Burns Philp and Company Limited v Gillespie Brothers Pty Ltd [1947] HCA 3

148 HIGH COURT (1946-1947.

(HIGH COURP OF AUSTRALIA.)

BURNS PHILP AND COMPANY LIMITED. APPELLANT ;

DEFENDANT, AND

GILLESPIE BROTHERS PROPRIETARY LIMITED . 3 5 i i : 5

} RESPONDENT; PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

HL. ©. or A, Shipping—Bill of lading—General ship—Consignment of goods—War conditions—

1946-1947, Implied terms—Deviation—Abandonment of voyage—Duty of master—Extra- ae ordinary emergency—Voluntary act—Communication with shippers—Agency of Sypyey, necessity—General average—Return of goods—Back freight—Payment under 1946. duress, See A, under a bill of lading, consigned flour by a general ship owned by B to es consignees at Singapore and paid freight thereon in advance to B. Whilst MELzouRNE, sailing in convoy to Singapore the master was instructed by the commodore 1947. of the convoy to proceed to Batavia and not to Singapore. The ship arrived Mar, 17. at Batavia on 8th February 1942 and remained there until 2st February. Latham C.J., Circumstances over which the master had no control prevented him from won and discharging the cargo at Batavia a course which, under the bill of lading, he

would have been entitled to pursue. On 15th February Singapore was captured by the Japanese and by 19th February the war situation had so deteriorated that the master decided to abandon the voyage in the interests of " the safety of the ship, the cargo and the crew." He went ashore on that day in order to implement his decision and while ashore was ordered by Naval Control to depart in convoy for Freemantle the following afternoon. The master did not communicate with the cargo-owners nor did he seek their instructions. The use of the ship's radio was forbidden and on enquiry the master was erroneously informed by a naval officer that all communications had been taken over by the services and that private messages would not be accepted. After taking on the necessary water the ship left Batavia for a rendezvous with a convoy on 2lst February. There being no sign of the convoy the master