Cosco Container Lines Limited & Five Star Shipping & Agency Company P/L v Palsonic Corporation Limited & VB Distributors P/L [2014] NSWDC 4

District Court New South Wales

Medium Neutral Citation: Cosco Container Lines Limited & Five Star Shipping & Agency Company P/L v Palsonic Corporation Limited & VB Distributors P/L [2014] NSWDC 4 Hearing dates: 13, 14, 15, 29 November 2013 Decision date: 31 January 2014 Before: Judge MJ Finnane QC Decision: See paragraph [33] Catchwords: CONTRACT - agreement - terms - express - implied - agency agreement - estoppel OTHER - shipping - freight charges - detention charges - fees Cases Cited: Con-Stan Industries of Australia Pty Ltd v Winterhur Insurance (Australia) Ltd (1986) 160 CLR 226 Category: Principal judgment Parties: Cosco Container Lines Limited (Frist Plaintiff) Five Star Shipping & Agency Company P/L (Second Plaintiff)

Palsonic Corporation Limited (First Defendant) VB Distributors P/L (Second Defendant) Representation: Mr MG McHugh SC/ Mr A McGrath (First and Second Plaintiffs)

Mr A Bowen (First and Second Defendants) Norton White (First and Second Plaintiffs)

Shaw Reynolds Lawyers (First and Second Defendants) File Number(s): 2010/208522

Judgment

Introduction 1The plaintiffs sue the defendants claiming judgment in the sum of $108,999.55. The claim is brought in contract. 2The first plaintiff was at all material times the shipper of goods from China by sea. The second plaintiff was its agent in Australia. The first and second defendants import and distribute electrical and electronic products that are mainly manufactured in China. For about 15 years, the defendants used the plaintiffs exclusively for the shipment of such goods from China to Australia. The shipping of these goods involves the supply by the plaintiffs to the defendants of 20 foot and 40 foot shipping containers. All goods are shipped in containers. 3The plaintiffs have standard terms for shipping goods and for detention of containers. It is commonplace in the shipping industry for the customers of the shipper to hold onto the container for a period of time (the detention period) after it arrives in Australia. 4The plaintiff imposed terms on its customers that allowed them to have the containers free of charge for 10 days and thereafter to be liable to charges levied on a daily basis for each day that the container was kept. Because the defendants were such good customers of the plaintiffs, they were given special arrangements that allowed them to detain the containers for 30 days free of charge and thereafter at quite a small daily charge. 5The substance of this case depends upon my deciding what precise arrangements were in place at relevant times. 6The plaintiff's claim was based on its standard charges as set out in a document called "July 2008 COSCON container detention policy" varied to allow of 30 free days in lieu of 10 free days. If this claim is correct, and the defendants were bound by this document as varied, then the plaintiff succeeds in its case, subject to a claim by the defendants that an estoppel by convention operated to preclude any change in the previous agreed position. At a later point I will give consideration to the question whether the facts would allow such an estoppel to arise.