Burns Philp and Company Limited v West Australian Steam Navigation Company Limited

This case involved a dispute between Burns Philp & Company Limited, as the indorsee of a bill of lading, and the West Australian Steam Navigation Company Limited and the Ocean Steamship Company Limited, the owners of two vessels. Burns Philp sought damages for the loss of 30 cases of wax matches shipped from London to Fremantle. The goods were initially carried on the SS. Kleist to Singapore, where they were transhipped to the SS. Gorgon for carriage to Fremantle. During the voyage on the SS. Gorgon, a fire occurred, necessitating the jettisoning of the matches. The High Court of Australia heard the appeal from the Supreme Court of Western Australia.

The central legal issues before the High Court were whether the shipowners were liable for the loss of the goods, given that they were transhipped and stowed on deck, and whether the terms of the bill of lading, including specific clauses regarding transhipment and the conditions of forwarding conveyances, protected the shipowners from liability. The court was required to determine the effect of the bill of lading's stipulations on the contract of carriage, particularly concerning the right to tranship, the conditions imposed by the forwarding vessel, and the risk borne by the owners of the goods.

Knox C.J. and Starke J. held that the bill of lading, which governed the entire transit from London to Fremantle, contained provisions that allowed for transhipment for the shipowners' purposes. They reasoned that the clauses stipulating that goods forwarded after transhipment were subject to the conditions and exceptions of the forwarding conveyance, and at the risk of the owners of the goods, meant that the shipper was bound by all conditions usually required by the forwarding vessel. In this instance, the SS. Gorgon, a forwarding vessel, required that dangerous goods like wax matches be stowed on deck at the shipper's risk, a condition that was usual for carriage between Singapore and Fremantle. As the matches were necessarily jettisoned due to a fire, and their carriage on deck was subject to the contract's stipulations, the shipowners were not liable for the loss. Gavan Duffy J. doubted whether the bill of lading justified the imposition of an on-deck carriage condition inconsistent with the essence of the contract, but did not dissent from the majority.

The appeal was dismissed, with the High Court affirming the decision of the Supreme Court of Western Australia.