RW Miller & Co Pty Ltd v Australian Oil Refining Pty Ltd [1967] HCA 50

High Court of Australia Barwick C.J. McTiernan, Kitto, Windeyer and Owen JJ. RW Miller & Co Pty Ltd v Australian Oil Refining Pty Ltd [1967] HCA 50

ORDER Appeal allowed with costs. Order of the Supreme Court set aside and in lieu thereof order that judgment be entered for the defendant.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 21 Barwick C.J.

In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Owen. I agree with them and with the conclusions to which he has come. For myself, I would merely desire to add that, if the relationship between the parties to the agreement in this case were no more than that of shipper and carrier as in the usual case of a contract of affreightment of goods, I would conclude that the operation of cl. 15 of the agreement was limited to loss or damage in relation to the loading, handling, stowage, carriage, custody, care, and discharge of the goods, the subject of the contract of carriage; but not to the physical loss or damage to the goods themselves. For such a conclusion there is authority as well as satisfying reasons. In such a case, the accepted obligation of the carrier is expressed by the collocation of acts relating to the goods which I have just used. The contract we are called upon to construe was a contract for a single voyage between two named ports, with liberty to change orders; but the parties to it did not stand merely in relation to each other as shipper and carrier; nor was the obligation of the carrier limited to those acts, which I have listed, carried out in a manner of his own choosing. The shipper was also the owner of the wharf at which the goods were to be received by the carrier, and the shipper sought and obtained the contractual right to require the carrier's vessel to be brought to its wharf at its direction and, in relation to the navigation of the ship to that wharf, to carry a pilot of a particular kind.