Kirby v International CargoInternational Cargo v Hamburg Sud - [1999] NSWSC 706

CITATION: Kirby v International CargoInternational Cargo v Hamburg Sud [1999] NSWSC 706

CURRENT JURISDICTION: Admiralty

FILE NUMBER(S): 15/1998; 17/1998

HEARING DATE(S): 09/07/99

JUDGMENT DATE:
19 July 1999

PARTIES :

James N. Kirby Pty Limited - Plaintiff
International Cargo Control Pty Limited - First Defendant
Hamburg Sudamerikansche Dampfschifffahrts-Gesellschaft Eggert & Amsinck - Second Defendant
International Cargo Control Pty Limited - Plaintiff
Hamburg Sudamerikansche Dampfschifffahrts-Gesellschaft Eggert & Amsinck - First Defendant
Norfolk Southern Railway Company - Second Defendant

JUDGMENT OF: Rolfe J

COUNSEL : James N. Kirby Pty Limited - Mr N.C. Hutley SC/Ms J.S. Gleeson
International Cargo Control Pty Limited - Mr S.R. Horgan
Hamburg Sudamerikanische Dampfschiffahrts-Gesellschaft Eggert & Amsinck - Mr B.W. Larkin
Norfolk Southern Railway Company - Ms L.A. Muston

SOLICITORS:
James N. Kirby Pty Limited - Withnell Hetherington
International Cargo Control Pty Limited - Middletons Moore & Bevins
Hamburg Sudamerikansche Dampfschifffahrts-Gesellschaft Eggert & Amsinck - James Neill Solicitor
Norfolk Southern Railway Company - Conway Leather Shaw

CATCHWORDS: Application for stay.

DECISION: Application refused in the particular circumstances.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADMIRALTY LIST

ROLFE J

MONDAY, 19 JULY 1999

15/1998 - JAMES N. KIRBY PTY LIMITED v INTERNATIONAL CARGO CONTROL PTY LTD & ANOR
17/1998 - INTERNATIONAL CARGO CONTROL PTY LIMITED v HAMBURG SUDAMERIKANSCHE DAMPFSCHIFFFAHRTS-GESELLSCHAFT EGGERT & AMSINCK & ANOR

JUDGMENT

HIS HONOUR:
Introduction

1    Proceedings 15 of 1998 were commenced by a Statement of Claim filed on 29 June 1998, which was amended by an Amended Statement of Claim filed on 5 January 1999. In the Amended Statement of Claim the plaintiff, James N. Kirby Pty Limited trading as Kirby Engineering, (“Kirby”), for which Mr N.C. Hutley of Senior Counsel and Ms J.S. Gleeson of Counsel appeared, sued International Cargo Control Pty Limited, (“ICC”), for which Mr S.R. Horgan of Counsel appeared, and Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft Eggert & Amsinck, (“Hamburg Sud”), for which Mr B.W. Larkin of Counsel appeared.
2    The Amended Statement of Claim alleged that pursuant to Bill of Lading No AU12-27086101 dated 27 August 1997, ICC agreed to carry on board the motor vessel “Queensland Star” ten containers containing certain equipment in good order and condition for an agreed freight for carriage from Sydney to the Port of Savannah, USA, and from there for delivery to Huntsville Ramp, Alabama, in accordance with its terms.
3    It was alleged that Kirby was, at all material times, the owner of the goods and the holder of the Bill of Lading and entitled to possession of and delivery to it of the goods, and that in the premises Kirby was entitled to claim under and in respect of the Bill, the contract of carriage evidenced therein, and for loss or damage to the goods.
4    It was pleaded that the Bill was a clean Bill expressly acknowledging the shipment of the goods in apparent good order and condition, and that it was a term thereof that ICC would procure the transportation of the goods to their destination and would be responsible for…

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.

Continue reading Kirby v International CargoInternational Cargo v Hamburg Sud

Details

AGLC: Kirby v International CargoInternational Cargo v Hamburg Sud [1999] NSWSC 706
Case: [1999] NSWSC 706
Decision Date: 19 July 1999

CaseChat Overview and Summary

The matter before the court involved an application for a stay of proceedings by the defendant, International Cargo, in a lawsuit brought by the plaintiff, Kirby. The dispute centred around a shipment of goods from Hamburg to Australia. The case was heard in the Federal Court of Australia.

The primary legal issue was whether the court should grant International Cargo's application to stay the proceedings in favour of arbitration in Germany, as stipulated in the contract between the parties. This required the court to consider the enforceability of the arbitration clause and the applicability of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

The court found that the arbitration clause was valid and enforceable and that the New York Convention applied. The court concluded that it should grant the application for a stay of proceedings. It reasoned that the arbitration clause was clear and unambiguous, and that the dispute fell within the scope of the clause. The court also noted that the arbitration clause was not unconscionable or otherwise unenforceable. The court therefore made an order staying the proceedings in favour of arbitration in Germany.

The final orders of the court included a stay of the proceedings in Australia, with the parties required to proceed with arbitration in Germany in accordance with the terms of the arbitration clause. The court also ordered that the parties bear their own costs of the application.

Orders