Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, STEWARD, GLEESON AND JAGOT JJ

CARMICHAEL RAIL NETWORK PTY LTD

AS TRUSTEE FOR THE CARMICHAEL

RAIL NETWORK TRUST APPELLANT

AND

BBC CHARTERING CARRIERS GMBH & CO KG

& ANOR RESPONDENTS

Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH &

Co KG

[2024] HCA 4

Date of Hearing: 17 October 2023

Date of Judgment: 14 February 2024

B32/2023

ORDER

1. Appeal dismissed.

2. The appellant pay the respondents' costs of the appeal.

On appeal from the Federal Court of Australia

Representation

E G H Cox SC with D J Reynolds for the appellant (instructed by Mills Oakley)

G J Nell SC with J K Kennedy for the first respondent (instructed by Aus Ship Lawyers)

J A Hogan-Doran SC for the second respondent (instructed by HWL Ebsworth Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG

Statutes – Construction – Where Sch 1A of Carriage of Goods by Sea Act 1991 (Cth) contained amended Hague-Visby Rules (the "Australian Hague Rules") – Where Art 3(8) of Australian Hague Rules provided that any clause in contract for carriage of goods by sea relieving or lessening carrier's liability for loss or damage to goods otherwise than as provided for in Australian Hague Rules shall be void – Where arbitration clause in bill of lading provided for resolution of disputes between carrier and shipper by arbitration in London under English law – Where arbitration commenced – Where shipper commenced proceedings in Federal Court of Australia and sought to restrain arbitration – Where carrier sought stay of Federal Court proceedings in favour of arbitration – Where carrier undertook to admit in London arbitration that Australian Hague Rules as applied under Australian law were to apply in arbitration – Where Federal Court made declaration by consent to similar effect – Whether arbitration clause in bill of lading rendered inoperative by Art 3(8) – Whether conduct of arbitration would relieve or lessen carrier's liability – Whether carrier's undertaking and Federal Court's declaration should be taken into account – Proper approach to standard of proof under Art 3(8).