Commonwealth v Verwayen (1990) 170 CLR 394

Court: High Court of Australia

Judges: Deane J, Dawson J, Toohey J, Gaudron J; Mason CJ, Brennan J, McHugh J dissenting.

Date decided: 05 September 1990

In an exercise, the destroyer HMAS Voyager sailed under the bow of the aircraft carrier HMAS Melbourne, and was cut in two and sunk; 82 sailors were killed. Verwayen, a sailor in the Royal Australian Navy, was injured when the two warships collided in 1964.1) He sued the Commonwealth for negligence in 1984. The Commonwealth had previously adopted a policy of not contesting liability and not claiming a defence based on the limitation of actions. In 1986, Commonwealth policy changed, and it attempted to amend its defence to raise a limitations defence and assert that it owed no duty of care to the sailor. Verwayen argued that the Commonwealth had waived both defences, and that it was estopped from relying on either. The Commonwealth admitted that it promised not to rely on a limitations argument, but argued that the promise was unenforceable – not being subject to consideration, the only remedy available under equitable estoppel would be to avoid detriment (a costs order), rather than order specific performance.


Election, a category of waiver, “occurs only where the person waiving the right is entitled to alternative rights inconsistent with one another, such as the right to insist on performance of a contract and the right to rescind for essential breach”.2)

Here, the Commonwealth was not required to elect between inconsistent rights – there was nothing final about pleading defences, and

If there was no need to make an election when the defence was first filed, there is no reason why the comparatively insignificant proceedings which followed gave rise to such a need and precluded the reversal of the previous decision. If the facts give rise to a conclusion that the Commonwealth's decision was irrevocable, then the reason is not to be found in the principles of election.((409.))


Mason CJ held that there was only one form of estoppel:

there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid. It would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption.((413.))

Accordingly, Mason CJ found that

In all the circumstances the proper conclusion to be drawn is that the respondent had been induced by the Commonwealth's conduct to assume that the Commonwealth had made a decision not to plead the limitation defence or the Groves defence and that that decision would not be changed. The fact that the circumstances pointed to the existence of a definitive government policy which had been followed to the point of judgment on other occasions supports the conclusion that that assumption was a reasonable assumption for a person in the respondent's position to make. The relevance of this conclusion is that there is no reason to doubt the respondent's assertion that he made the assumption and continued his action against the Commonwealth in reliance on it.((414.))

However, as for detriment, there was a question as to how detriment was to be measured:

When a person relies upon the correctness of an assumption which is subsequently denied by the party who has induced the making of the assumption, two distinct types of detriment may be caused. In a broad sense, there is the detriment which would result from the denial of the correctness of the assumption upon which the person has relied. In a narrower sense, there is the detriment which the person has suffered as a result of his reliance upon the correctness of the assumption.((415.))

Mason CJ concluded that

the relief which equity grants is by no means necessarily to be measured by the extent of that detriment. So, while detriment in the broader sense is required in order to found an estoppel (and it would be strange to grant relief if such detriment were absent), the law provides a remedy which will often be closer in scope to the detriment suffered in the narrower sense. ((415-6.))

Turning to relief, Mason CJ held that

When a court approaches the task of ascertaining the minimum relief necessary to "do justice" between the parties, it is not correct to make an assessment of the moral rectitude of the actions of the parties in a manner divorced from a consideration of the legal consequences and attributes of those actions. Thus it must be borne in mind that a voluntary promise is generally not enforceable and that pleadings are susceptible of amendment. The breaking of a promise, without more, is morally reprehensible, but not unconscionable in the sense that equity will necessarily prevent its occurrence or remedy the consequent loss. In the same way, with estoppel, something more than a broken promise is required. Each case is one of degree. Reliance upon an assumption for an extended period may give rise to an estoppel justifying a court in requiring that the assumption be made good. The same result may follow from substantial and irreversible detriment suffered in reliance upon the assumption or from detriment which cannot satisfactorily be compensated or remedied. ((416.))

Mason CJ concluded that costs were a sufficient remedy against the Commonwealth's change of position, and allowed the Commonwealth's appeal:

To hold the Commonwealth to its representations, thereby depriving it of defences which were available to it by statute or the general law, would be a disproportionate response to the detriment suffered by the respondent in reliance upon the assumption that the defences would not be pleaded. True it is that the representations reflected a deliberate policy decision made by government at ministerial level at least. That circumstance gave the representations the quality of apparent reliability and went to the issue of reliance. But the apparent reliability of the representations does not enlarge the nature or scope of the detriment which the respondent has suffered in reliance on the representations following the denial of the assumption generated by them. Likewise, the fact that the Commonwealth is the party against whom an estoppel is pleaded is not in this case a point of distinction. It was not argued that any special rule of estoppel applies to assumptions induced by government, either so as to expand or so as to contract the field of operation of the doctrine.((417.))

Brennan J distinguished election, estoppel, and waiver:

Election, estoppel and waiver are cognate concepts: each relates to the sterilization of a legal right otherwise than by contract. A "right" may include a liberty or an immunity, according to the circumstances.((421.))


here are two species of election:

Election consists in a choice between rights which the person making the election knows he possesses and which are alternative and inconsistent rights. [...] A doctrine closely related to election, and sometimes treated as a species of election, is the doctrine of approbation and reprobation. This doctrine precludes a person who has exercised a right from exercising another right which is alternative to and inconsistent with the right he exercised as, eg, where a person "having accepted a benefit given him by a judgment, cannot allege the invalidity of the judgment which conferred the benefit"((421.)) (citations omitted).


lection does not require reliance by the other party.3)

Election must be differentiated from estoppel, which requires reliance:

Estoppel by representation of a fact (estoppel in pais) precludes a party who, by his representation, has induced another party to adopt or accept the fact and thereby to act to the other party's detriment from asserting a right inconsistent with the fact on which the other party acted: Thompson v Palmer   127  ; Grundt v Great Boulder Pty Gold Mines Ltd   128  . Equitable estoppel or, as I prefer to call it, an equity arising by estoppel precludes a person who, by a promise, has induced another party to rely on the promise and thereby to act to his detriment from resiling from the promise without avoiding the detriment: Waltons Stores (Interstate) Ltd v Maher   129  . An equity of this kind, by imposing a liability either to avoid detriment to the other party or to honour the promise, trenches upon the liberties or immunities of the person who is bound. An estoppel, whether in pais or arising in equity, is binding so soon as it is acted on to the detriment of the other party.((422.))

Finally, “Waiver is a term of shifting meaning.”4):

a right which is susceptible of waiver can be "confessed" by a party against whom it might prima facie be exercisable but that party's liability can be "avoided" by showing that the right has been abandoned. In other words, upon waiver, the party waiving the right ceases to be able thereafter to assert it effectively. When a right has been waived in the sense defined by Lord Hailsham (and it is in this sense that it is used in this judgment), it is unnecessary to consider whether any other party has acted in reliance on the release or abandonment: the right is abandoned once and for all.((423.))

Brennan J noted that there has been some difference of opinion in classifying these doctrines:

These distinct doctrines serve different purposes: election (in either species) ensures that there is no inconsistency in the enforcement of a person's rights; estoppel or equitable estoppel ensures that a party who acts in reliance on what another has represented or promised suffers no unjust detriment thereby; waiver recognizes the unilateral divestiture of certain rights. True it is that the divisions in nature and purpose between one of these doctrines and another have not always been expressed in the way in which I have stated them and there have been occasions when the sterilization of a right has been dubiously attributed to one doctrine rather than to another.((423.))[...]The sterilizing of a right might, in some circumstances, be attributable to either a waiver or an election, but the doctrines are distinct, for a right may be waived though there is no alternative right inconsistent with it. As it is erroneous to treat waiver in the sense relevant to this case as synonymous with, or as a species of, estoppel, it is convenient to examine these doctrines separately.((424.))



Brennan J held that it was possible to waive the right to object to a claim based upon the Statute of Limitations, but not possible to waive one of the elements of the plaintiff's claim (existence of a duty), as that was not a right which exists solely for the Commonwealth's benefit.

The time when waiver of a right occurs depends on the relationship between a party possessed of such a right and the party whose interests may be affected by exercise of the right. When the party possessed of the right knows that a new legal relationship is to be constituted between him and the party whose interests are liable to affection by exercise of the right and that the right, if exercised, might affect that new relationship, the party possessing the right must enforce the right before the new relationship is constituted or he will be held to have waived the right. The new relationship is typically created by the pronouncing of a judgment in which the existing rights of the parties are merged or by the making of an order, but it may be created in other ways. However created, it is on or before the constitution of the new relationship that the right must be exercised: the right is not waived until the last moment at which its exercise is capable of affecting the new relationship: see Ward v Raw   150  . Once the new relationship is constituted without exercise of the right, it is immaterial that the relationship would not have been differently constituted had the right been exercised.As a right is waived only when the time comes for its exercise and the party for whose sole benefit it has been introduced knowingly abstains from exercising it, a mere intention not to exercise a right is not immediately effective to divest or sterilize it.((427.))

Brennan J held that, in the present case, “leave to amend was granted to the Commonwealth to plead s 5(6) of the Limitation Act; there was no prior contract binding on the Commonwealth not to plead it. The time for waiving the defence had not arrived. If the Commonwealth is to be held to its original intention not to waive the defence conferred by s 5(6) of the Limitation Act, it must be by reason of an equity arising from estoppel.” 5)


Brennan J considered that fulfilment of the promise made by the Commonwealth was not necessary to remedy the detriment caused:

The relevant detriment in a case of equitable estoppel is detriment occasioned by reliance on a promise, that is, detriment occasioned by acting or abstaining from acting on the faith of a promise that is not fulfilled. The relevant detriment does not consist in a loss attributable merely to non-fulfilment of the promise.((429.))

>[...]it was not suggested that any exacerbation of the plaintiff's ill-health flowed from some act done or omission made by him in reliance on the defendant's promise to admit or earlier admission of liability. Nor is the loss of the plaintiff's chance of success a detriment occasioned by any act done or omission made by the plaintiff in reliance on the defendant's promise to admit or earlier admission of liability. Those "detriments" flowed from the defendant's failure to fulfil its promise, but not from any act done or omission made by the plaintiff in reliance on the making of the promise. They are not relevant detriments.

The only relevant detriment which the plaintiff suffered, according to his pleadings and the argument of his counsel, was financial loss in continuing with the action until the defence was amended to deny negligence and to raise s 5(6) of the Limitation Act. In these circumstances, to hold the Commonwealth to its promise to admit liability in negligence would be to go beyond the minimum equity. ((429-30.))

Brennan J would have remitted the matter to the trial judge to determine what detriment was suffered.6)

Deane J, subject to some explanation that there is only one general doctrine of estoppel by conduct, agreed with Dawson J.

Deane J considered that there would be significant harm to Verwayen if the Commonwealth were allowed to resile from its representation:

If the Commonwealth were now allowed to depart from the assumed state of affairs, the detriment which Mr Verwayen would sustain could not be measured in terms merely of wasted legal costs. The past stress, anxiety, inconvenience and effort which were involved in the pursuit of the proceedings would be rendered futile. More important, Mr Verwayen would be subjected to the potentially devastating effects of a last-minute denial of an expectation of just compensation for his injuries in circumstances where those injuries were sustained in the course of the service of the Commonwealth by reason of the negligence of another or others in that service and where that expectation of just compensation had been deliberately induced by the Commonwealth. In that regard, the learned primary judge was expressly informed, without objection or dissent, that the relevant detriment included "increased ill health" and that part of Mr Verwayen's "problems are of a psychiatric nature and medical evidence is that this" — ie the Commonwealth's inducement of the assumption and attempt to depart from it ("take away the carrot") — "has had and will continue to have ... severe consequences upon the ill health produced by the defendant's negligence" (i.e the original accident). It is true that the extent of the detriment which, in the absence of an estoppel, Mr Verwayen would sustain by reason of the induced assumption has not been established or quantified with the precision which might be thought necessary to discharge an onus of proof in an action for pecuniary compensation for that detriment. That is not surprising however, since the issue of estoppel was resolved against Mr Verwayen before he had an opportunity of leading detailed evidence. More important, the absence of such detailed evidence is not really to the point in circumstances where the relevant detriment to Mr Verwayen would obviously extend far beyond any question of legal costs and be of such a nature and extent that it cannot properly be said that it exceeds the requirements of good conscience or is unjust to the Commonwealth to hold it to the assumed state of affairs upon the basis of which it deliberately induced Mr Verwayen to act. ((448-9.))


Deane J considered that this was not a waiver case:

There are three further matters which I would mention. The first is, to some extent, a matter of semantics. It is that I do not see the case as one of "waiver". In Foran v Wight   239  , I expressed the view that the somewhat arbitrary doctrine of waiver is being increasingly absorbed and rationalized by the more flexible doctrine of estoppel by conduct and that, "in cases ... where the focus is upon action by one party 'upon' what was conveyed to that party by the other party, the applicable primary doctrine should be seen in a modern context as that of estoppel". Upon reflection, I should have omitted the qualification "primary" from that statement. In the context of the development of the general doctrine of estoppel by conduct in recent years, it seems to me to be preferable to confine the rubric of "waiver" within the area of the law in which, notwithstanding the absence of consideration, the act of the alleged waivor is of itself directly operative to "waive" a right or entitlement without there being any need to establish that the other party has acted upon the basis that the right or entitlement in question was no longer asserted. The principal examples of cases falling within that area are cases of true election (see, generally, the discussion in the judgment of Lord Goff of Chieveley in The "Kanchenjunga"   240  ). Where a case is said to fall within that area, estoppel by conduct may, if the claim of waiver fails, operate either directly to preclude enforcement of the right allegedly waived or indirectly to preclude departure from a representation that the right had been or would be waived.((449-50.))

Dawson J held that 'waiver' has no independent existence:

"Waiver" is an imprecise term and is used to describe what is done in a variety of circumstances rather than to assert any particular legal process. However, where it is not used in the sense of election between mutually exclusive alternatives, if it has any identifiable legal consequence, it is generally indistinguishable from estoppel.((451.))

Dawson J, recognising that there was a representation and reliance, held that there was real detriment in this case. In doing so, his Honour took into account the stress of the litigation:

There can be no question that the respondent acted upon the assumption that the appellant would not exercise its right to claim that the action was statute barred. No doubt the respondent was, or could be, compensated by an award of costs for any actual expense incurred as a result of the appellant's failure to plead the statute of limitations at the beginning. But the real detriment to the respondent was that he was induced by the assumption that the appellant would not insist upon the statute to allow the litigation to proceed for more than a year without taking any steps to bring it to a conclusion by way of settlement or, if necessary, withdrawal. Furthermore, as Lord Griffiths observed in Ketteman v Hansel Properties   276  , "justice cannot always be measured in terms of money" and the strain of litigation, particularly where that litigation is between a natural person and a defendant with the resources of the Commonwealth, is not to be underestimated. By falsely raising his hopes, the appellant led the respondent to continue with the litigation and forgo any exploration of the possibility of settlement thereby subjecting himself to a prolonged period of stress in an action in which the damages claimed were for, amongst other things, a high level of anxiety and depression. I would hold that the appellant was estopped from insisting upon the statute of limitations, and would observe that the equity raised by the appellant's conduct was such, in my view, that it could only be accounted for by the fulfilment of the assumption upon which the respondent's actions were based. (citations removed) ((461-2.))

Dawson J also held that the Commonwealth was estopped from raising an affirmative defence to the negligence claim:

The other defence raised by amendment which is said in reply to have been waived is that which alleges that the appellant owed the respondent no duty of care because he was injured, if at all, whilst participating in combat exercises as a serving member of the Royal Australian Navy. In fact, the appellant also amended its defence to deny negligence altogether in addition to denying the existence of a duty of care. It is difficult to understand why the respondent restricted his allegation of waiver to the more limited denial of liability, but in the absence of any amendment of the reply, that is the basis upon which we must deal with the matter. In my view, the appellant was estopped from denying any duty of care for the same reasons as it was estopped from insisting upon the statute of limitations. The two matters were clearly linked in causing the respondent to act or refrain from acting as he did. There was no more justification in the circumstances for the appellant's ultimate denial of liability than there was for its insistence upon the statute. The fact that the litigation was allowed to continue for as long as it did was no doubt due as much to the admission of liability as to the absence of any insistence upon the statute.
Furthermore, any estoppel raised here is also raised defensively rather than as part of the cause of action. Obviously, the cause of action as pleaded by the respondent in his statement of claim involved no estoppel. When the appellant made an admission of liability in its defence, the respondent was relieved, subject to proof of damage, of any obligation to prove negligence. It was by way of defence against the change brought about by the appellant's amendment of its pleading that the respondent raised the question of waiver in reply. The waiver, or estoppel, was not pleaded as part of the cause of action but to preclude the appellant from departing from the assumption which it had induced. I would hold that the appellant was also estopped from denying liability by claiming that it owed no duty of care to the respondent and, for that reason, it is unnecessary to consider further that particular defence.((462-3.))

Toohey J distingiushed waiver from estoppel and variation, and considered waiver in the sense of election:

In my view, waiver, by that name, has a role to play. And it is a role which involves no confusion with variation of contract or promissory estoppel. It may be seen as a form of election between inconsistent rights, in the former of the categories mentioned by Mason J in Sargent   313  . Election implies that a choice must be made between two rights which are mutually exclusive "Obviously there can be no election, choosing one course to the exclusion of another, when in fact there is only one course to take, or where the two courses are such that the adoption of one of them does not necessarily indicate a final intention to abandon the other": Spencer Bower and Turner, p 342. But, in the second of those categories, "the legal grounds on which a person is precluded from raising a particular defence ... ", an election is involved, only in the sense that a defendant may choose to take a jurisdictional point, rely upon an irregularity in the proceedings, plead a particular defence, or take some other step in the adjudicative process, or he may choose not to do so. But he may not take up "two inconsistent positions", the language used in Craine   314  . It may be, therefore, that "election" is best reserved for the former of Mason J's categories and "waiver" for the latter.((471-2.))

Toohey J continued, explaining that

Waiver, in the sense used for the purposes of this appeal, may be found in the deliberate act of a defendant not to rely upon a defence available to him. That is not to say that there must be an intention to bring about the consequences of waiver; rather, the conduct from which waiver may be inferred, must be deliberate. Detriment is not an essential attribute of waiver, though it will often be found as a consequence. Within the adjudicative process at any rate, it is enough that the defendant "renounces" a defence which is available to him and which is there for his benefit.((473.))

In the case at hand, the Commonwealth had effectively waived its right to raise a limitations defence:

A defence available to a defendant, whether it be on the facts or on the law, is not waived merely because the defendant does not initially plead that defence. It is commonplace for pleadings to change as an action progresses, whether by way of expansion or contraction (though usually the former). But what happened in the present case is more fundamental than a pleading point. The situation is not simply that the Commonwealth had filed a defence to the action and later sought to add a plea of limitation to that defence. The Commonwealth sought to adopt a position which had been open to it at the outset but which it deliberately chose not to make a part of the issues for adjudication. The stance of the Commonwealth from the beginning, consistent with its communications to Mr Verwayen's advisers, was that it was not relying upon the Limitation Act, indeed that it was not defending the action, save as to the amount of damages to be awarded to Mr Verwayen. It was on that footing that the plaintiff pursued his action for damages right through to the listing of the action for the assessment of damages. To uphold a limitations plea in those circumstances would be to permit the Commonwealth to rely upon a defence which it had unequivocally renounced.((473.))

Toohey J considered that waiver, unlike estoppel, could not be withdrawn:

Waiver, in the sense relevant for the purposes of this appeal, is not capable of being withdrawn. It is of the essence of waiver in this sense that the defendant has unequivocally renounced his right to rely upon the particular defence; once the defence has been so renounced (and this will be hard to establish except in a case as clear as this one), the defendant should not be permitted to rely upon it. In this context, to say that waiver may be terminated unless the other party cannot resume his position is, once again, to move into the area of estoppel.((474.))[...]It follows that I disagree with the view expressed in Kerrison v Martin & Heyward   332  , that "any such unilateral waiver without consideration can be terminated at any time", at least if it is thought to apply to waiver as I have sought to identify it in the present case. Because waiver, in this sense, involves unequivocal renunciation or abandonment of a defence, it may occur at any stage of the adjudicative process. In the ordinary course, proof that there has been such a renunciation or abandonment will be the harder to establish, the earlier the stage reached in that process. But that is an evidentiary problem; it does not mean that a particular stage in the adjudication process must be reached before waiver of a defence may occur. ((474-5.))

Toohey J considered that the Commonwealth had waived both its right to rely on a limitations defence and its defence to the negligence claim.7)

Having found waiver, Toohey J did not need to consider estoppel. However, his Honour noted that “the consequence of any promissory estoppel is that the court should enforce the promise only as a means of avoiding detriment and to the extent necessary to achieve that end”,8) which would mean that

In Mr Verwayen's case, that end may be achieved by compensating him for what he has lost by way of costs in pursuing the action. If there are other factors to be taken into account (and before O'Bryan J counsel for the respondent contended that there were such factors), they have not been established in the proceedings that have taken place.((476.))

Gaudron J limited her consideration specifically to the question of points not taken in the course of litigation. Her Honour considered that the Commonwealth had waived its rights to rely on a limitations defence and to raise a defence to negligence.

On estoppel, Gaudron J noted, obiter, that

Although it is not necessary for me to deal with the argument that the object of an estoppel is to avoid detriment and not to make good the assumption on which it is founded, it is convenient that I note my agreement with Mason CJ that the substantive doctrine of estoppel permits a court to do what is required to avoid detriment and does not, in every case, require the making good of the assumption. Even so, it may be that an assumption should be made good unless it is clear that no detriment will be suffered other than that which can be compensated by some other remedy. Where the nature or likely extent of the detriment cannot be accurately or adequately predicted it may be necessary in the interests of justice that the assumption be made good to avoid the possibility of detriment even though the detriment cannot be said to be inevitable or more probable than not. On that basis and were the present matter to be determined by reference to the substantive doctrine of estoppel, the mere possibility of increased stress and anxiety to Mr Verwayen would tend in favour of making good the assumption that liability would not be put in issue by the Commonwealth. As that aspect was not fully explored in argument it is undesirable that I express a concluded view on the matter. However, that aspect aside, the present matter was determined, on the application of the Commonwealth and contrary to the argument made on behalf of Mr Verwayen, on the basis that the issues raised by the pleadings involved no issue of fact for a jury to determine. Were the resolution of this case to depend on whether or not Mr Verwayen could establish detriment over and above that which is appropriately dealt with by an order for costs it would be necessary, at the very least, that he be given an opportunity of making that case.((487-8.))

McHugh J held that there was no waiver – it was not too late to amend the pleadings, and the court below was correct in allowing the amendment.9)

Estoppel: No duty of care

I do not think that it is possible to infer that the plaintiff was induced to continue his action and incur unnecessary costs or that he will otherwise suffer detriment by reason of the promise that the Commonwealth would admit liability. The terms of the statement of claim, which was issued before any assurance by the Commonwealth, and the course of events since the Commonwealth changed its mind suggest that the plaintiff would have commenced and continued his action even if the liability of the Commonwealth had been put in issue from the beginning. Moreover, there is no suggestion that the plaintiff has been prejudiced in the conduct of his case by the change of position on the part of the Commonwealth. The claim of estoppel in respect of the defence of "no duty of care" must fail. ((502-3.))

Estoppel: limitations of actions

McHugh J considered that there was reliance on a representation, but did not find sufficient detriment to warrant that the representation be made true:

The plaintiff led no evidence of any particular detriment that he has suffered or will suffer by reason of being induced to alter his position as the result of the conduct of the Commonwealth. The only detriment that one can infer is that of unnecessarily incurring legal costs between the date of the assurance by the Commonwealth that it would not plead the statute and the date when the Commonwealth changed its policy. That detriment to the plaintiff can be avoided by an order for costs. It is possible that the plaintiff has suffered more worry and stress as the result of the assurance of the Commonwealth than he would otherwise have suffered if the Commonwealth had not given the assurance which it did. But the plaintiff led no evidence to this effect, and I do not think that it can be inferred. In any event, even if the plaintiff had sought to make out a case along these lines, his equity would be satisfied by an award of compensation for that additional worry and stress and would not require that the Commonwealth be estopped from relying on the Limitation Act. However, counsel for the plaintiff did not seek to make out any case for compensation on this basis. Nor did he seek an inquiry as to out-of-pocket costs and expenses as suggested by King J. He relied on estoppel as absolutely precluding the Commonwealth from relying on the Limitation Act. But, for the reasons I have given, such a claim cannot succeed. Any equity in favour of the plaintiff arising from the conduct of the Commonwealth can be satisfied by means less drastic than an order precluding the Commonwealth from relying on the Limitation Act.((504.))

Five years later, a similar incident resulted in the sinking of USS Frank E. Evans.
7) , 8)