COMMISSIONER FOR MAIN ROADS v STANNARD BROS LAUNCH SERVICES [1990] NSWCA 46

COMMISSIONER FOR MAIN ROADS v STANNARD BROS LAUNCH SERVICES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and HANDLEY JJA 11, 12 September 1990, 2 November 1990

[1990] NSWCA 46 BAILMENT — Whether tug owner bailee of unmanned tow.

CONTRACT — Whether express terms in standard contract for construction of roads or other works on land effectively incorporated in contract of towage — Whether provisions in contract imposed obligations of an insurer on tug.

CONTRACT — Promise to insure tow — Promise to insure liability of tug in joint names — Effect on legal responsibility of tug to tow.

NEGLIGENCE — Whether loss caused by negligent act or omission of appellant — Whether tug owner bailee of unmanned tow.

TUG AND TOW — Whether tug bailee of unmanned tow.held The loss of the tow was due to the negligence of the owner in not ensuring it was seaworthy and tug owner not liable to owner of tow in tort or in contract.

"The Julia" (1860) 15 ER 284 Harris v Anderson (1863) 143 ER 541 Morison Pollexfen and Blair v Walton (unreported House of Lords May 10 1909) Joseph Travers and Sons Limited v Cooper [1915] 1 KB 73 Utica City National Bank v Gunn (1918) 118 NE 607 Goldman v Hill [1919] 1 KB 443 Stevens v The White City (1932) 285 US 195 The Kite (1933) P 154 Canada Dredging Co v Russell [1936] 3 DLR 44 The Champlain v Canada SS Lines Limited [1939] 1 DLR 384 Vines v Djordjevitch (1955) 91 CLR 512 Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 Port Swettenham Authority v TW Wu and Co [1979] AC 580 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Mark Rowlands Limited v Berni Inns Limited [1986] 1 QB 21

Mahoney JA I agree with the judgment of Handley JA. Priestley JA I agree with Handley JA.

Handley JA This appeal arises out of the sinking of the appellant's timber hulled motor vehicle ferry No. 4 at sea off Yamba on 5 December 1981. The ferry was being towed by the respondent's tug, the "Coramba" in the course of a voyage from Riley's Hill Dock Richmond River to Settlement Point on the Hastings River when it sank. The ferry was a total loss.