Bogut v Ameroz Pty Ltd

[2020] NSWCATCD 25

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bogut v Ameroz Pty Ltd [2020] NSWCATCD 25

Hearing dates:

13 December 2019

Date of orders:

14 January 2020

Decision date:

14 January 2020

Jurisdiction:

Consumer and Commercial Division

Before:

G Bassett, General Member

Decision:

The application is dismissed.

Catchwords:

CONSUMER LAW — Shipping and navigation —Admiralty jurisdiction, law and practice — General maritime claim — In respect of what matters action will lie — Carriage of goods by sea — Damage to goods

Legislation Cited:

Australian Consumer Law, Schedule 2, Competition and Consumer Act (Cth)

Admiralty Act 1988 (Cth)

Fair Trading Act 1987 (NSW)

Cases Cited:

Bibin v Mainfreight International Pty Ltd [2016] NSWCATCD 70

Therese Jenner v Kanga Birtles [2014] NSWCATCD 63

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Michael Bogut (First Applicant)
Ameroz Imports Pty Ltd (Respondent)

Representation:

Applicant (Self-represented)
Mr Hart (Respondent)

File Number(s):

GEN 19/41456

Publication restriction:

Nil

REASONS FOR DECISION

Jurisdiction

1. Part 6A of the Fair Trading Act 1987 (“the Act”) grants jurisdiction to the Tribunal for consumer claims.

2. The applicant seeks orders pursuant to section 79N of the Fair Trading Act that would require the respondent, Ameroz Pty Ltd to repair or pay for the repair of damaged goods, being a motor vehicle that the applicant alleged it had contracted Ameroz to import from North Carolina and deliver to Mr Bogut. Such services were to be provided with due care and skill. This application was made to the Tribunal on 10 September 2019.

3. At hearing the respondent has challenged the jurisdiction of the Tribunal to hear this matter. The respondent made submissions on jurisdiction and relevant evidence on jurisdiction as well as the substantive claim was taken from the parties. At hearing the applicant relied on no documents other than those attached to his original application.

4. "Maritime Claims" are within the Admiralty jurisdiction of the Commonwealth and the Admiralty Act 1988 (Cth) applies to all maritime claims. Section 5 states:

(1) Subject to the succeeding provisions of this section, this Act applies in relation to:

(a) all ships, irrespective of the places of residence or domicile of their owners; and

(b) all maritime claims, wherever arising.

5. Section 9 applies exclusive jurisdiction for maritime claims outside the jurisdiction of the Tribunal. It states:

Admiralty jurisdiction in personam

(1)  Jurisdiction is conferred on the Federal Court, the Federal Circuit Court and on the courts of the Territories, and the courts of the States are invested with federal jurisdiction, in respect of proceedings commenced as actions in personam :

  (a)  on a maritime claim; or

(b)  on a claim for damage done to a ship.

6. What is a “maritime claim”? The respondent submitted that under section 4(2)(d)-(f) of the Admiralty Act, a maritime claim includes:

(d)  a claim (including a claim for loss of life or personal injury) arising out of an act or omission of:

  (i)  the owner or charterer of a ship;

(ii)  a person in possession or control of a ship; or

(iii)  a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable;

being an act or omission in the navigation or management of the ship, including an act or omission in connection with:

(iv)  the loading of goods on to, or the unloading of goods from, the ship;

(v)  the embarkation of persons on to, or the disembarkation of persons from, the ship; and

(vi)  the carriage of goods or persons on the ship; or

(e)  a claim for loss of, or damage to, goods carried by a ship; or

(f)  a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise; or

7. The respondent particularly emphasised that this matter is a claim for an act or omission in the navigation or management of a ship in connection with carriage of goods in the ship. It is also claim for loss and damage arising to goods carried by the ship. The claim also arises out of an agreement relating to the carriage of goods by a ship. Being a maritime claim as such, it was submitted that under section 9 of the Admiralty Act, only the Federal Court has jurisdiction to hear a matter such as this one lodged by Mr. Bogut.

The evidence in respect of jurisdiction

8. The applicant purchased a car in North Carolina. He contracted Ameroz to act as agent in import it for him. Ameroz asserted the agreement between the parties was for it to provide services to coordinate all the various steps of importing the vehicle. It did not provide those services itself. For, example, it did not pack Mr Bogut’s vehicle in the container in the USA. It did not take it from the ship on arrival in Sydney. Further, Ameroz asserted that in the agreement and in various emails between the parties, Mr. Bogut was given the option to take out insurance for his vehicle while it was being shipped (Exhibit R1 Addendum 1, 2 and Page 5). He did not do so. In cross-examination Mr. Bogut conceded he did not read this advised option as to insurance in his agreement and admitted that he had imported many cars in the past.

9. Ameroz further asserted the bill of lading for shipment was not between it and Mr Bogut. That document was prepared by Ameroz as part of its services but Mr Bogut was nominated as the shipper and consignee in the agreement and an American entity as carrier (Exhibit R1, paragraph 2 submissions, page 3). The terms and conditions in the agreement between Ameroz and Mr. Bogut stipulated the respondent was an agent for Mr. Bogut. Any liability for loss or damage to goods while at sea was limited to the carrier. Further, if any breach of warranty was found against the Ameroz under this agreement, such loss was limited to supplying the services again.

10. Mr Bogut said delivery occurred on April 5, 2018 and this took to long. When the car arrived in Sydney he was contacted by the respondent and told it was damaged. Ameroz said it found the car damaged when they unpacked it at the container. Photos were taken. It was admitted by the applicant that the damage occurred while the vehicle was being shipped from the USA. Mr. Bogut opined the damage occurred due to negligent loading of his car in the container. He said he waited for delivery but after about 7 days he was told to pick it up.

Findings and determination

11. In Bibin v Mainfreight International PtyLtd [2016] NSWCATCD 70 (12 August 2016), the Tribunal dismissed a claim for compensation for breach of the warranty in respect of services to deliver building materials. The Tribunal dismissed that claim, stating at [2]:

It emerged from the evidence, on the balance of probabilities, that the building materials were damaged prior to, or at the time of despatch, or on the high seas en-route to Australia. The Respondent has no connection with the loading of the building materials in China or their transport to Australia.

12. Concluding the Tribunal did not have jurisdiction to hear a maritime claim, inTherese Jenner v Kanga Birtles [2014] NSWCATCD 63 (6 May 2014), the Tribunal member considered the impact of Section 9 of the Admiralty Act and quoted various authorities at [11]:

There is no doubt that NCAT does not have "in personam" Admiralty jurisdiction as it is not a "court of a State". In China Shipping (Australia) Agency Co Pty Limited v D V Kelly Pty Limited [2010] NSWSC 1556 at [13] to [16] Rein J considered the jurisdiction of the CTTTto hear a matter within Admiralty jurisdiction that was also within the definition of a 'consumer claim' under the Consumer Claims Act 1998 (NSW). However, s9 of the Admiralty Act limited jurisdiction to 'courts of the state'. The reference to 'courts of the states' is a reference to the Constitution s77(iii) which has been construed as fixing its own criteria for the bodies that are and are not a court for the purposes of exercising federal judicial power. Rein J reviewed these criteria and determined that the Tribunal was not a court for the purposes of the Admiralty Act s9 and therefore had no jurisdiction to hear the matter. It made no difference that there was also a consumer claim, as Admiralty jurisdiction prevails: China Shipping at [16].

13. It is clear that the Tribunal does not have jurisdiction to hear maritime claims. Even Mr. Bogut concedes the damage occurred to his vehicle during the shipping phase. He suggested it may have been damaged due to the way the container was packed. This is the same situation as occurred in the case of Bobin v Mainfreight International Pty Ltd mentioned above.

14. The fact the agreement between Ameroz and Mr Bogut required him to take out insurance for the shipping phase is further evidence that the matter is a shipping claim where a person is required to protect their own interest as jurisdiction for consumer guarantees in the Tribunal does not apply. Why the applicant did not read this section or take out such insurance is perplexing. But that was a decision for him and lack of any insurance is borne by him.

15. The agreement between the parties in this matter was for Ameroz to provide services to coordinate all the various steps of importing the vehicle. It did not provide those services itself. Under section 4(3)(d) and 4(3)( (f) of the Admiralty Act, Mr Bogut’s claim arises out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise. In other words, the claim arises out of an agreement which the legislation specifically contemplates will only have jurisdiction as a maritime claim. The terms and conditions in the agreement between the parties further supported lack of jurisdiction.

16. Mr Bogut did also make a claim during hearing that under the agreement with Ameroz if breached the consumer guarantee to deliver the vehicle within a reasonable time. This claim is not allowed. Delays arose from the fact the vehicle had been damaged in transit and dealing with this caused delays once delivered to Sydney. Secondly, the agreement between the parties (Exhibit R1, page 5) does not state a delivery date or have a term stating time is of the essence. At term 4 it stated that pick up and delivery schedules were not guaranteed. Nor were sailing or arrival dates. Finally, no loss arising from this alleged delay was proved.

17. The application is dismissed for want of jurisdiction.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 March 2022