QUADRO SHIPPING NV v BIZLEY and CO PTY LTD, 'THE PROTEA TRADER' [1992] NSWCA 193

QUADRO SHIPPING NV v BIZLEY and CO PTY LTD, 'THE PROTEA TRADER'

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and HANDLEY JA 14 and 15 September 1992, 4 December 1992

[1992] NSWCA 193

PRACTICE and PROCEDURE — Adniralty Division — delivery of bricks following issue of bill of lading for shipping thereof from Antwerp to Sydney — shipment off-loaded and later trans-shipped on another vessel — time charter executed in NYPE form — charter hire later unpaid — charter terminated and vessel withdrawn — subsequent arrangements for delivery of bricks in Sydney — vessel owner claims immunity from action by reason of CL5(2) of bill of lading — motion to dismiss proceedings summarily for want of a reasonable cause of action — order dismissing motion for summary dismissal and striking out vessel owner's defence raising CL5(2) — on appeal to the Court of Appeal (by leave) — held: (Gleeson CJ; Kirby and Handley JA concurring): (1) The principles to be applied were those stated in General Steel Industries Inc vy Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125; (2) The question of how and when the damage to the bricks occurred and what contract was made between the vessel owner and the notified party were ultimately ones of fact involving complex issues to be litigated as to the relationship between the new contract and the bill of lading containing CL5(2); (3) Those issues should go to trial so that the party disaffected by an adverse decision should have a full right of appeal; (4) Accordingly, the paragraphs of the vessel owner's defence which were struck out should be restored.

SHIPPING and NAVIGATION — bill of lading — charterer's bill not signed by master of vessel — clause providing immunity from action — time charter — subsequent withdrawal of vessel and termination of charter when charter hire unpaid — later agreement to discharge cargo — subsequent discovery of defects in cargo — whether vessel owner entitled to immunity under bill of lading in its own terms or as accepted by contract for discharge of cargo — judge in Admiralty Division (Carruthers J) dismisses vessel owner's motion for summary judgment for want of a reasonable cause of action in notify party — strikes out defences based upon immunity provisions of bill of lading — held: (in appeal by leave) (per Gleeson CJ; Kirby P and Handley JA concurring): (1) The matter was not one appropriate for summary relief; (2) The complex issues of fact and law should be litigated in the ordinary way, including to establish the relationship between the contract agreed for the discharge of the goods and the bill of lading containing an immunity provision; (3) In the partial success (and failure) of both parties in proceedings, costs ordered as costs in the action.