Pacific Carriers Ltd -v- Banque Nationale de Paris [2001] NSWSC 900

New South Wales Supreme Court

CITATION : Pacific Carriers Ltd -v- Banque Nationale de Paris [2001] NSWSC 900 CURRENT JURISDICTION: Equity Division Admiralty List FILE NUMBER(S) : SC 8/1999 HEARING DATE(S) : 19.6.00, 20.6.00, 21.6.00, 22.6.00, 26.6.00, 27.6.00, 28.6.00, 29.6.00, 4.7.00, 26.7.00, 3.11.00, 10.11.01, 24.11.00, 5.12.00, 11.12.00, 12.12.00, 13.12.00, 14.12.00, 30.1.01, 31.1.01, 1.2.01, 5.2.01, 6.2.01, 7.2.01, 8.2.01, 9.2.01, 9.3.01, 16.3.01, 21.3.01, 26.3.01, 27.3.01, 28.3.01, 17.4.01, 27.9.01 JUDGMENT DATE : 16 October 2001

Pacific Carriers Limited - Plaintiff PARTIES : Banque Nationale de Paris - First Defendant Swiss Singapore Overseas Enterprises - Cross Defendant New England Agricultural Traders Pty Ltd - Cross Defendant JUDGMENT OF : Hunter J

Pacific Carriers Ltd: A Street SC, G Nell, E Cox COUNSEL : Banque Nationale de Paris: B Rayment QC, P King, I Davidson, M Pesman New England Agricultural Traders: M McHugh Swiss Singapore Overseas Enterprises: F Douglas QC, G Rich Pacific Carriers Ltd: Norton White SOLICITORS : Banque Nationale de Paris: Corrs Chambers Westgarth New England Agricultural Traders: Withnell Hetherington Swiss Singapore Overseas Enterprises: Phillips Fox CATCHWORDS : Admiralty - C & F contracts for sale of legumes - contractual provision for letters of credit to be opened by third party - legumes shipped from Australian ports to Calcutta under voyage charter to seller by time charterer - bills of lading issued with seller as shipper and third party the notify party - three letters of credit, opened on application of third party - bills of lading 'switched' substituting third party as shipper and buyer as notify party - documents discrepant under the terms of letters of credit - acceptance of discrepant documents under two letters of credit - letters of indemnity given by seller to time charterer against delivery to buyer of cargo the subject of accepted documents without presentation of bills of lading - instruction to Master by time charterer with authority of owner to deliver cargo to buyer without presentation of bills of lading - implied indemnity by time charterer to owner - seller's letters of indemnity signed by seller's bank - effect of bank's signing of letters of indemnity - effect of switching bills on liability under indemnity - third party holder of bills of lading and pledgee of cargo the subject of accepted documents - direction by third party to time charterer to deliver cargo to buyer against banker's guarantee - nature and effect of direction - action by third party against owner for conversion of cargo delivered to buyer - liability of owner to third party - liability of time charterer to owner - liability of seller's bank to time charterer - proper law of actions in contract and tort - principles of liability in negligence causing economic loss - settlement of third party's action against owner - reasonableness of settlement - whether directions to deliver cargo to buyer interfered with contractual relations - principles of wrongful interference with contractual relations - measure of damages in conversion. Trade Practices Act 1974 (Cth) Export Control Act 1982 (Cth) Carriage of Goods by Sea Act 1992 (UK) LEGISLATION CITED : Contracts (Applicable Law) Act 1990 (UK) Private International Law (Miscellaneous Provisions) Act 1995 (UK) Carriage of Goods by Sea Act 1992 (Cth) Sea-Carriage Documents Act 1997 (W.A) Sea-Carriage Documents Act 1996 (QLD) R v Toohey: Ex Parte The Attorney-General for the Northern Territory (1980) 145 CLR 374 R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 CASES CITED : Banco de Portugal v Waterlaw [1932] AC 452 Segenhoe Ltd v Akins (1990) 29 NSWLR 569 Chabbra Corporation Pte Ltd v Jag Shakti (The Jag "Shakti") [1986] AC 337 Butler v The Egg and Egg Pulp Marketing Board (1996) 114 CLR 185 DECISION : In the proceedings: judgment for the plaintiff against the first defendant in negligence in the amount as found in the reasons for judgment. Determination of currency in which judgment is to be given, the rate of conversion from other currencies, rate of interest, and time from which interest is to run on judgment, the costs of the proceedings and of cross claims be deferred pending further submissions. Otherwise summons be dismissed. All cross claims be dismissed.