Poralu Marine Australia Pty Ltd v Mv Dijksgracht - [2023] FCAFC 147

FEDERAL COURT OF AUSTRALIA
Poralu Marine Australia Pty Ltd v MV Dijksgracht [2023] FCAFC 147

Appeal from: Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038; [2023] 2 Lloyd’s Rep 18

File number(s): NSD 849 of 2022
NSD 852 of 2022

Judgment of: RARES, SARAH C DERRINGTON AND FEUTRILL JJ

Date of judgment: 8 September 2023

Catchwords:
CONTRACTS – contract of carriage of goods by sea – formation – whether contract was concluded by way of fixture recap email – construction of recap emails – where recap provided that terms were otherwise as per carrier’s standard form booking note and bill of lading including rider clauses but with English law and London arbitration – whether parties intended further terms to be agreed – whether contract was concluded by later return of completed booking note – where sea waybill was issued but not bill of lading.

SHIPPING AND NAVIGATION – contract of carriage –whether contract of carriage covered by and or evidenced in a bill of lading – whether shipper demanded or needed to demand issue of a bill of lading – where sea waybill issued – function of document issued.

SHIPPING AND NAVIGATION – bills of lading – whether Art 10 of Hague-Visby Rules applied – whether port of loading place of issue for purposes of Art 10(a) – whether Art 10(c) requires a bill of lading to have been issued – where clause paramount in bill of lading incorporated Hague Rules “as enacted in country of shipment” – whether Hague-Visby Rules or Hague Rules incorporated by clause paramount.

SHIPPING AND NAVIGATION – bills of lading – clause paramount – whether contract of carriage compulsorily incorporated Hague-Visby Rules within meaning of Art 10(c).

ADMIRALTY – action in rem – liability of shipowner – Himalaya clauses – whether shipowner takes benefit of carrier’s contractual limitations – whether carrier had authority to act as agent for shipowner – where carrier acted as pool manager and time charterer – where pool management agreement provided for carrier to use all reasonable endeavours to protect and promote interests of shipowner – where pool management agreement subject to charterparty – where particular time charterparty not in evidence – where later version of time charterparty included specific agency clause – whether agency clause was included in the earlier version of the charterparty as agreed at the relevant time.

Legislation:
Admiralty Act 1988 (Cth) s 3(1)

Carriage of Goods by Sea Act 1991 (Cth) Sch 1 and 1A

Carriage of Goods by Sea Amendment Act 1997 (Cth)

Carriage of Goods by Sea Regulations 1998 (Cth)

Federal Court Rules 2011 r 36.03(a)(ii)

Carriage of Goods by Sea Act 1971 (UK) s 1

Merchant Shipping (Liability of Shipowners and Others) Act 1996 (IRE) ss 30 and 31, Sch 3

International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, opened for signature 25 August 1924 (entered into force 2 June 1931)

Protocol amending the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 25 August 1924, as amended by the Protocol of 23 February 1968, opened for signature 21 December 1979, 1412 UNTS 146 (entered into force 14 February 1984)

Protocol to amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels on 25 August 1924, opened for signature 23 February 1968, 1412 UNTS 128 (entered into force 23 June 1977)

United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, opened for signature 11 December 2008, UN Doc A/RES/63/122; 48 ILM 659 (not yet in force)

United Nations Convention on the Carriage of Goods by Sea, 1978, opened for signature 31 March 1978, 1695 UNTS 3 (entered into force 1 November 1992)

Cases cited:
Anglo-Saxon Petroleum Co Ltd v Adamastos Shipping Co [1959] AC 133; [1958] 2 WLR 688

Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99; 47 ALJR 526

Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622; 4 BPR 9315

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCAFC 1833; 117 FCR 424

Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448; 93 ALR 171; 94 FLR 425; [1989] 1 Lloyd's Rep 518

Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England) Ltd [1979] 1 WLR 401; [1979] 1 All ER 965

County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193

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Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492

EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; 41 WAR 23

Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640; 306 ALR 25; 88 ALJR 447

FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117; 9 ANZ Ins Cas 61-373

Federal Bulk Carriers Inc v C. Itoh & Co Ltd (The Federal Bulker) [1989] 1 Lloyd’s Rep 103

Fitzgerald v Masters [1956] HCA 53; 95 CLR 420; 30 ALJR 412

Godina v Patrick Operations Pty Ltd [1984] 1 Lloyd’s Rep 333

GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631; 4 BPR 9315

Gullischen v Stewart Brothers (1884) 13 QBD 317; 53 LJQB 173; 32 WR 763; 50 LT 47

Hellenic Steel Co v Svolamar Shipping Co Ltd (The Komninos S) [1991] 1 Lloyd’s Rep 370

Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2003] UKHL 12; [2004] 1 AC 715; [2003] 2 WLR 711; [2003] 1 Lloyd's Rep 571; [2003] 2 All ER 785; [2003] 1 All ER (Comm) 625

Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453; 331 ALR 108

JCB Sales Ltd v Wallenius Lines 124 F 3d 132 (1997); 1997 AMC 2705

JI MacWilliam Co Inc v Mediterranean Shipping Co SA (The Rafaela S) [2003] EWCA Civ 556; [2004] QB 702; [2004] 2 WLR 283; [2003] 2 Lloyd's Rep 113; [2003] 3 All ER 369; [2003] 2 CLC 94

JI MacWilliam Co Inc v Mediterranean Shipping Co SA (The Rafaela S) [2005] UKHL 11; [2005] 2 AC 423; [2005] 2 WLR 554; [2005] 1 Lloyd's Rep 347; [2005] 2 All ER 86; [2005] 1 All ER (Comm) 393; [2005] 1 CLC 172

K Line Pte Ltd v Priminds Shipping (HK) Co Ltd (The Eternal Bliss) [2021] EWCA Civ 1712; [2022] 1 Lloyd's Rep 12; [2022] 3 All ER 396; [2022] 2 All ER (Comm) 1044; [2022] Bus LR 67; [2021] WLR(D) 588

Kyokuyo Co Ltd v AP Møller-Maersk A/S (trading as ‘Maersk Line’) (The Maersk Tangier) [2018] EWCA Civ 778; [2018] 2 Lloyd's Rep 59; [2018] 3 All ER 1009; [2018] 2 All ER (Comm) 503; [2018] Bus LR 1481; [2018] 4 WLUK 208; [2018] 1 CLC 715

L Schuler A v Wickman Machine Tool Sales Ltd [1974] AC 235; [1973] 2 WLR 683; [1973] 2 Lloyd’s Rep 53; [1973] 2 All ER 39

Masters v Cameron [1954] HCA 72; 91 CLR 353; 28 ALJR 438

Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104; 325 ALR 188; 89 ALJR 990

Mount Isa Mines Ltd v The Ship Thor Commander [2018] FCA 1326; 263 FCR 181; 365 ALR 519

Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331

New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154; [1974] 2 WLR 865; [1974] 1 Lloyd's Rep 534; [1974] 1 All ER 1015

Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451; 208 ALR 213; 78 ALJR 1045

Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601

Papas Olio JSC v Grains & Fourrages SA [2009] EWCA Civ 1401; [2010] 2 Lloyd’s Rep 152; [2010] 2 All ER (Comm) 1151

Parsons Corporation v CV Scheepvaartonderneming (The Happy Ranger) [2001] 2 Lloyd's Rep 530; [2002] 1 All ER (Comm) 176

Parsons Corporation v CV Scheepvaartonderneming (The Happy Ranger) [2002] EWCA Civ 694; [2002] 2 Lloyd’s Rep 357; [2002] All ER (Comm) 24; [2003] 1 CLC 122

Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724; [1981] 3 WLR 292; [1981] 2 Lloyd’s Rep 239; [1981] 2 All ER 1030

Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1980] UKPCHCA 1; 144 CLR 300; 30 ALR 588; 54 ALJR 552

Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402; [1954] 2 WLR 1005; [1954] 1 Lloyd’s Rep 321; [1954] 2 All ER 158

Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 406 ALR 678; 170 IPR 1

Reardon Smith Line Ltd v Hansen-Tangen; Hansen-Tangen v Sanko Steamship Co [1976] 1 WLR 989; [1976] 2 Lloyd's Rep 62; [1976] 3 All ER 570

RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production) [2010] UKSC 14; [2010] 1 WLR 753; [2010] 3 All ER 1; [2010] 2 All ER (Comm) 97; [2010] Bus LR 776; [2010] WLR (D) 75

RW Miller & Co Pty Limited v Australian Oil Refining Pty Limited [1967] HCA 50; 117 CLR 288; 41 ALJR 280

Sinclair, Scott & Co v Naughton [1929] HCA 34; 43 CLR 310

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165; 211 ALR 342; 79 ALJR 129

Total Transport Corporation v Arcadia Petroleum Ltd (The Eurus) [1998] 1 Lloyd's Rep 351; [1998] CLC 90

Trafigura Beheer BV v Mediterranean Shipping Co SA (The MSC Amsterdam) [2007] EWCA Civ 794; [2007] 2 Lloyd's Rep 622; [2008] 1 All ER (Comm) 385

Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; 247 FCR 1; 344 ALR 278

Turner v Haji Goolam Mahomed Azam [1904] AC 826; 74 LJPC 17; 20 TLR 599; 91 LT 216

TW Thomas & Co Ltd v Portsea Steamship Company Ltd [1912] AC 1

Warren v Coombes [1979] HCA 9; 142 CLR 531; 23 ALR 405; 53 ALJR 293

Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522; 214 ALR 410; 79 ALJR 872; 13 ANZ Ins Cas 61-641

Yemgas FZCO v Superior Pescadores SA (The Superior Pescadores) [2014] EWHC 971 (Comm); [2014] 1 Lloyd's Rep 660; [2014] CN 832

Yemgas FZCO v Superior Pescadores SA (The Superior Pescadores) [2016] EWCA Civ 101; [2016] WLR 97; [2016] 1 Lloyd's Rep 561; [2016] 2 All ER (Comm) 104; [2016] Bus LR 1033

Zhu v Treasurer of New South Wales (2004) 218 CLR 530

Debattista, C, “Straight bills of lading: a continuing saga in the English Courts: Questions Resolved, Untouched and Mooted by the Rafaela S” (paper delivered at International Congress of Maritime Arbitrators XV, London, April 2004)

Heydon, JD, Heydon on Contract (Lawbook Co., 2019)

Derrington, SC, “JI MacWilliam Company Inc v Mediterranean Shipping Company SA ‘The Rafaela S’” (2005) 24(1) University of Queensland Law Journal 191

Foxton, D, et al, Scrutton on Charterparties and Bills of Lading (Sweet & Maxwell, 24^th ed, 2021)

Division: General Division

Registry: New South Wales

National Practice Area: Admiralty and Maritime

Number of paragraphs: 225

Date of last submissions: 28 February 2023

Date of hearing: 22-24 February 2023

Counsel for the appellant: Mr E Cox SC and Mr M Swanson

Solicitor for the appellant: Henry William Lawyers

Counsel for the respondents: Mr J Emmett SC and Mr C Street

Solicitor for the respondents: Holding Redlich

ORDERS

NSD 849 of 2022

BETWEEN:
PORALU MARINE AUSTRALIA PTY LTD ACN 092 650 658

Appellant

AND:
SPLIETHOFF TRANSPORT BV

First Respondent

REDERIJ DIJKSGRACHT

Second Respondent

ORDER MADE BY:

RARES, SARAH C DERRINGTON AND FEUTRILL JJ

DATE OF ORDER:

8 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.The amended notice of contention be dismissed.
3.The cross-appeal be dismissed.
4.The answers to the separate questions in order 1 made on 6 September 2022 be set aside and in lieu thereof it be ordered that:
Question 1: With regard to the limitation of liability regime applicable to the plaintiff’s claim in all the circumstances:
(a)Is any liability of the carrier limited to £100 per package?
Answer: No.
(b)Is any liability of the carrier limited to the present value of £100 of gold in 1924 per package?
Answer: No.
(c)Is any liability of the carrier limited to 666.67 units of account per package or 2 units of account per kilogramme of gross weight of the goods (whichever the higher)?
Answer: Yes, unless Art 4(5)(e) of the Hague-Visby Rules (being as set out in the Third Schedule to the Merchant Shipping (Liability of Shipowners and Others) Act 1996 (IRE)) is found to apply.

Question 2:     Does the answer to Question 1 apply equally to the plaintiff’s claims in bailment and negligence?
Answer: Yes.
5.Unless any party files and serves written submissions limited to three pages and any evidence in support on or before 15 September 2023:
(a)Order 1 made on 5 October 2022 be set aside and in lieu thereof it be ordered that:
1.   The defendants pay the plaintiff’s costs of the hearing and determination of question 1.
2.   The plaintiff pay the defendants’ costs of the hearing and determination of question 2.
(b)the respondents pay the appellant’s costs of the appeal in respect of question 1 and the appellant pay the respondents’ costs in respect of question 2.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

NSD 852 of 2022

BETWEEN:
PORALU MARINE AUSTRALIA PTY LTD ACN 092 650 658

Appellant

AND:
THE SHIP "MV DIJKSGRACHT"

Respondent

ORDER MADE BY:

RARES, SARAH C DERRINGTON AND FEUTRILL JJ

DATE OF ORDER:

8 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.The amended notice of contention be dismissed.
3.The cross-appeal be dismissed.
4.The answers to the separate questions in order 1 made on 6 September 2022 be set aside and in lieu thereof it be ordered that:
Question 1: With regard to the limitation of liability regime applicable to the plaintiff’s claim in all the circumstances:
(a)Is any liability of the carrier limited to £100 per package?
Answer: No.
(b)Is any liability of the carrier limited to the present value of £100 of gold in 1924 per package?
Answer: No.
(c)Is any liability of the carrier limited to 666.67 units of account per package or 2 units of account per kilogramme of gross weight of the goods (whichever the higher)?
Answer: Yes, unless Art 4(5)(e) of the Hague-Visby Rules (being as set out in the Third Schedule to the Merchant Shipping (Liability of Shipowners and Others) Act 1996 (IRE)) is found to apply.

Question 2:     Does the answer to Question 1 apply equally to the plaintiff’s claims in bailment and negligence?
Answer: Yes.
5.Unless either party files and serves written submissions limited to three pages and any evidence in support on or before 15 September 2023:
(a)Order 1 made on 5 October 2022 be set aside and in lieu thereof it be ordered that:
1.   The defendant pay the plaintiff’s costs of the hearing and determination of question 1.
2.   The plaintiff pay the defendant’s costs of the hearing and determination of question 2.
(b)the respondent pay the appellant’s costs of the appeal in respect of question 1 and the appellant pay the respondents’ costs in respect of question 2.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
RARES AND SARAH C DERRINGTON JJ:

INTRODUCTION

[1]

THE PRIMARY JUDGE’S DECISION

[7]

Summary of issues

[15]

The amended notice of contention and the cross-appeal

[16]

SUMMARY OF OUTCOME

[18]

THE ISSUES THAT DO NOT ARISE

[19]

WHAT WAS THE CONTRACT OF CARRIAGE AND WHERE WERE ITS TERMS RECORDED?

[20]

Factual background

[20]

The terms of the first recap

[22]

The terms of the second recap

[25]

The terms of the booking note

[42]

Did the primary judge consider Poralu’s case that the second recap was the contract of carriage?

[45]

Principles applicable to formation of a contract

[50]

What was the contract of carriage?

[57]

DOES ART 10 OF THE HAGUE-VISBY RULES APPLY?

[75]

What is the place of issue of a bill of lading?

[77]

Can Art 10(c) apply when no bill of lading is in fact issued?

[81]

Was the contract of carriage “covered by” a bill of lading?

[93]

What were the terms of the bill of lading that the parties agreed would issue?

[99]

Is it necessary to determine whether the contract of carriage is a charterparty?

[101]

Would the bill of lading regulate the relations between the carrier and a holder of it as also required by Art 1(b)?

[108]

Did cl 3(a) of the contract of carriage contractually incorporate the Hague-Visby Rules within the meaning of Art 10(c)?

[110]

Did cl 3(a) of the booking note displace cl 3(a) of the bill of lading?

[113]

Which regime is incorporated by cl 3(a) of Spliethoff’s standard form bill of lading?

[124]

What was the function of the sea waybill that the carrier issued?

[141]

Article 10(c) applies

[143]

DID SPLIETHOFF HAVE AUTHORITY TO ENTER INTO THE CONTRACT OF CARRIAGE AS REDERIJ DIJKSGRACHT’S AGENT?

[148]

DISPOSITION

[159]

INTRODUCTION

It will be a century next year since the first attempt at achieving some level of universal uniformity in respect of a cargo liability regime for the international carriage of goods by sea. On 25 August 1924, the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Hague Rules) opened for signature. Those Rules were amended by the Protocol to amend the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, opened for signature on 23 February 1968 (Visby Protocol), and then again by the Protocol amending the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 25 August 1924, as amended by the Protocol of 23 February 1968, opened for signature on 21 December 1979 (SDR Protocol). Together these three international instruments are known as the Hague-Visby Rules.
Two subsequent attempts have been made to modernise the cargo liability regime for international sea carriage, namely the United Nations Convention on the Carriage of Goods by Sea, 1978, opened for signature 31 March 1978, 1695 UNTS 3 (entered into force 1 November 1992), known as the Hamburg Rules, and the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, opened for signature 11 December 2008, UN Doc A/RES/63/122; 48 ILM 659 (not yet in force), known as the Rotterdam Rules, but these have not been met with international acceptance and are not presently relevant.
Australia has taken a bespoke approach to modernising its marine cargo liability regime. Having originally acceded to the Hague Rules, and the subsequent Visby and SDR protocols, it enacted the Hague-Visby Rules by Schedule 1 to the Carriage of Goods by Sea Act 1991 (Cth) (COGSA 91). By instrument of denunciation deposited on 16 July 1992, Australia denounced the Hague Rules. Following a review conducted in 1995-1996, under the auspices of the Department of Transport and Regional Development, the Carriage of Goods by Sea Amendment Act 1997 (Cth) was passed. That Act provided for regulations to amend COGSA 91 to add a schedule of modifications that would modify the text of the Hague-Visby Rules set out in Schedule 1. Schedule 1A to COGSA 91 was inserted by the Carriage of Goods by Sea Regulations 1998 (Cth), which were proclaimed on 30 June 1998. Although the modified Rules in Schedule 1A continue to be referred to as the “amended Hague Rules”, they are referred to throughout these reasons as the Australian Rules.
All of this is to explain the somewhat surprising feature of this appeal: that, in 2023, there remains uncertainty as to whether the almost 100-year-old Hague Rules apply to a contract of carriage negotiated in late 2019 by a French ship and chartering broker with a Dutch carrier. The contract involved a shipment from Ireland, a country that has not ratified the Hague-Visby Rules (but has enacted them by domestic statute), to Australia, which has enacted a version of the Hague-Visby Rules modified by domestic statute (despite having denounced the Hague Rules), and to which the consignee asserts English law applies.

These appeals concern the identification of the terms, and the construction, of a contract of carriage between the appellant, Poralu Marine Australia Pty Ltd as consignee, and the second respondent, Spliethoff Transport BV as carrier, for a shipment of a cargo of 23 pontoons from the port of Cork, Ireland, to the port of Geelong, Australia, on board MV Dijksgracht. The cargo was discharged on 13 February 2020 at Geelong. Poralu alleges that cargo was loaded on board in sound condition but that on discharge, three pontoons were found to be damaged.
Poralu commenced an action in rem against the vessel, by which it alleged that her owner was Scheepvaartonderneming Dijksgracht CV, and so was the relevant person, within the meaning of s 3(1) of the Admiralty Act 1988 (Cth), which was liable for damages in bailment and negligence. Poralu also commenced another proceeding in personam against Spliethoff (as first defendant) and Scheepvaartonderneming Dijksgracht (as second defendant). The latter was substituted by Rederij Dijksgracht, a Dutch company that claims to be the ship owner. We will refer, where necessary, to the three respondents in the appeals collectively as the carrier.
THE PRIMARY JUDGE’S DECISION
The primary judge ordered that a number of separate questions be determined before any others in the two proceedings. The questions, as amended by his Honour, and the primary judge’s answers, are as follows:
Question 1: With regard to the limitation of liability regime applicable to the plaintiff’s claim in all the circumstances:
(a)    Is any liability of the carrier limited to £100 per package?
Answer: Yes
(b)    Is any liability of the carrier limited to the present value of £100 of gold in 1924 per package?
Answer: No
(c)    Is any liability of the carrier limited to 666.67 units of account per package or 2 units of account per kilogramme of gross weight of the goods (whichever is higher)?
Answer: No
Question 2: Does the answer to Question 1 apply equally to the plaintiff’s claims in bailment and negligence against the vessel’s owner?
Answer: Yes
Question 1 turned on which cargo liability regime, out of the Hague Rules, the Hague-Visby Rules and the Australian Rules, governed the carriage of the pontoons by sea. If the Hague Rules apply, Arts 4(5) and 9 provide that the carrier and the ship are entitled to limit their liability to the value of the quantity of gold that GBP100 could purchase in 1924: see Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448 at 460 per Kirby P and 471 per Hope JA (McHugh JA agreeing). In this event, the answer to question 1(b) will be “Yes”. However if, as Poralu contended, the Hague-Visby Rules apply, the carrier and ship are only entitled to limit their liability to 666.67 Special Drawing Rights per package or unit or two Special Drawing Rights per kilogramme of gross weight of the goods lost or damaged, whichever is the higher, and the answer to question 1(c) will be “Yes”. If, as the carrier contended and the primary judge found, the carrier had a contractual right to limit their liability per package to GBP100 without reference to its gold value at any time, then the answer to question 1(a) will be, as his Honour held, “Yes”.
Question 2 concerned whether the answer to question 1 also affected the quantification of the liability of Rederij Dijksgracht in bailment and negligence, as the carrier contended and his Honour held.
The primary judge’s answers to the separate questions flowed primarily from his Honour’s conclusions on how the contract of carriage was formed and what were its terms.
The primary judge held that the booking note in the form sent on 8 November 2019 by Mr Pierre Gires (who represented Helmgale Sàrl, a ship and chartering broker that was authorised to fix the booking on Poralu’s behalf) to Mr Thomas Zuijderduin (on behalf of Spliethoff) and which Mr Patrick Schweinsbergen accepted on behalf of Spliethoff on 20 November 2019, formed the contract of carriage. The primary judge termed this the booking note contract. The primary judge also held that the sea waybill, signed and stamped by Doyle Shipping Group (Spliethoff’s agent in the Irish port of Cork) on 31 December 2019 and accepted by Poralu, did not amount to or evidence any new or varied contract of carriage between the parties, but served only as a receipt for the cargo. Based on that conclusion, the primary judge went on to find that although it was a term of the contract of carriage that the shipper had a right to demand a bill of lading, Poralu never made such a demand.
Next, in concluding that the booking note was governed by Dutch law, his Honour held that the Hague-Visby Rules were not compulsorily applicable to the contract of carriage. Under Dutch Law, both its “formal” and “material” requirements must be satisfied for the Hague-Visby Rules to apply compulsorily. The primary judge held that the “formal” requirement was not satisfied because Ireland is not a Contracting State. His Honour found that, therefore, it was unnecessary to decide whether the “material” requirement was satisfied, viz, whether the contract of carriage was covered by a bill of lading or similar document of title.
Further, the primary judge held that, although the Australian Rules were provisionally applicable, since the contract was for the carriage of goods by sea from a port outside Australia to a port in Australia (and because none of the relevant Conventions was otherwise applicable by agreement or law), the Australian Rules did not apply to the contract of carriage because it was a charterparty within the meaning of Art 10(6). In addition, the primary judge held that the sea waybill issued in respect of the cargo was not a “sea carriage document” within the meaning of Art 1(1)(g).
Consequently, his Honour held that because of the operation of the Himalaya clause in cl 11 of the booking note contract for which Spliethoff had its authority to contract, first, in the in rem proceeding, the ship and Rederij Dijksgracht (as the relevant person), and secondly, in the in personam proceeding, Spliethoff and Rederij Dijksgracht as owner, were all able to rely on the limitation of liability of GBP100 for each pontoon, based on the limited incorporation of the Hague Rules in cl 3(a) of the booking note contract (which did not include any use of gold value).
Summary of issues
By an amended notice of appeal, filed by leave on 22 February 2023 during the hearing of the appeal, Poralu advanced eight principal grounds of appeal. Those grounds can be distilled to the following issues, namely that the primary judged erred in:
(1)failing to consider Poralu’s case that the second recap email that Mr Gires sent to Mr Jack Oostrum (on behalf of Spliethoff) on 7 November 2019 at 17:08 constituted acceptance of Spliethoff’s counteroffer and amounted to the conclusion of the contract of carriage of the pontoons (ground 1(a));
(2)finding that the contract of carriage was on the terms of the booking note contract and failing to find that the contract of carriage was on the terms of the second recap (grounds 1(b) and (c));
(3)finding that the proper law of the contract of carriage was Dutch, and not English, law (ground 1(d));
(4)finding that the contract of carriage did not include a term that a bill of lading governed by English law would be issued or, alternatively, that Poralu had not demanded a bill of lading (grounds 1(e) and 2);
(5)finding that Art 10(a) of the Hague-Visby Rules requires that a bill of lading actually be issued and that its place of issue is where it is stamped and signed (ground 3);
(6)finding that cl 3(a) of the contract of carriage did not incorporate the Hague-Visby Rules contractually within the meaning of Art 10(c) of the Hague-Visby Rules (ground 4);
(7)finding that:
·first, any bill of lading would have only served the purpose of a receipt and would not evidence the contract of carriage that, accordingly, it did not attract the operation of the Hague-Visby Rules; and
·secondly, the booking note contract, by providing that its terms overrode any inconsistent provisions in any other documents, including a bill of lading, had the effect of precluding the operation of any terms of the bill of lading that were inconsistent with the standard terms of the booking note contract,
(ground 4A);
(8)finding that the contract of carriage between Poralu and Spliethoff was a charterparty within the meaning of Art 10(6) of the Australian Rules and consequently, that the Australian Rules did not apply compulsorily to the contract of carriage (ground 5);
(9)not finding that the bill of lading which ought to have been issued was a sea carriage document within the meaning of Arts 1(1)(g)(i) or (iii), and consequently Art 10(6) of the Australian Rules (ground 5A); and
(10)finding that Spliethoff and Rederij Dijksgracht had proved that Spliethoff had actual authority to enter into the contract of carriage as agent for Rederij Dijksgracht (ground 6).
The amended notice of contention and the cross-appeal
By an amended notice of contention filed by leave on 22 February 2023, Spliethoff and MV Dijksgracht contended that the primary judge’s answer to question 1(a) (that the carrier could limit their liability to GBP100 per package) should be affirmed on the further grounds that:
a. The contractual incorporation of Art 1-8 of the Hague Rules meant that the Hague Rules “have effect in relation to the carriage” within the meaning of Art 10 r 2 of the Australian Hague-Visby Rules.
b. The requirements of Art 10 rr 6 and 7 must be read together and are not made out so as to re-apply the Australian Hague-Visby Rules in that:
i.no “negotiable sea carriage document” was issued as required by Art 10 r 7; and
ii.no such document if it were issued (denied) “regulates the relationship between the holder of it and the carrier of the relevant goods” as required by Art 10 r 7.
In the event that the appeal were to be allowed and question 1(a) answered “No”, Spliethoff and MV Dijksgracht cross-appealed contending that the primary judge ought to have answered question 1(b) “Yes”, so that their liability was limited to the present gold value of GBP100 in 1924, on the grounds that:
a.if the contractual incorporation of Art 1-8 of the Hague Rules with a quantum limitation of £100 in present value would be unenforceable according to the law of the place of delivery (i.e. Australia), then the contractual incorporation of Arts 1-8 should be interpreted as including the definitional provision in Art 9 (i.e. the monetary amount is taken to be gold value in 1924); and
b.as a result, the Hague Rules “have effect in relation to the carriage” within the meaning of Art 10 r2 of the Australian Hague-Visby Rules, with the quantum limitation of £100 in 1924 gold value per package or unit.
SUMMARY OF OUTCOME
For the reasons that follow, the appeal must be allowed in part, and both the amended notice of contention and cross-appeal must be dismissed. This is because, in summary:
(a)the contract of carriage between Spliethoff and Poralu was constituted by the second recap;
(b)the second recap incorporated only those terms of Spliethoff’s standard forms of bill of lading (that would be issued and evidence the contract of carriage) and booking note that were not inconsistent with the terms of the second recap, including its agreed rider clauses that provided that the second recap was governed by English law and required disputes to be referred to London arbitration;
(c)Spliethoff’s standard form bill of lading that was to be issued pursuant to the second reap provided in the general clause paramount in cl 3(a) that, relevantly, “The Hague Rules … as enacted in the country of shipment shall apply to this bill of lading” and, interpreted in accordance with English law, the Hague-Visby Rules as enacted in Ireland, in Schedule 3 of the Merchant Shipping (Liability of Shipowners and Others) Act 1996 (IRE) (MSA), as the country of shipment, would apply to the contract of carriage because:
(i)by virtue of the reasoning in Kyokuyo Co Ltd v AP Møller-Maersk A/S (trading as ‘Maersk Line’) (The Maersk Tangier) [2018] 2 Lloyd’s Rep 59, the second recap, as the contract of carriage, was covered by a bill of lading within the meaning of Art 1(b) and the chapeau to Art 10 of the Hague-Visby Rules;
(ii)the Carriage of Goods by Sea Act 1971 (UK) (COGSA 71) s 1(2) gave force of law to the Hague-Visby Rules and, in consequence, cl 3(a) of the bill of lading that would be issued pursuant to the second recap fell within Art 10(c) of those Rules;
(iii)consequently, the Australian Rules do not apply because of Art 10(2) thereof.
(d)any liability of the ship and Spliethoff is limited by force of the Hague-Visby Rules as amended by the SDR Protocol (as enacted in Ireland as the country of shipment) to 666.67 units of account per package or 2 units of account per kilogramme of gross weight of the goods (whichever is higher), subject to any determination in relation to breaking the limit under Art 4(5)(e) of the Hague-Visby Rules;
(e)Rederij Dijksgracht is entitled to rely on the same limitation of liability as the ship and Spliethoff because of the operation of the Himalaya clause in cl 11 of Spliethoff’s standard form bill of lading.
THE ISSUES THAT DO NOT ARISE
Given these conclusions, it is unnecessary to consider whether or not:
(a)the contract of carriage between Poralu and Spliethoff ought properly be characterised as a charterparty (issue 8). That is because, however that contract be characterised, it incorporated the terms of the bill of lading which, as is explained below, resulted in the Hague-Visby Rules as enacted in Ireland being compulsorily applicable under English law (as explained at [101] to [107] below); and
(b)the bill of lading which ought to have been issued was a sea carriage document within the meaning of Arts 1(1)(g)(i) or (iii), and consequently Art 10(6) of the Australian Rules (issue 9) (as explained at [145] to [147] below).
WHAT WAS THE CONTRACT OF CARRIAGE AND WHERE WERE ITS TERMS RECORDED?
Factual background
The legal effect of the second recap is at the centre of the issue of when the contract of carriage of the pontoons was formed. The negotiations relevant to the formation of the contract were conducted between Helmgale, an experienced French ship and chartering broker acting on behalf of Poralu, and Spliethoff, an experienced Dutch carrier. However, the only evidence of those negotiations before the primary judge consisted of emails between officers of Helmgale and Spliethoff, that commenced with the first recap sent by Mr Gires, on behalf of Helmgale, to Mr Oostrum, on behalf of Spliethoff, on 7 November 2019 at 16:04. As can be seen below, there must have been detailed discussions before the first recap was sent.
Commercial imperatives were central to the negotiations, as evidenced by the correspondence between the parties both immediately prior to the conclusion of the contract asserted by each side and, to the extent that it is permissible to refer to post-contractual communications, the subsequent email correspondence. An example is found in an email from Mr Gires to Mr Zuijderduin on 9 December 2019 referring to “commercial discussion prior this booking” in relation to the preferred anchorage location.
The terms of the first recap
As we have noted above, the evidence of contractual formation only began when Mr Gires sent the first recap to Mr Oostrum at 16:04 on 7 November 2019, which was clearly well after their negotiations had commenced.
The first recap was in the following terms:
Jack/Pierre
confirm having fixed sfoar=
-intended vsl mv Dynamogracht – final performing vsl to be nominated latest 15^th November
FOR ACNT TPI, FRANCE
part cargo of 23 pontoons as described – total 3580 cbm Pontoons to be stackabke 2 tiers max
PL =
9Nr. 15m x 6.1m x 1.61m each weighing 80T 3Nr. 16.5m x 6.1m x 1.61m each weighing 85T 6Nr.22m x 5.1m x 1.41m each weighing 80t 5Nr. 22m x 5.3m x 1.41m each weighing 80T
-on/under deck in owners option. Deckcargo at chrtrs risk and expense
-POL: Cork Ringaskiddy Terminal
-POD: Geelong anchorage where max draft is 7.5m if allowed by harbourmaster or Geelong port, in charterers option
-discharge into water
-laycan 10/15th December 2019
-freight: Eur 130,-- per frtton
-Terms and conditions:
-Liner in hook / Liner-out hook
-Hooking on /off for Merchant’s / Receivers account -Loading Discharging as fast as vessel can
-detention euro 13.500,-- pdpr
-transit time max 50 days agw/wp/wog
–latest arrival 31^st January - penalties for late arrival applicable if vsl exceeds 50 days transit, weather permitting and force majeure excepted Penalties 0.5pct of freight upto max 5pct of the total freight.
-cargo to be fumigated, if required, by merchant’s at their risk and account and valid certificates to be provided to owners.
– intended rotation to be supplied prior firm fixture
-Terms and conditions :
-Time lost due to swell, port congestion and/or in waiting for berth to count as time for which damages for detention are due irrespective whether the Carrier or the Merchant selected the berth, -if discharge at anchorage any time lost due to swell to count as time on detention.
- Carrier’s Agents at both ends (pls adv details )
-Taxes/dues/duties levied on or over the performing vessel to be for Carrier’s account-Taxes/dues/duties calculated on or over the freight and/or cargo to be for Merchant’s account -UK Dock dues or Irish equivalent on cargo (if any) for merchants account -Tonnage dues are charged on vessel and are for carrier’s account
-Otherwise as per Carrier’s WWBN including rider clauses / BL including English law and London Arbitration => to be provided
- Commission = 2.5pct to helmgale on fdd
-Sub shipper reconfirmation to be lifted max 24 hrs after fixing main terms
-Subject Carrier’s approval of transport drawings/technical details.
END
pls confirm
thanks sofar
Pierre GIRES
Helmgale Sàrl
(Emphasis added.)
Mr Oostrum, on behalf of Spliethoff, sought a single correction to the first recap in his email to Mr Gires sent at 16:16 on 7 November 2019, in the following terms:
Pierre / Jack
Gd day
Nearly correct..
Please delete “vsl to arrive latest 31^st January”, because we agreed a max 50 days transit and then penalties apply
Otherwise fine with me.
Thanks fixture so far and awaiting subs tomorrow
regards
Jack Oostrum
(Emphasis added.)
The terms of the second recap
Mr Gires replied with the second recap on 7 November 2019 at 17:08 that incorporated the single and only change that Mr Oostrum had sought, being Poralu’s acceptance of Spliethoff’s requested correction. Poralu contended that the second recap concluded the contract of carriage.
The primary judge set out the second recap in his reasons, helpfully numbering the lines “for ease of reference”. His Honour inserted in square brackets descriptions or explanations of chartering abbreviations or his understanding of short-hand used by the parties. We have set out below the relevant portions of the second recap using the primary judge’s numbering and annotations (in italics), together with our own explanations. Lines 1 to 5 provide:
1        Subject: RE: recap Cork/Geelong
2        Date: 07/11/2019 17:08:52
3        …
4        Jack/Pierre [ie, to Jack from Pierre]
5        sorry for this omission, revised recap asf = [ie, agreed so far]
(Bold emphasis added; italicised words added by the primary judge.)
As explained below at [70], lines 6 and 7 were requests for documents that the recap intended be used later in accordance with lines 46, 53, and 54. Lines 6 and 7 provide:
6 can you pls provide agency details both ends ?
7 pls also provide your BN, riders and BL

Lines 8 and 58 referred to the carrier’s need to have the technical details and transport drawings to understand the nature of the cargo so that it could both nominate a performing vessel, if MV Dynamogracht were not to be used, and work on what it needed to do to ensure that it could be in a position to load, carry and discharge the special cargo in the same good order and condition as loaded. Lines 8 to 10 provide:
8        will most probably have the tech drawings tomorrow morning and chrtrs
9        subs shall follow
10       -intended vsl mv Dynamogracht – final performing vsl to be nominated
(Emphasis added.)
Lines 11 to 20 provided that the carrier was free to nominate a vessel by 15 November 2019 to carry the cargo (described in lines 13 to 19) wherever, on or under deck at its option and, if the carrier put all or any of the cargo on deck, the charterer accepted that it bore the risk and expense of that choice by the carrier. Lines 11 to 20 are:
11       latest 15th November
12       FOR ACNT TPI, FRANCE
13       part cargo of 23 pontoons as described – total 3580 cbm Pontoons to be
14       stackabke 2 tiers max
15       PL = [ie, packing list]
16       9Nr. 15m x 6.1m x 1.61m each weighing 80T
17       3Nr. 16.5m x 6.1m x 1.61m each weighing 85T
18       6Nr.22m x 5.1m x 1.41m each weighing 80T
19       5Nr. 22m x 5.3m x 1.41m each weighing 80T
20       -on/under deck in owners option. Deckcargo at chrtrs risk and expense
(Bold emphasis added; italicised words added by the primary judge.)
Lines 21 and 22 identify Cork as the port of loading and Geelong as the port of discharge. Line 22 also described the maximum draft at Geelong (7.5 metres), being a matter relevant to the nomination of the performing vessel, and lines 23 and 24 gave the charterer the option of discharging the pontoons into the water if the harbourmaster or the port permitted this to occur. Lines 21 to 24 provide:
21       -POL [ie, port of loading] : Cork Ringaskiddy Terminal
22       -POD [ie, port of discharge] : Geelong anchorage where max draft is 7.5m
23       if allowed by harbourmaster or Geelong port, in charterers option
24       discharge into water
(Bold emphasis added; italicised words added by the primary judge.)
The vessel could arrive at Cork between 10 and 15 December 2019. The freight rate was €130 per freight ton. Thus, the approximate total freight was €241,150 (1855 tons x €130). Lines 25 and 26 provide:
25 -laycan 10/15th December 2019
26 -freight: Eur 130,-- per frtton [ie, freight ton]
(Italicised words added by the primary judge.)
The carrier’s risk and the basis of the freight commenced and ended when the pontoons were put on and later released off the hooks for the carriage, on either side of which the merchant or receiver was at risk and liable for any costs. The discharge had to occur as fast as the vessel could perform it. Lines 27 to 31 provide:
27       -Terms and conditions :
28       -Liner in hook / Liner-out hook
29       -Hooking on /off for Merchant’s / Receivers account -Loading Discharging
30       as fast as vessel can
31       -detention euro 13.500,-- pdpr [ie, per day pro rata]
(Italicised words added by the primary judge.)
The maximum transit time between Cork and Geelong was 50 days, all going well, weather permitting but without a guarantee. We interpolate that lines 32 and 33 of the second recap below accepted Mr Oostrum’s request that “vsl to arrive latest 31^st January” be deleted from the first recap version because of their prior agreement. The carrier had to pay an agreed penalty of 0.5% of the total freight up to a maximum of 5% (or about €12,057.50) if the vessel arrived after the 50 days allowed for her voyage, except if the weather or a force majeure occurred that caused the voyage to be prolonged beyond that time. Lines 32 to 36 provide:
32       -transit time max 50 days agw/wp/wog [ie, all going well / weather
33       permitting / without guarantee]
34       penalties for late arrival applicable if vsl exceeds 50 days transit, weather
35       permitting and force majeure excepted Penalties 0.5pct of freight upto
36       max 5pct of the total freight.
(Italicised words added by the primary judge.)
The merchant could fumigate the cargo at its own cost and risk and, if it did so, had to provide valid certificates to the owner (carrier). Lines 37 to 38 provide:
37 -cargo to be fumigated, if required, by merchant’s at their risk and account
38 and valid certificates to be provided to owners.
(Emphasis added.)
The carrier had to provide information about the performing vessel’s intended rotation to the merchant before a firm fixture. Line 39 provides:
39 – intended rotation to be supplied prior firm fixture
The merchant had to pay liquidated damages at the rate of €13,500 per day pro rata for time lost due to swell, port congestion and or waiting for a berth, irrespective of whether the carrier or merchant had chosen the berth or if swell delayed the vessel discharging at anchorage (lines 31, 40 to 45). Lines 40 to 45 provide:
40       -Terms and conditions :
41       -Time lost due to swell, port congestion and/or in waiting for berth to
42       count as time for which damages for detention are due irrespective
43       whether the Carrier or the Merchant selected the berth,
44       -if discharge at anchorage any time lost due to swell to count as time on
45       detention.
46       Carrier’s Agents at both ends (pls adv details )
(Emphasis added.)
The carrier would be liable for all taxes, dues, or duties, including tonnage dues that were levied on or over the performing vessel in respect of the carriage of the pontoons, while any taxes, dues, or duties, including Irish or United Kingdom dock dues or their equivalent, levied on the freight payable or the cargo were the merchant’s responsibility. Lines 47 to 52 provide:
47       -Taxes/dues/duties levied on or over the performing vessel to be for
48       Carrier’s account
49       -Taxes/dues/duties calculated on or over the freight and/or cargo to be for
50       Merchant’s account
51       -UK Dock dues or Irish equivalent on cargo (if any) for merchants account
52       -Tonnage dues are charged on vessel and are for carrier’s account
(Emphasis added.)
The statement in lines 53 and 54 “Otherwise as per Carrier’s WWBN including rider clauses/BL including English law and London Arbitration => to be provided” would have been understood by a reasonable person in the trade of arranging sea cargo and charters to mean that, first, matters not addressed in the second recap would be governed by the carrier’s standard form of its worldwide booking note, that necessarily would include the rider clauses that had been expressly agreed, and the carrier’s standard bill of lading which it was to provide (as lines 7 and 54 requested). Secondly, those two standard forms would be varied to specify, if they did not already require, that English law was the governing law under both the second recap and each form, and any disputes would be referred to arbitration in London. Lines 53 to 54 provide:
53 -Otherwise as per Carrier’s WWBN including rider clauses / BL including
54 English law and London Arbitration => to be provided
(Emphasis added.)
Helmgale was entitled to commission on the freight, demurrage, and any deadfreight of 2.5% (or, based only on the freight, about €6028.75) (line 55). Lines 55 to 56 provide:
55 - Commission = 2.5pct to helmgale on fdd [ie, freight, demurrage and
56 deadfreight]
(Italicised words added by the primary judge.)
The second recap was subject to, first, the shipper (Inland and Coastal Marina Systems, or ICMS) reconfirming what was to be carried no later than 24 hours after the fixing of the main terms (i.e., agreement on the terms of the second recap) and, secondly, the carrier approving the transport drawings and technical details (lines 57 to 58). Lines 57 to 62 provide:
57       -Sub shipper reconfirmation to be lifted max 24 hrs after fixing main terms
58       -Subject Carrier’s approval of transport drawings/technical details.
59       END
60       pls confirm
61       thanks sofar
62       Pierre GIRES
(Emphasis added.)
Soon after, on 7 November 2019, Mr Zuijderduin, who had been copied into the email exchange leading to the second recap, emailed Mr Gires with details of Spliethoff’s agents in Cork (who Helmgale then proposed as Celtic Shipping Agents) and Geelong (Asiaworld), noting that they had not yet been officially nominated. The email also attached a blank standard form “Worldwide Services” bill of lading. On its front side, the bill of lading had a box headed ‘Law & Jurisdiction’ which provided that the contract evidenced in the bill was governed by the laws of the Netherlands, “except as provided elsewhere herein”, and that the jurisdiction of the courts of Rotterdam would be exclusive for any suit by the merchant and non-exclusive for any suit brought by the carrier, and on its reverse side, in cl 10, there was the same wording dealing with law and jurisdiction. There was also a general clause paramount (cl 3(a)) in the bill of lading that relevantly provided as follows:
3. GENERAL PARAMOUNT CLAUSE
(a)Except in case of US Trade, the Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels, 25th August 1924, as enacted in the country of shipment, shall apply to this Bill of Lading. If no such enactment is in force in the country of shipment, the articles I-VIII inclusive of the said Convention shall apply. In trades where the International Brussels Convention 1924 as amended by the Protocols signed at Brussels on 23 February 1968 and 21 December 1979 (the Hague- Visby Rules) apply compulsorily, the provisions of the Hague-Visby Rules shall be considered incorporated in this Bill of Lading. The Carrier reserves all its rights under the Hague Rules or Hague-Visby Rules, including the period before loading and after discharging and while the Goods are in the charge of another Carrier, and to deck cargo and live animals. If the Hague Rules are applicable otherwise than by national law, in determining the liability of the Carrier, the liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit.
(Emphasis added.)
The terms of the booking note
On 8 November 2019, Mr Zuijderduin sent Mr Gires an email attaching a blank two-page standard form “Worldwide Services” booking note (which appears to match the abbreviation in line 53 of the second recap “WWBN”) and asked him to fill in the details. A box that appeared immediately above the signature space on the front side of the booking note contained the following term (which the parties described as the override clause):
It is hereby agreed that this Contract shall be performed subject to the terms, conditions and exceptions contained on Page 1 and 2 hereof, including any addenda, which shall prevail over any previous arrangements and/or the terms, conditions and exceptions of any Bill of Lading or Sea Waybill issued hereunder.
(Emphasis added.)
The booking note contained the following relevant terms:
3. GENERAL PARAMOUNT CLAUSE
(a) Except in case of US Trade, articles I-VIII inclusive of the Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels, 25th August 1924, shall apply to this Booking-Note. … In determining the liability of the Carrier, the liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit.
10. LAW AND JURISDICTION
This Booking-Note shall be governed by and construed in accordance with the laws of the Netherlands, except as provided elsewhere herein and except for US Trade, as to which the US COGSA 1936 shall apply, and any dispute, claim or action under this Booking-Note shall be decided by the Court of Rotterdam, the Netherlands, to the exclusive jurisdiction of which the Merchant submits himself. The Court of Rotterdam has non-exclusive jurisdiction in respect of any dispute, claim or action by the Carrier under this Booking-Note.
(Emphasis added.)
On 8 November 2019, Mr Gires filled in and returned the booking note. But, he did not strike through any of the provisions of the booking note in the box on its front page or cll 3(a) or 10 on its reverse that were inconsistent with, relevantly, lines 53 and 54 of the second recap providing “otherwise as per Carrier’s WWBN including rider clauses / BL including English Law and London arbitration”.
Did the primary judge consider Poralu’s case that the second recap was the contract of carriage?
The primary judge held that “because the [second] recap was not itself the contract and the booking note was, there is no possibility for the recap terms to take precedence over the booking note terms. Indeed, the recap terms have no contractual force at all”.
The primary judge’s approach to the first and second recaps was as follows:
81Mr Gires’s first recap email on 7 November 2019 (see [38] above) opens by stating that what follows is what has been “fixed so far” and closes with a request to “pls confirm”. Neither side of the case contends that that email constituted the acceptance of any offer, or confirmation of the conclusion of a contract. At most it constituted an offer, to which there was then a counter-offer by Mr Oostrum requesting a correction (see [39] above). However, at least because the first email recap included the provision that the “intended rotation to be supplied prior firm fixture” and that “rider clauses”, which are additional to the standard clauses, can vary considerably and were unknown, the first email recap was not open to unequivocal acceptance which would then constitute a contract. It follows that the first email recap was not an offer; it was merely a recordal of terms agreed to that point, but with further terms still to be agreed. The request for a correction could therefore also not have been the acceptance of an offer, but merely a correction to the mutual record of terms agreed thus far.
82Turning now to Mr Gires’s response to the request for a correction, being his second recap email on 7 November 2019 (see [40] above), there are several indications that stand in the way of a conclusion that it was a clear and unequivocal acceptance of the terms of the preceding offer, or that it corresponded with the offer.
(Emphasis added.)
Poralu’s contention that the primary judge erred in finding it had not advanced a case that the second recap email constituted the conclusion of the contract and failed to consider that case (issue 1) is without merit. The primary judge observed that neither party advanced a case that the first recap constituted the acceptance of an offer or the conclusion of the contract. But, as demonstrated by the paragraphs above, his Honour did consider, and rejected, Poralu’s case that the second recap was the contract.
Moreover, the primary judge identified four matters that, he found, stood in the way of concluding that the second recap constituted a clear and unequivocal acceptance of the terms of the preceding offer in the first recap. First, the primary judge interpreted the new abbreviation “asf”, which Mr Gires used for the first time in line 5 of the second recap, to mean “agreed so far”, which his Honour interpreted as contemplating matters were still to be agreed. Secondly, his Honour said that, although it may have been said that agreement could be reached on the basis that Spliethoff’s booking note and bill of lading terms were incorporated without them having been seen because they were standard pre-printed terms, the same could not be said of the request for any “rider clauses”, and so this left something yet to be agreed. Thirdly, his Honour found that, read objectively, the recap did not record a concluded or firm fixture because the intended rotation of the vessel was “to be supplied prior firm fixture”. Fourthly, the primary judge placed reliance on the emails ending with the request, “pls confirm’ and “thanks sofar”.
Accordingly, Poralu fails on issue 1.
Principles applicable to formation of a contract
The approach to the construction of words and documents used in the shipping industry is to consider how those words and documents would reasonably be “understood by those involved in the shipping business”: K Line Pte Ltd v Priminds Shipping (HK) Co Ltd (The Eternal Bliss) [2022] 1 Lloyd’s Rep 12 at 15 [17] per Males LJ delivering judgment on behalf of Sir Geoffrey Vos MR, Newey LJ and himself; see also Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715 at 737 [10] per Lord Bingham of Cornhill and [57] per Lord Steyn; Total Transport Corporation v Arcadia Petroleum Ltd (The Eurus) [1998] 1 Lloyd’s Rep 351 at 358. This process is informed by the approach to contractual construction that Lord Wilberforce explained in the following oft cited passage in Reardon Smith Line Ltd v Hansen-Tangen; Hansen-Tangen v Sanko Steamship Co [1976] 1 WLR 989 at 995-996:
No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually described as “the surrounding circumstances” but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.
Dixon CJ, McTiernan and Kitto JJ explained the conventional understanding of contract formation in Masters v Cameron (1954) 91 CLR 353 at 360, saying:
Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.
In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Of these two cases the first is the more common.
(Emphasis added.)
In addition, the parties may intend their agreement to be within what McLelland J identified in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628E-G (affirmed in GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 per McHugh JA at 634D-635C, Kirby P and Glass JA agreeing) as a fourth class additional to the three described in Masters 91 CLR at 360-362. McLelland J identified the fourth class as being one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms.

English law continues to apply the same principles to determine whether a contract has been concluded, as Lord Clarke of Stone-cum-Ebony JSC said in giving the judgment of Lords Phillips of Worth Matravers PSC, Mance, Collins of Mapesbury, Kerr of Tonaghmore JJSC and himself in RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production) [2010] 1 WLR 753 at 772-773 [47]-[49]. There, Lord Clarke JSC applied six principles (that are more expansively expressed than their exploration in Masters 91 CLR at 360) that Lloyd LJ, with whom O’Connor and Stocker LJJ agreed, synthesised in Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601 at 619. Importantly, Lloyd LJ concluded, referring to what the trial judge there, Bingham J, had said:
… [T]he parties may intend to be bound forthwith even though there are further terms still to be agreed or some further formality to be fulfilled (see Love and Stewart v. Instone [(1917) 33 TLR 475] per Lord Loreburn at p. 476).
…
It is sometimes said that the parties must agree on the essential terms and that it is only matters of detail which can be left over. This may be misleading, since the word "essential" in that context is ambiguous. If by "essential" one means a term without which the contract cannot be enforced then the statement is true: the law cannot enforce an incomplete contract. If by "essential" one means a term which the parties have agreed to be essential for the formation of a binding contract, then the statement is tautologous. If by "essential" one means only a term which the Court regards as important as opposed to a term which the Court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide whether they wish to be bound and, if so, by what terms, whether important or unimportant. It is the parties who are, in the memorable phrase coined by the Judge, "the masters of their contractual fate". Of course the more important the term is the less likely it is that the parties will have left it for future decision. But there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. It happens every day when parties enter into so-called "heads of agreement".
(Emphasis added.)
As Poralu submitted, the use of a traditional offer and acceptance analysis as to the formation of a contract is not a universal mode of analysis: JD Heydon, Heydon on Contract (Lawbook Co., 2019) at [2.100]. Contracts for the carriage of goods by sea are a category of contracts where a certain degree of artificiality will arise in attempting to discern their formation solely by reference to a traditional offer and acceptance analysis. Thus, Lord Wilberforce explained, in giving the opinion of himself and Lords Hodson and Salmon in New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154 at 167C-E, how the common law strives to achieve a legal outcome that reflects commercial reality, saying:
If the choice, and the antithesis, is between a gratuitous promise, and a promise for consideration, as it must be in the absence of a tertium quid, there can be little doubt which, in commercial reality, this is. The whole contract is of a commercial character, involving service on one side, rates of payment on the other, and qualifying stipulations as to both. The relations of all parties to each other are commercial relations entered into for business reasons of ultimate profit. To describe one set of promises, in this context, as gratuitous, or nudum pactum, seems paradoxical and is prima facie implausible. It is only the precise analysis of this complex of relations into the classical offer and acceptance, with identifiable consideration, that seems to present difficulty, but this same difficulty exists in many situations of daily life, e.g., sales at auction; supermarket purchases; boarding an omnibus; purchasing a train ticket; tenders for the supply of goods; offers of rewards; acceptance by post; warranties of authority by agents; manufacturers' guarantees; gratuitous bailments; bankers' commercial credits. These are all examples which show that English law, having committed itself to a rather technical and schematic doctrine of contract, in application takes a practical approach, often at the cost of forcing the facts to fit uneasily into the marked slots of offer, acceptance and consideration.
(Emphasis added.)
In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 193 [79], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ endorsed Lord Bingham’s description in The Starsin [2004] 1 AC at 744-745 [34] of that technique of analysis of contractual formation as “a deft and commercially-inspired response to technical English rules of contract, particularly those governing privity and consideration”. It reflects his Lordship’s earlier emphasis on the parties being “the masters” of the process for “their contractual fate”: Pagnan [1987] 2 Lloyd’s Rep at 619.
Lord Justice Toulson, with whom Richards and Mummery LJJ agreed, described the typical formation of contracts in markets, such as shipping, where parties rely on standard form contracts, in Papas Olio JSC v Grains & Fourrages SA [2010] 2 Lloyd’s Rep 152 at 156-157 [28] as follows:
It is commonplace in commercial life, particularly in markets where the use of standard forms of contract is common, for parties to agree on all the essential terms necessary to bring about the conclusion of an oral contract and for the oral contract then to be followed by a written document, often described as a confirmation or recap, which will not only set out the essential terms but other terms common in the market. If there is no comeback from the other party, it may be easy to infer assent. The situation would be very different if there was no prior oral contract. Where the oral contract is followed by a written confirmation setting out fuller terms to which the other party is judged by the fact finder to have assented, it is of no practical importance whether the situation is analysed as the parties having entered into a partly oral and partly written contract. Probably the better analysis is that the written document fulfils a dual function: it both confirms evidentially the making of the oral agreement but also supersedes the oral agreement in that it provides a document to which the parties hereafter look as the expression of their bargain.
(Emphasis added.)
What was the contract of carriage?
In our opinion, the primary judge erred in rejecting Poralu’s argument that the second recap was the contract of carriage. That is because, in our opinion, the second recap concluded the contract of carriage. Mr Gires’ filling out and returning of the booking note form on 8 November 2019 can only be viewed as an attempt to proceed consistently with the first category of cases identified in Masters 91 CLR at 360 (and see too Lloyd LJ’s fourth principle in Pagnan [1987] 2 Lloyd’s Rep at 619; RTS Flexible [2010] 1 WLR at 773 [49]), being where “the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which would be fuller or more precise but not different in effect”. Despite the inaccuracies in how the agreement between the parties was recorded in the booking note, those inaccuracies did not evidence or result from any act or intention of the parties to change the terms already agreed in the second recap.
It is important to bear in mind that, as we have noted, although the first recap was the commencing part of the documentary evidence, it was, self-evidently, the product of detailed prior negotiations between Helmgale and Spliethoff. A recap, or recapitulation, in the shipping industry, is one party’s attempt to distil the essential agreed terms following negotiation that often uses terms or abbreviations that the individual negotiators know as familiar tools of their trade, for documents that they intend to use as part of the transaction that will be more fulsome, such as a standard form of one of the parties’ contracts, like a ship owner’s standard form bill of lading or booking note, or well-known forms of charterparty. Here, the parties chose not to tender in evidence what had passed between them earlier to arrive at the terms of the first recap. However, it is clear that, by the time of the exchanges in the emails in evidence on 7 November 2019, the parties had progressed well past tentative discussions and were then engaged in identifying where their negotiations were at so that they could proceed on the basis that Spliethoff would cause the intended cargo of pontoons to be carried from Cork to Geelong for Helmgale’s client.
With this in mind, looking as a whole at the correspondence that passed between Mr Gires and Mr Oostrum on 7 November 2019, it is clear that the first recap was an offer. Mr Oostrum’s response was to make a very limited counteroffer (“nearly correct … Please delete “vsl to arrive latest 31^st January … Otherwise fine with me”) that was capable of acceptance. Mr Gires accepted that one change and returned the second recap, with its only alteration being Mr Oostrum’s amendment, so as to accept the counteroffer that had sought its inclusion.
Here, the parties intended to contract on the terms of the second recap within the first class that Dixon CJ, McTiernan and Kitto JJ described in Masters 91 CLR at 360. That is, they intended that the contract of carriage would provide for the matters that they had stipulated, using well-known shipping industry shorthand language, including that Spliethoff’s standard form bill of lading and booking note would restate those terms more fully or precisely, but to no different effect. And they necessarily intended that the wording in those two standard forms would be amended to conform, where they differed, to what the second recap provided. Hence, the parties’ use of the wording in lines 53 and 54 of the second recap, namely that their agreement would be “Otherwise as per carrier’s [booking note] including rider clauses” (emphasis added), and bill of lading but with the substantive amendments that the governing law would be “English law” and the parties would submit to “London arbitration”.
Spliethoff’s conduct, after it received the second recap, in sending Helmgale its standard form booking note, bill of lading and sea waybill was not a next step in what Lord Denning MR colourfully described as a “battle of forms” that results in a contract once the last form has been sent and received without objection: Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England) Ltd [1979] 1 WLR 401 at 404H. Rather, that conduct was engaging in performance of the contract in the second recap.
It is commercially unrealistic to think, after Mr Gires and Mr Oostrum had agreed in the email containing the second recap, line 7 of which specified that Spliethoff was to “also provide your BN [booking note], riders and BL [bill of lading]” and in lines 53-54 provided that they were to proceed “Otherwise as per Carrier’s WWBN [worldwide booking note] including rider clauses / BL [bill of lading] including English Law and London Arbitration => to be provided” (emphasis added), that the parties without further discussion simply had abandoned their agreement and reverted to contracting on the very different standard form wording of the jurisdiction and arbitration clauses in Spliethoff’s booking note and bill of lading. There was no evidence that, after the second recap, any change of contractual intention had occurred or that somehow the parties had agreed or were now proceeding on a different basis by supplanting the earlier express agreement in the second recap, without any discussion at all. It is inherently unlikely that they had somehow decided that, instead, they would contract on a new basis using Spliethoff’s wording and had agreed to abandon using clauses that, first, ensured there would be “English law and London Arbitration” and, secondly, provided that a bill of lading, so claused, would issue and evidence the contract of carriage. Why else would the two businessmen have put into both the first and second recaps that Spliethoff would provide Mr Gires with its standard form of booking note and bill of lading, and any standard form riders, unless they were ad idem that the contract would otherwise be on those terms, but, as amended in the recaps, to include amendments to ensure that the contract of carriage and the bill of lading would include clauses providing for “English law and London Arbitration”?
The primary judge relied on four contra-indications to the second recap being a contract, but in our opinion these do not lead to that result.
The primary judge’s first contra-indication to the second recap being the contract of carriage was the use of the abbreviation “asf” in line 5, which he understood to mean “agreed so far”. No alternative meaning had apparently been suggested to the primary judge. In the first recap, at line 2, Mr Gires used the expression “confirm having fixed sfoar [scil: this was a typographical error for sofar]”. He also wrote in line 61 “Thanks sofar”, thus indicating Mr Gires’ use of “so far” as one word. This expression is consistent with there being matters yet to agree. It would seem unusual for Mr Gires to switch in line 2 in the second recap to the different abbreviation of “asf” and to remove the statement “confirm having fixed” if he intended to convey the same meaning of “agreed so far”, especially when he reiterated in line 61 “thanks sofar” (emphasis added). Moreover, in the second recap, Mr Gires made only one change to the substantive text of the first recap, namely to incorporate the single amendment that Mr Oostrum requested after writing “Nearly correct”. The change of Mr Gires’ language between the two introductory expressions in the first and second recap again points to agreement. In the first recap, he sought Mr Oostrum to “confirm having fixed [so far]”, whereas, in the second, he adopted the one change that Mr Oostrum required and described the result as “revised recap asf”. Thus, “asf” is likely to mean “as follows”. Restating or recapitulating the precise agreed terms, as Mr Gires did in the second recap, points directly to finality.
In any event, the fact that other, perhaps even important, matters may need later discussion and agreement does not necessarily negate the capacity of the second recap to be a concluded contract. Such a situation is the fourth class of contract recognised in GR Securities 40 NSWLR at 628E-G per McLelland J and 634D-635E per McHugh JA and by Lloyd LJ in Pagnan [1987] 2 Lloyd’s Rep at 619 citing Bingham J’s precept that the parties are “the masters of their own contractual fate”.
His Honour’s second contra-indication was, accepting that agreement could be reached on the basis that Spliethoff’s booking note and bill of lading terms were incorporated without them having been seen, that was not the case with respect to the rider clauses. Contrary to the primary judge’s conclusion, the rider clauses were not something that had yet to be agreed. Line 53 was to be read as an acceptance of Spliethoff’s standard form booking note, which was to include the rider clauses that had been agreed. Those riders included that the subsequent shipping documents, being the booking note and bill of lading, that the parties would need to use to carry out the carriage on the terms agreed in the second recap would be claused with English law as the proper law, provide for London arbitration and that the contract would enable the issue of a bill of lading so claused. There was no evidence that, leaving the terms of the standard form booking note and bill of lading to one side, the parties later negotiated any additional rider clauses. This suggests that the parties had no other rider clauses in mind and thus the wording in line 53 was not necessarily a contra-indication, as opposed to being, as we infer, definitive of the agreed wording. Critically, the second recap did not define the nature of the bill of lading to be prepared so that, as Spliethoff’s standard form wording provided, it would be issued in the form as a negotiable bill if the merchant so demanded. The possibility that there might have been any further rider clauses to Spliethoff’s standard form documents (of which there was no evidence at all) did not contradict the objective evidence of the parties’ intention to be bound forthwith on the terms of the second recap.
His Honour’s third contra-indication was that the second recap did not record a concluded or firm fixture because the intended rotation of the vessel was “to be supplied prior firm fixture”. However, the parties understood that, at that time, there was only an intended vessel, MV Dynamogracht, but had agreed that Spliethoff was yet to nominate the performing vessel and had to do so, if it were not to be MV Dynamogracht, by 15 November 2019. However, as was apparent from the terms of the second recap, the detail about the rotation was not an essential term. The parties had agreed the laycan, the maximum transit time, and the penalties for delay and detention. Indeed, as the primary judge found, line 39 of the second recap meant no more than that the carrier had to inform the merchant of the order of port calls that the performing vessel would make before she reached Cork. This was a requirement to provide information to the merchant when available so that it could make arrangements in anticipation of being ready for loading the cargo when the vessel arrived.
Further, there was nothing in the second recap that could be described as “comeback”. Mr Gires’ return of the second recap that he had amended to include Mr Oostrum’s correction was an acceptance of the provisions as amended of the first recap that Mr Oostrum said was “Otherwise fine with me”, and demonstrated that the parties were ad idem.
In circumstances where, objectively, the parties had reached and recorded their agreement, nothing turns on his Honour’s fourth contra-indication in the second recap, being Mr Gires’ sign off “pls confirm, thanks sofar” after the word “END”. That is because, by incorporating Mr Oostrum’s change and returning it to him, Mr Gires had accepted the counteroffer and made the contract. His request “pls confirm” was a courtesy or request, not a further counteroffer.
Consequently, the stage of the negotiations between him and Mr Oostrum when Mr Gires sent the second recap made it apparent that the parties had agreed all the necessary terms and conditions of a contract of carriage. Mr Gires’ request in lines 6 and 46 for agency details at both ports for the carriage sought information necessary to fill in boxes on the standard forms but was not a matter that required any agreement by Poralu other than, as the request indicated, that Spliethoff unilaterally could, and would, identify its agents.
As we have explained at [40] above, the second recap was subject to two conditions subsequent, namely, the shipper (ICMS) reconfirming what was to be carried no later than 24 hours after the fixing of the main terms and the carrier approving the transport drawings and technical details (lines 57 to 58). Those were conditions subsequent to performance under the second recap but did not affect its formation as a binding contract. There was no suggestion that ICMS failed to reconfirm. The primary judge found that after Mr Gires requested Spliethoff on 12 November 2019 to “lift” its entitlement to approve the transport drawings and technical details, Spliethoff did so by email on 13 November 2019. On 14 November 2019, Spliethoff formally notified the merchant that it had nominated MV Dijksgracht as the performing vessel, giving 5 December 2019 as her estimated time of arrival at Cork, all going well and weather permitting.

The evident intention of the parties derived from the contract recorded in the recap emails is that both general paramount clauses are intended to be incorporated into the contract of carriage. The interpretation of a contract is a question of law: Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 at 736. Here, the proper law of the contract is English law. In point of detail, English law is a foreign law and should be proved as a question of fact like any other foreign law: see, e.g., Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 at [115]; FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117 at 126. In the absence of evidence of English law, the Court is to assume that the English law approach to contractual interpretation is the same as Australian law: e.g., Neilson at [125] (Gummow and Hayne JJ), [249] (Callinan J), [267] (Heydon J).
In accordance with settled principles of contractual interpretation, the contract of carriage must be given an objective construction, by giving proper effect to the text, context, subject matter and purpose of its provisions: e.g. Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-2 [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at 179 [40]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 at [46]-[52]. The approach to be adopted in construing the contract is the 'objective approach' so that the 'meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood those terms to mean': Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at 656-7 [35]. Also, '[a] commercial contract is to be construed so as to avoid it making commercial nonsense or working commercial inconvenience': Electricity Generation Corporation at 657 [35].
Further, the contract has to be construed in context, considering its terms as a whole, giving consistent meaning to all of its terms, and avoiding any apparent inconsistency: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 at 109 (Gibbs J in dissent, but not on the applicable principle). Put another way, preference is to be given to a construction that gives 'a congruent operation to the various components of the whole': Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522 at 529 [16]. Where a commercial transaction is implemented by several contracts or documents, all of the contracts or documents may be read together for the purpose of ascertaining their proper construction and legal effect, at least where the contracts or documents are executed contemporaneously or within a short period: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd (2010) 41 WAR 23 at 52-53 [104]. Words may be supplied, omitted or corrected in a written contract, as a matter of contractual interpretation, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420 at 426-7, 437.
Neither general paramount clause is able to be incorporated unamended as a term of the contract of carriage because the booking note clause refers to 'this Booking-Note' and the bill of lading clause refers to 'this Bill of Lading'. Therefore, in each case, the clause must be modified or read such that the clauses refer to 'this contract' (that is, the contract of carriage recorded in the recap emails) rather than 'this Booking-Note' or 'this Bill of Lading'. See, e.g., Adamastos Shipping Co Ltd v Anglos-Saxon Petroleum Co Ltd [1959] AC 133 at 154.
The override clause is a standard term of the booking note and it is incorporated into the contract of carriage to the extent it is not inconsistent with the express terms of that contract recorded in the recap emails. In that context, the reference to 'this Contract' in the override clause is to be read as a reference to the contract of carriage as recorded in the recap emails and it is that contract which prevails, not the terms of the booking note in themselves and unamended by the express terms of the parties' agreement. Therefore, it is the terms of the contract recorded in the recap emails that, in turn, incorporates so much of the standard terms of the booking note and bill of lading as are not inconsistent with the express terms of that agreement that prevail over prior arrangements and (or) the terms, conditions and exceptions of any bill of lading or sea waybill issued under that contract. Therefore, properly construed, the override clause is not a mechanism by which the general paramount clause in the booking note has precedence over the general paramount clause in the bill of lading.
There is, of course, an evident inconsistency in the terms of the general paramount clauses in that cl 3(a) of the booking note applies Arts 1 – 8 of the 1924 Convention in all circumstances, whereas cl 3(a) of the bill of lading only applies those Articles if there are no 'Hague Rules … as enacted in the country of shipment' or the 'Hague-Visby Rules' are not applied compulsorily under a national law. That apparent inconsistency must be resolved having regard to the context, subject matter and purpose of the provisions of the contract of carriage.
The primary judge appears to have accepted that the Hague-Visby Rules are given force of law in Ireland by the Irish Act: J[126]. However, the primary judge found that Ireland is not a 'contracting State' within the meaning of that expression in Art 10(a) and 10(b) of the Hague-Visby Rules: J[140]. Neither of those findings of fact was challenged in the appeal. Further, the primary judge was of the view that, on the proper construction of the general paramount clause in cl 3(a) of the bill of lading, the first sentence of that clause was inoperative because the Irish Act enacted the Hague-Visby Rules and not the Hague Rules: J[162]-[172].
It is fair to say that the text of cl 3(a) of the bill of lading is no model of clarity. There are certainly footholds in the text of the clause that support the primary judge's construction. However, there are also indications in the text that point in the opposite direction and these are, in my view, more consistent with commercial sense and the context, subject matter and purpose of the contract of carriage, made in 2019, to transport goods from a port in Ireland to a port in Australia.
In the following explanation of the construction of cl 3(a) of the bill of lading, to avoid confusion of terminology, I will refer to the Hague Rules, Visby Protocol, SDR Protocol and Hague-Visby Rules (as described in the reasons of Rares and SC Derrington JJ) as the 1924 Convention (Hague Rules), 1968 Protocol (Visby Protocol), 1979 Protocol (SDR Protocol) and the 1924 Convention, as amended by the 1968 Protocol and 1979 Protocol or the 1924 Convention, as amended (Hague-Visby Rules). I will refer to the 'Hague Rules' and 'Hague-Visby Rules' as those expressions are described in cl 3(a) of the bill of lading.
The strongest indication in favour of the primary judge's construction is, as he noted, that the clause uses 'Hague Rules' and 'Hague-Visby Rules' separately and deliberately within the same clause. Implicitly, when the clause refers to the 'Hague Rules' it means the 'Articles of the 1924 Convention' and when the clause refers to the 'Hague-Visby Rules' it means the 'Articles of 1924 Convention, as amended by the 1968 Protocol and 1979 Protocol'. However, whenever a 'label' or 'definition' is attached to an expression or descriptive phrase in a contract or other instrument it can distract attention away from the true meaning of the expression or phrase. In this respect, it is important to keep in mind that the label 'Hague Rules' is attached to the expression 'Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels, 25th August 1924'. The label 'Hague-Visby Rules' is attached to the expression 'International Brussels Convention 1924 as amended by the Protocols signed at Brussels on 23 February 1968 and 21 December 1979 (the Hague-Visby Rules)'.
In the first sentence of cl 3(a) the subject matter is conveyed in a compendious phrase by reference to the rules 'contained in' the 1924 Convention 'as enacted in the country of shipment'. In the third sentence the subject matter is conveyed in a compendious phrase by reference to 'trades' where the 1924 Convention, as amended by the Protocols, 'apply compulsorily'. The subject matter of the first sentence is 'rules' 'as enacted'. The subject matter of the third sentence is 'specific rules' that 'apply compulsorily'.
The text of the 1924 Convention was amended by the 1968 Protocol. Art 6 of that Protocol provided that 'As between the Parties to this Protocol the Convention and the Protocol shall be read and interpreted together as one single instrument.' The text was further amended by the 1979 Protocol. Art 1 of that Protocol provided that 'For the purpose of this Protocol, "Convention" means the International Convention for the unification of certain rules of law relating to bills of lading and its Protocol of signature, done at Brussels on 25th August 1924, as amended by the Protocol, done at Brussels on 23rd February 1968'. Therefore, in substance, there is one Convention. It was the Convention done at Brussels on 25 August 1924. That Convention was amended by the 1968 Protocol and 1979 Protocol. However, the Convention remained the International Convention for the unification of certain rules of law relating to bills of lading. Therefore, the ordinary meaning of the expression 'rules contained in the 1924 Convention' is capable, in the context of a contract involving the international carriage of goods by sea, of meaning 'rules contained in the 1924 Convention, [as amended from time to time] '.
Although an evident aim of the 1924 Convention and 1968 and 1979 Protocols was and is to bring about uniformity of the rules that apply to the international carriage of goods by sea and, to an extent, that aim has been achieved, there is significant variation in the national laws that apply rules to such carriage. There are States that are contracting States for the purposes of the 1924 Convention, but are not so for that Convention as amended by the 1968 Protocol or 1979 Protocol. There are States that are signatories to or that have acceded to the 1924 Convention that have not ratified it or have denounced it. There are States that have acceded to one or more of the Protocols, but have not ratified them. There are States that have done none of sign, accede or ratify the 1924 Convention or the amending Protocols, but have enacted legislation that gives effect to the 1924 Convention or that Convention, as amended by one or both of the Protocols. There are States which have enacted idiosyncratic legislation that gives effect to the 1924 Convention, as amended, but with modifications. COGSA 1991 is an example of such legislation.
In that context, the expression 'Hague Rules contained in the [1924 Convention], as enacted in the country of shipment' is capable of bearing a meaning that reflects that the 'Hague Rules … as enacted' may or may not apply the 1924 Convention as amended by the 1968 Protocol or 1979 Protocol. Also, an enactment of the country of shipment may not apply the rules contained in 1924 Convention, as amended, 'compulsorily' where the law of that jurisdiction applies the rules contained in 1924 Convention (unamended) or the law of that jurisdiction does not govern the contract of carriage. On the other hand, where certain national laws apply, the rules contained in the 1924 Convention, as amended, may apply 'compulsorily' if one of the criteria in Art 10 of the 1924 Convention, as amended, is satisfied. Therefore, while cl 3(a) appears to draw a distinction between the 1924 Convention (unamended) and the 1924 Convention, as amended, where that distinction is drawn the clause is addressing different subject matters. The first subject matter is addressed to enactments of the country of shipment which may vary in the manner in which the 1924 Convention (unamended or as amended) is enacted. The second subject matter is addressed specifically to the compulsory application of the 1924 Convention, as amended. Accordingly, the references to the 'Hague Rules' (1924 Convention) and 'Hague-Visby Rules' (1924 Convention, as amended) within the same clause does not necessarily imply that when addressed to enactments of the country of shipment it is intended to be a narrow reference to the rules contained in 1924 Convention (unamended).
There is also a third subject matter addressed in cl 3(a) where there is no enactment in the country of shipment and no compulsory application of the 1924 Convention, as amended. In that case, the second and last sentences of the clause indicate that the reference to the 'said Convention' is a reference to the rules contained in 1924 Convention (unamended). That is evident from the reference in the second sentence to Arts 1-8 of the 'said Convention' read with the reference in the last sentence to the 'Hague Rules' and limiting liability to £100 (GBP) sterling lawful money of the United Kingdom per package or unit. Art 4(5) of 1924 Convention (unamended) limits the liability of the carrier and the ship to '100 pounds sterling per package or unit'. Art 9 of the 1924 Convention (unamended) provides that the monetary units are taken to be gold value. Consequently, the last sentence of the clause is a reference to the circumstances in which only Arts 1-8 of the 1924 Convention (unamended) apply by agreement. Namely, where there is no enactment of the rules contained in the 1924 Convention (as amended or unamended) in the country of shipment and no compulsory application of the 1924 Convention, as amended.
These matters taken collectively lead me to conclude that, while cl 3(a) of the bill of lading separates the rules contained in the 1924 Convention (unamended) from the rules contained in the 1924 Convention, as amended by the 1968 and 1979 Protocols (Hague-Visby Rules), it does not follow that an enactment in the country of shipment which applies the rules contained in the 1924 Convention in an amended or modified form (whether as amended by the Protocols or modified in some other way) does not meet the description of 'Hague Rules contained in the [1924 Convention], as enacted' (emphasis added). Moreover, I would not readily conclude that the objective intention of commercial parties in 2019 was to confine the first sentence of the clause to enactments of the specific rules contained in the 1924 Convention (unamended). That appears to be quite an unlikely intention when, as of 2019, the 1924 Convention had been amended in 1968 and 1979 and many States had enacted legislation giving effect to the 1924 Convention, as amended, whether or not those States were also to be regarded as 'contracting States' for the purposes of Arts 10(a) and 10(b) of 1924 Convention, as amended.
The context, subject matter and purpose of the contract of carriage includes that it is a contract for the carriage of goods by sea from a port in Ireland to a port in Australia. Further, that English law is the law that the parties have chosen to govern that contract. The objective context, therefore, must include enactments of Ireland dealing with the subject matter of the 1924 Convention and COGSA 71 as part of English law by which the rules contained in the 1924 Convention, as amended, may apply compulsorily where one of the limbs of Art 10 of those rules is satisfied. That is, although cl 3(a) of the bill of lading is a standard term it is not to be construed in the abstract, but in the context of the terms of the contract of carriage and the objective purpose of that contract.
In context, the first sentence of cl 3(a) of the bill of lading is to be read as: 'the Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels, 25th August 1924, as enacted in [Ireland], shall apply to this [contract]'. The Irish Act was an enactment of the country of shipment. The Irish Act gave the 1924 Convention, as amended by the 1968 and 1979 Protocols, the force of law. The Irish Act was the only enactment of the country of shipment that could possibly meet the description of 'Hague Rules contained in the [1924 Convention] as enacted in [Ireland]'. Therefore, in context, reasonable business people would understand the first sentence of cl 3(a) of the bill of lading to mean that the Irish Act applies to the contract. Thereby, the provisions of the Irish Act, with all necessary amendments, apply to the contract of carriage, by agreement. As the Irish Act gave the Hague-Visby Rules force of law, the Hague-Visby Rules apply to the contract of carriage by agreement.
The rules contained in the 1924 Convention, as amended by the 1968 and 1979 Protocols, could apply compulsorily if those rules apply as a matter of English law (as the proper law of the contract) or, perhaps, as matter of Irish or Australian law if a mandatory law of one of those jurisdictions were to apply the Hague-Visby Rules. In those circumstances, the rules contained in the 1924 Convention, as amended, would be incorporated into the contract of carriage, with all necessary amendments, as terms of the contract. That is, the Hague-Visby Rules would apply by agreement even if separately those rules apply by law. In that case, the Hague-Visby Rules would displace the Irish Act both as a matter of contract and application of a mandatory national law.
For completeness, I should indicate that I have not overlooked Poralu's submissions to the primary judge, repeated in the appeal, to the effect that the first sentence of cl 3(a) should be construed as I have interpreted it in reliance on English Court of Appeal reasons in Yemgas FZCO and Others v Superior Pescadores SA (The Superior Pescadores) [2016] EWCA Civ 101; [2016] 1 Lloyd's Rep 561. Unlike cl 3(a) of the bill of lading, the paramount clause under consideration in that case referred only to the Hague Rules and there was no reference within that clause to the Hague-Visby Rules. Lord Justice Longmore (Tomlinson and McCombe LJJ agreeing) expressed the view (at [37]) that 'any case, in which a bill of lading issued in 2008 incorporating the Hague Rules as enacted in the country of shipment has (as here) enacted the Hague-Visby Rules, should be regarded as a case which is subject to the Hague-Visby Rules rather than the (old) Hague Rules'.
In The Superior Pescadores reference was made to a number of other authorities which had considered the operation of paramount clauses. These included consideration of the decision of Tomlinson LJ (at first instance) in Parsons Corporation and Others v CV Scheepvaatonderneming Happy Ranger and Others [2001] 2 Lloyd's Rep 530 (Happy Ranger QBD). In that case, Tomlinson LJ considered a paramount clause in similar terms to cl 3(a) of the bill of lading. Tomlinson LJ (at [31]) rejected a submission made in that case to the effect that the Hague-Visby Rules were to be regarded as the Hague Rules as enacted in Italy (the country of shipment in that case) because a 'clear distinction is drawn between the Hague and Hague-Visby Rules' within the clause.
As to the reasoning in Happy Ranger QBD, in The Superior Pescadores Longmore LJ (at [35]) observed that he did 'not regard this paragraph of the judgment (para [31]) as saying that the words "as enacted in the country of shipment" could not refer to the Hague-Visby Rules if, for example, the particular paramount clause made no specific reference to the Hague-Visby Rules in some other part of the same clause but those Rules had in fact been enacted in the country of shipment'. In The Superior Pescadores, Tomlinson LJ observed (at [49]-[51]) that he may have expressed himself differently in the Happy Ranger QBD based on a correct understanding that the 1924 Convention was amended by the 1968 and 1979 Protocols. Further, that he did not intend to say that the Hague Rules as enacted in the country of shipment could not refer to the Hague-Visby Rules even if the particular paramount clause made no specific reference in some other part of the same clause, but those Rules had in fact been enacted in the country of shipment', but he considered his approach to the construction of the paramount clause in that case remained correct.

The primary judge made reference to Poralu's submissions and to the passages in The Superior Pescadores and Happy Ranger QBD to which I have referred as well as other aspects of the reasoning in The Superior Pescadores before concluding:
171Since the paramount clause in the present case, as identified, refers separately and deliberately to the Hague Rules and the Hague-Visby Rules, the conclusion in The Superior Pescadores is inapplicable, but the reasoning of the Court of Appeal in relation to other cases where there was such a differentiation nevertheless applies.
172In the circumstances, since the Hague Rules were not enacted in Ireland, the first sentence of the paramount clause has no application, and the second sentence does. On that basis, Art 10(c) is not satisfied.
Notwithstanding that the competing construction is available for the reasons given by the primary judge, I have come to a different conclusion of the meaning of cl 3(a) of the bill of lading and a different conclusion to that Tomlinson LJ reached on a similarly worded paramount clause in Happy Ranger QBD. For the reasons already given, I am not persuaded that the difference in the use of 'Hague Rules' and 'Hague-Visby Rules' is a compelling reason to exclude the Irish Act from the first sentence of the clause. Further, I am also not persuaded that the construction that another court has placed on a different, albeit similar, clause in a different contract made in a different commercial context and at a different time is of significant assistance to the construction of the relevant clause in this case. The same observation applies to the construction of the clause under consideration in The Superior Pescadores.
As I have said earlier, cl 3(a) of the bill of lading must be construed as a term incorporated by reference into the contract of carriage governed by English law, in context and with regard to the subject matter and purpose of the contract; to carry goods by sea from Ireland to Australia. When regard is had to context and purpose, 'the Hague Rules contained in the [1924 Convention], as enacted in [Ireland]' means the Irish Act. Therefore, subject to the possible 'compulsory' application of the Hague-Visby Rules by operation of an applicable national law, the Irish Act applies to the contract of carriage. A consequence is that the part of cl 3(a) of the bill of lading and cl 3(a) of the booking note that purport to apply Arts I - VIII of the 1924 Convention and limit liability of the carrier to £100 (GBP) per package or unit must be read as simply not applicable to the contract of carriage in this case.
Is the carriage in a trade to which the Hague-Visby Rules apply compulsorily?
As noted earlier, English law is the proper law of the contract of carriage. There was no evidence, expert or otherwise, as to the English law applicable to contracts for the carriage of goods by sea. Further, it is unclear to me if there were any agreement between the parties as to the applicable English law where, as here, a bill of lading was not issued under the contract of carriage. Otherwise, in the circumstances of this case it is clearly not appropriate to assume that English law is the same as Australian law: see, e.g., Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492 at [162] (Heydon JA, Spigelman CJ and Sheller JA agreeing). While for the reasons Rares and SC Derrington JJ have given, there does not appear to be any real doubt that under English law it was not necessary for a bill of lading to be issued for the Hague-Visby Rules to apply to the contract of carriage, in the circumstances, I prefer not express any view on the extent to which the Hague-Visby Rules apply to the contract of carriage as a matter of English law. In any event, for the reasons which follow, I do not consider it is necessary to determine if the Hague-Visby Rules apply compulsorily to the carriage of goods by sea in this case in order to answer the separate questions.
The Hague-Visby Rules do not apply to a bill of lading issued by the carrier to the shipper under the charter-party where the shipper is also the charterer of the vessel: J[96] (and the cases cited therein). Subject, of course, to negotiation of the bill to a third party and the bill of lading then taking effect in the hands of the third party as a document of title regulating the relations between the carrier and the holder of the bill. In this case, the shipper and putative charterer were at all times the same person. Therefore, the Hague-Visby Rules could not apply compulsorily under English law if the contract of carriage were a charter-party.
If the contract of carriage were a charter-party and, therefore, the Hague-Visby Rules would not apply to a contract of carriage 'covered by a bill of lading', the Hague-Visby Rules, as enacted in Ireland, would apply by agreement to the contract of carriage. In this respect, the Hague-Visby Rules would apply to the charter-party, with all necessary amendments: Adamastos Shipping at 152, 154, 170; RW Miller & Co Pty Limited v Australian Oil Refining Pty Limited [1967] HCA 50; (1967) 117 CLR 288 at 295-297 (Windeyer J in dissent, but not on this point of principle), see, also, 292 (Barwick CJ), 299-300 (Owen J). If the contract of carriage were not a charter-party, the Hague-Visby Rules either, as enacted in Ireland, or by operation of COGSA 71, would apply to the contract of carriage by agreement or by law. Therefore, on any view, the carrier's liability must be limited in accordance with Art 4(5) of the Hague-Visby Rules.
It is also unnecessary to decide if the Hague-Visby Rules apply by operation of COGSA 71 or if the contract of carriage be a charter-party for the purposes of Arts 1(b), 1(g), 5, 10(2), 10(3), 10(6) and 10(7) of the Australian Rules. If the contract of carriage were a charter-party to which the Australian Rules would not apply, the Irish Act applying the Hague-Visby Rules, would apply to that charter-party. If the contract of carriage were not a charter-party excluded by the Australian Rules, the Australian Rules would remain inapplicable because 'the Brussels Convention as amended by either the Visby Protocol or the SDR Protocol or both' '(or a modification of [that Convention] by the law of a contracting State) would apply, by agreement or by law, to the carriage, or otherwise has effect in relation to the carriage'. That exclusion would apply if the Hague-Visby Rules apply by selection of English law as the proper law of the contract and by operation of COGSA 71. That exclusion would also apply if the Hague-Visby Rules, as enacted in Ireland, apply. In that case, the Convention (Hague-Visby Rules) would apply 'by agreement' or 'otherwise has effect in relation to the carriage'.
In short, in whatever way the contract of carriage be characterised and irrespective of whether or not the Hague-Visby Rules apply to the carriage by operation of COGSA 71 (as the proper law of the contract), the Hague-Visby Rules apply to the carriage 'by agreement'. Therefore, the carrier's liability is limited as described in Art 4(5) of the Hague-Visby Rules.
Is Rederij Dijksgracht entitled to the benefit of the contractual limitation of liability?
Poralu contended that the primary judge was wrong to conclude that Spliethoff had authority to enter into the contract of carriage as agent for the shipowner, Rederij Dijksgracht, and, therefore, the shipowner was able to rely on the limitation of liability (in cl 3(a) of the booking note) even though it was not a party to the contract. For the reasons given by Rares and SC Derrington JJ, I agree that the primary judge was correct in his conclusion that Rederij Dijksgracht was entitled, through the Himalaya clause (cl 11 of the standard terms of each of the booking note and bill of lading), to the benefit of the limitation of liability in cl 3(a) of the bill of lading and, through that clause, the limitation in Art 4(5) of the Hague-Visby Rules.
Disposition
I agree with Rares and SC Derrington JJ that the appeal must be allowed in part, the amended notice of contention must be dismissed and that the cross-appeal must be dismissed. I also agree that the separate questions should be answered as described in paras [160]-[161] of the joint reasons.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Feutrill.
Associate:
Dated: 8 September 2023

Appeal from:	Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038; [2023] 2 Lloyd’s Rep 18
File number(s):	NSD 849 of 2022 NSD 852 of 2022
Judgment of:	RARES, SARAH C DERRINGTON AND FEUTRILL JJ
Date of judgment:	8 September 2023
Catchwords:	CONTRACTS – contract of carriage of goods by sea – formation – whether contract was concluded by way of fixture recap email – construction of recap emails – where recap provided that terms were otherwise as per carrier’s standard form booking note and bill of lading including rider clauses but with English law and London arbitration – whether parties intended further terms to be agreed – whether contract was concluded by later return of completed booking note – where sea waybill was issued but not bill of lading. SHIPPING AND NAVIGATION – contract of carriage –whether contract of carriage covered by and or evidenced in a bill of lading – whether shipper demanded or needed to demand issue of a bill of lading – where sea waybill issued – function of document issued. SHIPPING AND NAVIGATION – bills of lading – whether Art 10 of Hague-Visby Rules applied – whether port of loading place of issue for purposes of Art 10(a) – whether Art 10(c) requires a bill of lading to have been issued – where clause paramount in bill of lading incorporated Hague Rules “as enacted in country of shipment” – whether Hague-Visby Rules or Hague Rules incorporated by clause paramount. SHIPPING AND NAVIGATION – bills of lading – clause paramount – whether contract of carriage compulsorily incorporated Hague-Visby Rules within meaning of Art 10(c). ADMIRALTY – action in rem – liability of shipowner – Himalaya clauses – whether shipowner takes benefit of carrier’s contractual limitations – whether carrier had authority to act as agent for shipowner – where carrier acted as pool manager and time charterer – where pool management agreement provided for carrier to use all reasonable endeavours to protect and promote interests of shipowner – where pool management agreement subject to charterparty – where particular time charterparty not in evidence – where later version of time charterparty included specific agency clause – whether agency clause was included in the earlier version of the charterparty as agreed at the relevant time.
Legislation:	Admiralty Act 1988 (Cth) s 3(1) Carriage of Goods by Sea Act 1991 (Cth) Sch 1 and 1A Carriage of Goods by Sea Amendment Act 1997 (Cth) Carriage of Goods by Sea Regulations 1998 (Cth) Federal Court Rules 2011 r 36.03(a)(ii) Carriage of Goods by Sea Act 1971 (UK) s 1 Merchant Shipping (Liability of Shipowners and Others) Act 1996 (IRE) ss 30 and 31, Sch 3 International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, opened for signature 25 August 1924 (entered into force 2 June 1931) Protocol amending the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 25 August 1924, as amended by the Protocol of 23 February 1968, opened for signature 21 December 1979, 1412 UNTS 146 (entered into force 14 February 1984) Protocol to amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels on 25 August 1924, opened for signature 23 February 1968, 1412 UNTS 128 (entered into force 23 June 1977) United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, opened for signature 11 December 2008, UN Doc A/RES/63/122; 48 ILM 659 (not yet in force) United Nations Convention on the Carriage of Goods by Sea, 1978, opened for signature 31 March 1978, 1695 UNTS 3 (entered into force 1 November 1992)
Cases cited:	Anglo-Saxon Petroleum Co Ltd v Adamastos Shipping Co [1959] AC 133; [1958] 2 WLR 688 Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99; 47 ALJR 526 Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622; 4 BPR 9315 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCAFC 1833; 117 FCR 424 Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448; 93 ALR 171; 94 FLR 425; [1989] 1 Lloyd's Rep 518 Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England) Ltd [1979] 1 WLR 401; [1979] 1 All ER 965 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; 260 CLR 1; 333 ALR 384; 90 ALJR 770 Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492 EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; 41 WAR 23 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640; 306 ALR 25; 88 ALJR 447 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117; 9 ANZ Ins Cas 61-373 Federal Bulk Carriers Inc v C. Itoh & Co Ltd (The Federal Bulker) [1989] 1 Lloyd’s Rep 103 Fitzgerald v Masters [1956] HCA 53; 95 CLR 420; 30 ALJR 412 Godina v Patrick Operations Pty Ltd [1984] 1 Lloyd’s Rep 333 GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631; 4 BPR 9315 Gullischen v Stewart Brothers (1884) 13 QBD 317; 53 LJQB 173; 32 WR 763; 50 LT 47 Hellenic Steel Co v Svolamar Shipping Co Ltd (The Komninos S) [1991] 1 Lloyd’s Rep 370 Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2003] UKHL 12; [2004] 1 AC 715; [2003] 2 WLR 711; [2003] 1 Lloyd's Rep 571; [2003] 2 All ER 785; [2003] 1 All ER (Comm) 625 Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453; 331 ALR 108 JCB Sales Ltd v Wallenius Lines 124 F 3d 132 (1997); 1997 AMC 2705 JI MacWilliam Co Inc v Mediterranean Shipping Co SA (The Rafaela S) [2003] EWCA Civ 556; [2004] QB 702; [2004] 2 WLR 283; [2003] 2 Lloyd's Rep 113; [2003] 3 All ER 369; [2003] 2 CLC 94 JI MacWilliam Co Inc v Mediterranean Shipping Co SA (The Rafaela S) [2005] UKHL 11; [2005] 2 AC 423; [2005] 2 WLR 554; [2005] 1 Lloyd's Rep 347; [2005] 2 All ER 86; [2005] 1 All ER (Comm) 393; [2005] 1 CLC 172 K Line Pte Ltd v Priminds Shipping (HK) Co Ltd (The Eternal Bliss) [2021] EWCA Civ 1712; [2022] 1 Lloyd's Rep 12; [2022] 3 All ER 396; [2022] 2 All ER (Comm) 1044; [2022] Bus LR 67; [2021] WLR(D) 588 Kyokuyo Co Ltd v AP Møller-Maersk A/S (trading as ‘Maersk Line’) (The Maersk Tangier) [2018] EWCA Civ 778; [2018] 2 Lloyd's Rep 59; [2018] 3 All ER 1009; [2018] 2 All ER (Comm) 503; [2018] Bus LR 1481; [2018] 4 WLUK 208; [2018] 1 CLC 715 L Schuler A v Wickman Machine Tool Sales Ltd [1974] AC 235; [1973] 2 WLR 683; [1973] 2 Lloyd’s Rep 53; [1973] 2 All ER 39 Masters v Cameron [1954] HCA 72; 91 CLR 353; 28 ALJR 438 Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104; 325 ALR 188; 89 ALJR 990 Mount Isa Mines Ltd v The Ship Thor Commander [2018] FCA 1326; 263 FCR 181; 365 ALR 519 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154; [1974] 2 WLR 865; [1974] 1 Lloyd's Rep 534; [1974] 1 All ER 1015 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451; 208 ALR 213; 78 ALJR 1045 Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601 Papas Olio JSC v Grains & Fourrages SA [2009] EWCA Civ 1401; [2010] 2 Lloyd’s Rep 152; [2010] 2 All ER (Comm) 1151 Parsons Corporation v CV Scheepvaartonderneming (The Happy Ranger) [2001] 2 Lloyd's Rep 530; [2002] 1 All ER (Comm) 176 Parsons Corporation v CV Scheepvaartonderneming (The Happy Ranger) [2002] EWCA Civ 694; [2002] 2 Lloyd’s Rep 357; [2002] All ER (Comm) 24; [2003] 1 CLC 122 Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724; [1981] 3 WLR 292; [1981] 2 Lloyd’s Rep 239; [1981] 2 All ER 1030 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1980] UKPCHCA 1; 144 CLR 300; 30 ALR 588; 54 ALJR 552 Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402; [1954] 2 WLR 1005; [1954] 1 Lloyd’s Rep 321; [1954] 2 All ER 158 Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 406 ALR 678; 170 IPR 1 Reardon Smith Line Ltd v Hansen-Tangen; Hansen-Tangen v Sanko Steamship Co [1976] 1 WLR 989; [1976] 2 Lloyd's Rep 62; [1976] 3 All ER 570 RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production) [2010] UKSC 14; [2010] 1 WLR 753; [2010] 3 All ER 1; [2010] 2 All ER (Comm) 97; [2010] Bus LR 776; [2010] WLR (D) 75 RW Miller & Co Pty Limited v Australian Oil Refining Pty Limited [1967] HCA 50; 117 CLR 288; 41 ALJR 280 Sinclair, Scott & Co v Naughton [1929] HCA 34; 43 CLR 310 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165; 211 ALR 342; 79 ALJR 129 Total Transport Corporation v Arcadia Petroleum Ltd (The Eurus) [1998] 1 Lloyd's Rep 351; [1998] CLC 90 Trafigura Beheer BV v Mediterranean Shipping Co SA (The MSC Amsterdam) [2007] EWCA Civ 794; [2007] 2 Lloyd's Rep 622; [2008] 1 All ER (Comm) 385 Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; 247 FCR 1; 344 ALR 278 Turner v Haji Goolam Mahomed Azam [1904] AC 826; 74 LJPC 17; 20 TLR 599; 91 LT 216 TW Thomas & Co Ltd v Portsea Steamship Company Ltd [1912] AC 1 Warren v Coombes [1979] HCA 9; 142 CLR 531; 23 ALR 405; 53 ALJR 293 Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522; 214 ALR 410; 79 ALJR 872; 13 ANZ Ins Cas 61-641 Yemgas FZCO v Superior Pescadores SA (The Superior Pescadores) [2014] EWHC 971 (Comm); [2014] 1 Lloyd's Rep 660; [2014] CN 832 Yemgas FZCO v Superior Pescadores SA (The Superior Pescadores) [2016] EWCA Civ 101; [2016] WLR 97; [2016] 1 Lloyd's Rep 561; [2016] 2 All ER (Comm) 104; [2016] Bus LR 1033 Zhu v Treasurer of New South Wales (2004) 218 CLR 530
Debattista, C, “Straight bills of lading: a continuing saga in the English Courts: Questions Resolved, Untouched and Mooted by the Rafaela S” (paper delivered at International Congress of Maritime Arbitrators XV, London, April 2004) Heydon, JD, Heydon on Contract (Lawbook Co., 2019) Derrington, SC, “JI MacWilliam Company Inc v Mediterranean Shipping Company SA ‘The Rafaela S’” (2005) 24(1) University of Queensland Law Journal 191 Foxton, D, et al, Scrutton on Charterparties and Bills of Lading (Sweet & Maxwell, 24^th ed, 2021)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Admiralty and Maritime
Number of paragraphs:	225
Date of last submissions:	28 February 2023
Date of hearing:	22-24 February 2023
Counsel for the appellant:	Mr E Cox SC and Mr M Swanson
Solicitor for the appellant:	Henry William Lawyers
Counsel for the respondents:	Mr J Emmett SC and Mr C Street
Solicitor for the respondents:	Holding Redlich

ORDER MADE BY:	RARES, SARAH C DERRINGTON AND FEUTRILL JJ
DATE OF ORDER:	8 SEPTEMBER 2023

INTRODUCTION	[1]
THE PRIMARY JUDGE’S DECISION	[7]
Summary of issues	[15]
The amended notice of contention and the cross-appeal	[16]
SUMMARY OF OUTCOME	[18]
THE ISSUES THAT DO NOT ARISE	[19]
WHAT WAS THE CONTRACT OF CARRIAGE AND WHERE WERE ITS TERMS RECORDED?	[20]
Factual background	[20]
*The terms of the first recap*	[22]
*The terms of the second recap*	[25]
*The terms of the booking note*	[42]
Did the primary judge consider Poralu’s case that the second recap was the contract of carriage?	[45]
Principles applicable to formation of a contract	[50]
What was the contract of carriage?	[57]
DOES ART 10 OF THE HAGUE-VISBY RULES APPLY?	[75]
What is the place of issue of a bill of lading?	[77]
Can Art 10(c) apply when no bill of lading is in fact issued?	[81]
Was the contract of carriage “covered by” a bill of lading?	[93]
What were the terms of the bill of lading that the parties agreed would issue?	[99]
Is it necessary to determine whether the contract of carriage is a charterparty?	[101]
Would the bill of lading regulate the relations between the carrier and a holder of it as also required by Art 1(b)?	[108]
Did cl 3(a) of the contract of carriage contractually incorporate the Hague-Visby Rules within the meaning of Art 10(c)?	[110]
*Did cl 3(a) of the booking note displace cl 3(a) of the bill of lading?*	[113]
*Which regime is incorporated by cl 3(a) of Spliethoff’s standard form bill of lading?*	[124]
*What was the function of the sea waybill that the carrier issued?*	[141]
Article 10(c) applies	[143]
DID SPLIETHOFF HAVE AUTHORITY TO ENTER INTO THE CONTRACT OF CARRIAGE AS REDERIJ DIJKSGRACHT’S AGENT?	[148]
DISPOSITION	[159]