Sanko Steamship Co Ltd v Sumitomo Australia Ltd [1995] HCA 50

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ Sanko Steamship Co Ltd v Sumitomo Australia Ltd [1995] HCA 50

ORDER Appeal dismissed with costs

Cur adv vult

The following written judgments were delivered:—

3 October 1995 Brennan J.

This appeal arises from a casualty occurring on 14 February 1991 when the " Sanko Harvest " ran aground and sank with the loss of its cargo. The appeal was heard at the same time as the appeal in Victrawl Pty Ltd v Telstra Corporation Ltd (the Victrawl Case) [1] and turns on the construction and operation of the same Acts and Conventions as are considered in the judgments in that case.

1. (1995) 183 CLR 595.

The appellants, the Sanko Steamship Co Ltd (the time charterer of the vessel) and Grandslam Enterprise Corporation (the demise charterer of the vessel), filed an application in the Federal Court of Australia on 4 March 1991 naming Sumitomo Australia Ltd as respondent and claiming an order limiting their liability to owners of property being carried on the " Sanko Harvest " pursuant to the Brussels Convention. No order has been made on that application. A case was stated reserving the question whether the 1976 Convention was the governing text. Is the Brussels Convention applicable because the application was filed before 1 June 1991 or is the 1976 Convention applicable as the law now in force when the orders are to be made?

The proceedings between Sanko Steamship and Grandslam Enterprises and Sumitomo Australia differ from the proceeding in the Victrawl Case in two respects. First, limitation proceedings were commenced in the Federal Court of Australia on 4 March 1991 under s 333 of the Navigation Act 1912 Cth and the Brussels Convention. Secondly, all parties agreed that the Brussels Convention applied in respect of the grounding and sinking of the " Sanko Harvest " and that the appellants' application for limitation under that Convention might be pursued notwithstanding the repeal of sch 6 to the Navigation Act which set out that Convention.