Shipping Corporation of India Ltd v Gamlen Chemical Co (A/asia) Pty Ltd [1980] HCA 51

High Court of Australia Gibbs, Stephen, Mason, Aickin and Wilson JJ. Shipping Corporation of India Ltd v Gamlen Chemical Co (A/asia) Pty Ltd [1980] HCA 51

ORDER Appeal dismissed with costs. Cross-appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 12 Gibbs J.

I have had the advantage of reading the judgments prepared by Stephen J., and by Mason and Wilson JJ. and, for the reasons they have given, I concur in dismissing the appeal. I need only add, in relation to the question on which Stephen J. has reserved his opinion, that in my opinion the heavy weather which the ship experienced was rightly held to be a peril of the sea.

Stephen J.

This appeal involves interpretation of the Hague Rules. During heavy weather in the Great Australian Bight, the severity of which was unusual but not unforeseeable, a number of drums of cleaning solvent stowed in a ship's hold broke adrift, were damaged and their contents lost. The means of securing them in place in the hold had been inadequate.

The trial judge held that the heavy weather was a peril of the sea and that the carrier should escape liability despite its failure properly to stow the drums. It was entitled to rely on Art. IV, r. 2 (c) of the Hague Rules, which relieves a carrier from responsibility for loss or damage arising from perils of the sea. The Court of Appeal held to the contrary and allowed the cargo owner's appeal. Hence the carrier's present appeal to this Court.

The Hague Rules, scheduled to the Sea-Carriage of Goods Act 1924 Cth, applied. Accordingly the carrier was, under the contract of carriage, "subject to the responsibilities and liabilities, and entitled to the rights and immunities" set out in the Rules: Art. II. By Art. III r. 2 one of its responsibilities was, "Subject to the provisions of Article IV", to "properly and carefully stow" the drums. By Art. IV, r. 2 (c) one of its immunities was freedom from responsibility for "loss or damage arising or resulting from perils, dangers and accidents of the sea". The trial judge held, correctly as the appellant contends, that the effect of the opening words of Art. III, r. 2 is to subordinate that rule to the provisions of Art. IV.