Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038

FEDERAL COURT OF AUSTRALIA

Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038 File numbers: NSD 139 of 2020 NSD 96 of 2021

Judgment of: STEWART J

Date of judgment: 6 September 2022

Catchwords: SHIPPING AND NAVIGATION – where cargo allegedly damaged – limitation of liability – applicable scheme – where Arts 1-8 of the Hague Rules incorporated into booking note contract – where Art 9 of the Hague Rules not incorporated – where booking note contract provided that carrier's liability shall not exceed £100 per package – where booking note contract is governed by Dutch law – where cargo was loaded on board in Ireland – whether more generous limitation under Hague-Visby Rules applies compulsorily under Irish or Dutch law – whether similar limitation under the Australian Hague Rules, being Sch 1A of the Carriage of Goods by Sea Act 1991 (Cth) (COGSA), applies SHIPPING AND NAVIGATION – Hague-Visby Rules – whether compulsorily applicable under Art 10 – where cargo was loaded on board in Ireland – whether Ireland is a Contracting State – meaning of Contracting State – where sea waybill was signed by carrier's load port agent in Ireland and transmitted by email from the carrier in the Netherlands to France – where the Netherlands and France are Contracting States – whether bill of lading was "issued" in a Contracting State – whether bill of lading that could have been issued would have incorporated the Hague Rules or the Hague-Visby Rules SHIPPING AND NAVIGATION – Australian Hague Rules – whether Rules applicable under Art 10(2) – where Arts 1-8 of the Hague Rules incorporated into booking note contract – whether the Hague Rules apply by agreement or law or otherwise have effect in relation to the carriage where Art 9 was not incorporated – where the application of the Australian Hague Rules under Art 10(2) is subject to Art 10(6) – where Art 10(6) provides that the Rules do not apply to the carriage of goods by sea under a charterparty unless a sea carriage document is issued for the carriage – whether booking note contract is a charterparty – whether sea waybill issued for the carriage is a sea carriage document SHIPPING AND NAVIGATION – charterparties – contract for the carriage of goods by sea – part cargo – where contract nominated intended performing vessel – where vessel was on a tramp trade – where contractual negotiations concerned specialist capabilities of performing vessel – where contract allocated costs of loading and discharge – where contract contained terms providing for laycan, maximum transit time, detention and the issue of a sea carriage document – whether the contract for carriage is a charterparty ADMIRALTY – action in rem – liability of shipowner – Himalaya clauses – whether shipowner takes the benefit of the carrier's contracted limitations – whether carrier had authority to act as agent for the 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 the interests of the shipowner – where pool management agreement is subject to charterparty – where particular time charterparty is 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 CONTRACTS – contract of carriage of goods by sea – formation – whether contract was concluded by way of fixture recap email – where email provided that terms were otherwise as per booking note including rider clauses – whether terms yet to be agreed – whether contract was concluded by return of completed booking note – where sea waybill was issued thereafter – whether sea waybill supersedes prior concluded contract – whether sea waybill contains or evidences a contract of carriage PRIVATE INTERNATIONAL LAW – choice of law – where fixture recap email provides that contract to be governed by English law – where booking note and sea waybill provide that contract to be governed by Dutch law – whether the proper law of contract is English or Dutch law STATUTORY INTERPRETATION – Australian Hague Rules – whether incorporation of Arts 1-8 of the Hague Rules sufficient to displace operation of the Australian Hague Rules under Arts 10(2) and (3) – consideration of legislative history and purpose of adopting an amended version of the Hague-Visby Rules – consideration of a Report referred to in second reading speech and explanatory memorandum – whether permissible under the Acts Interpretation Act 1901 (Cth) – discussion concerning the difficulties in applying the reasoning in The Maersk Tangier [2018] EWCA Civ 778; [2018] 2 Lloyd's Rep 59 to COGSA and the Australian Hague Rules – discussion concerning difficult issues of construction of Arts 5, 10(6) and 10(7)