Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co. KG (The BBC Nile) [2022] FCAFC 171

Federal Court of Australia

Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co. KG (The BBC Nile) [2022] FCAFC 171 File number(s): QUD 277 of 2022

Judgment of: RARES, SC DERRINGTON And STEWART JJ

Date of judgment: 12 October 2022

Catchwords: SHIPPING AND NAVIGATION – stay of action – anti-suit injunction – where arbitration commenced in London – whether foreign choice of law and jurisdiction clauses in respect of inter-State carriage invalid by s 10(1)(b)(ii) of Carriage of Goods by Sea Act 1991 (Cth) (COGSA) – whether carrier's liability lessened contrary to Art 3(8) of Sch 1A to COGSA (Australian Rules) – whether stay ought be granted on undertaking by carrier that Australian Rules, as applied under Australian law, govern the bill of lading SHIPPING AND NAVIGATION – bill of lading for inter-State carriage of goods by sea providing for London arbitration on LMAA terms – whether s 11(2) of COGSA renders clause invalid – construction of s 11(2) – whether possible to discern legislative intention to expand the reference to "bill of lading" to include inter-State carriage – whether additional words should be read into s 11 – whether appropriate for Court to fill apparent gap in s 11 STATUTORY INTERPRETATION – COGSA s 11 – whether invalidates foreign choice of law and jurisdiction clauses with respect to inter-State carriage – consideration of legislative history and purpose of ss 10 and 11 – where no evident rationale as to why s 11 was enacted to exclude inter-State carriage – whether additional words should be read in to s 11 – whether appropriate for Court to fill apparent gap in s 11 JURISDICTION – application for stay of proceedings in favour of London arbitration – where parties consent to declaration in terms of undertaking proffered by applicant– whether consent to declaration amounts to submission to jurisdiction – whether declaration creates an issue estoppel in the arbitration