loosely referred to as ‘the hire of the ship’, an expression more accurately confined to demise charter parties.22/23 Second, and more commonly, the cargo owner may seek space in a general ship, that is, one which will carry the goods of all who so wish, and they will generally employ a forwarding agent to find the space.24 The forwarding agent will arrange this with a loading broker acting on behalf of a shipowner or, where the ship is under charter, on behalf of the charterer.25 Although not normally in possession of the goods, the forwarding agent will often arrange for them to be placed on board the ship, taking in return from the master a mate’s receipt, which will be subsequently exchanged for the document of title (a bill of lading), again issued by the master. The bill of lading, as a document of title, may be sold several times over while the goods are in transit, thereby altering the relationship of the various parties concerned in the transaction. It is necessary to pay careful attention to the times of passing of property and of risk and the need to insure the goods.26
- 46. 44. A sea carrier’s common law obligations are of limited relevance because liability is governed in practice by contract and statute. At common law a shipowner who carries goods is absolutely bound to provide a seaworthy ship at the commencement of the voyage,27 to proceed on the voyage with reasonable despatch28 and without unreasonable deviation.29 It is not clear whether a carrier by sea is absolutely liable to deliver goods at the port of destination in exactly the condition it received them, subject to recognized defences at common law, or whether a carrier is liable only to exercise due care and diligence. Much will depend on whether or not the shipowner is a common carrier. In such a case, the carrier is absolutely liable. A common carrier must engage regularly in the carriage trade for reward, employing its ship, or at least part of it, as a general ship. It is not clear whether a carrier must ply regularly between fixed places or whether it should habitually carry for the public. Part of the difficulty in determining the nature of a sea carrier’s liability originates in doubt as to whether a sea carrier can be sued for refusing to take goods offered to it as in the case of a common carrier, and whether in the absence of such a liability the shipowner’s liability for carriage is similar to that of a common carrier.30 The common law defences – act of God, loss caused by the monarch’s enemies, inherent vice, defective packing, loss due to sacrifice (such as a jettison of cargo to save the common venture) – were limited and could be denied if a shipowner contributed to the loss or damage by negligence,31 deviation,32 or by providing an unseaworthy ship.33 45. A shipowner may expressly limit its liability by contract, subject to implied duties under the contract. It is customary for a shipowner to include in a contract the common law defences but, given the wide range of standard contractual exceptions, a shipowner’s obligations are said to have been reduced to merely receiving the freight.34 A shipowner may exclude liability for loss or damage caused by strikes,35 perils of the sea,36 and even negligence of itself and its crew.37 However, a carrier may lose the benefit of the exceptions where it is in breach of its implied duties under the contract of affreightment38 to provide a seaworthy ship,39 to proceed without
- 47. unreasonable delay,40 and not to deviate.41 46. The liability of a sea carrier has been significantly modified by statute. By virtue of their superior bargaining power, shipowners were often able to reduce their liabilities so as to effectively reverse the common law relationship between shipper and carrier.42 Essentially, the shipper could either ship the goods on the terms offered or not at all. An additional problem was that the usefulness of bills of lading were reduced by their varied and complex characters and by their restricted usefulness to third parties. Following legislative reform in the United States,43 an attempt to overcome these difficulties resulted in the recommendation by an international conference at Brussels in 1924 of a uniform set of rules for the carriage of goods by sea, commonly known as the Hague Rules.44 However, dissatisfaction arose concerning issues such as the limitation of carrier’s liability instanced by unit liability limits set in relation to boxes, bales or bundles, during a time when international trade was increasingly occurring through the use of standardized shipping containers.45 As a result in 1968 the Visby Rules, amending the Hague Rules were signed.46 These amended rules received further modification through the SDR Protocol.47 which substituted ‘francs’ with ‘special drawing rights’48 producing the Amended Hague Rules.49 The purpose of the Hague-Visby Rules is to establish a balance between the shipper and the shipowner, the latter being obliged to accept certain listed liabilities in return for enumerated qualifications on its liability. In this sense, the Hague-Visby Rules represent a compromise between the positions under common law and under contract.50 The Hague-Visby Rules have been given wide effect internationally and enacted into Australian domestic law (with some modification) in the Carriage of Goods by Sea Act 1991(Cth).51 47. A contract of charter is known as a charter party. It will not necessarily contain terms which can be referred to a shipment of cargo. In other words, not all charter parties are contracts of carriage.52 The main function of a
- 48. charter party is to obtain a vessel or its services for a number of uses by the charterer. In the event that a charterer requires a shipowner to carry cargo, the charter party usually includes the terms of carriage. Both common law and maritime codes, such as the Hague-Visby Rules, reproduced in Schedule 1 of the Carriage of Goods by Sea Act 1991 (Cth), classify a body of law by reference to the charter party, as it is a standard type of commercial contract. 48. Three principal types of charter party have been recognized by the courts.53 These are: (1) the demise or ‘bareboat’ charter which is in the nature of a lease whereby the charterer takes possession and control of the ship for an agreed period.54 Here, the charterer assumes liability as a carrier if the charterer contracts to transport cargo for third persons and the charterer’s liability will be determined by the individual contracts of shipment independently of the charter party; (2) the voyage charter, where the exclusive use and services of the ship are obtained on designated voyages; and (3) the time charter, which is similar to the voyage charter but expressed for a prescribed period. A hybrid of a voyage and time charter party is what is commonly termed a ‘mixed’ charter party. Sometimes a charter in the form of a time charter party is expressed to be for a voyage or a round voyage. The effect may be to maintain the contract in the form of a time charter as the basis and method of payment by time with the essence of a voyage charter incorporated to make the prescribed voyage the main part of the contract, the length of time of the voyage being used to measure the period of chartered service and payment of chartered hire.55 Alternatively, a charter party may be so drafted, in connection with consecutive voyages, to operate as a voyage rather than a time charter.56 Such mixed charter parties may be regarded as a sub-category of voyage charters.57
- 49. 49. Where a charterer wishes to reserve the ship for the carrying of its own cargo, the charter party will include terms dealing with the shipment. In such a case, the shipowner acts as a carrier and the charterer is cast in the role of the shipper. If the charterer subcontracts the ship to third parties, this subcontract will govern the relations between the charterer and the third parties. As an alternative arrangement, the shipper may reserve space for cargoes over prescribed routes or periods under a contract of affreightment.58 Charter is commonly used where liner services are unsuitable, either because the destination is not travelled to regularly by the liners concerned, or the cargo is not suited to general carriage. Since Australia is economically dependent on revenue from bulk shipments of oil, ore, and grain, it is significant that these are usually shipped under charter for the reasons given in the preceding sentence. §2. DEMISE CHARTER PARTIES 50. A demise charter party is the effective lease of a ship by a charterer.59 This occurs when the shipowner provides the charterer with full possession and control of the vessel.60 The charterer assumes liability as a carrier (if the charterer contracts to transport cargo for third persons) and the charterer’s liability will be determined by the individual contracts of shipment independent of the charter party. Although this form of charter party is generally uncommon in contracts of carriage by sea, it may occur for particular purposes such as financing the charterer’s purchase of the vessel.61 Occasionally a distinction may be drawn between a charter by demise of a ship without master and crew (called a ‘bareboat charter party’) and a demise charter party that include the services of the master and crew (although there is a tendency for the terms to be used interchangeably). In the case of bareboat charterparties a commonly used standard form is the BIMCO Standard Bareboat Chater (Barecon 2001).62 In either case, a key distinction between demise (whether bareboat or otherwise) and time charter parties is that demise charter parties do not
- 50. contain an ‘off hire clause(see II p. 72): the charterer is obliged to pay hire for the full term of the charter.63 As a demise charter party places the ship under the complete control and possession of the charterer, standard form charter parties are carefully worded to place the full obligations of operating the vessel on the charterers.64 §3. VOYAGE CHARTER PARTIES I. ‘Gencon’ Provisions 51. Voyage charter parties are often entered into on standard terms. These standard form documents such as the ‘Gencon’65 voyage charter may be amended by the parties so that only general principles can be laid down. The following provisions are found in most voyage charter parties: (1) the shipowner agrees to provide a ship and states her position, capacity and class on the register; (2) the shipowner promises that the ship will proceed with reasonable despatch; (3) the shipowner undertakes that the ship is seaworthy; (4) the shipowner undertakes to carry the goods to their destination; (5) the charterer agrees to provide a full cargo; (6) the charterer agrees to pay freight; (7) Excepted perils are listed; (8) the manner of loading and discharge is laid down with particular reference to time for these operations, and the rate of demurrage; (9) the charterer is given the right to cancel the contract if the ship does not arrive at a certain port on a given date; (10) a clause incorporating the Hague-Visby Rules (reproduced in Schedule 1 of the Carriage of Goods by Sea Act 1991 (Cth)), known as a ‘general paramount clause’; (11) the amended ‘Jason’ clause, concerning general average;66
- 51. (12) a ‘both to blame’ collision clause; (13) an arbitration clause; (14) a clause governing payment of commission to the broker for negotiating the charter party; (15) a ‘cesser’ clause which purports to relieve the charterer from paying demurrage;67 and (16) a war clause.68 52. In a voyage charter party, the shipowner makes three implied undertakings: to provide a seaworthy ship for the voyage, to proceed without unjustifiable deviation, and to proceed with reasonable despatch. A ship must be seaworthy at the commencement of the voyage for that particular voyage and for the cargo carried.69 A shipowner’s duty to provide a seaworthy ship includes a duty to have its loading and discharging tackles available for the ordinary purposes of loading and discharging. This will be the case even where a charter party provides that stowing, trimming, and discharging are to be paid for by the charterers.70 An express clause in a voyage charter party that the ship is to be ‘tight, staunch, and strong, and in everyway fitted for the voyage’ relates to the preliminary voyage to the port of loading. It refers to the time at which the contract is made,71 or to the time of sailing from the port of loading. The express undertaking does not displace the undertaking implied by law (i.e., to provide a seaworthy ship for the voyage).72 53. The voyage must be completed without unjustifiable deviation. The terms of the voyage charter party often give the shipowner the right to call at ports off the ordinary trade route. A clause will normally give liberty to the vessel to tow or assist vessels, or both, in all situations, and to deviate for the purpose of saving life or property or both, and to comply with any orders given by the government of the nation under whose flag it sails, or by any other government.73 It is also common for goods to be covered by item or floating policies under an Institute of London Underwriters clause (known as an ‘Institute clause’), which hold the goods covered in the event of delay and deviation.74 Voyage charter parties generally include a deviation clause
- 52. which allows a limited right to deviate from the voyage route. A charter party normally stipulates that the vessel will sail and proceed with reasonable despatch expressed as ‘with all convenient speed’ or some other similar expression. The common law obligation to be diligent is not generally extended by these stipulations.75 54. The principal implied undertaking by a charterer under a voyage charter party is that it will not ship dangerous goods.76 A charterer will be liable for any loss or damage caused even by the master’s acceptance of dangerous goods on board, unless the master has acted unreasonably in carrying them. A charter party may expressly prohibit the loading of dangerous goods, although an express term may entitle a charterer to load provided due notice is given to the master. Goods may be dangerous not only because they may create a danger to the vessel,77 but also because they are liable to cause detention of the ship by authorities.78 II. The ‘Near’ Clause 55. An undertaking by a shipowner to perform a voyage is usually expressed in the charter party in terms of a ‘near’ clause in relation to the specified port for loading and discharging cargo. The ‘near’ clause is usually expressed in the following terms: [T]he said vessel shall proceed to … (loading port) or so near thereto as she may safely get and lie always afloat and there load … and being so loaded the vessel shall proceed to … (loading port) or so near thereto as she may safely get and lie always afloat and there deliver the cargo.79 A charterer is obliged to furnish the required orders to the ship’s master to proceed within the time specified or within a reasonable time if none is specified. If a charterer does not give orders within the required time then the ship has to await orders until the delay is such to constitute frustration of the voyage. Until frustration occurs, the ship’s master is not entitled to proceed to
- 53. a port of the master’s own choice.80 If a ship is required to proceed to a port of call for orders as to a port of discharge, and if at the port of call the charterer will only name a port that is impossible to get into, the charterer then commits a breach of contract. The shipowner, accordingly, on discharging the goods at the port of call, if that is a reasonable place for discharge, can claim freight under a quantum merit and damages for any detention of the ship at the port of call due to the charterer’s refusal to nominate a proper port.81 This rule will only apply if the port is impossible or subject to delay which will frustrate the commercial object of the undertaking. The charterer, in selecting a port, does not have to consider the shipowner’s convenience.82 The main purpose of the ‘near’ clause – ‘or so near thereto as she may safely get and lie always afloat’ – is to give the shipowner the option of refusing to proceed further than to a point where the vessel will not be in danger. It also entitles the shipowner to substitute an alternative destination. Thus, the clause qualifies the shipowner’s duty to bring the vessel to an agreed place. A vessel, chartered to unload at a named port, dock or berth, subject to such a clause, is bound to wait a reasonable time before adopting the alternative place of loading or discharge, if by waiting the vessel can enter the named location.83 What constitutes a reasonable time is determined by commercial considerations and by the nature of the voyage in which the vessel is employed. In determining what would be reasonable from a commercial point of view, the interests of both parties have to be considered.84 56. The issues involved in assessing a ‘near’ clause hinge on foreseeability, the nature of the obstacle and an alternative port or ports. Questions arise as to whether the hindrance is known to the shipowner or could reasonably have been foreseen by the shipowner, and whether and to what extent it has a duty to inquire about the conditions of the port. Where the port, berth, or location is to be specified in the charter party, the shipowner is usually considered to be under a duty to ascertain the condition of the place before it undertakes to bring the vessel there. Where a shipowner had knowledge, actual or implied, of the obstacle or hindrance then it is
- 54. doubtful whether the shipowner has the protection of the ‘near’ clause.85 Where neither of the parties knew or ought to have known of the obstacle, a distinction should be made between charter parties with a clause designating a general area (such as ‘East Coast, United States’) known as an ‘order’ clause and those which state a simple port or nominate a narrow range of ports. In this first case, the ‘near’ clause is of commercial value as a shipowner cannot be expected to have knowledge of every port to which it could be ordered at short notice. By contrast, where a limited number of ports are included in the charter party, a shipowner can usually discover the existence of any obstacles in advance. In this situation, it may be argued that the courts will only permit a shipowner to invoke the ‘near’ clause when the obstacle would have come into existence after it had accepted the port of destination and be one that it could not have reasonably foreseen.86 Therefore, shipowners are advised to make careful enquiries before accepting a port and are warned not to use the ‘near’ clause to protect themselves from the consequences of faults within their own lines of information.87 57. No distinction is made in English (or Australian) law between local obstacles, which are within a charterer’s ambit of responsibility and against which the ‘near’ clause protects a shipowner, and marine obstacles, which are within a shipowner’s expectation of risk. An obstacle may be of a physical nature, such as ice or lack of draught, or refusal of port authorities to allow the ship to proceed or dock. Insufficient draught, as an obstacle, has been the subject of much litigation. Where insufficient draught is temporary, as when tides are low, the ship has to wait until the water rises.88 The length of time an obstacle is likely to exist is also of importance.89 The shipowner appears to be under no other duty than to proceed to the place nearest the primary destination that the ship can safely reach, whether or not loading or discharging facilities are available.90 It is usual for most charter parties to cover this eventuality by the addition of the words ‘and there load’ or ‘and there deliver’. III. Safe Ports
- 55. Discovering Diverse Content Through Random Scribd Documents
- 56. So too Ficinus says in his Argumentum to the Protagoras: (p. 765) “Tum vero de bono et malo multa tractantur. Siquidem prudentia est scientia eligendi boni, malique vitandi. Ambigitur autem utrum bonum malumque idem sit penitus quod et voluptas et dolor. Neque affirmatur id quidem omnino, neque manifesté omnino negatur. De hoc enim in Gorgiâ Phileboque et alibi,” &c. When a critic composes an Argument to the Protagoras, he is surely under obligation to report faithfully and exactly what is declared by Sokrates in the Protagoras, whether it be consistent or not with the Gorgias and Philêbus. Yet here we find Ficinus misrepresenting the Protagoras, in order to force it into harmony with the other two. 151 This is so directly stated that I am surprised to find Zeller (among many other critics) announcing that Plato here accepts for the occasion the Standpunkt of his enemies (Philos. der Griech. vol. ii. p. 380, ed. 2nd). 152 Plato, Protag. p. 358 A. ὑπερφυῶς ἐδόκει ἅπασιν ἀληθῆ εἶναι τὰ εἰρημένα. 153 When Stallbaum asserts that the thesis is taken up by Sokrates as one which was maintained by Protagoras and the other Sophists (Proleg. p. 33), he says what is distinctly at variance with the dialogue, p. 351. Schleiermacher maintains that this same thesis (the fundamental identity of good with pleasure, evil with pain) is altogether “unsokratic and unplatonic”; that it is handled here by Sokrates in a manner visibly ironical (sichtbar ironisch); that the purpose of the argument is to show the stupidity of Protagoras, who is puzzled and imposed upon by such obvious fallacies (Einleitung zum Protag. 230,
- 57. bottom of p. 232), and who is made to exhibit (so Schleiermacher says, Einl. zum Gorgias, p. 14) a string of ludicrous absurdities. Upon this I have to remark first, that if the stupidity of Protagoras is intended to be shown up, that of all the other persons present must be equally manifested; for all of them assent emphatically, at the close, to the thesis as having been proved (Prot. p. 358 A): next, that I am unable to see either the absurdities of Protagoras or the irony of Sokrates, which Schleiermacher asserts to be so visible. The argument of Sokrates is as serious and elaborate as any thing which we read in Plato. Schleiermacher seems to me to misconceive altogether (not only here but also in his Einleitung zum Gorgias, p. 10) the concluding argument of Sokrates in the Protagoras. To describe the identity between ἡδὺ and ἀγαθὸν as a “scheinbare Voraussetzung” is to depart from the plain meaning of words. Again, Steinhart contends that Sokrates assumes this doctrine (identity of pleasure with good, pain with evil), “not as his own opinion, but only hypothetically, with a sarcastic side-glance at the absurd consequences which many deduced from it — only as the received world-morality, as the opinion of the majority” (Einleit. zum Protag. p. 419). How Steinhart can find proof of this in the dialogue, I am at a loss to understand. The dialogue presents to us Sokrates introducing the opinion as his own, against that of Protagoras and against that of the multitude (p. 351 C). On hearing this opposition from Protagoras, Sokrates invites him to an investigation, whether the opinion be just; Sokrates then conducts the investigation himself, along with Protagoras, at considerable length, and ultimately brings out the doctrine as proved, with the assent of all present. These forced interpretations are resorted to, because the critics cannot bear to see the Platonic Sokrates maintaining a thesis
- 58. Grounds of that doctrine. Their insufficiency. substantially the same as that of Eudoxus and Epikurus. Upon this point, K. F. Hermann is more moderate than the others; he admits the thesis to be seriously maintained in the dialogue — states that it was really the opinion of the historical Sokrates — and adds that it was also the opinion of Plato himself during his early Sokratic stadium, when the Protagoras (as he thinks) was composed (Gesch. und Syst. der Plat. Phil. pp. 462-463). Most of the critics agree in considering the Protagoras to be one of Plato’s earlier dialogues, about 403 B.C. Ast even refers it to 407 B.C. when Plato was about twenty-one years of age. I have already given my reasons for believing that none of the Platonic dialogues were composed before 399 B.C. The Protagoras belongs, in my opinion, to Plato’s most perfect and mature period. The commentators resort to this hypothesis, partly because the doctrine in question is one which they disapprove — partly because doctrines inconsistent with it are maintained in other Platonic dialogues. These are the same two reasons upon which, in other cases, various dialogues have been rejected as not genuine works of Plato. The first of the two reasons is plainly irrelevant: we must accept what Plato gives us, whether we assent to it or not. The second reason also, I think, proves little. The dialogues are distinct compositions, written each with its own circumstances and purpose: we have no right to require that they shall be all consistent with each other in doctrine, especially when we look to the long philosophical career of Plato. To suppose that the elaborate reasoning of Sokrates in the latter portion of the Protagoras is mere irony, intended to mystify both Protagoras himself and all the by-standers, who accept it as earnest and
- 59. Subject is professedly still left unsettled at the close of the dialogue. convincing — appears to me far less reasonable than the admission, that the dialectic pleading ascribed to Sokrates in one dialogue is inconsistent with that assigned to him in another. Though there is every mark of seriousness, and no mark of irony, in this reasoning of Sokrates, yet we must remember that he does not profess to leave the subject settled at the close of the dialogue. On the contrary, he declares himself to be in a state of puzzle and perplexity. The question, proposed at the outset, Whether virtue is teachable? remains undecided.
- 60. CHAPTER XXIV.
- 61. Persons who debate in the Gorgias. Celebrity of the historical Gorgias. GORGIAS. Aristotle, in one of his lost dialogues, made honourable mention of a Corinthian cultivator, who, on reading the Platonic Gorgias, was smitten with such vehement admiration, that he abandoned his fields and his vines, came to Athens forthwith, and committed himself to the tuition of Plato.1 How much of reality there may be in this anecdote, we cannot say: but the Gorgias itself is well calculated to justify such warm admiration. It opens with a discussion on the nature and purpose of Rhetoric, but is gradually enlarged so as to include a comparison of the various schemes of life, and an outline of positive ethical theory. It is carried on by Sokrates with three distinct interlocutors — Gorgias, Polus, and Kalliklês; but I must again remind the reader that all the four are only spokesmen prompted by Plato himself.2 It may indeed be considered almost as three distinct dialogues, connected by a loose thread. The historical Gorgias, a native of Leontini in Sicily, was the most celebrated of the Grecian rhetors; an elderly man during Plato’s youth. He paid visits to different cities in all parts of Greece, and gave lessons in rhetoric to numerous pupils, chiefly young men of ambitious aspirations.3 1 Themistius, Or. xxiii. p. 356, Dindorf. Ὁ δὲ γεωργὸς ὁ Κορίνθιος τῷ Γοργίᾳ ξυγγενόμενος — οὐκ αὐτῷ ἐκείνῳ Γοργίᾳ, ἀλλὰ τῷ λόγῳ ὃν Πλάτων ἔγραψεν ἐπ’ ἐλέγχῳ τοῦ σοφιστοῦ — αὐτίκα ἀφεὶς τὸν ἄγρον καὶ τοὺς ἀμπέλους, Πλάτωνι ὑπέθηκε τὴν ψυχὴν καὶ τὰ
- 62. Introductory circumstances of the dialogue. Polus and Kalliklês. ἐκείνου ἐσπείρετο καὶ ἐφυτεύετο· καὶ οὗτός ἐστιν ὃν τιμᾷ Ἀριστοτέλης ἐν τῷ διαλόγῳ τῷ Κορινθίῳ. 2 Aristeides, Orat. xlvi. p. 387, Dindorf. Τίς γὰρ οὐκ οἶδεν, ὅτι καὶ ὁ Σωκράτης καὶ ὁ Καλλικλῆς καὶ ὁ Γοργίας καὶ ὁ Πῶλος, πάντα ταῦτ’ ἐστὶ Πλάτων, πρὸς τὸ δοκοῦν αὐτῷ τρέπων τοὺς λόγους; Though Aristeides asks reasonably enough, Who is ignorant of this? — the remarks of Stallbaum and others often imply forgetfulness of it. 3 Schleiermacher (Einleitung zum Gorgias, vol. iii. p. 22) is of opinion that Plato composed the Gorgias shortly after returning from his first voyage to Sicily, 387 B.C. I shall not contradict this: but I see nothing to prove it. At the same time, Schleiermacher assumes as certain that Aristophanes in the Ekklesiazusæ alludes to the doctrines published by Plato in his Republic (Einleitung zum Gorgias, p. 20). Putting these two statements together, the Gorgias would be later in date of composition than the Republic, which I hardly think probable. However, I do not at all believe that Aristophanes in the Ekklesiazusæ makes any allusion to the Republic of Plato. Nor shall I believe, until some evidence is produced, that the Republic was composed at so early a date as 390 B.C. Sokrates and Chærephon are described as intending to come to a rhetorical lecture of Gorgias, but as having been accidentally detained so as not to arrive until just after it has been finished, with brilliant success. Kalliklês, however, the host and friend of Gorgias, promises that the rhetor will readily answer any questions put by Sokrates; which Gorgias himself confirms, observing at the same time that no
- 63. Purpose of Sokrates in questioning. Conditions of a good definition. one had asked him any new question for many years past.4 Sokrates accordingly asks Gorgias what his profession is? what it is that he teaches? what is the definition of rhetoric? Not receiving a satisfactory answer, Sokrates furnishes a definition of his own: out of which grow two arguments of wide ethical bearing: carried on by Sokrates, the first against Polus, the second against Kalliklês. Both these two are represented as voluble speakers, of confident temper, regarding the acquisition of political power and oratorical celebrity as the grand objects of life. Polus had even composed a work on Rhetoric, of which we know nothing: but the tone of this dialogue would seem to indicate (as far as we can judge from such evidence) that the style of the work was affected, and the temper of the author flippant. 4 Plato, Gorg. pp. 447-448 A. The dialogue is supposed to be carried on in the presence of many persons, seemingly belonging to the auditory of the lecture which Gorgias has just finished, p. 455 C. Here, as in the other dialogues above noticed, the avowed aim of Sokrates is — first, to exclude long speaking — next, to get the question accurately conceived, and answered in an appropriate manner. Specimens are given of unsuitable and inaccurate answers, which Sokrates corrects. The conditions of a good definition are made plain by contrast with bad ones; which either include much more than the thing defined, or set forth what is accessory and occasional in place of what is essential and constant. These tentatives and gropings to find a definition are always instructive, and must have been especially so in the Platonic age, when logical distinctions had never yet been made a subject of separate attention or analysis.
- 64. Questions about the definition of Rhetoric. It is the artisan of persuasion. About what is Rhetoric as a cognition concerned, Gorgias? Gorg. — About words or discourses. Sokr. — About what discourses? such as inform sick men how they are to get well? Gorg. — No. Sokr. — It is not about all discourses? Gorg. — It makes men competent to speak: of course therefore also to think, upon the matters on which they speak.5 Sokr. — But the medical and gymnastic arts do this likewise, each with reference to its respective subject: what then is the difference between them and Rhetoric? Gorg. — The difference is, that each of these other arts tends mainly towards some actual work or performance, to which the discourses, when required at all, are subsidiary: but Rhetoric accomplishes every thing by discourses alone.6 Sokr. — But the same may be said about arithmetic, geometry, and other sciences. How are they distinguished from Rhetoric? You must tell me upon what matters the discourses with which Rhetoric is conversant turn; just as you would tell me, if I asked the like question about arithmetic or astronomy. Gorg. — The discourses, with which Rhetoric is conversant, turn upon the greatest of all human affairs. Sokr. — But this too, Gorgias, is indistinct and equivocal. Every man, the physician, the gymnast, the money-maker, thinks his own object and his own affairs the greatest of all.7 Gorg. — The function of Rhetoric, is to persuade assembled multitudes, and thus to secure what are in truth the greatest benefits: freedom to the city, political command to the speaker.8 Sokr. — Rhetoric is then the artisan of persuasion. Its single purpose is to produce persuasion in the minds of hearers? Gorg. — It is so. 5 Plato, Gorgias, p. 449 E. Οὐκοῦν περὶ ὧνπερ λέγειν, καὶ φρονεῖν; Πῶς γὰρ οὔ;
- 65. The Rhetor produces belief without knowledge. Upon what matters is he competent to advise? 6 Plato, Gorgias, p. 450 B-C. τῆς ῥητορικῆς … πᾶσα ἡ πρᾶξις καὶ ἡ κύρωσις διὰ λόγων ἐστίν … 7 Plato, Gorgias, pp. 451-452. 8 Plato, Gorgias, p. 452 D. Ὅπερ ἔστι τῇ ἀληθείᾳ μέγιστον ἀγαθόν, καὶ αἴτιον, ἄμα μὲν ἐλευθερίας αὐτοῖς τοῖς ἀνθρώποις, ἄμα δὲ τοῦ ἄλλων ἄρχειν ἐν τῇ αὑτοῦ πόλει ἑκάστῳ. Sokr. — But are there not other persons besides the Rhetor, who produce persuasion? Does not the arithmetical teacher, and every other teacher, produce persuasion? How does the Rhetor differ from them? What mode of persuasion does he bring about? Persuasion about what? Gorg. — I reply — it is that persuasion which is brought about in Dikasteries, and other assembled multitudes — and which relates to just and unjust.9 Sokr. — You recognise that to have learnt and to know any matter, is one thing — to believe it, is another: that knowledge and belief are different — knowledge being always true, belief sometimes false? Gorg. — Yes. Sokr. — We must then distinguish two sorts of persuasion: one carrying with it knowledge — the other belief without knowledge. Which of the two does the Rhetor bring about? Gorg. — That which produces belief without knowledge. He can teach nothing. Sokr. — Well, then, Gorgias, on what matters will the Rhetor be competent to advise? When the people are deliberating about the choice of generals or physicians, about the construction of docks, about practical questions of any kind — there will be in each case a special man informed and competent to teach or give counsel, while the Rhetor is not competent. Upon what then can the Rhetor advise — upon just and unjust — nothing else?10
- 66. The Rhetor can persuade the people upon any matter, even against the opinion of the special expert. He appears to know, among the ignorant. 9 Plato, Gorgias, p. 454 B. 10 Plato, Gorgias, p. 455 D. The Rhetor (says Gorgias) or accomplished public speaker, will give advice about all the matters that you name, and others besides. He will persuade the people and carry them along with him, even against the opinion of the special Expert. He will talk more persuasively than the craftsman about matters of the craftsman’s own business. The power of the Rhetor is thus very great: but he ought to use it, like all other powers, for just and honest purposes; not to abuse it for wrong and oppression. If he does the latter, the misdeed is his own, and not the fault of his teacher, who gave his lessons with a view that they should be turned to proper use. If a man, who has learnt the use of arms, employs them to commit murder, this abuse ought not to be imputed to his master of arms.11 11 Plato, Gorgias, pp. 456-457. You mean (replies Sokrates) that he, who has learnt Rhetoric from you, will become competent not to teach, but to persuade the multitude:—that is, competent among the ignorant. He has acquired an engine of persuasion; so that he will appear, when addressing the ignorant, to know more than those who really do know.12 12 Plato, Gorgias, p. 459 B. Οὐκοῦν καὶ περὶ τὰς ἄλλας ἁπάσας τέχνας ὡσαύτως ἔχει ὁ ῥήτωρ καὶ ἡ ῥητορική· αὐτὰ μὲν τὰ πράγματα οὐδὲν δεῖ αὐτὴν εἰδέναι ὅπως ἔχει, μηχανὴν δέ τινα
- 67. Gorgias is now made to contradict himself. Polus takes up the debate with Sokrates. Polemical tone of Sokrates. At the instance of Polus he gives his own definition of rhetoric. It is no art, but an empirical knack of catering for the immediate pleasure of hearers, analogous to cookery. It is a branch πειθοῦς εὑρηκέναι, ὥστε φαίνεσθαι τοῖς οὐκ εἰδόσι μᾶλλον εἰδέναι τῶν εἰδότων. Thus far, the conversation is carried on between Sokrates and Gorgias. But the latter is now made to contradict himself — apparently rather than really — for the argument whereby Sokrates reduces him to a contradiction, is not tenable, unless we admit the Platonic doctrine that the man who has learnt just and unjust, may be relied on to act as a just man;13 in other words, that virtue consists in knowledge. 13 Plato, Gorgias, p. 460 B. ὁ τὰ δίκαια μεμαθηκώς, δίκαιος. Aristotle notices this confusion of Sokrates, who falls into it also in the conversation with Euthydemus, Xenoph. Memorab. iv. 2, 20, iii. 9, 5. Polus now interferes and takes up the conversation: challenging Sokrates to furnish what he thinks the proper definition of Rhetoric. Sokrates obeys, in a tone of pungent polemic. Rhetoric (he says) is no art at all, but an empirical knack of catering for the pleasure and favour of hearers; analogous to cookery.14 It is a talent falling under the general aptitude
- 68. under the general head flattery. called Flattery; possessed by some bold spirits, who are forward in divining and adapting themselves to the temper of the public.15 It is not honourable, but a mean pursuit, like cookery. It is the shadow or false imitation of a branch of the political art.16 In reference both to the body and the mind, there are two different conditions: one, a condition really and truly good — the other, good only in fallacious appearance, and not so in reality. To produce, and to verify, the really good condition of the body, there are two specially qualified professions, the gymnast or trainer and the physician: in regard to the mind, the function of the trainer is performed by the law-giving power, that of the physician by the judicial power. Law-making, and adjudicating, are both branches of the political art, and when put together make up the whole of it. Gymnastic and medicine train and doctor the body towards its really best condition: law-making and adjudicating do the same in regard to the mind. To each of the four, there corresponds a sham counterpart or mimic, a branch under the general head flattery — taking no account of what is really best, but only of that which is most agreeable for the moment, and by this trick recommending itself to a fallacious esteem.17 Thus Cosmetic, or Ornamental Trickery, is the counterfeit of Gymnastic; and Cookery the counterfeit of Medicine. Cookery studies only what is immediately agreeable to the body, without considering whether it be good or wholesome: and does this moreover, without any truly scientific process of observation or inference, but simply by an empirical process of memory or analogy. But Medicine examines, and that too by scientific method, only what is good and wholesome for the body, whether agreeable or not. Amidst ignorant men, Cookery slips in as the counterfeit of medicine; pretending to know what food is good
- 69. Distinction between the true arts which aim at the good of the body and mind — and the counterfeit arts, for the body, while it really knows only what food is agreeable. In like manner, the artifices of ornament dress up the body to a false appearance of that vigour and symmetry, which Gymnastics impart to it really and intrinsically. 14 Plato, Gorgias, p. 462 C. ἐμπειρία … χάριτός τινος καὶ ἡδονῆς ἀπεργασίας. In the Philêbus (pp. 55-56) Sokrates treats ἰατρικὴ differently, as falling short of the idea of τέχνη, and coming much nearer to what is here called ἐμπειρία or στοχαστική. Asklepiades was displeased with the Thracian Dionysius for calling γραμματικὴ by the name of ἐμπειρία instead of τέχνη: see Sextus Empiric. adv. Grammat. s. 57-72, p. 615, Bekk. 15 Plato, Gorgias, p. 463 A. δοκεῖ μοι εἶναί τι ἐπιτήδευμα, τεχνικὸν μὲν οὔ, ψυχῆς δὲ στοχαστικῆς καὶ ἀνδρείας καὶ φύσει δεινῆς προσομιλεῖν τοῖς ἀνθρώποις· καλῶ δὲ αὐτοῦ ἐγὼ τὸ κεφάλαιον κ ο λ α κ ε ί α ν . 16 Plato, Gorgias, p. 463 D. πολιτικῆς μορίου εἴδωλον. 17 Plato, Gorgias, p. 464 C. τεττάρων δὴ τούτων οὐσῶν, καὶ ἀεὶ πρὸς τὸ βέλτιστον θεραπευουσῶν, τῶν μὲν τὸ σῶμα, τῶν δὲ τὴν ψυχήν, ἡ κολακευτικὴ αἰσθομένη, οὐ γνοῦσα λέγω ἀλλὰ στοχασαμένη, τέτραχα ἑαυτὴν διανείμασα, ὑποδῦσα ὑπὸ ἕκαστον τῶν μορίων, προσποιεῖται εἶναι τοῦτο ὅπερ ὑπέδυ· καὶ τοῦ μὲν βελτίστου οὐδὲν φροντίζει, τῷ δὲ ἀεὶ ἡδίστῳ θηρεύεται τὴν ἄνοιαν καὶ ἐξαπατᾷ, ὥστε δοκεῖ πλείστου ἀξία εἶναι. The same analogies hold in regard to the mind. Sophistic is the shadow or counterfeit of law-giving: Rhetoric, of judging or adjudicating. The lawgiver and the judge aim at what is good for
- 70. which pretend to the same, but in reality aim at immediate pleasure. Questions of Polus. Sokrates denies that the Rhetors have any real power, because they do nothing which they really wish. the mind: the Sophist and the Rhetor aim at what is agreeable to it. This distinction between them (continues Sokrates) is true and real: though it often happens that the Sophist is, both by himself and by others, confounded with and mistaken for the lawgiver, because he deals with the same topics and occurrences: and the Rhetor, in the same manner, is confounded with the judge.18 The Sophist and the Rhetor, addressing themselves to the present relish of an undiscerning public, are enabled to usurp the functions and the credit of their more severe and far-sighted rivals. 18 Plato, Gorgias, p. 465 C. διέστηκε μὲν οὕτω φύσει· ἅτε δὲ ἐγγὺς ὄντων, φύρονται ἐν τῷ αὐτῷ καὶ περὶ ταὐτὰ σοφισταὶ καὶ ῥήτορες, καὶ οὐκ ἔχουσιν ὅ, τι χρήσωνται οὔτε αὐτοὶ ἑαυτοῖς οὔτε οἱ ἄλλοι ἄνθρωποι τούτοις. It seems to me that the persons whom Plato here designates as being confounded together are, the Sophist with the lawgiver, the Rhetor with the judge or dikast; which is shown by the allusion, three lines farther on, to the confusion between the cook and the physician. Heindorf supposes that the persons designated as being confounded are, the Sophist with the Rhetor; which I cannot think to be the meaning of Plato. This is the definition given by Sokrates of Rhetoric and of the Rhetor. Polus then asks him: You say that Rhetoric is a branch of Flattery: Do you think that good Rhetors are considered as flatterers in their respective cities? Sokr. — I do not think that19 they are
- 71. All men wish for what is good for them. Despots and Rhetors, when they kill any one, do so because they considered at all. Polus. — How! not considered? Do not good Rhetors possess great power in their respective cities? Sokr. — No: if you understand the possession of power as a good thing for the possessor. Polus. — I do understand it so. Sokr. — Then I say that the Rhetors possess nothing beyond the very minimum of power. Polus. — How can that be? Do not they, like despots, kill, impoverish, and expel any one whom they please? Sokr. — I admit that both Rhetors and Despots can do what seems good to themselves, and can bring penalties of death, poverty, or exile upon others: but I say that nevertheless they have no power, because they can do nothing which they really wish.20 19 Plat. Gorg. p. 466 B. Polus. Ἆρ’ οὖν δοκοῦσί σοι ὡς κόλακες ἐν ταῖς πόλεσι φαῦλοι νομίζεσθαι οἱ ἀγαθοὶ ῥήτορες; .... Sokr. Οὐδὲ νομίζεσθαι ἔμοιγε δοκοῦσιν. The play on words here — for I see nothing else in it — can be expressed in English as well as in Greek. It has very little pertinence; because, as a matter of fact, the Rhetors certainly had considerable importance, whether they deserved it or not. How little Plato cared to make his comparisons harmonise with the fact, may be seen by what immediately follows — where he compares the Rhetors to Despots? and puts in the mouth of Polus the assertion that they kill or banish any one whom they choose. 20 Plato, Gorgias, p. 466 E. οὐδὲν γὰρ ποιεῖν ὧν βούλονται, ὡς ἔπος εἰπεῖν· ποιεῖν μέντοι ὃ, τι ἂν αὐτοῖς δόξῃ βέλτιστον εἶναι. That which men wish (Sokrates lays down as a general proposition) is to obtain good, and to escape evil. Each separate act which they perform, is
- 72. think it good for them. If it be really not good, they do not do what they will, and therefore have no real power. performed not with a view to its own special result, but with a view to these constant and paramount ends. Good things, or profitable things (for Sokrates alternates the phrases as equivalent), are wisdom, health, wealth, and other such things. Evil things are the contraries of these.21 Many things are in themselves neither good nor evil, but may become one or the other, according to circumstances — such as stones, wood, the acts of sitting still or moving, &c. When we do any of these indifferent acts, it is with a view to the pursuit of good, or to the avoidance of evil: we do not wish for the act, we wish for its good or profitable results. We do every thing for the sake of good: and if the results are really good or profitable, we accomplish what we wish: if the contrary, not. Now, Despots and Rhetors, when they kill or banish or impoverish any one, do so because they think it will be better for them, or profitable.22 If it be good for them, they do what they wish: if evil for them, they do the contrary of what they wish and therefore have no power. 21 Plato, Gorgias, p. 467 E. Οὐκοῦν λέγεις εἶναι ἀγαθὸν μὲν σοφίαν τε καὶ ὑγίειαν καὶ πλοῦτον καὶ τἄλλα τὰ τοιαῦτα, κακὰ δὲ τἀναντία τούτων; Ἔγωγε. 22 Plato, Gorgias, p. 468 B-C. οὐκοῦν καὶ ἀποκτίννυμεν, εἴ τιν’ ἀποκτίννυμεν, .... οἰόμενοι ἄμεινον εἶναι ἡμῖν ταῦτα ἢ μή; … ἕνεκ’ ἄρα τοῦ ἀγαθοῦ ἅπαντα ταῦτα ποιοῦσιν οἱ ποιοῦντες .... ἐὰν μὲν ὠφέλιμα ᾖ ταῦτα, βουλόμεθα πράττειν αὐτά· βλαβερὰ δὲ ὄντα, οὐ βουλόμεθα.…. τὰ γὰρ ἀγαθὰ βουλόμεθα, ὧς φῂς σύ, &c. To do evil (continues Sokrates), is the worst thing that can happen to any one; the evil-doer is the most miserable and pitiable of men.
- 73. Comparison of Archelaus, usurping despot of Macedonia — Polus affirms that Archelaus is happy, and that every one thinks so — Sokrates admits that every one thinks so, but nevertheless denies it. The person who suffers evil is unfortunate, and is to be pitied; but much less unfortunate and less to be pitied than the evil-doer. If I have a concealed dagger in the public market-place, I can kill any one whom I choose: but this is no good to me, nor is it a proof of great power, because I shall be forthwith taken up and punished. The result is not profitable, but hurtful: therefore the act is not good, nor is the power to do it either good or desirable.23 It is sometimes good to kill, banish, or impoverish — sometimes bad. It is good when you do it justly: bad, when you do it unjustly.24 23 Plato, Gorgias, p. 469-470. 24 Plato, Gorgias, p. 470 C. Polus. — A child can refute such doctrine. You have heard of Archelaus King of Macedonia. Is he, in your opinion, happy or miserable? Sokr. — I do not know: I have never been in his society. Polus. — Cannot you tell without that, whether he is happy or not? Sokr. — No, certainly not. Polus. — Then you will not call even the Great King happy? Sokr. — No: I do not know how he stands in respect to education and justice. Polus. — What! does all happiness consist in that? Sokr. — I say that it does. I maintain that the good and honourable man or woman is happy: the unjust and wicked, miserable.25 Polus. — Then Archelaus is miserable, according to your doctrine? Sokr. — Assuredly, if he is wicked. Polus. — Wicked, of course; since he has committed enormous crimes: but he has obtained complete kingly power in Macedonia. Is there any Athenian, yourself included, who would not rather be Archelaus than
- 74. any other man in Macedonia?26 Sokr. — All the public, with Nikias, Perikles, and the most eminent men among them, will agree with you in declaring Archelaus to be happy. I alone do not agree with you. You, like a Rhetor, intend to overwhelm me and gain your cause, by calling a multitude of witnesses: I shall prove my case without calling any other witness than yourself.27 Do you think that Archelaus would have been a happy man, if he had been defeated in his conspiracy and punished? Polus. — Certainly not: he would then have been very miserable. Sokr. — Here again I differ from you: I think that Archelaus, or any other wicked man, is under all circumstances miserable; but he is less miserable, if afterwards punished, than he would be if unpunished and successful.28 Polus. — How say you? If a man, unjustly conspiring to become despot, be captured, subjected to torture, mutilated, with his eyes burnt out and with many other outrages inflicted, not only upon himself but upon his wife and children — do you say that he will be more happy than if he succeeded in his enterprise, and passed his life in possession of undisputed authority over his city — envied and extolled as happy, by citizens and strangers alike?29 Sokr. — More happy, I shall not say: for in both cases he will be miserable; but he will be less miserable on the former supposition. 25 Plato, Gorgias, p. 470 E. 26 Plato, Gorgias, p. 471 B-C. 27 Plato, Gorgias, p. 472 B. Ἀλλ’ ἐγώ σοι εἶς ὢν οὐχ ὁμολογῶ.… ἐγὼ δὲ ἂν μὴ σὲ αὐτὸν ἕνα ὄντα μάρτυρα παράσχωμαι ὁμολογοῦντα περὶ ὧν λέγω, οὐδὲν οἶμαι ἄξιον λόγου πεπεράνθαι περὶ ὧν ἂν ἡμῖν ὁ λόγος ᾖ· οἶμαι δὲ οὐδὲ σοί, ἐὰν μὴ ἐγώ σοι μαρτυρῶ εἷς ὢν μόνος, τοὺς δ’ ἄλλους πάντας τούτους χαίρειν ἐᾷς.
- 75. Sokrates maintains — 1. That it is a greater evil to do wrong, than to suffer wrong. 2. That if a man has done wrong, it is better for him to be punished than to remain unpunished. 28 Plato, Gorgias, p. 473 C. 29 Plato, Gorgias, p. 473 D. Sokr. — Which of the two is worst: to do wrong, or to suffer wrong? Polus. — To suffer wrong. Sokr. — Which of the two is the most disgraceful? Polus. — To do wrong. Sokr. — If more ugly and disgraceful, is it not then worse? Polus. — By no means. Sokr. — You do not think then that the good — and the fine or honourable — are one and the same; nor the bad — and the ugly or disgraceful? Polus. — No: certainly not. Sokr. — How is this? Are not all fine or honourable things, such as bodies, colours, figures, voices, pursuits, &c., so denominated from some common property? Are not fine bodies said to be fine, either from rendering some useful service, or from affording some pleasure to the spectator who contemplates them?30 And are not figures, colours, voices, laws, sciences, &c., called fine or honourable for the same reason, either for their agreeableness or their usefulness, or both? Polus. — Certainly: your definition of the fine or honourable, by reference to pleasure, or to good, is satisfactory. Sokr. — Of course therefore the ugly or disgraceful must be defined by the contrary, by reference to pain or to evil? Polus. — Doubtless.31 Sokr. — If therefore one thing be finer or more honourable than another, this is because it surpasses the other either in pleasure, or in profit: if one thing be more ugly or disgraceful than another, it must surpass that other either in pain, or in evil? Polus. — Yes. 30 Plat. Gorg. p. 474 D. ἐὰν ἐν τῷ θεωρεῖσθαι χαίρειν ποιῇ τοὺς θεωροῦντας;
- 76. Sokrates offers proof — Definition of Pulchrum and Turpe — Proof of the first point. 31 Plato, Gorgias, p. 474 E. Sokr. Καὶ μὴν τά γε κατὰ τοὺς νόμους καὶ τὰ ἐπιτηδεύματα, οὐ δήπου ἐκτὸς τούτων ἐστὶ τὰ καλά, τοῦ ἢ ὠ φ έ λ ι μ α ε ἶ ν α ι ἢ ἡ δ έ α ἢ ἀμφότερα. Pol. Οὐκ ἔμοιγε δοκεῖ. Sokr. Οὐκοῦν καὶ τῶν μαθημάτων κάλλος ὡσαύτως; Pol. Πάνυ γε· καὶ καλῶς γε νῦν ὁριζει, ἡ δ ο ν ῇ τ ε κ α ὶ ἀ γ α θ ῷ ὁριζόμενος τὸ καλόν. Sokr. Οὐκοῦν τὸ αἰσχρὸν τῷ ἐναντίῳ, λ ύ π ῃ τ ε κ α ὶ κ α κ ῷ ; Pol. Ἀνάγκη. A little farther on βλαβὴ is used as equivalent to κακόν. These words — καλόν, αἰσχρόν — (very difficult to translate properly) introduce a reference to the feeling or judgment of spectators, or of an undefined public, not concerned either as agents or sufferers. Sokr. — Well, then! what did you say about doing wrong and suffering wrong? You said that to suffer wrong was the worst of the two, but to do wrong was the most ugly or disgraceful. Now, if to do wrong be more disgraceful than to suffer wrong, this must be because it has a preponderance either of pain or of evil? Polus. — Undoubtedly. Sokr. — Has it a preponderance of pain? Does the doer of wrong endure more pain than the sufferer? Polus. — Certainly not. Sokr. — Then it must have a preponderance of evil? Polus. — Yes. Sokr. — To do wrong therefore is worse than to suffer wrong, as well as more disgraceful? Polus. — It appears so. Sokr. — Since therefore it is both worse and more disgraceful, I was right in affirming that neither you, nor I, nor any one else, would choose to do wrong in preference to suffering wrong. Polus. — So it seems.32 32 Plato, Gorgias, p. 475 C-D.
- 77. Proof of the second point. Sokr. — Now let us take the second point — Whether it be the greatest evil for the wrong-doer to be punished, or whether it be not a still greater evil for him to remain unpunished. If punished, the wrong- doer is of course punished justly; and are not all just things fine or honourable, in so far as they are just? Polus. — I think so. Sokr. — When a man does anything, must there not be some correlate which suffers; and must it not suffer in a way corresponding to what the doer does? Thus if any one strikes, there must also be something stricken: and if he strikes quickly or violently, there must be something which is stricken quickly or violently. And so, if any one burns or cuts, there must be something burnt or cut. As the agent acts, so the patient suffers. Polus. — Yes. Sokr. — Now if a man be punished for wrong doing, he suffers what is just, and the punisher does what is just? Polus. — He does. Sokr. — You admitted that all just things were honourable: therefore the agent does what is honourable, the patient suffers what is honourable.33 But if honourable, it must be either agreeable — or good and profitable. In this case, it is certainly not agreeable: it must therefore be good and profitable. The wrong-doer therefore, when punished, suffers what is good and is profited. Polus. — Yes.34 Sokr. — In what manner is he profited? It is, as I presume, by becoming better in his mind — by being relieved from badness of mind. Polus. — Probably. Sokr. — Is not this badness of mind the greatest evil? In regard to wealth, the special badness is poverty: in regard to the body, it is weakness, sickness, deformity, &c.: in regard to the mind, it is ignorance, injustice, cowardice, &c. Is not injustice, and other badness of mind, the most disgraceful of the three? Polus. — Decidedly. Sokr. — If it be most disgraceful, it must therefore be the worst. Polus. — How? Sokr. — It must (as we before agreed) have the greatest
- 78. The criminal labours under a mental distemper, which though not painful, is a capital evil. Punishment is the only cure for him. To be punished is best for him. preponderance either of pain, or of hurt and evil. But the preponderance is not in pain: for no one will say that the being unjust and intemperate and ignorant, is more painful than being poor and sick. The preponderance must therefore be great in hurt and evil. Mental badness is therefore a greater evil than either poverty, or disease and bodily deformity. It is the greatest of human evils. Polus. — It appears so.35 33 See Aristotle, Rhet. i. 9, p. 1366, b. 30, where the contrary of this opinion is maintained, and maintained with truth. 34 Plato, Gorgias, p. 476 D-E. 35 Plato, Gorgias, p. 477 E. Sokr. — The money-making art is, that which relieves us from poverty: the medical art, from sickness and weakness: the judicial or punitory, from injustice and wickedness of mind. Of these three relieving forces, which is the most honourable? Polus. — The last, by far. Sokr. — If most honourable, it confers either most pleasure or most profit? Polus. — Yes. Sokr. — Now, to go through medical treatment is not agreeable; but it answers to a man to undergo the pain, in order to get rid of a great evil, and to become well. He would be a happier man, if he were never sick: he is less miserable by undergoing the painful treatment and becoming well, than if he underwent no treatment and remained sick. Just so the man who is mentally bad: the happiest man is he who never becomes so; but if a man has become so, the next best course for him is, to undergo punishment and to get rid of the evil. The worst
- 79. Misery of the Despot who is never punished. If our friend has done wrong, we ought to get him punished: if our enemy, we ought to keep him unpunished. lot of all is, that of him who remains mentally bad, without ever getting rid of badness.36 36 Plato, Gorgias, p. 478 D-E. This last, Polus (continues Sokrates), is the condition of Archelaus, and of despots and Rhetors generally. They possess power which enables them, after they have committed injustice, to guard themselves against being punished: which is just as if a sick man were to pride himself upon having taken precautions against being cured. They see the pain of the cure, but they are blind to the profit of it; they are ignorant how much more miserable it is to have an unhealthy and unjust mind than an unhealthy body.37 There is therefore little use in Rhetoric: for our first object ought to be, to avoid doing wrong: our next object, if we have done wrong, not to resist or elude punishment by skilful defence, but to present ourselves voluntarily and invite it: and if our friends or relatives have done wrong, far from helping to defend them, we ought ourselves to accuse them, and to invoke punishment upon them also.38 On the other hand, as to our enemy, we ought undoubtedly to take precautions against suffering any wrong from him ourselves: but if he has done wrong to others, we ought to do all we can, by word or deed, not to bring him to punishment, but to prevent him from suffering punishment or making compensation: so that he may live as long as possible in impunity.39 These are the purposes towards which rhetoric is serviceable. For one who intends to do no wrong, it seems of no great use.40
- 80. Argument of Sokrates paradoxical — Doubt expressed by Kallikles 37 Plato, Gorgias, p. 479 B. τὸ ἀλγεινὸν αὐτοῦ καθορᾷν, πρὸς δὲ τὸ ὠφέλιμον τυφλῶς ἔχειν, καὶ ἀγνοεῖν ὅσῳ ἀθλιώτερόν ἐστι μὴ ὑγιοῦς σώματος μὴ ὑγιεῖ ψυχῇ συνοικεῖν, ἀλλὰ σαθρᾷ καὶ ἀδίκῳ καὶ ἀνοσίῳ. 38 Plato, Gorgias, pp. 480 C, 508 B. κατηγορητέον εἴη καὶ αὑτοῦ καὶ υἱέος καὶ ἑταίρον, ἐάν τι ἀδικῇ, &c. Plato might have put this argument into the mouth of Euthyphron as a reason for indicting his own father on the charge of murder: as I have already observed in reviewing the Euthyphron, which see above, vol. i. ch. xi., p. 442. 39 Plato, Gorgias, p. 481 A. ἐὰν δὲ ἄλλον ἀδικῇ ὁ ἐχθρός, παντὶ τρόπῳ παρασκευαστέον καὶ πράττοντα καὶ λέγοντα, ὅπως μὴ δῷ δίκην.… ἐάν τε χρυσίον ἡρπακὼς ᾖ πολύ, μὴ ἀποδιδῷ τοῦτο, ἀλλ’ ἔχων ἀναλίσκηται … ἀδίκως καὶ ἀθέως, &c. 40 Plato, Gorgias, p. 481. This dialogue between Sokrates and Polus exhibits a representation of Platonic Ethics longer and more continuous than is usual in the dialogues. I have therefore given a tolerably copious abridgment of it, and shall now proceed to comment upon its reasoning. The whole tenor of its assumptions, as well as the conclusions in which it ends, are so repugnant to received opinions, that Polus, even while
- 81. whether he means it seriously. Principle laid down by Sokrates — That every one acts with a view to the attainment of happiness and avoidance of misery. compelled to assent, treats it as a paradox: while Kallikles, who now takes up the argument, begins by asking from Chærephon — “Is Sokrates really in earnest, or is he only jesting?”41 Sokrates himself admits that he stands almost alone. He has nothing to rely upon, except the consistency of his dialectics — and the verdict of philosophy.42 This however is a matter of little moment, in discussing the truth and value of the reasoning, except in so far as it involves an appeal to the judgment of the public as a matter of fact. Plato follows out the train of reasoning — which at the time presents itself to his mind as conclusive, or at least as plausible — whether he may agree or disagree with others. 41 Plato, Gorgias, p. 481. 42 Plato, Gorgias, p. 482. Plato has ranked the Rhetor in the same category as the Despot: a classification upon which I shall say something presently. But throughout the part of the dialogue just extracted, he treats the original question about Rhetoric as part of a much larger ethical question.43 Every one (argues Sokrates) wishes for the attainment of good and for the avoidance of evil. Every one performs each separate act with a view not to its own immediate end, but to one or other of these permanent ends. In so far as he attains them, he is happy: in so far as he either fails in attaining the good, or incurs the evil, he is unhappy or miserable. The good and honourable man or woman is happy, the unjust and wicked is miserable. Power acquired or employed unjustly, is no boon to the possessor: for he does not
- 82. Peculiar view taken by Plato of Good — Evil — thereby obtain what he really wishes, good or happiness; but incurs the contrary, evil and misery. The man who does wrong is more miserable than he who suffers wrong: but the most miserable of all is he who does wrong and then remains unpunished for it.44 43 I may be told that this comparison is first made by Polus (p. 466 C), and that Sokrates only takes it up from him to comment upon. True, but the speech of Polus is just as much the composition of Plato as that of Sokrates. Many readers of Plato are apt to forget this. 44 Isokrates, in his Panathenaic Oration (Or. xii. sect. 126, pp. 257- 347), alludes to the same thesis as this here advanced by Plato, treating it as one which all men of sense would reject, and which none but a few men pretending to be wise would proclaim — ἅπερ ἅπαντες μὲν ἂν οἱ νοῦν ἔχοντες ἔλοιντο καὶ βουληθεῖεν, ὀλίγοι δέ τινες τῶν προσποιουμένων εἶναι σοφῶν, ἐρωτηθέντες οὐκ ἂν φήσαιεν. In this last phrase Isokrates probably has Plato in his mind, though without pronouncing the name. Polus, on the other hand, contends, that Archelaus, who has “waded through slaughter” to the throne of Macedonia, is a happy man both in his own feelings and in those of every one else, envied and admired by the world generally: That to say — Archelaus would have been more happy, or less miserable, if he had failed in his enterprise and had been put to death under cruel torture — is an untenable paradox. The issue here turns, and the force of Plato’s argument rests (assuming Sokrates to speak the real sentiments
- 83. Happiness. Contrast of the usual meaning of these words, with the Platonic meaning. of Plato), upon the peculiar sense which he gives to the words Good — Evil — Happiness:—different from the sense in which they are conceived by mankind generally, and which is here followed by Polus. It is possible that to minds like Sokrates and Plato, the idea of themselves committing enormous crimes for ambitious purposes might be the most intolerable of all ideas, worse to contemplate than any amount of suffering: moreover, that if they could conceive themselves as having been thus guilty, the sequel the least intolerable for them to imagine would be one of expiatory pain. This, taken as the personal sentiment of Plato, admits of no reply. But when he attempts to convert this subjective judgment into an objective conclusion binding on all, he fails of success, and misleads himself by equivocal language. Plato distinguishes two general objects of human desire, and two of human aversion. 1. The immediate, and generally transient, object — Pleasure or the Pleasurable — Pain or the Painful. 2. The distant, ulterior, and more permanent object — Good or the profitable — Evil or the hurtful. — In the attainment of Good and avoidance of Evil consists happiness. But now comes the important question — In what sense are we to understand the words Good and Evil? What did Plato mean by them? Did he mean the same as mankind generally? Have mankind generally one uniform meaning? In answer to this question, we must say, that neither Plato, nor mankind generally, are consistent or unanimous in their use of the words: and that Plato sometimes approximates to, sometimes diverges from, the more usual meaning. Plato does not here tell us clearly what he himself means by Good and Evil: he specifies no objective or
- 84. Examination of the proof given by Sokrates — external mark by which we may know it: we learn only, that Good is a mental perfection — Evil a mental taint — answering to indescribable but characteristic sentiments in Plato’s own mind, and only negatively determined by this circumstance — That they have no reference either to pleasure or pain. In the vulgar sense, Good stands distinguished from pleasure (or relief from pain), and Evil from pain (or loss of pleasure), as the remote, the causal, the lasting from the present, the product, the transient. Good and Evil are explained by enumerating all the things so called, of which enumeration Plato gives a partial specimen in this dialogue: elsewhere he dwells upon what he calls the Idea of Good, of which I shall speak more fully hereafter. Having said that all men aim at good, he gives, as examples of good things — Wisdom, Health, Wealth, and other such things: while the contrary of these, Stupidity, Sickness, Poverty, are evil things: the list of course might be much enlarged. Taking Good and Evil generally to denote the common property of each of these lists, it is true that men perform a large portion of their acts with a view to attain the former and avoid the latter:—that the approach which they make to happiness depends, speaking generally, upon the success which attends their exertions for the attainment of and avoidance of these permanent ends: and moreover that these ends have their ultimate reference to each man’s own feelings. But this meaning of Good is no longer preserved, when Sokrates proceeds to prove that the triumphant usurper Archelaus is the most miserable of men, and that to do wrong with impunity is the greatest of all evils. Sokrates provides a basis for his intended proof by asking Polus,45
- 85. Inconsistency between the general answer of Polus and his previous declarations — Law and Nature. which of the two is most disgraceful — To do wrong — or to suffer wrong? Polus answers — To do wrong: and this answer is inconsistent with what he had previously said about Archelaus. That prince, though a wrong-doer on the largest scale, has been declared by Polus to be an object of his supreme envy and admiration: while Sokrates also admits that this is the sentiment of almost all mankind, except himself. To be consistent with such an assertion, Polus ought to have answered the contrary of what he does answer, when the general question is afterwards put to him: or at least he ought to have said — “Sometimes the one, sometimes the other”. But this he is ashamed to do, as we shall find Kallikles intimating at a subsequent stage of the dialogue:46 because of King Nomos, or the established habit of the community — who feel that society rests upon a sentiment of reciprocal right and obligation animating every one, and require that violations of that sentiment shall be marked with censure in general words, however widely the critical feeling may depart from such censure in particular cases.47 Polus is forced to make profession of a faith, which neither he nor others (except Sokrates with a few companions) universally or consistently apply. To bring such a force to bear upon the opponent, was one of the known artifices of dialecticians:48 and Sokrates makes it his point of departure, to prove the unparalleled misery of Archelaus. 45 Plat. Gorg. p. 474 C. 46 Plat. Gorg. p. 482 C. To maintain that τὸ ἀδικεῖν βέλτιον τοῦ ἀδικεῖσθαι was an ἄδοξος ὑπόθεσις — one which it was χείρονος
- 86. ἤθους ἑλέσθαι: which therefore Aristotle advises the dialectician not to defend (Aristot. Topic. viii. 156, 6-15). 47 This portion of the Gorgias may receive illustration from the third chapter (pp. 99-101) of Adam Smith’s Theory of Moral Sentiments, entitled, “Of the corruption of our moral sentiments, which is occasioned by the disposition to admire the rich and great, and to neglect or despise persons of poor and mean condition”. He says — “The disposition to admire and almost to worship the rich and the powerful, and to despise, or at least to neglect, persons of poor and mean condition, though necessary both to establish and maintain the distinction of ranks and the order of society, is, at the same time, the great and most universal cause of the corruption of our moral sentiments.… They are the wise and the virtuous chiefly — a select, though I am afraid, a small party — who are the real and steady admirers of wisdom and virtue. The great mob of mankind are the admirers and worshippers — and what may seem more extraordinary, most frequently the disinterested admirers and worshippers — of wealth and greatness.…. It is scarce agreeable to good morals, or even to good language, perhaps, to say that mere wealth and greatness, abstracted from merit and virtue, deserve our respect. We must acknowledge, however, that they almost constantly obtain it: and that they may therefore in a certain sense be considered as the natural objects of it.” Now Archelaus is a most conspicuous example of this disposition of the mass of mankind to worship and admire, disinterestedly, power and greatness: and the language used by Adam Smith in the last sentence illustrates the conversation of Sokrates, Polus, and Kalliklês. Adam Smith admits that energetic proceedings, ending in great power, such as those of Archelaus, obtain honour and worship
- 87. The definition of Pulchrum and Turpe, given by Sokrates, will not hold. from the vast majority of disinterested spectators: and that, therefore they are in a certain sense the natural objects of such a sentiment (κατὰ φύσιν). But if the question be put to him, Whether such proceedings, with such a position, are worthy of honour, he is constrained by good morals (κατὰ νόμον) to reply in the negative. It is true that Adam Smith numbers himself with the small minority, while Polus shares the opinion of the large majority. But what is required by King Nomos must be professed even by dissentients, unless they possess the unbending resolution of Sokrates. 48 Aristot. De Soph. Elench. pp. 172-173, where he contrasts the opinions which men must make a show of holding, with those which they really do — αἱ φανεραὶ δόξαι — αἱ ἀφανεῖς, ἀποκεκρυμμέναι, δόξαι. He proceeds to define Pulchrum and Turpe (καλὸν-αἰσχρόν). When we recollect the Hippias Major, in which dialogue many definitions of Pulchrum were canvassed and all rejected, so that the search ended in total disappointment — we are surprised to see that Sokrates hits off at once a definition satisfactory both to himself and Polus: and we are the more surprised, because the definition here admitted without a remark, is in substance one of those shown to be untenable in the Hippias Major.49 It depends upon the actual argumentative purpose which Plato has in hand, whether he chooses to multiply objections and give them effect — or to ignore them altogether. But the definition which he here proposes, even if assumed as incontestable, fails altogether to sustain the conclusion that he draws from it. He defines Pulchrum to be that which either confers pleasure upon the spectator when he contemplates it, or produces ulterior profit or
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