Sunshine Fisheries sued the insurer and in the alternative their broker. The insurer had denied liability on a number of grounds. At first instance, Pincus, J., decided in favour of the insurer and the broker, finding inter alia that Sunshine Fisheries had breached an express warranty contained in the policy to the effect that the vessel would be skippered in accordance with the appropriate regulations and by-laws. He found that there was an illegality by reason of s. 158 of the Marine Act 1976 (Tasmania), which required among other things that the master hold the necessary certificates. Furthermore, he considered that there had been a non-disclosure of the master’s restriction by reason of s. 24(1) of the Marine Insurance Act 1909 (Commonwealth).2 Pincus, J., also rejected an argument that notice of abandonment had been given and accepted by the insurer. The plaintiffs had alleged that the matters complained of were known to the broker, and so the broker was liable for failing to pass on the information concerning the legal competence of the master. Pincus, J., rejected that on the evidence.

Sunshine Fisheries appealed to the Full Court of the Federal Court in Queensland on two aspects, first, that notice of abandonment had taken place and, secondly, that that amounted to a waiver. Section 68(6) of the Marine Insurance Act3 provides: