Poralu Marine Australia Pty Ltd v MV Dijksgracht [2023] FCAFC 147

FEDERAL COURT OF AUSTRALIA

Poralu Marine Australia Pty Ltd v MV Dijksgracht [2023] FCAFC 147 Appeal from: Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038; [2023] 2 Lloyd's Rep 18

File number(s): NSD 849 of 2022 NSD 852 of 2022

Judgment of: RARES, SARAH C DERRINGTON AND FEUTRILL JJ

Date of judgment: 8 September 2023

Catchwords: CONTRACTS – contract of carriage of goods by sea – formation – whether contract was concluded by way of fixture recap email – construction of recap emails – where recap provided that terms were otherwise as per carrier's standard form booking note and bill of lading including rider clauses but with English law and London arbitration – whether parties intended further terms to be agreed – whether contract was concluded by later return of completed booking note – where sea waybill was issued but not bill of lading. SHIPPING AND NAVIGATION – contract of carriage –whether contract of carriage covered by and or evidenced in a bill of lading – whether shipper demanded or needed to demand issue of a bill of lading – where sea waybill issued – function of document issued. SHIPPING AND NAVIGATION – bills of lading – whether Art 10 of Hague-Visby Rules applied – whether port of loading place of issue for purposes of Art 10(a) – whether Art 10(c) requires a bill of lading to have been issued – where clause paramount in bill of lading incorporated Hague Rules "as enacted in country of shipment" – whether Hague-Visby Rules or Hague Rules incorporated by clause paramount. SHIPPING AND NAVIGATION – bills of lading – clause paramount – whether contract of carriage compulsorily incorporated Hague-Visby Rules within meaning of Art 10(c). ADMIRALTY – action in rem – liability of shipowner – Himalaya clauses – whether shipowner takes benefit of carrier's contractual limitations – whether carrier had authority to act as agent for shipowner – where carrier acted as pool manager and time charterer – where pool management agreement provided for carrier to use all reasonable endeavours to protect and promote interests of shipowner – where pool management agreement subject to charterparty – where particular time charterparty not in evidence – where later version of time charterparty included specific agency clause – whether agency clause was included in the earlier version of the charterparty as agreed at the relevant time.