Baltic Shipping Company v Dillon - [1991] HCATrans 209

' 'I

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S21 of 1991
B e t w e e n -
BALTIC SHIPPING COMPANY

Applicant

and
JOAN NORMA DILLON

Respondent

Application for special leave
to appeal

BRENNAN J
DAWSON J

GAUDRON J

Baltic

9/8/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 1991, AT 2.42 PM

MR c.s.c. SHELLER, QC: If Your Honours please, in this

matter I appear with my learned friends,
MR A.W. STREET and MR R.N. GYE, for the applicant.
(instructed by Norton Smith & Co)

MR P.E. KING: If Your Honours please, I appear for the

respondent. (instructed by Withnell & Co)

MR SHELLER:

Your Honours, this is an appeal from a majority

judgment of the Court of Appeal given on
19 February 1991, the majority then made up of the
Chief Justice and the President, Mr Justice Mahoney
dissenting. That dismissed an appeal from
Mr Justice Carruthers sitting in Admiralty. May I
hand up to Your Honours an outline of submissions.

BRENNAN J: Yes, Mr Sheller.

MR SHELLER:

Your Honours, the plaintiff/respondent,

Mrs Dillon, was a passenger on the applicant's vessel when it sank off Cape Jackson, New Zealand,
on 16 February 1986 and on her claim, the trial
judge awarded damages which fell under a number of
heads which are set out on page 104 of the
application book, starting at line 21, "Restitution
of fare", with which this application is concerned,
then a head called, "Compensation for
disappointment and distress at the loss of the

entertainment" and so on. The other two heads,
"Loss of money" and "Damages for personal injuries"
are not directly challenged as to quantum, except
to the extent that they are affected by two
matters, namely the terms of the contract of
carriage and the validity of a release which was
given by Mrs Dillon. During the hearing,
negligence was admitted by the applicant.
Your Honours, the importance of the case which

we will seek to develop is in the context that
Mrs Dillon was one of a total of 410 passengers on
the vessel, of whom 123 have been joined as
plaintiffs in this particular action, and the
particular matters that we are here to debate
involve to a greater or lesser extent the claims of
other passengers, but for the purposes of this
application, more importantly relate generally to
the carriage of passengers on cruise liners, in
particular the applicability of terms of contract
contained in the passenger ticket; the ability of
parties to settle claims and give releases and, in
relation to restitution of the fare and
compensation for disappointment and distress, the heads of damage under which recovery can be made.
The particular points can be summarized by

saying that, as was acknowledged, there were two
obstacles in the way of the plaintiff's success in

Baltic

9/8/91

the case to the extent to which it here recovered:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Baltic Shipping Company v Dillon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1991] HCATrans 209
Decision Date

CaseChat Overview and Summary

The applicant, Baltic Shipping Company, sought special leave to appeal to the High Court of Australia from a majority judgment of the Court of Appeal. The respondent, Mrs Dillon, was a passenger on the applicant's vessel which sank off the coast of New Zealand in February 1986. Mrs Dillon was awarded damages by the trial judge, Mr Justice Carruthers, sitting in Admiralty, which included restitution of her fare and compensation for disappointment and distress. The applicant admitted negligence.

The legal issues before the High Court concerned the applicability of terms contained within the passenger ticket, specifically a limitation clause, and the validity and effect of a release signed by Mrs Dillon. The court was also required to determine whether a passenger is entitled to restitution of the full fare when a cruise is terminated prematurely due to an accidental event, and whether, as a matter of Australian law, damages for disappointment and distress are recoverable in an action for breach of contract.

The High Court considered the principles governing the incorporation of terms into a contract of carriage through passenger tickets, particularly in the context of cruise liners. It also examined the legal effect of a release signed by a passenger in settlement of claims arising from the incident. The court's reasoning addressed the entitlement to restitution of fare for a partially performed contract and the established position in Australian law regarding the recovery of damages for disappointment and distress in contract claims, referencing previous High Court pronouncements on the matter.

Orders