Poralu Marine Australia Pty Ltd v MV Dijksgracht
[2022] FCA 1038
•6 September 2022
FEDERAL COURT OF AUSTRALIA
Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038
File numbers: NSD 139 of 2020
NSD 96 of 2021Judgment of: STEWART J Date of judgment: 6 September 2022 Catchwords: SHIPPING AND NAVIGATION – where cargo allegedly damaged – limitation of liability – applicable scheme – where Arts 1-8 of the Hague Rules incorporated into booking note contract – where Art 9 of the Hague Rules not incorporated – where booking note contract provided that carrier’s liability shall not exceed £100 per package – where booking note contract is governed by Dutch law – where cargo was loaded on board in Ireland – whether more generous limitation under Hague-Visby Rules applies compulsorily under Irish or Dutch law – whether similar limitation under the Australian Hague Rules, being Sch 1A of the Carriage of Goods by Sea Act 1991 (Cth) (COGSA), applies
SHIPPING AND NAVIGATION – Hague-Visby Rules – whether compulsorily applicable under Art 10 – where cargo was loaded on board in Ireland – whether Ireland is a Contracting State – meaning of Contracting State – where sea waybill was signed by carrier’s load port agent in Ireland and transmitted by email from the carrier in the Netherlands to France – where the Netherlands and France are Contracting States – whether bill of lading was “issued” in a Contracting State – whether bill of lading that could have been issued would have incorporated the Hague Rules or the Hague-Visby Rules
SHIPPING AND NAVIGATION – Australian Hague Rules – whether Rules applicable under Art 10(2) – where Arts 1-8 of the Hague Rules incorporated into booking note contract – whether the Hague Rules apply by agreement or law or otherwise have effect in relation to the carriage where Art 9 was not incorporated – where the application of the Australian Hague Rules under Art 10(2) is subject to Art 10(6) – where Art 10(6) provides that the Rules do not apply to the carriage of goods by sea under a charterparty unless a sea carriage document is issued for the carriage – whether booking note contract is a charterparty – whether sea waybill issued for the carriage is a sea carriage document
SHIPPING AND NAVIGATION – charterparties – contract for the carriage of goods by sea – part cargo – where contract nominated intended performing vessel – where vessel was on a tramp trade – where contractual negotiations concerned specialist capabilities of performing vessel – where contract allocated costs of loading and discharge – where contract contained terms providing for laycan, maximum transit time, detention and the issue of a sea carriage document – whether the contract for carriage is a charterparty
ADMIRALTY – action in rem – liability of shipowner – Himalaya clauses – whether shipowner takes the benefit of the carrier’s contracted limitations – whether carrier had authority to act as agent for the 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 the interests of the shipowner – where pool management agreement is subject to charterparty – where particular time charterparty is 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
CONTRACTS – contract of carriage of goods by sea – formation – whether contract was concluded by way of fixture recap email – where email provided that terms were otherwise as per booking note including rider clauses – whether terms yet to be agreed – whether contract was concluded by return of completed booking note – where sea waybill was issued thereafter – whether sea waybill supersedes prior concluded contract – whether sea waybill contains or evidences a contract of carriage
PRIVATE INTERNATIONAL LAW – choice of law – where fixture recap email provides that contract to be governed by English law – where booking note and sea waybill provide that contract to be governed by Dutch law – whether the proper law of contract is English or Dutch law
STATUTORY INTERPRETATION – Australian Hague Rules – whether incorporation of Arts 1-8 of the Hague Rules sufficient to displace operation of the Australian Hague Rules under Arts 10(2) and (3) – consideration of legislative history and purpose of adopting an amended version of the Hague-Visby Rules – consideration of a Report referred to in second reading speech and explanatory memorandum – whether permissible under the Acts Interpretation Act 1901 (Cth) – discussion concerning the difficulties in applying the reasoning in The Maersk Tangier [2018] EWCA Civ 778; [2018] 2 Lloyd’s Rep 59 to COGSA and the Australian Hague Rules – discussion concerning difficult issues of construction of Arts 5, 10(6) and 10(7)
Legislation: Acts Interpretation Act 1901 (Cth) s 15AB
Admiralty Act 1988 (Cth) s 3(1)
Carriage of Goods by Sea Act 1991 (Cth) s 10(1)(b)(i), Sch 1, Sch 1A (Australian Hague Rules) Arts 1(1), 3(8), 10
Carriage of Goods by Sea Amendment Act 1997 (Cth)
Carriage of Goods by Sea Regulations 1998 (Cth)
Carriage of Goods by Sea Regulations 1998 (No 2) (Cth)
Goods Act 1958 (Vic) s 89
Sea-Carriage Documents Act 1997 (NSW) s 5
Explanatory Memorandum, Carriage of Goods by Sea Amendment Bill 1997 (Cth)
Explanatory Statement, Carriage of Goods by Sea Regulations 1998 (Cth)
Burgerlijk Wetboek [Civil Code] (Netherlands) Arts 8:371(3), 8:377, 8:399
Carriage of Goods by Sea Act 1971 (UK) s 1, Schedule
Constitution of Ireland, Art 29
Marine Liability Act, SC 2001, c 6 (Can)
Merchant Shipping (Liability of Shipowners and others) Act 1996, (IRE)
Merchant Shipping (Liability of Shipowners and Others) Bill, 1996 (IRE)
Convention on Limitation of Liability for Maritime Claims, 1976, opened for signature 19 November 1976, 1456 UNTS 221 (entered into force 1 December 1986)
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 25th 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)
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)
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Ahmad v Mitsui Osk Lines [2005] FCA 731; 222 ALR 338
Appleby v Johnson (1874) LR 9 CP 158
Ballas v Theophilis (No 2) [1957] HCA 90; 98 CLR 193
Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396; 82 NSWLR 665
Brown Boveri (Australia) QI Ltd v Baltic Shipping Co (The Nadezhda Krupskaya) (1989) 15 NSWLR 448; [1989] 1 Lloyd’s Rep 518
Butt v Long [1953] HCA 76; 88 CLR 476
Carrington Slipways Pty Ltd v Patrick Operations Pty Ltd (1991) 24 NSWLR 745
Carter v Hyde [1923] HCA 36; 33 CLR 115
Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606
Chiswell Shipping Ltd v National Iranian Tanker Co (The World Symphony and World Renown) [1991] 2 Lloyd’s Rep 251
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384
Commissioner of Taxation v Murray [1990] FCA 83; 21 FCR 436
Council of the Shire of Noosa v Farr & Ors [2001] QSC 60
Dairy Containers Ltd v Tasman Orient Line CV (The Tasman Discoverer) [2004] UKPC 22; [2004] 2 Lloyd’s Rep 647
Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013] FCAFC 107; 216 FCR 469
Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Maratha Envoy) [1978] AC 1; [1977] 2 Lloyd’s Rep 301
Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159; 102 FCR 464
G Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd’s Rep 25
Gardner Smith Pty Ltd v Ship “Tomoe 8” (1990) 19 NSWLR 588
Gibson v Manchester City Council [1979] 1 WLR 294
Godina v Patrick Operations Pty Ltd [1984] 1 Lloyd’s Rep 333
International Marine Underwriters v MV Patricia S (SD NY, No 06 Civ 6273 (JFK), 11 January 2007)
Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453; 331 ALR 108
Jones v Daniel [1894] 2 Ch 332
Kyokuyo Co Ltd v AP Møller-Maersk A/S (The Maersk Tangier) [2018] EWCA Civ 778; [2018] 2 Lloyd’s Rep 59
Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55; 190 CLR 181
Lauritzen Reefers v Ocean Reef Transport Ltd SA (The Bukhta Russkaya) [1997] 2 Lloyd’s Rep 744
Life Savers (Australasia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431
Love and Stewart Ltd v Rowtor Steamship Co Ltd [1916] 2 AC 527
Metvale Ltd v Monsanto International Sarl (The MSC Napoli) [2008] EWHC 3002 (Admlty); [2009] 1 Lloyd’s Rep 246
New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154; [1974] 1 Lloyd’s Rep 534
Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1988) 12 NSWLR 730
North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Merits) [1969] ICJ Rep 3
Northern Endeavour Shipping Pte Ltd v Owners of the MV NYK Isabel [2016] ZASCA 89; 2017 (1) SA 25
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451
Parsons Corporation v CV Scheepvaartonderneming “Happy Ranger” [2002] EWCA Civ 694; [2002] 2 Lloyd’s Rep 357
Parsons Corporation v CV Scheepvaartonderneming Happy Ranger [2001] 2 Lloyd’s Rep 530; [2002] 1 All ER (Comm) 176
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1978] HCA 8; 139 CLR 231
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1980] UKPCHCA 1; 144 CLR 300; [1980] 2 Lloyd’s Rep 317
Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402; [1954] 1 Lloyd’s Rep 321
Quadling v Robinson [1976] HCA 31; 137 CLR 192
Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32
Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653
Scruttons Ltd v Midland Silicones Ltd [1962] AC 446; [1961] 2 Lloyd’s Rep 365
Sidney Cooke Ltd v Hapag-Lloyd AG [1980] 2 NSWLR 587
T Co Metals LLC v The Federal Ems, 2012 FCA 284; [2014] 1 FCR 836
The President of India v Metcalfe Co Ltd (The Dunelmia) [1970] 1 QB 289; [1969] 2 Lloyd’s Rep 476
The Rosa S [1989] QB 419; [1988] 2 Lloyd’s Rep 574
The Tychy [1999] 2 Lloyd’s Rep 11
Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; 247 FCR 1
US Shipping Limited v Leisure Freight and Import Pty Ltd (in liq) [2015] FCA 347
Yemgas FZCO v Superior Pescadores SA (The Superior Pescadores) [2016] EWCA Civ 101; [2016] 1 Lloyd’s Rep 561
Aikens, Sir Richard et al, Bills of Lading (3rd ed, informa law, 2021)
Aust A, Modern Treaty Law and Practice (3rd ed, Cambridge University Press, 2013)
Bennett H (ed), Carver on Charterparties (2nd ed, Sweet & Maxwell, 2021)
Cooke J et al, Voyage Charters (4th ed, informa law, 2014)
Foxton D et al, Scrutton on Charterparties and Bills of Lading (24th ed, Sweet & Maxwell, 2020)
Korontzis G, “Making the Treaty” in Hollis DB (ed), The Oxford Guide to Treaties (Oxford University Press, 2012)
Report of the Marine Cargo Liability Working Group (Marine Cargo Liability Working Group, September 1995)
The Travaux Préparatoires of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading of 25 August 1924, the Hague Rules, and of the Protocols of 23 February 1968 and 21 December 1979, the Hague-Visby Rules (Comité Maritime International, 1997)
Treaty Section of the Office of Legal Affairs, United Nations, Final Clauses of Multilateral Treaties: Handbook (2003) pp 32-35
Treitel, Sir Guenter and Reynolds FMB, Carver on Bills of Lading (4th ed, Sweet & Maxwell, 2017)
Wilford M et al, Time Charters (4th ed, Lloydʼs of London Press, 1995)
Wilson JF, Carriage of Good by Sea (6th ed, Pearson Education, 2008)
Division: General Division Registry: New South Wales National Practice Area: Admiralty and Maritime Number of paragraphs: 278 Date of hearing: 6-8 June 2022, 19 July 2022 Counsel for the Plaintiff and Cross-Respondent: E G H Cox SC and M D Swanson Solicitor for the Plaintiff and Cross-Respondent: Henry William Lawyers Counsel for the Defendants and Cross-Claimant: J S Emmett SC and C L W Street (and A Flick on 7 June 2022) Solicitor for the Defendants and Cross-Claimant: Holding Redlich ORDERS
NSD 139 of 2020 BETWEEN: PORALU MARINE AUSTRALIA PTY LTD
Plaintiff
AND: THE SHIP “MV DIJKSGRACHT”
Defendant
NSD 96 of 2021 BETWEEN: PORALU MARINE AUSTRALIA PTY LTD
Plaintiff
AND: SPLIETHOFF TRANSPORT BV
First Defendant
REDERIJ DIJKSGRACHT
Second Defendant
AND BETWEEN: SPLIETHOFF TRANSPORT BV
Cross-Claimant
AND: PORALU MARINE AUSTRALIA PTY LTD
Cross-Respondent
ORDER MADE BY:
STEWART J
DATE OF ORDER:
6 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The separate questions be amended and answered 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
2.The proceedings be listed on 16 September 2022 to hear the parties’ agreed position or competing submissions on costs and for management of the further conduct of the proceedings.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
I....... INTRODUCTION
[1]
II...... AN EXCURSUS ON TERMINOLOGY
[16]
III.... THE PLAYERS IN THE DRAMA
[23]
IV.... ESSENTIAL FACTS
[34]
A...... Ownership and operation of the vessel
[34]
B...... The contract
[38]
1....... The fixture recap emails
[38]
2....... Bill of lading, sea waybill and booking note standard forms
[42]
3....... The booking note
[47]
4....... The sea waybill
[57]
V...... WHAT IS THE CONTRACT?
[78]
A...... The fixture recap emails
[81]
B...... The booking note
[89]
C...... The sea waybill
[93]
D...... Summary of conclusions on the contract
[103]
VI.... WHAT ARE THE TERMS OF THE CONTRACT?
[104]
VII... ARE THE HAGUE-VISBY RULES COMPULSORILY APPLICABLE UNDER DUTCH LAW?
[112]
A...... The Dutch law experts
[112]
B...... The “material” requirement – Art 1(b)
[116]
C...... The “formal” requirement – Art 10
[122]
1....... Ireland as a Contracting State to the Hague-Visby Rules
[124]
2....... Article 10(a)
[141]
3....... Article 10(b)
[160]
4....... Article 10(c)
[161]
5....... Conclusion on the “formal” requirement
[173]
VIII. ARE THE AUSTRALIAN HAGUE RULES COMPULSORILY APPLICABLE?
[174]
A...... Introduction
[174]
B...... The Australian Hague Rules
[185]
C...... The Art 10(2) question
[198]
D...... The Art 10(6) question
[218]
1....... Introduction
[218]
2....... Consideration
[223]
3....... Conclusion
[252]
IX.... CAN THE SHIPOWNER RELY ON THE CARRIER’S DEFENCES?
[253]
A...... The applicable principles
[254]
B...... The facts of the present case and conclusion
[259]
X...... SUMMARY AND CONCLUSION
[277]
STEWART J:
I. INTRODUCTION
Between 6 and 11 December 2019, 23 pontoons (described as “breakwater units”) and 11 pallets were loaded on board the motor vessel Dijksgracht at the port of Cork, Ireland, as breakbulk cargo. The cargo was consigned to Poralu Marine Australia Pty Ltd, the plaintiff in the proceedings before me, for installation at the Royal Geelong Yacht Club.
The cargo was discharged on or about 13 February 2020 at Geelong. Poralu alleges that the cargo was loaded on board the vessel in sound condition and that three pontoons were found to be damaged when the cargo was discharged.
Poralu commenced two actions for damages arising from the alleged damage to the cargo.
First, Poralu commenced an action in rem (proceeding NSD 139 of 2020) against the vessel in which it alleges that the owner of the vessel was the “relevant person”, ie, the person who would be liable on the claim in a proceeding commenced as an action in personam (Admiralty Act 1988 (Cth), s 3(1)). That liability is said to be on the basis of bailment and the tort of negligence, it not being asserted that there was any contractual nexus between Poralu and the owner. Poralu pleads that the owner of the vessel when the claim arose and when the action was commenced, being the relevant times, was Scheepvaartonderneming Dijksgracht CV, a company incorporated in The Netherlands.
Scheepvaartonderneming Dijksgracht CV, Spliethoff Transport BV, another Dutch company, and Rederij Dijksgracht, a Dutch company that claims to be the owner of the vessel, all entered appearances in the in rem proceeding.
Secondly, Poralu commenced an action in personam (proceeding NSD 96 of 2021) against Spliethoff Transport as the first defendant and Scheepvaartonderneming Dijksgracht CV as owner of the vessel as the second defendant, although that entity was recently substituted by Rederij Dijksgracht as the second defendant. I will refer to the relevant persons in the in rem proceeding and the defendants in the in personam proceeding as the defendants. As in the in rem proceeding, Poralu alleges causes of action in bailment and the tort of negligence against the owner. As against Spliethoff Transport, it alleges, in essence, the following:
(1)The existence of a contract of carriage between Poralu, as “consignee”, and Spliethoff Transport, as carrier, arising from a series of emails between 7 and 9 November 2019.
(2)By a sea waybill, the carrier acknowledged receipt of the cargo in good order and condition on 11 December 2019.
(3)The contract of carriage was subject to and incorporated the Australian Hague Rules, ie, the “amended Hague Rules” in Sch 1A to the Carriage of Goods by Sea Act 1991 (Cth) (COGSA).
(4)It was a term of the contract of carriage that a bill of lading would be issued to Poralu in respect of the cargo or, alternatively, it could be requested by Poralu and if so would then be issued.
By the defences filed in both proceedings, Spliethoff Transport and Rederij Dijksgracht deny any negligence by the owner and further plead, in essence, and as is relevant for present purposes, the following:
(1)They admit that the cargo was carried pursuant to a contract of carriage between Poralu as consignee and Spliethoff Transport as carrier, but it was “subject to” the terms and conditions of Spliethoff Transport’s booking note form.
(2)The sea waybill acknowledged receipt of the cargo only in “apparent” good order and condition.
(3)They deny that the contract of carriage was subject to the Australian Hague Rules, and say further that:
(a)the law of the Netherlands applies (cl 10);
(b)Arts 1-8 of the Hague Rules of 1924 apply by contractual incorporation, but that the liability of the carrier shall not exceed £100 lawful money of the United Kingdom per package or unit (cl 3(a));
(c)The Hague Rules apply by agreement within the meaning of Art 10(2) of the Australian Hague Rules, which is why the Australian Hague Rules do not apply;
(d)Alternatively, the Australian Hague Rules do not apply because the contract of carriage is a charterparty within the meaning of Arts 10(6) and (7) of the Australian Hague Rules.
(4)They deny that it was agreed that a bill of lading would be issued, and say that it was a term of the contract that a sea waybill would be issued if the consignee was known, which it was, that no request for a bill of lading was made, and that a sea waybill was requested by Poralu and then issued on 6 January 2020.
(5)Alternatively to the carriage being governed by the original contract, it was governed by the terms of the sea waybill dated 6 January 2020 by reason of Poralu requesting a sea waybill on those terms and Spliethoff Transport issuing one.
(6)Further alternatively, the sea waybill is a sea waybill containing or evidencing a contract for carriage within the meaning of s 5 of the Sea Carriage Documents Act 1997 (NSW) (or, if applicable, s 89 of the Goods Act 1958 (Vic)), and the rights and liabilities under that contract transferred to Poralu upon it taking delivery of the cargo subject to the sea waybill and making a claim under the sea waybill against Spliethoff Transport in respect of the goods pursuant to ss 8 and 10 of the NSW Act (or ss 92 and 94 of the Victorian Act).
(7)The sea waybill terms and conditions included the same terms as the booking note relied on in relation to it with the same consequences as to the applicable law, limitation of liability and the non-application of the Australian Hague Rules.
(8)The terms of the contract of carriage (as I understand, whether the booking note or the sea waybill) included:
(a)an undertaking by the “merchant”, ie, including Poralu, not to make any claim against the vessel or its owner (cl 11(a)); and
(b)a Himalaya clause entitling any servants or agents of the carrier, including the vessel owner, to rely on any exemption or limitation in the terms and conditions (cl 11(b)-(c)).
The defendants specifically plead that their liability is limited to the following amounts:
(1)£100 legal tender of the UK per package under the agreed terms of the original contract or the sea waybill; or, failing that,
(2)the price of the quantity of gold purchasable for £100 in 1924 per package under the Hague Rules of 1924; or, failing that,
(3)666.67 Special Drawing Rights (SDRs) of the International Monetary Fund (ie, about $1,277 at present value) per package or 2 SDRs (ie, about $3.83 at present value) per kilogramme, whichever is the highest, under Art 4(5) of the Australian Hague Rules.
Poralu pleads the following in reply:
(1)In reply to the proposition that the terms of the sea waybill applied, Poralu says there was no concluded contract of carriage at the time of the bailment or at the time that the cargo was damaged, no reasonable notice of the terms and conditions were given to the shipper or to Poralu, and, as alleged in the statement of claim, the contract of carriage contained a term for the issuing of a bill of lading rather than a sea waybill.
(2)In reply to the proposition that the contract of carriage was governed by the law of the Netherlands, Poralu says the contract of carriage was at all material times a “contract of carriage covered by a bill of lading” within the meaning of Art 1(b) and a “bill of lading” within the meaning of Art 10 of the Hague-Visby Rules which apply by force of Irish law under ss 30 and 34 of the Merchant Shipping (Liability of Shipowners and others) Act, 1996 (IRE) (although it is not pleaded how Irish law would be the applicable law, it was explained in opening that the contention is that the English law and London arbitration clause and the Dutch law and Rotterdam jurisdiction clause would be invalid by reason of s 11(2)(b) of COGSA meaning that there would be no express choice of law leaving Irish law as the proper law being that system of law with which the contract is most closely connected).
(3)Alternatively, as pleaded in the statement of claim, Poralu says that by Art 10(2) thereof the Australian Hague Rules apply by force of law to the contract of carriage.
(4)Poralu pleads that the limitation of liability in cl 3(a) of the booking note or the sea waybill (ie, £100 lawful tender or gold value) is null and void by the operation of Art 3(8) of the Hague-Visby Rules (if applicable by Irish law) or the Australian Hague Rules (if applicable by COGSA) – although the case was run on the basis that if Dutch or English law applies then under that system of law the Hague-Visby Rules apply with the same result as to cl 3(a) being invalid.
(5)Also, Poralu pleads that the owner does not get the benefit of the Himalaya clause because:
(a)no consideration passed from Poralu to the owner; and
(b)Spliethoff Transport did not act as the agent for the owner in agreeing the Himalaya clause with Poralu.
In the in rem proceeding, Rederij Dijksgracht denies any liability on the same basis as pleaded in the in personam proceeding. Poralu filed a reply which mirrors the reply in the in personam proceeding.
Although not presently relevant, there is also a cross-claim in the in personam proceeding by which Spliethoff Transport claims that, in breach of duty, Poralu failed to take delivery of the cargo.
On 21 April 2021, I made orders that the two proceedings be heard together and that evidence in the one be evidence in the other.
Following an application by the defendants, on 17 September 2021 I ordered that the following questions be tried separately from and before any other question in the two proceedings:
(a) What limitation of liability regime is applicable to the plaintiff’s claim in all of the circumstances? In particular:
(i) Does the Limitation Clause operate to limit any liability of the Defendants to £100 per package, being £300 in total?
(ii) Does the Limitation Clause operate to limit any liability of the Defendants to £100 per package in today’s gold value?
(iii) Does the Limitation Clause operate to limit any liability of the Defendants to 666.67 units of units of account per package or 2 units of account per kilogramme of gross weight of the goods (whichever the higher)?
(b) Does the answer to (a) apply equally to the plaintiff’s claims in bailment and negligence?
The separate questions were originally listed for trial in February 2022 but that listing had to be vacated because the parties were not ready on account of their shifting positions as to the identification of the contract, the applicable law and the consequences if, in particular, Dutch law applies. The separate questions were then heard over three days in June 2022.
At the end of the third day, I raised an issue with the parties as to the basis on which it was contended by Poralu that one or other of the formal requirements in Art 10 of the Hague-Visby Rules for their application was satisfied, whether under Dutch or English law. That was because it appeared to me that there was an unexpressed assumption underlying how the parties had conducted the case that one or other of those requirements was met, yet it was not clear to me that that had been established in respect of any of them, in particular because the United Nations Treaty Series Online records that Ireland had neither ratified nor acceded to the Visby Protocol of 1968 or the SDR Protocol of 1979. On that basis I was not satisfied that Ireland was a Contracting State to the Hague-Visby Rules as required by Art 10(b) and I had not been addressed on Arts 10(a) and (c). Responding to my query led the plaintiff to reopen its case to adduce further evidence going to the status of Ireland in relation to the Hague-Visby Rules and to a short further hearing in July 2022.
II. AN EXCURSUS ON TERMINOLOGY
As the introduction above reveals, four different liability regimes are relevant to this case, and yet another is referred to in COGSA. It is accordingly convenient to identify them and the manner in which I will refer to them.
The 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) was adopted by Diplomatic Conference at Brussels. It is sometimes referred to, as it is in COGSA, as the Brussels Convention. It had previously been adopted at a meeting of the International Law Association at The Hague in September 1921, which is where it gets its almost universal term of reference, namely the Hague Rules. Relevantly, in Art 4(5), it limits the liability of the carrier and the ship to “100 pounds sterling per package or unit”, and Art 9 provides that those monetary units are taken to be gold value.
The Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, Signed at Brussels on 25th August 1924, opened for signature 23 February 1968, 1412 UNTS 128 (entered into force 23 June 1977) was adopted by Diplomatic Conference at Brussels. The amendments were the outcome of deliberations of the Comité Maritime International (CMI) Conference in Stockholm in 1963, whereafter the CMI met in the City of Visby, which is where the protocol gets its term of reference, namely the Visby Protocol. The Visby Protocol is not a self-standing or independent convention, but rather effects amendments to the Hague Rules. The Hague Rules so amended are referred to as the Hague-Visby Rules. Relevantly, Art 4(5) was amended to provide for limitation of liability for the carrier and the ship to “the equivalent of 10,000 francs per package or unit or 30 francs per kilo of gross weight of the goods lost or damaged, whichever is the higher”, with further provisions about what that means. Since in the present case no one contends that that limitation applies, it is not necessary to go into it in any further detail.
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 21 December 1979, 1412 UNTS 146 (entered into force 14 February 1984) was adopted by Diplomatic Conference again at Brussels, Art II of which further amended Art 4(5) of the Rules to limit liability of the carrier and the ship to “666.67 units of account per package or unit or 2 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher”. The “units of account” referred to are Special Drawing Rights of the International Monetary Fund, with the result that the protocol is generally referred to as the SDR Protocol. The Hague Rules as amended by the Visby Protocol and the SDR Protocol are also generally referred to as the Hague-Visby Rules, unless it is necessary in any particular context to make it clear that the version of the Rules being referred to is with or without the amendments brought about by the SDR Protocol.
For reasons which it will be necessary to go into in some detail in due course, COGSA does not give the force of law to the Hague-Visby Rules, but rather gives the force of law to a version of the Hague-Visby Rules peculiar to Australia as set out in Sch 1A to COGSA. Although that version of the Rules is sometimes referred to as the amended Hague Rules, including in ss 4(1) and 7(1) of COGSA, that reference is liable to confuse because the “amended Hague Rules” is also sometimes used, internationally as well as domestically, to refer to the Hague Rules as amended by the Visby and/or SDR Protocols. For example, Sch 1 to COGSA, which is the text of the Hague-Visby Rules, is headed “The amended Hague Rules (unmodified text)”. In an effort to avoid confusion, I will refer to the Australian version of the Hague Rules, which is set out in Sch 1A, as the Australian Hague Rules (or AHR). Relevantly, in Art 4(5) they adopt the same limitation as that in the SDR Protocol.
Although not featuring in this case, it is to be noted that COGSA also refers to 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) which was adopted at Hamburg and is referred to as the Hamburg Rules. There is also a further version of international rules governing bills of lading referred to as the Rotterdam Rules, being 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). Neither the Hamburg nor Rotterdam Rules have received much international support and are seldom, if ever, encountered in practice.
In much of the literature concerning, and case law on, both the Hague Rules and the Hague-Visby Rules, the Articles are referred to using Roman numerals, and the provisions within those Articles are referred to as “rules” – eg, Art III r 8. However, neither the Hague Rules nor the Visby Protocol use Roman numerals to number their Articles – both use Arabic numerals; it is only the SDR Protocol that uses Roman numerals. Further, each of them refer to the provisions within their Articles as “paragraphs”. The Australian Hague Rules also uses Arabic numerals to number its Articles and refers to the provisions within those Articles as “paragraphs”. In what follows, I follow the numbering and nomenclature of what those instruments themselves use to refer to their provisions. It seems likely that the widespread practice of referring to provisions as, eg, Art III r 8 instead of Art 3(8) has its genesis in the United Kingdom where the amended version of the Hague-Visby Rules as adopted in the Schedule to the Carriage of Goods by Sea Act 1971 (UK) (the UK Act) numbers its Articles using Roman numerals and replaces references to “this convention” with “these Rules” (although it still refers to the provisions within its Articles as “paragraphs”).
III. THE PLAYERS IN THE DRAMA
As mentioned, Poralu is the plaintiff and the consignee of the cargo.
On behalf of Poralu, Marie-Alexandra Hégot gave evidence in chief by way of affidavit and she was cross-examined by audio visual link. Ms Hégot is the Pacific area manager of Poralu and as such was responsible for the arrangements for the transportation of the breakwater units and ancillary equipment shipped on board the vessel which form the subject matter of the proceedings.
Poralu utilised a freight forwarder for the purpose of arranging the carriage of the cargo for it, namely Transport Paris International (TPI) in Paris, France. Yann Carrier is the person representing TPI who features in the correspondence arranging the carriage.
TPI in turn utilised a ship and chartering broker, Helmgale Sàrl, in Montpellier, France. Poralu accepts that Helmgale, as broker, was authorised to fix the booking on behalf of Poralu, but says that no broader authority of Helmgale is established. It is clear from the lengthy correspondence between the parties to which reference is made below that Helmgale acted for and on behalf of Poralu in concluding the booking and otherwise communicating with Spliethoff Transport. There is no pleading that its authority was subject to some relevant limitation, and in the absence of such a pleading it must be taken to have the authority that it appeared to have.
Pierre Gires and Mathieu Vidal are the people representing Helmgale who feature in the correspondence arranging the carriage.
Spliethoff Transport’s agent in the port of Cork was Doyle Shipping Group, specifically Doyle Shipping Cork. Andrew Whelan is the person representing Doyle who features in the correspondence arranging the loading and carriage.
Spliethoff Transport was variously represented in the correspondence arranging the carriage by “Jack” Oostrum, Thomas Zuijderduin and Patrick Schweinsbergen.
There were two witnesses on behalf of the defendants, Cynthia Hosken-Serpa and Frank Nietzman. Both gave evidence in chief by way of affidavit, and both were cross-examined, also by audio visual link.
Ms Hosken-Serpa is in-house counsel of Spliethoff Transport. As such, she has day-to-day management of the proceedings. Most of her evidence merely recounted the correspondence that passed between the various parties concerning the arrangements for the carriage of the cargo, including the contractual arrangements. That evidence was formal and undisputed. Ms Hosken-Serpa also gave generalised evidence with regard to the chartering and other contractual arrangements within the Spliethoff group, and in particular with regard to the chartering and operating arrangements for the Dijksgracht. That evidence was contested, principally with regard to its generalised nature. It is relevant only to the question whether Spliethoff was authorised by Rederij Dijksgracht to contract for its protection or benefit, ie, the Himalaya clause question. I will deal with the value and import of that evidence in due course.
Mr Nietzman is a director of Spliethoff Beheer BV, another Spliethoff company. Mr Nietzman also gave generalised evidence with regard to the chartering and contractual arrangements within the Spliethoff group concerning the vessels owned by the different shipowning companies. The import of that evidence is challenged by Poralu because of its generalised nature. It is also relevant only to the Himalaya clause question. I will return to deal with the value and import of Mr Nietzman’s evidence in due course.
In short, although there is an issue as to just what can be made of some of the evidence that was given in relation to the Himalaya clause question, there is very little factual contest between the parties. The essential facts are common ground and appear from the documents. All the witnesses struck me as seeking to give honest and accurate evidence. No submission was made to the contrary.
IV. ESSENTIAL FACTS
A. Ownership and operation of the vessel
Although Poralu has maintained its pleading in the in rem action that at the relevant times the owner of the vessel was Scheepvaartonderneming Dijksgracht CV, during the trial it amended its pleadings in the in personam action to allege that Rederij Dijksgracht was the owner which is accepted by the defendants. Poralu can maintain the claims in bailment and the tort of negligence in the in rem proceeding notwithstanding maintaining the pleading in that proceeding that the owner and relevant person is Scheepvaartonderneming Dijksgracht CV on the basis that whoever the owner is, that is the party who is liable on those claims which in turn gives rise to the in rem liability of the vessel. However, the identity of the owner is significant even in the determination of the separate questions because of the owner’s reliance on the Himalaya clauses in the booking note and the sea waybill.
Rederij Dijksgracht is a company incorporated and registered in the Netherlands and operating from Amsterdam. It is an entity in the Spliethoff corporate group. “Rederij” is Dutch for “shipowners society”. Dijksgracht is the name of a canal and parallel street in the centre of Amsterdam.
There are a number of vessels operated and managed by Spliethoff Transport on behalf of their respective Rederijen, of which the Dijksgracht is one. The Rederijen have independent investors, although typically the Spliethoff group also has an interest in each Rederij.
It is uncontested that, at the relevant times, Spliethoff Transport was at least a disponent owner of the vessel in the sense that it controlled the commercial operation of the vessel – that is what enabled it to make the carriage contract (whatever form that took) with Poralu to carry the cargo to Geelong on board the Dijksgracht. Poralu submits that the contractual basis of that relationship was not satisfactorily proved. I will return to the arrangements by which Spliethoff Transport was the disponent owner of the vessel in section IX.B below, which addresses whether the owner can rely on any defences raised by Spliethoff Transport.
B. The contract
1. The fixture recap emails
On 7 November 2019, Mr Gires of Helmgale (ultimately on behalf of Poralu) sent a “recap” email to Mr Oostrum of Spliethoff Transport which, after stating “confirm having fixed sfoar [sic]”, set out the terms of a fixture for the carriage of cargo from Cork to Geelong. There is nothing in the evidence to indicate what preceded that email, and in particular whether the terms said to have been “fixed so far” had been negotiated by email or orally, or both, or what the origin of any of the particular terms was.
A short while later on the same day, Mr Oostrum replied to Mr Gires seeking a minor correction to the terms recorded in the earlier email on the basis that something slightly different had already been agreed.
Still later the same day, Mr Gires replied to Mr Oostrum with a second recap email. Its terms, as written, are as follows – I have numbered the lines for ease of reference and I have inserted in square brackets descriptions or explanations of chartering abbreviations or short-hand used by the parties:
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]
6 can you pls provide agency details both ends ?
7 pls also provide your BN, riders and BL
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
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
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
25 -laycan 10/15th December 2019
26 -freight: Eur 130,-- per frtton [ie, freight ton]
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]
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.
37 -cargo to be fumigated, if required, by merchant’s at their risk and account
38 and valid certificates to be provided to owners.
39 – intended rotation to be supplied prior firm fixture
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 )
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
53 -Otherwise as per Carrier’s WWBN including rider clauses / BL including
54 English law and London Arbitration => to be provided
55 - Commission = 2.5pct to helmgale on fdd [ie, freight, demurrage and
56 deadfreight]
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
Poralu contends that that email constitutes an acceptance of the correction requested by Mr Oostrum in the preceding email such that the contract was concluded at that point on the terms recorded in it. I will return to that question.
2. Bill of lading, sea waybill and booking note standard forms
A short while later, still on 7 November 2019, Mr Zuijderduin for Spliethoff Transport replied to Mr Gires giving the details of Doyle as Spliethoff Transport’s agent in Cork and Asiaworld Shipping Services as its agent in Geelong, and stating the following:
Reverting with our booking note asap. Meanwhile we have attached the “Original Bill of Lading” format but also our “sea way bill format” if the consignee is known we suggest to issue Sea way bills as these are easier to issue and do not require original stamped versions and can be send via email (thus saving time and cost for using mail services etc).
Attached to the email were blank pre-printed standard forms of a “Worldwide Services” bill of lading and sea waybill, each being two pages – page 1 containing “full terms, conditions and exceptions” and page 2 containing blocks for the relevant details to be filled in. Page 2 and clause 10 on page 1 of both forms also included a law and jurisdiction clause providing for the contract to be governed by and construed in accordance with the laws of the Netherlands and Rotterdam jurisdiction – exclusive for any suit by the “Merchant” and non-exclusive for any suit by the carrier.
On 8 November 2019, in accordance with his promise that he would be “reverting with our booking note asap”, Mr Zuijderduin sent an email to Mr Gires attaching a blank pre-printed standard-form two page booking note and stating “Please find attached blank format of our Booking-note, can you kindly fill in all details etc?” Page 1 of the booking note form included by clause 10 a law and jurisdiction clause providing that the booking note shall be governed by and construed in accordance with the laws of the Netherlands and for Rotterdam jurisdiction – as with the bill of lading and sea waybill forms, exclusive jurisdiction for any suit by the “Merchant” and non-exclusive for any suit by the carrier.
The bill of lading, sea waybill and booking note forms are standard forms for Spliethoff Transport – they all name Spliethoff Transport as the carrier and they record Spliethoff Transport’s copyright in them. They are also all apparently designed as a consistent or coherent suite of documents.
There followed brief emails between Mr Gires and Mr Zuijderduin in which Mr Gires asked for “the rotation of the intended performer” (ie, the order of port calls to be made by the vessel before reaching Cork, as contemplated by line 39 of the second email recap at [40] above) and the details of the “Owners” to appear in the booking note, and Mr Zuijderduin provided the details of Spliethoff Transport.
3. The booking note
On 8 November 2019, Mr Gires replied to Mr Zuijderduin attaching page 2 of the booking note form with the details filled in and stating “pls confirm attached BN is ok”. The form reflected the following as having been filled in in each of the numbered blocks:
(1)Agents: Helmgale
(2)Place and date: Montpellier, 8 November 2019
(3)Carrier: Spliethoff Transport
(4)Merchant: TPI
(5)Vessel’s name: “Intended vsl mv Dynamogracht – final performing vsl to be nominated latest 15th November”
(6)Time for shipment (about): laycan 10/15th December 2019
(7)Loading port: Cork Ringaskiddy Terminal, Ireland
(8)Merchant’s representative at loading port: Celtic Shipping Agencies
(9)Discharging port: Geelong anchorage where max draft is 7.5m if allowed by harbourmaster or Geelong port, in charterers option – discharge into water.
(10)Description of goods (as part cargo): 23 pontoons… “On/under deck in owners option. Deckcargo at chrtrs risk and expense”
(11)Freight rate and details, charges, etc.: EUR 130.00 per freight tons basis -Liner in hook / Liner-out hook; Hooking on/off for Merchant’s/Receivers account -Loading Discharging as fast as vessel can
(12)Special terms: the remaining terms of carriage as reflected in the email recap were set out, save for those identified in the following paragraph.
All of the terms and conditions of the email recap at [40] above were included in the booking note, save for the following: line 39 (the intended rotation to be supplied prior firm fixture), line 46 (carrier’s agent at both ends), lines 53-54 (“Carrier’s WWBN including rider clauses / BL including English law and London Arbitration => to be provided”), and line 58 (subject to carrier’s approval of transport drawings / technical details).
The following pre-printed statement appears immediately above the signature blocks for both “carrier” and “merchant”:
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.
The booking note was not signed by either party at that time, or at any subsequent time.
On 12 November 2019, Mr Gires asked Spliethoff Transport “for good order sake pls lift your sub on technical drawing”. This is a reference back to the term recorded in the email recap that the fixture was subject to the carrier’s approval of the transport drawings/technical details (line 58 at [40] above). On 13 November 2019, Mr Schweinsbergen replied on behalf of Spliethoff Transport confirming that the suspensive condition with regard to approval of the technical drawings was lifted.
The next day, 14 November 2019, Spliethoff formally nominated the Dijksgracht as the performing vessel and stated that “Eta Cork will be 5 December agw/wp [ie, all going well / weather permitting]”. That satisfied the requirement in the booking note (recorded at [47(5)] above) that the final performing vessel be nominated by 15 November 2019.
On 18 November 2019, Mr Gires asked Mr Zuijderduin for the rotation of the vessel, and Mr Zuijderduin replied stating that the vessel would first load another cargo in Huelva (in Spain) and that its estimated arrival in Cork was 6 December 2019. By that reply, Poralu’s requirement of being informed of the vessel’s rotation was met.
It would appear that nothing further passed between the parties with regard to the booking note until 19 November 2019 when Mr Gires sent a follow-up email to Spliethoff Transport, this time to Mr Schweinsbergen, asking again for confirmation that the “attached bn is ok”.
On 20 November 2019, Mr Schweinsbergen replied to Mr Gires saying: “The booking note is ok, we can however adjust the laycan if required.” Page 2 of the booking note as previously completed by Mr Gires was attached.
As will be seen, Spliethoff Transport contends that the contract of carriage was concluded at this point, when the terms of the booking note were agreed. It says, in the alternative, that if the contract was concluded earlier on confirmation of the recap, as contended by Poralu, then the agreement as to the terms of the booking note amended or superseded the previous contract to the extent of any difference. The critical difference is with respect to law and jurisdiction. I will return to the question of contract formation in section V below.
4. The sea waybill
On 5 December 2019, in anticipation of the upcoming loading, Mr Carrier of TPI by email to Ms Hégot of Poralu requested “the instructions for drafting B/L, as well as the invoice and packing so we can prepare the export customers”. It is not apparent what prompted that request, other than it being customary to make such a request in anticipation of a vessel being loaded. Ms Hégot replied almost immediately with the details of the shipper, being Inland and Coastal Marina Systems (ICMS), the details of the consignee, being Poralu, and the details of the notify party, being herself at Poralu.
There followed a discussion by email over a period of time between Mr Carrier and Ms Hégot about the description of the goods to be included in the “B/L”.
Loading of the cargo on board the vessel at Cork commenced on 6 December 2019. It was completed on 11 December 2019, which is the date recorded in the sea waybill which was issued much later. I will come to that in the chronology.
On 11 December 2019, Mr Zuijderduin wrote to Mr Gires as follows, including in much the same terms as he had on 7 November 2019 with regard to why a sea waybill is preferred to a bill of lading if the consignee is known:
If already available, can you please send us the BL instructions?
Kindly note that if the consignee is already known. We can issue our Sea Way Bills, these “SWB” have the advantage that we can simply send them to all parties concerned via email (instead of physical mail).
This means that we do not have the risk of loosing important documents or late arrival at the designated destination.
On 12 December 2019, Mr Zuijderduin emailed Mr Whelan at Doyle Shipping attaching “our prefer Sea Way Bill” and explaining “these doesn’t require to be send via mail so if you use this format we will present same to charterers and await their reply”. It is apparent that Mr Whelan then completed the details in two sea waybill forms, the cargo being split between the two sea waybills, and on 13 December 2019 sent those to Mr Zuijderduin for “approval”.
On the same day, ie, 13 December 2019, Mr Zuijderduin emailed Mr Gires saying, “Please find attached the draft BL’s for your good guidance and charterers approval.” Attached were not bills of lading, but rather the two sea waybills with the various blocks on page 2 filled in by Mr Whelan.
There followed an exchange between Messrs Gires and Zuijderduin about Spliethoff Transport invoicing Helmgale for freight, which included Mr Gires asking to be invoiced for the full amount as Helmgale wanted to collect its commission from Spliethoff Transport.
Still later the same day, 13 December 2019, Mr Zuijderduin again sent draft sea waybills to Mr Gires, saying “Attached draft swb for your good guidance/charterers approval …”. In response to a query from Mr Gires as to whether these drafts were the same as those sent earlier, Mr Zuijderduin replied that the pallet dimensions had been inserted. Mr Zuijderduin then sent a further email saying that certain details had not been included, and that final drafts would be sent as soon as possible. Thereafter, on 14 December 2019, Mr Zuijderduin sent to Mr Gires further draft sea waybills, saying “Attached revised versions for your/charterers good guidance.”
On 18 December 2019, Mr Zuijderduin enquired of Mr Gires, “Any news on the BL’s already?” Mr Gires replied, attaching an updated cargo list and asking that a new draft of a single “BL” be sent, ie, that all the cargo be reflected in one document.
While the discussions by email were ongoing between Spliethoff and Helmgale about how to describe the cargo in the sea waybill, discussions were also taking place between TPI and Poralu on the same subject of the proper or accurate description of the cargo. I infer that TPI and Poralu’s requirements were being provided to Helmgale who then made those requirements known to Spliethoff. For example, on 20 December 2019, Mr Carrier of TPI sent to Ms Hégot “the suggested documentation”. The record does not reveal what documentation was attached, but Ms Hégot confirmed in cross-examination that it was the document that was described in the correspondence as a “BL”. In the light of the discussions between Spliethoff and Helmgale outlined above, “the suggested documentation” sent to Ms Hégot could only have been, and I therefore find that it was, the sea waybill that was at that time the subject of those discussions.
On 23 December 2019, Mr Whelan of Doyle sent a draft sea waybill to Mr Zuijderduin, saying that he had condensed the previous two into one as requested. Mr Zuijderduin immediately sent that on to Mr Gires. Mr Gires replied, pointing out some errors in the way in which the cargo had been recorded. The same day, Mr Zuijderduin replied to Mr Gires attaching “revised swb for your good guidance.” Mr Gires replied, saying “we are almost there”, and pointing out further alterations to be made to the description of the cargo.
In the early hours of 24 December 2019, Mr Zuijderduin replied to Mr Gires saying “Attached for your good guidance”, and attached a further draft sea waybill.
That draft was apparently sent on by Mr Gires to Mr Carrier of TPI, as one would expect, because on the same day, Mr Carrier sent a copy of the draft sea waybill to Ms Hégot of Poralu and asked her to confirm her agreement. It is the same version as that which had most recently been sent by Mr Zuijderduin to Mr Gires, reflecting the most recent alteration requested by Mr Gires. Ms Hégot could not recall whether she had communicated any confirmation or acceptance to TPI at that time, although she accepted that she checked the document.
It is to be observed that although the correspondence referred to the document as a “B/L” and Ms Hégot referred to it as a bill of lading, the document itself was unmistakably a sea waybill and the electronic file that was emailed included the description “Waybill” in the filename with no mention of a bill of lading. The correspondence between the various parties shows that the references to “B/L” (or similar) generally included a sea waybill and were not confined to a bill of lading properly so-called.
On 24 December 2019, the vessel arrived at Lisbon, Portugal, after having suffered severe weather conditions in the North Atlantic. Although Poralu alleges that damage to the cargo occurred between 11 and 24 December 2019, when the vessel was steaming between Cork and Lisbon, and that damage to the cargo was first observed when the vessel was at Lisbon, there is at this stage of the proceeding no evidence in support of those allegations. Those may be matters for another day.
On 27 December 2019, Mr Zuijderduin emailed Mr Gires asking, “are we ready for releasing the BL’s?”
Mr Gires replied on 31 December 2019, saying “last version of B/L’s is ok for chrtrs”. Mr Zuijderduin then sent that version of the sea waybill to Mr Whelan at Doyle asking that it be signed and stamped, and for scanned copies to be returned. Mr Whelan did as requested, returning a scanned copy of the signed and stamped sea waybill on the same day. I find that he did that at Cork.
The sea waybill signed and stamped by Doyle on behalf of Spliethoff Transport on 31 December 2019 relevantly contained the following on page 2:
(1)Shipper: ICMS (Inland and Coastal Marina Systems)
(2)Consignee (not ‘to order’): Poralu
(3)Carrier: Spliethoff Transport
(4)Law and jurisdiction: “This Waybill shall be governed by and construed in accordance with the laws of the Netherlands, …”
(5)Vessel: Dijksgracht
(6)Port of loading: Port of Cork, Ireland
(7)Port of discharge: Geelong, Australia
(8)Freight details, charges etc.: As per Booking note 8th of November 2019 – Montpellier
(9)A statement that the reflected cargo was received for shipment in apparent good order and condition “subject to the terms, conditions and exceptions overleaf”.
(10)Place and date of issue: Cork, 11 December 2019.
On 6 January 2020, Mr Zuijderduin of Spliethoff Transport emailed the signed and stamped sea waybill to Mr Vidal of Helmgale in response to his request. That was apparently passed to TPI, because on 7 January 2020 it was emailed by Mr Carrier of TPI to Ms Hégot of Poralu. Although Ms Hégot raised a query with Mr Carrier with regard to the number of pallets recorded in the sea waybill, she appears to have then accepted Mr Carrier’s explanation as to why what was recorded was correct. No challenge or objection was made by or on behalf of Poralu, either as to what was recorded in the sea waybill or that a sea waybill was issued rather than a bill of lading.
The preceding correspondence and evidence establishes that the details of the sea waybill were agreed between Spliethoff Transport and Poralu, and that Poralu accepted the sea waybill in the form and on the terms that it was issued by Doyle on behalf of Spliethoff Transport. At no stage did Poralu request a bill of lading.
The Dijksgracht arrived at Geelong on 10 February 2020, and discharge commenced shortly thereafter. Ms Hégot attended the vessel for the discharge of the cargo. She observed that Poralu’s cargo was not the only cargo on the vessel, but that there was also an item of cargo destined for Tasmania. That Poralu’s cargo was a “part cargo” is consistent with what was recorded in the email recap (line 13 at [40] above) and the booking note.
V. WHAT IS THE CONTRACT?
It is now settled that the proper law to determine the question of whether a contract was concluded is the law of the forum: Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453; 331 ALR 108 at [106] per Edelman J; Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; 247 FCR 1 at [45]-[46], [83] per Greenwood J and [128] per Beach J (Dowsett J agreeing).
Although it is not the exclusive analysis appropriate to determining the formation of a contract, given that whatever the contract was in this case, it was concluded by the consecutive exchange of correspondence, the analysis of offer and acceptance is particularly apt to determine when the contract was struck: Gibson v Manchester City Council [1979] 1 WLR 294 at 297 per Lord Diplock. As Steyn LJ observed in G Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd’s Rep 25 at 27, the coincidence of offer and acceptance represents the mechanism of contract formation in the vast majority of cases. That was accepted by Beaumont J in Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159; 102 FCR 464 at [131]. I adopt that analysis.
The objective theory of contract requires that the determination of the existence and terms of an offer requires that the words or conduct in question are construed from the perspective of a reasonable person in the putative offeree’s position: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [20] and [22]. Once there is an offer that has been communicated to the offeree, acceptance of the offer (or counter-offer) must be a clear and unequivocal acceptance of the terms of the offer or counter-offer: Ballas v Theophilis (No 2) [1957] HCA 90; 98 CLR 193 at 196 per Dixon CJ (in the context of exercising an option); Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396; 82 NSWLR 665 at [69] and [72] per Campbell JA (in the context of exercising an option), and must correspond to the terms of the offer: Carter v Hyde [1923] HCA 36; 33 CLR 115 at 126 per Isaacs J and 133 per Higgins J; Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 at [66] per Tobias JA (dissenting) and [130] per Bryson JA (Spigelman CJ agreeing). If a new term is included or a term is varied in a purported acceptance, there is no contract: Quadling v Robinson [1976] HCA 31; 137 CLR 192 at 201 per Gibbs J. Such a purported acceptance will amount to a counter-offer.
A. The fixture recap emails
Mr 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.
Turning 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.
First, it opens (at line 5) by stating that what follows is “revised recap asf”. As indicated, I understand “asf” to mean “agreed so far”. No other meaning was suggested. That contemplates that there were matters still to be agreed.
Secondly, two lines further, and before the terms are set out, the request is made to “pls also provide your BN [ie, booking note], riders and BL [ie, bill of lading and/or sea waybill]” (line 7), which clears up any ambiguity with regard to what is referred to in the crucial lines (lines 53-54):
Otherwise as per Carrier’s WWBN including rider clauses / BL including English law and London Arbitration => to be provided
That is to say, it is Spliethoff Transport’s booking note including rider clauses and its “BL” that were still to be provided.
On one view it might be said that agreement could be reached on the basis that the terms of the carrier’s booking note and bill of lading were incorporated even without them having been seen because they are standard pre-printed terms and are therefore certain and ascertainable. However, it cannot be said that there was agreement on the terms of any “rider clauses” because, as explained in relation to the first email recap, those could vary substantially, and parties cannot be taken to be ad idem if the acceptance is not clear and certain, or leaves something to be arranged or for future discussion and decision: Appleby v Johnson (1874) LR 9 CP 158 at 163 per Grove J; Jones v Daniel [1894] 2 Ch 332 at 335 per Romer J; Carter v Hyde 33 CLR at 121-122 per Knox CJ, 126 per Isaacs J and 133 per Higgins J.
Thirdly, as with the first email recap, the recap states (at line 39) that the intended rotation of the vessel is “to be supplied prior firm fixture”. Therefore, read objectively, the recap did not record a concluded, or “firm”, fixture.
Fourthly, the email ends in the request to “pls confirm” (line 60) and “thanks sofar” (line 61). That is to say, what had been agreed thus far required confirmation and more was still to be agreed.
For those reasons, I do not accept the submission on behalf of Poralu that a binding contract was concluded at that point.
B. The booking note
In contrast, Mr Gires’s email of 8 November 2019 containing the booking note with the blocks on page 2 filled in (see [47] above), which included almost all of the terms previously agreed in the recap, constituted an offer which was capable of acceptance. There was nothing in it indicating that there was still something to be agreed.
A follow-up email requesting confirmation that the booking note was accepted was sent by Mr Gires on 19 November 2019 (see [54] above). By then, the Dijksgracht had been nominated as the intended performing vessel, Poralu had been advised of the rotation of the vessel and the carrier had approved the technical drawings. Also, the follow-up requesting confirmation shows that the parties did not regard the booking note as a mere formality recording something previously agreed. It was apparently regarded as constituting the terms of the agreement, which were then accepted by Mr Schweinsbergen on 20 November 2019 (see [55] above). That acceptance resulted in a binding contract.
Poralu submits that the booking note was not the contract because it was not signed. However, it did not need to be signed. Although there is a place for signatures, there is nothing in the wording or what preceded the agreement that required that it be signed. Poralu also submits that it is not the contract because its terms are not the same as what was recorded as having been agreed at that stage in the email recap, particularly with reference to law and jurisdiction. But that difference cannot form part of the analysis of contract formation. It was open to the parties to agree different terms after the recap emails, and that is apparently what they did. The answer to any suggestion that the omission of English law and London arbitration from the booking note must have been a mistake is that it may not have been a mistake; it may have been deliberate, or at least not a mutual mistake, and since there is no case made for rectification, it must be regarded as reflecting the parties’ intention.
Poralu submits that the terms of the booking note must give way to the terms of the recap to the extent of any inconsistency because of the recap having stated “Otherwise as per Carrier’s WWBN” (emphasis added). Whilst I accept that on the ordinary use of language that would be so, because the 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. Also, the booking note records that its terms “shall prevail over any previous arrangements” (see [49] above).
C. The sea waybill
The next question is what role the sea waybill played. Did it evidence a new or different contract between Spliethoff Transport and Poralu and, if not, what role or effect did it have? Despite what they pleaded, the defendants do not submit that the sea waybill was a new or different contract as between Spliethoff Transport and Poralu, but they do submit that Poralu’s acceptance of the sea waybill had the result that there was a new and independent contract between the owner of the vessel and Poralu on the terms of the Himalaya clause so as to enable the shipowner to rely on any exceptions and limitations that were available to the contractual carrier, Spliethoff Transport.
It is just as well to deal with that submission immediately. Since the owner of the vessel is not a party to the sea waybill, the issuing of the sea waybill by Doyle on behalf of Spliethoff Transport cannot have created any contract between the shipowner and Poralu. Although the Himalaya clause in the sea waybill purports to protect the shipowner and extend to it the benefit of “every exemption, limitation, condition and liberty … and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled” (cl 11), such protection is only effective if the carrier had the authority of the shipowner to conclude such a clause for its benefit. That is the same issue that arises in relation to whether the shipowner can rely on the Himalaya clause in the booking note, to which I will return. The sea waybill does not add to or assist in that analysis.
Although the defendants do not submit that the sea waybill evidences or contains any new or varied contract terms to the contract recorded in the booking note, it remains necessary to consider the contractual role played by the sea waybill because of its potential relevance to the questions whether the carriage was “under” or “covered by” a bill of lading within the meaning of Art 8:377 of the Burgerlijk Wetboek [Civil Code] (Netherlands) (Dutch Civil Code or DCC) and whether the booking note is a charterparty within the meaning of Arts 10(6) and (7) of the Australian Hague Rules – questions to which I will return.
The law is settled that whenever an issue arises between the charterer and the shipowner (“shipowner” being used here to mean disponent owner), the relations between them are governed by the charterparty, even if the charterer is not the shipper and takes as indorsee of the bill of lading, at least when the master is only authorised to sign bills of lading. In such a case the bill of lading is not separate or severable from the charterparty, it is issued in pursuance of it; it does not evidence any separate contract as between charterers and shipowners and is only a receipt for the goods. See Love and Stewart Ltd v Rowtor Steamship Co Ltd [1916] 2 AC 527 at 540 per Lord Sumner (Lord Parker of Waddington and Lord Wrenbury agreeing); The President of India v Metcalfe Co Ltd (The Dunelmia) [1970] 1 QB 289 at 305-308; [1969] 2 Lloyd’s Rep 476 at 481-483 per Lord Denning MR (Edmund Davies LJ agreeing), adopted and applied in Gardner Smith Pty Ltd v Ship “Tomoe 8” (1990) 19 NSWLR 588 at 591 per Carruthers J.
The present case is potentially distinguishable on the ground, first, that the sea waybill was not signed by the master with no authority to sign bills of lading contrary to the charterparty, but by the carrier’s agent at the load port on the express authority of the carrier, Spliethoff Transport, and secondly, that the sea waybill is a non-transferrable document. As to the first, as mentioned, immediately above the signature blocks on the booking note it is provided that the contract shall be performed subject to the terms, conditions and exceptions of the booking note which shall prevail over the terms, conditions and exceptions of any bill of lading or sea waybill issued under the booking note. Thus, the reasoning in The Dunelmia with regard to the bill of lading being “subject to” the terms of the charterparty applies equally in the present case. As to the second, the reasoning in The Dunelmia does not depend on the bill of lading in that case having been negotiable and having come into the hands of the charterer by endorsement. Indeed, the issue of a negotiable document would be a stronger basis to contend that it gave rise to a separate contract than would the issue of a non-negotiable document.
In the present case, the contract for the carriage of the goods was concluded between Spliethoff Transport as carrier and Poralu as charterer (without yet addressing the question of whether the booking note is a “charterparty” which I consider in section VIII.D below). The booking note anticipated the issue of a bill of lading or a sea waybill, and provided that the booking note would prevail over the terms of such a document – I will refer to that as the override clause. Clauses of the booking note that show that a bill of lading or sea waybill was anticipated include the following:
(1)Clause 14(d), which provides that the carrier shall deliver the goods upon presentation of a duly endorsed original bill of lading or copy of a sea waybill.
(2)Clause 20, which provides that if certain particulars are shown on the face of any bill of lading or sea waybill “issued hereunder” (ie, issued under the booking note), they are there only for the merchant’s convenience and the merchant indemnifies the carrier from and against any and all consequences arising from such inclusion.
The terms of the sea waybill show that it was anticipated that, if issued, it would be issued under a booking note or other contract:
(1)Clause 15(a), which provides that freight shall be deemed fully earned and due upon the conclusion of the “booking”, even though by its nature the sea waybill might not be issued until sometime later.
(2)Clause 16, which provides that “unless otherwise agreed in a contract subject to which this Waybill is issued”, the carrier shall be paid liquidated damages by the merchant at a specified rate.
(3)Clause 21, which provides for the merchant to declare a port of discharge where the sea waybill, “or any underlying contract”, grants the merchant an option to choose between one or more stipulated ports of discharge.
It is also to be observed that the sea waybill as issued recorded that the “freight details, charges etc” were “as per Booking note 8th of November 2019 – Montpellier”. That is to say, the sea waybill referred expressly to the very booking note concluded between the parties to the sea waybill and incorporated a provision of the booking note.
Reading the documents together, the override clause in the booking note means that the terms of the booking note must prevail over the sea waybill. Further, the booking, which is recorded in the booking note, necessarily preceded the shipment of the cargo, whereas the sea waybill was agreed and issued only long after the cargo had been shipped. The parties could at that stage have agreed a variation of the contract, and such a variation could have been recorded in a document such as a bill of lading or a sea waybill, but that is not what happened in this case. There is nothing to show that the parties intended any variation, and there is no express provision in the sea waybill, which would be required, to cause it to prevail over the override clause and hence the booking note. Also, neither side of the case contends that the sea waybill was a variation of the original contract, whether that was concluded in the email recap exchanges or on the terms of the booking note.
In the circumstances, and in accordance with authority with regard to bills of lading, the sea waybill in this case does not embody or evidence any contract between carrier and charterer but served only as a receipt for the cargo. That also means that the sea waybill is not a “sea waybill” as contemplated by s 5 of the Sea-Carriage Documents Act 1997 (NSW) or s 89 of the Goods Act 1958 (Vic) so the defences based on that legislation need be considered no further.
D. Summary of conclusions on the contract
To summarise, the booking note in the form sent by Mr Gires on 8 November 2019 and accepted by Mr Schweinsbergen on 20 November 2019 formed the contract of carriage. The sea waybill signed and stamped by Doyle on behalf of Spliethoff Transport on 31 December 2019 and accepted by Poralu did not amount to or evidence any new or varied contract between the parties, but served rather as a receipt for the cargo.
VI. WHAT ARE THE TERMS OF THE CONTRACT?
Once the contract and its express terms are identified, the construction of those terms and their validity is to be determined by the proper law of the contract. Where, as here, the parties have made a choice as to the applicable law, that is the law to be applied: Trina Solar at [83] and [128].
The relevant terms of the booking note include the following:
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.
(b) In case of US Trade …
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.
11. CARRIER CLAUSE, EXEMPTIONS AND IMMUNITIES OF SERVANTS
(a) The Merchant undertakes that no claim, demand, suit, action, allegation or arrest, whether ‘in personam’ or ‘in rem’ and whether arising in contract, bailment, tort, negligence or otherwise, shall be made against any of the Carrier’s Servants (including the Vessel) which imposes or attempts to impose upon them or any vessel owned or chartered by the Servants any liability whatsoever in connection with the Goods or the Carriage of the Goods whether or not arising out of negligence on the part of such Servants. The Servants shall also be entitled to enforce the foregoing covenant against the Merchant; and if any such claim or allegation should nevertheless be made, the Merchant undertakes to defend, indemnify and hold the Carrier harmless from all consequences thereof.
(b) It is expressly agreed that no Servants shall in any circumstances whatsoever be under any liability whatsoever to the Merchant for any loss, damage or delay whatsoever and howsoever arising or resulting, directly or indirectly, from any act, fault, neglect or default on the part of the Servants while acting in the course of or in connection with the Goods or the Carriage of the Goods or the Servants’ employment. Without prejudice to the generality of the foregoing provisions in this Clause, every exemption, limitation, condition and liberty contained herein (other than Art. III Rule 8 of the Hague/Hague-Visby Rules) and every right, exemption from liability, defense and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled hereunder including the right to enforce any jurisdiction or arbitration provision contained herein shall also be available and shall extend to protect every such Servants of the Carrier, who shall be entitled to enforce the same against the Merchant.
(c) For the purpose of the foregoing provisions of this Clause the Carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of each Person who is or might be his Servants and such Person shall to this extent be or be deemed a party to this Booking-Note.
[On page 2, above the signature boxes:]
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.
The boxes on page 2 were filled in as described at [47] above.
As shown, under cl 3(a), Arts 1-8 of the Hague Rules were incorporated. Art 3(3) of the Hague Rules provides as follows:
3. After receiving the goods into his charge the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things:
(a) The leading marks necessary for identification of the goods …
(b) Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper.
(c) The apparent order and condition of the goods.
Thus, it was a term of the contract between Spliethoff Transport and Poralu that the “shipper” had a right to demand a bill of lading, and Spliethoff Transport as carrier would then have a corresponding obligation to issue a bill of lading. It was common ground between the parties in their submissions that that the “shipper” as referred to in that provision included, or was, Poralu. That stands to reason because although TPI as agent for Poralu was recorded in the booking note as the “merchant”, “merchant” was in turn defined in cl 1 to “include the Merchant, Shipper, Receiver, Consignee, and any Person who owns or is entitled to the possession of the Goods”. Poralu is the only party meeting that description, and it was thus Poralu that was given the right under the incorporated Art 3(3) to demand a bill of lading.
Moreover, the booking note was governed by and is to be construed in accordance with the laws of the Netherlands. Under Art 8:399 of the DCC, essentially the same rights and obligations with regard to demanding a bill of lading are provided for – Art 8:399 is the statutory embodiment in Dutch domestic law of Art 3(3).
It will be recalled that the defendants pleaded that it was a term of the contract that a sea waybill would be issued if the consignee was known. The defendants rely in that regard on the email communications from Spliethoff Transport in which it was suggested that a sea waybill would be better if the consignee was known (see [42] and [61] above). There is nothing in that correspondence, and the responses to it, that elevates its content to contractual status. As discussed, the booking note contract envisaged that either a bill of lading or a sea waybill would be issued and it gave Poralu the right to demand a bill of lading, and Poralu did not make such a demand but instead accepted a sea waybill. I therefore reject this aspect of the defendants’ case.
Professor Bennett observes (Carver at [1-047]) that notwithstanding the three principal forms of charterparty (demise, time and voyage charters), parties are free to construct whatever bargain they wish; there is no fixed list of permissible forms of charterparty from which contracting parties are obliged to choose. In Chiswell Shipping Ltd v National Iranian Tanker Co (The World Symphony and World Renown) [1991] 2 Lloyd’s Rep 251 at 257, after remarking on the many different recognised forms of charterparty, Hobhouse J observed as follows:
The variety of contractual structures that can be adopted by charterers and shipowners for any given transaction are as various as the ingenuity of chartering brokers and the ever changing demands of the market may determine. It is not for Courts to fit the parties’ transactions within a strict and limited frame-work which the parties themselves may have not chosen to adopt.
Professor Bennett (Carver at [1-048]-[1-053]) identifies a number of variant forms of charterparty, including mixed charters, consecutive voyage charters, trip time charterparties, space charterparties and slot charterparties. He describes (at [1-052]) a space charterparty as “a voyage charterparty under which the charterer contracts for the use of only part of the cargo-carrying capacity of the vessel”.
Turning to slot charters, Professor Bennett describes a slot charterparty as “a contract for the hire of limited space on a container vessel in the form of a specified number of container slots” (at [1-053]). Such a charterparty has been recognised as a “charterparty” in the context of the exercise of admiralty jurisdiction in rem in The Tychy [1999] 2 Lloyd’s Rep 11 and Northern Endeavour Shipping Pte Ltd v Owners of the MV NYK Isabel [2016] ZASCA 89; 2017 (1) SA 25. The same view had been expressed by Toohey J in Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55; 190 CLR 181 at 192-193 where his Honour said that “the term charter has a number of possible connotations such as voyage charter, time charter, slot charter or subcharter” and, with reference to “charterer” in ss 18(a) and 19 of the Admiralty Act 1988 (Cth), “the conclusion is inevitable that no limitation was intended” in those provisions.
The Convention on Limitation of Liability for Maritime Claims, 1976, opened for signature 19 November 1976, 1456 UNTS 221 (entered into force 1 December 1986) gives to shipowners a right to limit liability, and “shipowner” is defined in Art 1(2) to include the charterer. In Metvale Ltd v Monsanto International Sarl (The MSC Napoli) [2008] EWHC 3002 (Admlty); [2009] 1 Lloyd’s Rep 246, Teare J held that in that context a slot charterer is a charterer. His Lordship explained (at [17]):
the ordinary meaning of the word charterer is apt to include any type of charterer, whether demise, time or voyage charterer. There is no reason why it should not also include a slot charterer. Standard textbooks refer to slot charters when discussing types of charters; see Voyage Charters, 3rd Edition, para 1.1 and Scrutton on Charterparties, 21st Edition, article 30. There is good reason for a slot charterer being within the definition. Were slot charterers not within the definition, slot chartering, which is an established and, to judge from its growth, an efficient way of organising the carriage of goods, would or might fall into disuse. A slot charterer’s inability to limit liability would not encourage the provision of international trade by way of sea carriage, which was the object and purpose of the convention.
In International Marine Underwriters v MV Patricia S (SD NY, No 06 Civ 6273 (JFK), 11 January 2007) it was held that a slot charterer was prima facie a charterer within the meaning of a clause in the head-time charterparty giving “charterers” authority to sign bills of lading on behalf of the master and/or owners.
The cases surveyed in the preceding paragraphs show that it is widely accepted that slot charters are a form of charterparty in various contexts.
Returning to voyage charters, in T Co Metals LLC v The Federal Ems, 2012 FCA 284; [2014] 1 FCR 836 (Federal Court of Appeal, Canada), Gauthier JA (Pelletier and Mainville JJA agreeing) held that a voyage charterparty is not a “contract for the carriage of goods by water” for the purposes of the Marine Liability Act, SC 2001, c 6 (Can). Her Honour traced the history of the various international regimes governing the carriage of goods by sea, and noted that none of the Hague, Hague-Visby, Hamburg or Rotterdam Rules apply to charterparties. Her Honour quoted the following (at [60]) from Wilson JF, Carriage of Good by Sea (6th ed, Pearson Education, 2008) at pp 3-4, saying that it is common knowledge that:
A charterparty is a contract which is negotiated in a free market, subject only to the laws of supply and demand. While the relative bargaining strengths of the parties will depend on the current state of the market, shipowner and charterer are otherwise able to negotiate their own terms free from any statutory interference. In practice, however, they will invariably select a standard form of charterparty as the basis of their agreement, to which they will probably attach additional clauses to suit their own requirements.
Gauthier JA said (at [61]) that one can readily see that the imbalance in the bargaining power that is the mischief that led to the development of the various international regimes does not exist in relation to charterparties. Her Honour also observed that the “liner trade (common carriers operating regular services in certain areas, using the sea carriage documents covered by the various international regimes) is simply quite different from the tramp trade (chartered vessels)”.
On the nature of a voyage charterparty, Professor Bennett in Foxton D et al, Scrutton on Charterparties and Bills of Lading (24th ed, Sweet & Maxwell, 2020) at [1-008] says the following:
Under a voyage charter, the shipowner, who again retains possession and navigational control of the vessel, agrees to carry cargo on one or more specified voyages in return for the payment of freight by the charterer calculated according to the quantity of cargo carried or sometimes on a lump sum basis. … However, the risk of delay in loading and unloading cargo at the contractual ports will be addressed by a contractual scheme of “laytime” (period of time allowed for loading or unloading included within the agreed freight) and “demurrage” (liquidated damages payable for delay beyond the agreed laytime).
In Cooke J et al, Voyage Charters (4th ed, informa law, 2014) at [1.1], voyage charters are described as “those by which the owner agrees to perform one or more designated voyages in return for the payment of freight and (when appropriate) demurrage; the costs of, and responsibility for, cargo handling are left to the terms of the specific agreement”.
Returning now to the plaintiff’s reliance on The Happy Ranger EWCA, the details of the contract of carriage at issue in that case appear in The Happy Ranger QBD at [6]. They include detailed clauses covering loading, lashing, detention, the issue of bills of lading and the payment of freight. With minimal reference to those details, Tuckey LJ in the Court of Appeal (at [24]) rejected the submission that the contract was a voyage charterparty, saying that “although it does contain terms which are to be found in voyage charterparties, it emphatically calls itself a contract of carriage” and “the fact that the goods to be carried were a part cargo supports this conclusion, although I accept that this factor is not conclusive”. Given that a voyage charterparty is a form of contract of carriage, and the law’s concern with substance over form, what the contract was called can, respectfully, be of little significance. Also, as his Lordship noted, the fact that the contract was for a part cargo cannot be regarded as conclusive. In those circumstances, I do not consider The Happy Ranger EWCA to be particularly instructive in the resolution of the present issue.
Returning to the contract in this case, the following features of the circumstances of its conclusion and its characteristics and terms support a conclusion that it is properly to be regarded as a charterparty:
(1)Its terms were negotiated by the exchange of emails over a period of time between a broker on behalf of Poralu and Spliethoff Transport, being parties at arms-length with no apparent inequality of bargaining power.
(2)There was an identified performing vessel, with an allowance for the nomination of a final performing vessel by a particular date, and the final performing vessel was then nominated by that date. That is to say, the contract was with regard to the services of a specific vessel.
(3)The negotiations dealt at some length with the specialist capabilities or characteristics of the intended performing vessel, particularly with regard to loading and discharge.
(4)The terms of the recap email that were then included in the final booking note form describe Spliethoff Transport as “owners” and its counterparty as “charterers”, although the pre-printed booking note form itself describes those parties as “carrier” and “merchant”.
(5)The vessel is a specialised break bulk vessel on a tramp trade.
(6)There were various conditions to which the fixture was subject, including nomination of the performing vessel, notification of the intended rotation of the vessel prior to arrival at the load port and approval by the carrier of the charterer’s transport/technical drawings.
(7)There were detailed provisions for the allocation of the costs of loading and discharge, and for detention (perhaps more accurately called demurrage given the specified rate) – recorded at lines 28-31 of the email recap (at [40] above) and in the booking note “special terms” box (see [47(12)] above).
(8)There was a specified laycan – line 25.
(9)The maximum transit time for the voyage was specified, with agreed penalties for late arrival, and there was thus an allocation of “misfortune” risks of delay – lines 32-36 and 41-45.
(10)There was provision for the fumigation of the cargo (lines 37-38) and the allocation of liability for taxes, dues and duties (lines 47-52).
(11)The contract itself provided for and contemplated the issue of a sea carriage document (in the neutral sense), being either a bill of lading or a sea waybill.
The last point, in particular, tells strongly against the contract being a sea carriage document itself. As with the voyage charter in Dampskibsselskabet (at [57]), the contract does not have the features of a sea carriage document that the shipper would have a right to demand under Art 3(3) of the AHR, and did have a contractual right to demand under the incorporated Art 3(3) of the Hague Rules. The terms identified at [241(7)]-[241(10)] above are terms typically, although not necessarily, found in charterparties.
As the writers and the authorities on slot charters show, the fact that the cargo was only a part cargo, or that the contract was for only part of the ship, does not weigh particularly against a conclusion that the contract is a charterparty. Indeed, a slot charter would seem to be further removed from a traditional charterparty than the form of contract employed in this case. If a slot charter is a charterparty for various analogous purposes, then the booking note contract in this case would surely also qualify as a charterparty.
The fact that the printed form of the contract called it a “booking note” is also not decisive. As mentioned, the focus must of necessity be on substance rather than form. It is the totality of the circumstances of the contract and the commercial role that it played that will determine whether it is a charterparty within the statutory meaning.
“Booking note” is not a term of art, and is used in maritime trade in different ways. The most common use is in the liner trade: when a shipper books cargo to be shipped the booking will often be confirmed in a booking note which will include, either expressly or by reference, the carrier’s standard form bill of lading terms and conditions to which the booking is subject. When the goods are shipped on board and the bill of lading is issued, it contains those terms and conditions and it serves to evidence the preceding contract contained or confirmed in the booking note. An example of such a booking note is the Conline liner booking note published by BIMCO. It has the bill of lading terms and conditions on the reverse (page 2). An example of the use of such a booking note is US Shipping Limited v Leisure Freight and Import Pty Ltd (in liq) [2015] FCA 347. In such use, the booking note does not have the features of a charterparty, but merely precedes the issue of a bill of lading which then evidences the contract of carriage.
Another use of “booking note” is to record the booking of cargo to be shipped under a voyage charter including the terms of the voyage charter. Examples of such use include Thor Shipping A/S v The Ship Al Duhail [2008] FCA 1842; 173 FCR 524 and A Meredith Jones & Co Ltd v Vangemar Shipping Co Ltd (No 2) (The Apostolis) [2000] 2 Lloyd’s Rep 337.
The booking note in the present case is not of the first type identified above. That is because, in particular, its terms differ from the bill of lading terms that could be issued under it – it is not the booking of the carriage of cargo subject to the terms of a bill of lading to be issued. Indeed, it records that its terms will prevail over the bill of lading terms (see [49] above). Undoubtedly it stands as its own contract on its own terms independently of any bill of lading, and, for the reasons already canvassed, if a bill of lading were issued it would not evidence a contract between the same parties. Rather, the booking note is of the second type identified above.
The booking note contract in this case appears to fulfil what Professor Bennett describes as a space charterparty, being a species of voyage charter (see [231] above), or is in any event a species of voyage charter. It does not seem to me to matter that the carrier could decide which space on the ship the cargo would occupy, or that the freight was calculated by weight rather than volume. Significantly, as mentioned, the terms regulate the risk of delay on loading and discharge, and of the voyage itself. The booking note contract is not a sea carriage document, for the reasons given in Dampskibsselskabet. I find that it is a charterparty within the meaning of the AHR. It is not necessary to decide whether there may be some form of contract of carriage of goods by sea that is neither a sea carriage document nor a charterparty.
Having concluded that the booking note contract is a charterparty, it is necessary to return to the wording of paras (6) and (7) of AHR Art 10.
There are some difficult issues of construction that arise in relation to paras (6) and (7) of AHR Art 10, in particular the relationship between them and between para (6) and Art 5. For example, if a non-negotiable sea carriage document is issued for the carriage as contemplated by para (6), does that have the consequence that the AHR might still apply to the carriage of goods under the charterparty notwithstanding that under Art 5 the AHR do not apply to charterparties and under para (7) the AHR apply to a sea carriage document issued under a charterparty only if the sea carriage document is a negotiable sea carriage document?
Fortunately, those issues do not arise in the present case for the simple reason that the sea waybill that was issued under the booking note contract, which I have found to be a charterparty, is not sea carriage document within the definition in AHR Art 1(1)(g). More specifically, it is not a non-negotiable document within the meaning of sub-para (iv) because it neither contains nor evidences a contract of carriage of goods by sea. As mentioned, it was merely a receipt for the cargo. Therefore, the subordinate clause following the conjunction “unless” in para (6) does no work to reapply (by para (2)) the AHR in the present case. There being no other provision of Art 10 that could apply the Rules, it follows that s 10(1)(b)(i) of COGSA does not make the AHR applicable.
3. Conclusion
For those reasons, I find that the booking note contract is a charterparty with the result that the AHR do not apply to it. Spliethoff Transport can therefore rely on the limitation in cl 3(a) of the contract, namely its liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit.
IX. CAN THE SHIPOWNER RELY ON THE CARRIER’S DEFENCES?
The next issue to consider is whether the shipowner can also rely on the limitation in cl 3(a) of the booking note contract even though it was not a party to that contract. In that regard, as mentioned, it relies on the Himalaya clause being cl 11 (quoted at [105] above).
A. The applicable principles
In Scruttons Ltd v Midland Silicones Ltd [1962] AC 446; [1961] 2 Lloyd’s Rep 365, the House of Lords dismissed an appeal by stevedores who sought to rely on the protections given to a carrier by the terms applicable to a bill of lading. In the course of his Lordship’s reasoning, Lord Reid (at AC 474; Lloyd’s Rep 374) laid out four requirements which, if met, would by the agency of the carrier bring about a contractual relationship between the stevedore and the carrier’s contractual counterparty such as to allow the stevedore to rely on protections in the bill of lading:
I can see a possibility of success of the agency argument if (first) the bill of lading makes clear that the stevedore is intended to be protected by the provisions in it which limit liability, (secondly) the bill of lading makes it clear that the carrier, in addition to contracting for these provisions on his own behalf, is also contracting as agent for the stevedore that these provisions should apply to the stevedore, (thirdly) the carrier has authority from the stevedore to do that, or perhaps later ratification by the stevedore would suffice, and (fourthly) that any difficulties about consideration moving from the stevedore were overcome.
In 1975, the Privy Council in an appeal from the Court of Appeal of New Zealand in New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154 at 166; [1974] 1 Lloyd’s Rep 534 at 538-539 adopted those dicta of Lord Reid in Midland Silicones.
Shortly thereafter, in Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1978] HCA 8; 139 CLR 231 (The New York Star), Barwick CJ (at 240) and Mason and Jacobs JJ (at 269 and 276) adopted the four requirements articulated by Lord Reid. The judgment in that case was overturned on appeal to the Privy Council, but not on that point: Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1980] UKPCHCA 1; 144 CLR 300; [1980] 2 Lloyd’s Rep 317. The Judicial Committee (at CLR 305; Lloyd’s Rep 321) approved what had been said by Barwick CJ about Lord Reid’s four requirements. The expression of those requirements is accordingly the law binding on me, as the NSW Court of Appeal has held that it is binding on it: Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1988) 12 NSWLR 730 at 737 per Kirby P (Hope and Clarke JJA agreeing); Carrington Slipways Pty Ltd v Patrick Operations Pty Ltd (1991) 24 NSWLR 745 at 754 per Handley JA (Kirby P and Samuels JA agreeing).
There are many other Australian decisions that have followed the principles adopted by a majority of the High Court in The New York Star and affirmed by the Privy Council, including in relation to contracts other than bills of lading and to the benefit of servants, agents or sub-contractors other than stevedores: see, eg, Sidney Cooke Ltd v Hapag-Lloyd AG [1980] 2 NSWLR 587 at [14]-[15] and [22] per Yeldham J; Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606 at 612 per Yeldham J; Life Savers (Australasia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 at 436-437 per Hutley JA (Glass and Mahoney JJA agreeing); Godina v Patrick Operations Pty Ltd [1984] 1 Lloyd’s Rep 333 (Hutley, Samuels and Mahoney JJA); Council of the Shire of Noosa v Farr & Ors [2001] QSC 60 at [123]-[127] per Chesterman J; and my decision in Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653 at [101].
In Godina, it was said by Hutley JA (at 336) in relation to the application of a Himalaya clause that “narrow distinctions are not to be drawn”. Justice Samuels said (at 338) that “the necessary authority must be deduced in each case from particular evidence” and that “slight evidence will suffice”. The defendants submit that that is the approach that I should take.
B. The facts of the present case and conclusion
It is common ground that of the four requirements identified by Lord Reid, only the satisfaction of the third requirement is in dispute in this case – Poralu does not press its pleaded point that the Himalaya clause fails for want of consideration. That is to say, Poralu only disputes that Spliethoff Transport was authorised by Rederij Dijksgracht to contract for and on its behalf to protect its interests. The defendants expressly disavow any reliance on ratification which is usually a readily available means of satisfying the authority requirement. Instead, they submit that the contractual arrangements between Rederij Dijksgracht as owners and Spliethoff Transport as pool managers under a pool management agreement and as time charterers under a time charterparty both evidence the requisite authority. Poralu submits that the evidence of the contractual arrangements is too general to provide a firm enough foundation for any positive finding with regard to authority.
Ms Hosken-Serpa stated in her third affidavit that the charter arrangements between the Rederijen (ie, the shipowning companies including Rederij Dijksgracht) and Spliethoff Transport are recurring. She explained that each vessel is chartered by the respective owners to Spliethoff Transport on a recurring rolling basis that commences on 1 January each year. She explained that a pro forma copy of a GENTIME time charterparty is kept on Spliethoff Transport’s computer system, updated from time to time and accessed there as and when required.
She explained that, in accordance with usual practice, when, in 2021, a copy of the applicable charterparty was sought in the preparation of this case, she printed a copy of the relevant form as it was at that time available to her on the system, filled in the relevant details specific to the year in question (2019) and the Dijksgracht, and produced it in evidence. However, that was two years after the relevant year so the form that she produced in evidence is not the applicable form – it includes terms that could only have been included in subsequent years. The existence of the form, and that it had been updated in such a way as to keep it current, nevertheless supports her evidence of there being a system in place within the company for the maintenance of the current charterparty form from time to time. However, it leaves open just what the terms of the form were at the relevant time.
Ms Hosken-Serpa also explained that a BIMCO POOLCON Standard Pooling Agreement is maintained on Spliethoff Transport’s computer system and that it forms the basis of recurring pool arrangements between the Rederijen and Spliethoff Transport. She produced a version of that agreement dated 1 January 2013 between Rederij Dijksgracht as owners and Spliethoff Transport as pool managers. The agreement refers to the “participating charter” as “GENTIME ’94”. As there is no GENTIME 1994 form, the only GENTIME form being that first published by BIMCO in 1999, that is clearly enough an error of reference; it was intended to refer to the GENTIME form charter that was maintained by the company on its system. The POOLCON therefore also supports there having been a charter on the GENTIME form at the relevant time.
Ms Hosken-Serpa’s evidence with regard to the charterparty is supported by Mr Nietzman’s evidence. He explained that four times a year, once in each quarter, he and others attend what he described as “the GENTIME meeting” on behalf of Spliethoff Beheer as authorised representative of Rederij Dijksgracht and, I infer, the other Rederijen. At the meeting in December 2018, in accordance with the usual practice, it was agreed that in the following year the vessel would continue to be chartered on the amended GENTIME form that was available on Spliethoff Transport’s computer system at that time. The form on the system at that time was not accessed for the purpose of the meeting, although it was available had it been needed. However, it was not needed because the discussion was a general discussion about continuing the arrangement on the GENTIME form. Two arrangements were discussed: one was the chartering of the vessel on the GENTIME form and the other was the management arrangement on the POOLCON form with the former being a “participating charter” in the latter. I understand that it was discussed that both arrangements were to continue the following year.
Mr Nietzman explained that the GENTIME charters with the shipowning companies had been in place for years and that that arrangement was accepted by the auditors of the shipowning companies and Spliethoff Transport on a continuing basis.
Mr Nietzman produced the minutes of a pool meeting for the 2019 year that was held on 6 February 2020. The meeting was attended by about 20 participating members and a further 30 or more “audience” members. The participating members included members of the independent supervisory board who represent the interests of the independent investors in the many vessels in the pool. The minutes record that in respect of the “D” series ships, of which the Dijksgracht was one, there were eight vessels. Details of the performance of the “D” series ships are recorded. The minutes record the performance of the total pool, and the division of profits for each of the 10 distinct series of ships.
The minutes constitute independent corroboration of the fact of the pool arrangement being in place at the relevant time. The presence of shipowning interests independent of the Spliethoff group itself demonstrates that the pooling and chartering arrangements explained in general terms by Ms Hosken-Serpa and Mr Nietzman are not merely some sort of convenient point of reference or charade internal to Spliethoff if and when required, but were intended to govern, and did have real legal effect in governing, the relationships between the different parties.
I therefore accept the evidence of Ms Hosken-Serpa and Mr Nietzman that, at the relevant time, there was a POOLCON pooling agreement and a GENTIME time charterparty in place between Rederij Dijksgracht and Spliethoff Transport with respect to the commercial operation and chartering of the Dijksgracht.
The witnesses were not challenged on the POOLCON being on the terms as produced by Mr Hosken-Serpa in evidence. I accordingly accept that those were the applicable terms at the relevant time.
Although cl 2(d) of the POOLCON provides that the Pool Managers (ie, Spliethoff Transport) shall under no circumstances be considered as if, and the agreement shall not be construed to the effect that the Pool Managers are, the agents of the Participants (ie, the owning companies participating in the pool), it also provides that the Pool Managers shall act as time-chartered Owners (ie, disponent owners) of the Pool Vessels (ie, the vessels participating in the pool). The relevant charterparty is referred to as the Participating Charter identified in Box 5 to the pool agreement as amended in the form of Annex B. In fact, there is no Annex B to the pool agreement that is in evidence, but, as mentioned, the charterparty is identified in Box 5 as “GENTIME 94” which, for the reasons already given, is the amended standard form GENTIME time charterparty maintained on Spliethoff Transport’s computer system. I will return to its terms, but for present purposes the point to note is that the prohibition of any general agency contained in cl 2(d) is not only subject to the other terms of the pool agreement, but is also subject to the identified Participating Charter.
In any event, the question of authority to contract for the owners’ interests is made clearer elsewhere in the pool agreement. Clause 6 provides that the Pool Managers shall, in their own name, enter into various transportation contracts as deemed fit by them and otherwise as set out in cl 8. Clause 8(b) provides that the Pool Managers may enter into any contracts required for the commercial operation, promotion and marketing of the Pool, and cl 8(e) provides that the Pool Managers shall “use all reasonable endeavours to protect and promote the interests of the Pool”.
It is thus clear that on the terms of the pool agreement, Spliethoff Transport had not only the authority of Rederij Dijksgracht, but also the obligation, to “use all reasonable endeavours to protect and promote the interests of the Pool”, which would obviously include contracting for the protection of the Pool Participants. I accordingly find that the pool agreement gave Spliethoff Transport the necessary authority to contract on the terms of the Himalaya clause in the booking note contract (cl 11) to protect the interests of Rederij Dijksgracht so as to enable it to rely on “every exemption, limitation, condition and liberty contained [in the booking note contract] and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Carrier”.
Turning now to the GENTIME charterparty as an alternative source of authority, the difficulty that Poralu points to is that because its terms were updated, or varied, from time to time and the only version available in evidence is from a few years after the relevant year, there is no certainty as to what the terms were at the relevant time. However, in my assessment Poralu overstates the uncertainty. The relevant clause is cl 18(e) which provides as follows:
Agency – The Owners authorise and empower the Charterers to act as the Owners’ agents solely to ensure that, as against third parties, the Owners will have the benefit of any immunities, exemptions or liberties regarding the cargo or its carriage.
That clause is part of the original clauses in the GENTIME form. It is not deleted in the 2021 version produced by Ms Hosken-Serpa. Poralu’s position proceeds on the hypothesis that that original clause might have been deleted in the form of the charterparty as it applied in 2019 but was later un-deleted, or reintroduced, so that it appeared in the 2021 version. I find that to be wholly improbable. The clause is plainly advantageous to the vessel owners, and places no burden on Spliethoff Transport. There is no conceivable reason why it might have been deleted, let alone deleted and then reintroduced. The fact of it being present in the 2021 version is strongly indicative of it having been present in all earlier versions.
In any event, cl 21 in the 2021 version produced by Ms Hosken-Serpa itself shows how a clause that has previously been deleted and later reintroduced is produced in the form. Paragraphs (a) and subparagraph (i) thereof appear to have been deleted and reintroduced verbatim and they appear in the form in the following way:
(a)
For the purpose of this Clause, the words:(i)“Owners” shall include the shipowners, bareboat charterers, disponent owners, managers, or other operators who are charged with the management of the Vessel, and the Master; and…
(a)For the purpose of this Clause, the words:
(i)“Owners” shall include the shipowners, bareboat charterers, disponent owners, managers or other operators who are charged with the management of the Vessel, and the Master; and
If cl 18(e) had, for some reason that entirely escapes commercial sense, been deleted at some time and then later reintroduced as hypothesised by Poralu, one would expect the form produced by Ms Hosken-Serpa to have similar evidence of such editing, of which there is none.
In the circumstances, I find that cl 18(e) of the GENTIME form applied as between Rederij Dijksgracht and Spliethoff Transport at all relevant times. It accordingly gave Spliethoff Transport the requisite authority to contract in the interests, and for the protection, of Rederij Dijksgracht.
For those reasons, the owners of the vessel are entitled to rely on any limitation available to Spliethoff Transport under the booking note. That limitation is available to the owners in defence of the claims against them in bailment and negligence.
X. SUMMARY AND CONCLUSION
To summarise, I have found the following:
(1)The contract of carriage as between Spliethoff Transport and Poralu is on the terms of the booking note as sent by Mr Gires to Mr Zuijderduin on 8 November 2019 and accepted by Mr Schweinsbergen to Mr Gires on 20 November 2019.
(2)The contract of carriage is subject to Dutch law.
(3)Under Dutch law, the Hague-Visby Rules are not compulsorily applicable to the contract of carriage because the “formal” requirement for such applicability under Art 10 is not satisfied, in particular because Ireland is not a Contracting State to the Hague-Visby Rules. It is therefore unnecessary to decide whether the “material” requirement is satisfied, ie, that the contract of carriage was covered by a bill of lading or similar document of title.
(4)Notwithstanding the provisional applicability of the Australian Hague Rules under AHR Art 10(2) because none of the relevant conventions are otherwise applicable, the AHR do not apply by operation of Art 10(6) because the contract of carriage is a charterparty and the sea waybill is not a “sea carriage document” within the meaning of Art 1(1)(g).
(5)The result is that Spliethoff Transport can rely on the limitation of liability that it contracted for in cl 3(a) of the booking note contract.
(6)The owner of the Dijksgracht, Rederij Dijksgracht, can also rely on that limitation of liability because of the operation of the Himalaya clause (cl 11) in the contract of carriage for which Spliethoff Transport had its authority to contract.
In circumstances where no submissions or evidence were directed to the question of how many “packages” are the subject of the claim, the form of question 1 is duplicative, and not all the potential bases for liability depend on the contractual limitation clause, I propose to slightly amend the separate questions and answer them as follows:
(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? – Yes
(b)Is any liability of the carrier limited to the present value of £100 of gold in 1924 per package? – 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 the higher)? – No
(2)Does the answer to (1) apply equally to the plaintiff’s claims in bailment and negligence against the vessel’s owner? – Yes.
I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate:
Dated: 6 September 2022
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