Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd

[1978] HCA 8

HIGH COURT OF AUSTRALIA

Barwick C.J., Stephen, Mason, Jacobs and Murphy JJ.

PORT JACKSON STEVEDORING PTY. LTD. v. SALMOND &SPRAGGON (AUST.) PTY. LTD.

(1977) 139 CLR 231

3 April 1978

Contract

Contract—Bill of lading—Provisions limiting liability—Term that benefit of those provisions be available to servants and agents (including independent contractors) of carriers—Carrier to be deemed to contract as agent or trustee for their benefit—Whether third party stevedore can claim benefit of provisions—Scope of exemption—Himalaya clause—Sea Carriage of Goods Act 1924 (Cth), s.9 (2).

Decisions

1978, April 3.
The following written judgments were delivered: -
BARWICK C.J. Salmond &Spraggon (Australia) Pty. Ltd. (the respondent) was the consignee of a quantity of Schick safety razor blades of a total value of $14,684.98 shipped by the Schick Safety Razor Company division of Eversharp of Canada Ltd. ("the consignor") on the New York Star, a vessel of the Blue Star Line Ltd. ("the carrier") carrying general cargo, at St. John, New Brunswick, Canada, for carriage to Sydney, freight prepaid. The shipment comprised thirty-seven cartons. It was covered by a bill of lading issued to and accepted by the consignor and transmitted to and accepted by the respondent. The bill was subject to the Water Carriage of Goods Act, 1936 (Canada) ("the Water Carriage of Goods Act") and contained the following clauses, relevant to the disposal of this appeal:

"2. It is expressly agreed that no servant or agent of the Carrier (including every independent contractor from time to time employed by the Carrier) shall in any circumstances whatsoever be under any liability whatsoever to the Shipper, Consignee or Owner of the goods or to any holder of this Bill of Lading for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment and, without prejudice to the generality of the foregoing provisions in this Clause, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defense and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled hereunder shall also be available and shall extend to protect every such servant or agent of the Carrier acting as aforesaid and for the purpose of all 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 all persons who are or might be his servants or agents from time to time (including independent contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to the contract in or evidenced by this Bill of Lading." "5. The Carrier's responsibility in respect of the goods as a carrier shall not attach until the goods are actually loaded for transportation upon the ship and shall terminate without notice as soon as the goods leave the ship's tackle at the Port of Discharge from Ship or other place where the Carrier is authorized to make delivery or end its responsibility. Any responsibility of the Carrier in respect of the goods attaching prior to such loading, or continuing after leaving the ship's tackles as aforesaid, shall not exceed that of an ordinary bailee, and, in particular, the Carrier shall not be liable for loss or damage to the goods due to - flood; fire, as provided elsewhere in this bill of lading; falling or collapse of wharf, pier or warehouse; robbery, theft or pilferage; strikes, lockouts or stoppage or restraint of labor from whatever cause, whether partial or general; any of the risks or causes mentioned in paragraphs (a), (c) to (i) inclusive, and (k) to (p) inclusive, of subdivision 2 of section 4 of the Carriage of Goods by Sea Act of the United States; or any risks or causes whatsoever, not included in the foregoing, and whether like or unlike those hereinabove mentioned, where the loss or damage is not due to the fault or neglect of the Carrier. The Carrier shall not be liable in any capacity whatsoever for any non-delivery or mis-delivery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the Carrier." "8. Delivery of the goods shall be taken by the consignee or holder of the Bill of Lading from the vessel's rail immediately the vessel is ready to discharge, berthed or not berthed, and continuously as fast as vessel can deliver notwithstanding any custom of the port to the contrary. The Carrier shall be any custom of the port to the contrary. The Carrier shall be at liberty to discharge continuously day and night, Sundays and holidays included, all extra expenses to be for account of the Consignee or Receiver of the goods notwithstanding any custom of the port to the contrary. If the Consignee or holder of the Bill of Lading does not for any reason take delivery as provided herein, they shall be jointly and severally liable to pay the vessel on demand demurrage at the rate of one shilling and sixpence sterling per gross register ton per day or portion of a day during the delay so caused; such demurrage shall be paid in cash day by day to the Carrier, the Master or Agents. If the Consignee or holder of the Bill of Lading requires delivery before or after usual hours he shall pay any extra expense incurred in consequence. Delivery ex ship's rail shall constitute due delivery of the good's (sic) described herein and the carrier's liability shall cease at that point notwithstanding consignee receiving delivery at some point removed from the ship's side and custom of the port being to the contrary. The Carrier and his Agents shall have the right of nominating the Berth or Berths for loading and discharging at all ports and places whatsoever, any custom to the contrary notwithstanding. The Carrier shall not be required to give any notification of disposition or arrival of the goods."

"17. In any event the Carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered. Suit shall not be deemed brought until jurisdiction shall have been obtained over the Carrier and/or the ship by service of process or by an agreement to appear." (at p236)

2. Port Jackson Stevedoring Pty. Ltd. (the appellant) had for years acted as stevedore in the discharge of the carrier's ships in the port of Sydney and in the removal of the cargo from the ship's side into store and in delivering the consignments to consignees. It was aware of the use by the carrier of a form of bill of lading for shipments to Australia which included the clauses I have set out and in particular cl. 2, which has come to be known as the Himalaya clause. Through its receipt of the ship's manifest and the information therin contained as to the consignments, the appellant no doubt became aware that the goods consigned to the respondent were in fact being carried on the terms of such a bill of lading. (at p236)

3. There was in existence at all material times a document headed "Port Jackson Stevedoring Pty. Ltd. Basic Terms and Conditions for Stevedoring at Sydney, N.S.W.". Though this document contained no express agreement by the appellant to act as stevedore to discharge the carrier's ships in the port of Sydney and to stevedore the cargo into shed for stacking, storing and ultimate delivery, it evidently contemplated that the appellant would or at least might so act - as in fact the appellant did act. It set the agreed terms of remuneration for such stevedoring activity. The document contained an express pecuniary limitation on the liability of the appellant in respect of certain defaults in discharging a ship and stevedoring its cargo. (at p236)

4. Joint Cargo Services Pty. Ltd. ("Joint Cargo Services") acted as ship's agent and, at the request of the carrier and on its behalf, engaged the appellant to discharge the New York Star and stevedore its cargo, that operation, as I have said, including the handing over of consignments to the respective consignees against production of the appropriate bill of lading. (at p236)

5. Upon arrival of the New York Star in Sydney, the thirty-seven cartons were discharged from the ship and thereafter placed by the appellant as stevedore in a part of a shed under its control on the wharf, which part was known as "the dead house". They were placed there because they were regarded by the appellant as particularly susceptible to pilfering. Four cartons were damaged and the remaining thirty-three were removed, to speak neutrally for the moment, by a person other than the consignee and were unavailable for delivery to the respondent. I shall later refer briefly to the circumstances in which the goods passed out of the appellant's possession. (at p237)

6. After arrival of the ship, the respondent presented the bill of lading to Joint Cargo Services as the ship's agent. It paid to Joint Cargo Services an amount for sorting and stacking charges, being the charges made by the appellant for these services, whereupon Joint Cargo Services indorsed on the copy of the bill of lading produced by the respondent the following:

"PLEASE DELIVER The within mentioned goods in exchange for this Bill of Lading. Subject to safe arrival of vessel and to the terms and conditions of this Bill of lading. WEIGHT.........................MEASUREMENT 376'

Sorting &stacking charges paid $24.16.

FREIGHT COLLECTED $ JOINT CARGO SERVICES PTY. LTD. DATE 11/5/70 PER (?)"

Having this and other indorsements not presently material, the respondent was in a position to tender the bill of lading to the appellant and in exchange therefor to obtain delivery of the shipment to which the bill of lading referred. But, for the reason I have indicated, the goods were not available for delivery on presentation of the bill of lading. (at p237)

7. The respondent sued the appellant in the Supreme Court of New South Wales for damages for the loss of the packages by its negligence in failing to take proper care of the goods; for its delivery of them to unauthorized persons and its non-delivery of them to the respondent. The appellant was sued in each instance as a bailee for reward of the goods. The Supreme Court (Sheppard J.) found that the thirty-three packages had left the appellant's custody through its own negligence. Some discussion had taken place during the course of argument as to whether what occurred in relation to these packages was a misdelivery. But, taking the view which I shall later express, it does not seem to me to be necessary to decide of which particular obligation of a bailee the appellant was in breach, although I shall need to note the argument in this connexion which the respondent presented on the hearing of this appeal. Suffice it to say at the moment that these thirty-three packages having been held by it for the respondent, the appellant failed to deliver them to the respondent when occasion arose for such delivery and that its failure was the result of its negligence in the custody of the goods. (at p237)

8. The action as originally framed sought to recover the value of the shipment from Joint Cargo Services as well as from the appellant. Both were sued as bailees of the goods. Judgment was given for Joint Cargo Services, as it clearly appeared that at no stage had that company had possession of any of the goods in the consignment. (at p238)

9. Having found responsibility for the non-delivery to the respondent of the consignment of the Schick razor blades, the learned judge, relying on the decision of the Privy Council in New Zealand Shipping Co. Ltd. v. A. M. Satterthwaite &Co. Ltd. (The Eurymedon) (1975) AC 154 , held that the appellant was entitled to the benefit of cl. 17 of the bill of lading. Because the respondent's action had not been commenced within one year after the date when the goods should have been delivered, there was judgment for the appellant. (at p238)

10. The respondent appealed to the Court of Appeal Division of the Supreme Court which reversed the judgment for the appellant and substituted judgment for the respondent for the amount claimed (1977) 1 Lloyd's Rep 445 . The appellate Court held that it had not been established that the appellant was entitled to the benefit of cl. 17 of the bill of lading. It so held because, in its view, it had not been proved that the appellant had acted so as to conclude an agreement between it and the consignor and because of its acceptance of the bill binding upon the consignee in terms of the relevant clauses of the bill of lading. The appellant was therefore not entitled to rely on the time limitation clause of the bill of lading. (at p238)

11. There is no doubt that the respondent's action against the appellant was not commenced within twelve months of the date when the consignment ought to have been delivered by the appellant to the respondent. The appellant submits in this appeal that it was entitled to rely on cl. 17 of the bill of lading by reason of cl. 2 of the bill and its own actions in relation to the goods: and that, therefore, the trial judge was right in giving judgment in the action for the appellant. (at p238)

12. The relevant law as to the enforceability of a time limitation clause, in my opinion, is not in doubt and needs no detailed exploration. The decision in Suisse Atlantique Societe d'Armement Maritime S.A. v. N. V. Rotterdamsche Kolen Centrale (1967) 1 AC 361 indicates, in my opinion, that whilst exemption clauses which, for present purposes, can be assumed to include a time limitation such as cl. 17, should be construed strictly, they are of course enforceable according to their terms unless their application according to those terms should lead to an absurdity or defeat the main object of the contract or, for some other reason, justify the cutting down of their scope. In The Eurymedon, the operation of a bill of lading containing the Himalaya clause and, by incorporation, the time limitation of the Hague Rules, was considered by their Lordships of the Privy Council (1975) AC 154 . The time limitation was enforced at the instance of the stevedore. There is, in my opinion, no reason not to enforce the time limitation in cl. 17, if the appellant is in a position to take advantage of it. Its enforcement would in no wise defeat any object of the bill, would not lead to any absurdity, nor are its provisions unreasonable. It is commercially acceptable and, indeed, reasonably necessary that time limitations should be imposed if the consignor or the consignee claims recourse against ship or stevedore by reason of alleged defaults in the performance of obligations borne by the ship either as carrier or as bailee or by the independent stevedore. Nothing in the Water Carriage of Goods Act forbids the making of an agreement containing such a limitation. The respondent knew at the date it sought delivery of the goods that the appellant was in default. A period of twelve months therefrom within which to commence proceedings is not unreasonable in relation to a commercial activity of the subject kind. (at p239)

13. The respondent's principal argument on this appeal was that those clauses of the bill of lading only protected the appellant in connexion with acts done by it within the scope of its obligations as a bailee and that in fact its delivery of the goods to a person unauthorized to receive them was not an act done within that scope. (at p239)

14. Having regard to the decision of the appellate Court and the respondent's argument in this Court, the area for debate in this appeal is whether the appellant in the circumstances is entitled to the benefit of relevant clauses in the bill of lading. In that connexion, the respondent in argument before this Court did not contend that, if the appellant were entitled to the benefit of cll. 2 and 17, those clauses did not extend to cover the appellant's activities in removing the goods from the ship's tackles and storing them pending delivery to the consignee; that is to say, it was conceded that those clauses governed the obligations of the appellant as bailee of the goods as distinct from its obligations in performing those of the carrier. The contrary had been a submission unsuccessfully made to the learned trial judge. It was apparently repeated in the appellate Court where it met with no success. That Court said it was without substance. (at p240)

15. Thus counsel for the respondent in this Court expressly conceded that if the goods were lost to the respondent by negligence in the performance of the appellant's obligations as a bailee, the time limitation clause would apply and the respondent fail. (at p240)

16. However, as the question of the scope of these clauses, though not the subject of argument in this Court, has been raised in the reasons for judgment of other Justices, I shall need to express my view upon it. (at p240)

17. Two questions have therefore to be dealt with: first, whether, whatever the scope of cll. 2 and 17, the appellant had become a party to them and, secondly, whether the clauses included in their scope the activities of the carrier in removing consignments from the ship's tackles into store, there sorting and stacking them, and ultimately delivering them to consignees, and those activities when carried out by an independent stevedore engaged by the carrier if the carrier did not itself do such work. (at p240)

18. Their Lordships in The Eurymedon (1975) AC 154 adopted the dicta of Lord Reid in Scruttons Ltd. v. Midland Silicones Ltd. (1962) AC 446, at p 474 . This adoption clearly lays down that the stevedore discharging the ship was entitled to the benefit of clauses such as cll. 2 and 17 in the present bill of lading if, (1) the bill of lading made it clear that the carrier intended by its terms to protect the stevedore, (2) the carrier by the bill contracted for the stevedore's protection as well as for his own, (3) the authority of the carrier to act for the stevedore in this respect whether antecedently or by ratification was made out, and (4) that there was consideration moving from the stevedore. (at p240)

19. At the trial of the present action, the first two and the last of these requisites were conceded by the respondent, though the third was contested. The learned trial judge, however, found that the appellant had ratified the agreement made by the carrier on its behalf. Accordingly, as I have said, judgment was given for the appellant. (at p240)

20. The terms of cl. 2 make it abundantly clear that the carrier purported to contract with the consignor for independent contractors it might engage to handle the consignment. I use the verb "handle" in this connexion in a neutral sense. Exactly what activities of the stevedore are to be included in it is the additional question which I have to discuss. Thus items (1) and (2) above were in my opinion properly conceded at the hearing of the action. (at p241)

21. The appellate Court, having reviewed the evidence, found that "the carrier in bargaining for the protection of (the) stevedore was acting with the appellant's authority", i.e. with its antecedent authority. In my opinion, this was a correct conclusion of fact. Upon that finding, confirming though on a different basis the conclusion of the learned judge, coupled with the concessions made at the hearing, the defence of the appellant was complete. (at p241)

22. However, although the contrary was conceded at the trial, the respondent (the appellant before the appellate Court) sought to submit to that Court that there was no consideration shown to be moving from the appellant to support in its favour the benefit of cll. 2 and 17 of the bill of lading. The appellate Court gave express leave to rely on this submission "once it was conceded by the (appellant) that its case at the trial would not have been differently presented if the point had been specifically taken". Before us, the accuracy of this quoted statement of the appellate Court was challenged by counsel for the appellant. Having regard to the decision on the substance of this appeal at which I have come, I find no need to resolve that matter. Suffice it to say it should only be in the clearest case and for the most cogent reasons that a party who has conceded matter at trial should be allowed to make the validity of what has been conceded the basis for overturning the result of the trial. (at p241)

23. The appellate Court, having allowed the point to be raised before it, thereafter decided it against the appellant. This Court must now deal with it. (at p241)

24. As appears from the passage quoted below, the appellate Court in reaching its conclusion treated the case as one in which an offer at large had been made requiring acceptance by an act done as an acceptance of that offer. (at p241)

25. The appellate Court found that it had not been established that the appellant had accepted the offer or given consideration to support the agreement with the consignor which it claimed had been made by means of the bill of lading and its own activity in discharging, sorting and stacking the shipment in question. The relevant passage in the judgment of Glass J.A., which received the assent of the other members of the appellate Court, is as follows (1977) 1 Lloyd's Rep, at p 449 :
"The plaintiff" (the respondent) "then submits that although the stevedore's knowledge of the exempting offer could be inferred, there is no evidence that in performing its stevedoring functions it did so in reliance upon the offer. There was tendered in evidence a document headed 'Port Jackson Stevedoring Pty. Limited: Basic Terms and Conditions for Stevedoring at Sydney N.S.W.' It set out the conditions of employment and rates of remuneration which applied to work undertaken by the stevedore for shipowners in the port of Sydney. The document formed part of Exhibit G together with a letter from the stevedore's solicitors stating that the stevedore was employed by the carrier upon terms which accorded with the document. These two documents plus the evidence that the stevedore unloaded the plaintiff's goods and stowed them in its shed constitute the whole of the material bearing upon this issue. For reasons already given his Honour was not called upon to decide it. It is necessary for this Court to decide whether this evidence measures up to the requirements of the fourth condition. I am not satisfied that it does. I find that the stevedore knew of the shipper's offer to exempt. But it was bound to carry out stevedoring operations under its contract. For all that appears there may have been no relationship whatever between the conduct of the stevedore and its knowledge of the offer (Australian Woollen Mills Pty. Ltd. v. The Commonwealth (1954) 92 CLR 424, at p 457 ). It is quite consistent with the facts proved that the stevedore acted as it did solely because of the contract it had made with the carrier. For these reasons I conclude that there is a fatal gap in the stevedore's proofs of the fourth condition on which the Eurymedon doctrine depends." (at p242)

26. From this quotation of their reasons it will be observed that the appellate Court accepted the view that the bill of lading, in relation both to the activities of the carrier and those of the stevedore, was intended to govern those activities taking place after the consignment had left the ship's tackles. It said that an argument to the contrary was without substance. Indeed cl. 5 of the bill of lading, which I have set out, expressly relates to activities of the carrier "continuing after the goods had left the ship's tackles". It was said in that clause that in respect of such activities the carrier would be regarded as an ordinary bailee. I shall return later to deal with the suggestion that the bill of lading intended to cover only the activities of carrier and stevedore up to the time of delivery of the consignment by the ship, i.e. until the consignment was placed overside on the wharf free of the ship's tackles. Meantime, I shall express my views upon the ground on which the appellate Court decided in favour of the respondent. (at p242)

27. The analysis of the situation which arose on the consignor's acceptance of the bill of lading covering the shipment which found favour with the appellate Court is, in my opinion, erroneous. It led that Court to look for an act of the stevedore in intended acceptance by the stevedore of a standing offer contained or made in the bill of lading. (at p243)

28. I proceed to develop my own view of the consequence of the issue to and acceptance by the consignor of the bill of lading containing the clauses I have quoted. From this my divergence from the basis of the appellate Court's decision will become apparent. (at p243)

29. As the authority of the carrier to make with the consignor an arrangement for the benefit of the appellant was made out, it cannot be doubted, in my opinion, that the carrier acted with the authority of the appellant as its agent to make an arrangement with the consignor for the protection of the appellant, as an independent contractor participating in the handling of the cargo, again using "handling" in a neutral sense. To that arrangement there were two parties, the consignor and the appellant. By later accepting the bill the consignee became party to the arrangement with the consignor. I can see no validity in a suggestion that the bill of lading could not at the one time contain a contract of carriage between the consignor and carrier and an arrangement between consignor and stevedore, made through the agency of the carrier, to regulate the relationship of consignor and stevedore, when the stevedoring work was undertaken. (at p243)

30. For my part, I find no difficulty in interpreting the arrangement made by the bill of lading and its acceptance by the consignor as providing that if, in fact, the appellant stevedored the cargo, leaving aside for the moment what the stevedoring involved, the appellant should have the benefit of the clauses of the bill including the benefit of the time limitation expressed in cl. 17 of the bill of lading. I am unable to treat the clauses of the bill of lading as in any respect an unaccepted but acceptable offer by consignor to stevedore. Indeed, I do not think the bill can be interpreted as containing an offer at large by the consignor. The consignor and the appellant as stevedore were ad idem through the carrier's agency upon the acceptance by the consignor of the bill of lading as to the protection the stevedore should have in the event that it stevedored the consignment. But this consensus lacked the essential of consideration. The appellant through the bill of lading made no promise to stevedore the cargo. Thus, whilst I would not analyse the situation obtaining on the acceptance of the bill of lading as an exchange of promises, I would not analyse it as merely the making of an offer susceptible of acceptance by an act of the stevedore done in purported acceptance of the offer. For this reason I have described the bill of lading in so far as the carrier there purports to act for the appellant as an arrangement. To agree with another that, in the event that the other acts in a particular way, that other shall be entitled to stated protective provisions only needs performance by the doing of the specified act or acts to become a binding contract. Whether or not the arrangement is susceptible of unilateral disavowal before the stated act is done need not be discussed. Here the act was done. The performance of the act or acts at the one moment satisfied the need for consideration and attracted the agreed terms. For myself, and with due respect to those who find comfort in them, I find the descriptions "unilateral and bilateral" or "mutual" unhelpful in the resolution of this case. Indeed, the use of them seems to assume that they are mutually exclusive terms and together cover all are mutually exclusive terms and together cover all possibilities. But I do not think they do. Indeed, this bill of lading, as I read it, indicates in my opinion that they do not. As I see it, we have here an arrangement, a compact with agreed conditions to attend the performance of certain acts, which are not promised to be done. True enough that, until such performance, the consensus has nothing upon which to operate. But that is its essential characteristic, to provide an agreed consequence to future action should that action take place: to attach conditions to a relationship arising from conduct. If one desires to use the terms, it could be said that the arrangement is mutual: it is bilateral: to it there are two parties both agreeing to the terms of the intended consequence, on the one hand the consignor and on the other the stevedore acting through its authorized agent, the carrier. The performance of the contemplated act both supplies the occasion for those conditions to operate and the consideration which makes the arrangement contractual. The document containing the basic terms and conditions for stevedoring at Sydney to which I earlier referred is another instance of an arrangement made between parties to regulate their relationship in the event that one of them in fact became the stevedore of the other's ship. Neither promised the other anything: the ship did not engage to employ the stevedore or the stevedore to discharge the ship and stevedore its cargo. (at p244)

31. The arrangement in the bill of lading thus being one between consignor and stevedore affected through the authorized agency of the carrier, questions as to how far, if at all, someone not a party to a contract, but for whose benefit it is made, can enforce the agreement made between others, do not arise. Cases such as Tweddle v. Atkinson (1861) 1 B &S 393 (121 ER 762) and other cases listed in the notes to pars 315 and 329 of Halsbury's Laws of England, 4th ed., vol. 9, have no place, in my opinion, in the resolution of the question whether the appellant was a party to the arrangement in the relevant clauses of the bill of lading. The decision in The Eurymedon (1975) AC 154 made the stevedore a party to the relevant parts of the bill of lading. It is, in my opinion, that feature of the decision which is so significant and important for the commercial community, particularly that section which is concerned with the transport of goods. (at p245)

32. It is significant that in Lord Reid's four requisites in Scruttons Ltd. v. Midland Silicones Ltd. (1962) AC, at p 474 , the third is the authority of the carrier whether antecedent or by ratification to contract with the consignor as the stevedore's agent in or through the bill of lading. His Lordship's reference in that case to consideration must be a reference to a consideration moving from the stevedore to support what the carrier as agent has arranged on the stevedore's behalf with the consignor. There is no room, in my opinion, in his Lordship's statement of the requisite elements for an offer, particularly an offer at large, of a promise for an act, the act to be done in acceptance of the offer. Clearly, the carrier was not authorized to make an offer by the stevedore to act as such. But, even if that had been so, it would have been the stevedore's offer: not an offer to the stevedore which it needed to accept. Nor can it be said that the consignor, by accepting the bill of lading, engaged the appellant to stevedore the shipment. His Lordship must have been requiring a consideration to support a consensus or arrangement already in existence. (at p245)

33. Consequently, in my opinion, the passage from the judgment of Glass J.A., which I have quoted, mistakes the function of consideration in the decision in The Eurymedon (1975) AC 154 and in the remarks of Lord Reid in Scruttons Ltd. v. Midland Silicones Ltd. (1962) AC, at p 474 . It further follows, it seems to me, that the remarks of this Court in Australian Woollen Mills Pty. Ltd. v. The Commonwealth (1954) 92 CLR 424, at p 457 have not been properly applied. In this case, it is found as a fact that the carrier, in making the agreement with the consignor through the bill of lading, was indeed contracting for itself and also for the stevedore and with its antecedent authority. There is thus, in my opinion, in this case no need for the stevedore to prove that he was acting on an offer otherwise not accepted in order to establish the existence of an agreement with the consignor. The consensus existed on the consignor's acceptance of the bill apart altogether from any subsequent conduct on the part of the stevedore. It resulted from the carrier's action on behalf of the stevedore and with its authority. This situation is, in my opinion, in high contrast to those in R. v. Clarke (1927) 40 CLR 227 and Australian Woollen Mills Pty. Ltd. v. The Commonwealth (1954) 92 CLR 424 . In those cases, what was considered was an offer to be accepted by conduct, a recognized manner of creating the contractual relation by an offer of a promise for an act. Of course, in such a case, the act if done must be capable of being regarded as having been done as an acceptance of the offer. But there is a fundamental difference between providing consideration to support a consensual arrangement otherwise made and the acceptance by performance of an act of an offer not otherwise accepted. It seems to me that because their Lordships of the Privy Council in The Eurymedon recognized this distinction, there is no elaboration in their reasons for their advice in that case of the statement that consideration had been provided by the stevedore. Clearly, their Lordships declined to regard the agreement of the consignor made through the bill of lading and the activity of the stevedore as gratuitous. Referring to the facts of the case, their Lordships said (1975) AC, at p 167 :
"The carrier assumes an obligation to transport the goods and to discharge at the port of arrival. The goods are to be carried and discharged, so the transaction is inherently contractual. It is contemplated that a part of this contract, viz. discharge, may be performed by independent contractors - viz. the appellant. By cl. 1 of the bill of lading the shipper agrees to exempt from liability the carrier, his servants and independent contractors in respect of the performance of this contract of carriage. Thus, if the carriage, including the discharge, is wholly carried out by the carrier, he is exempt. If part is carried out by him, and part by his servants, he and they are exempt. If part is carried by his servants, he and they are exempt. If part is carried out by him and part by an independent contractor, he and the independent contractor are exempt. The exemption is designed to cover the whole carriage from loading to discharge, by whomsoever it is performed: the performance attracts the exemption or immunity in favour of whoever the performer turns out to be." (at p246)

34. Their Lordships did prefer a particular theoretical explanation of the commercial result which they held followed from the Himalaya clause on the performance by the appellant in that case of acts of stevedoring. They said (1975) AC, at pp 167-168 :
". . . that which their Lordships would accept is to say that the bill of lading brought into existence a bargain initially unilateral but capable of becoming mutual, between the shipper and the appellant, made through the carrier as agent. This became a full contract when the appellant performed services by discharging the goods. The performance of these services for the benefit of the shipper was the consideration for the agreement by the shipper that the appellant should have the benefit of the exemptions and limitations contained in the bill of lading." (at p247)

35. This analysis is in line with what I have written, though for my part I find mutuality in the acceptance by the consignor of the bill of lading, but not of course mutuality of promises. The mutuality is, as I have said, as to the consequence of the performance of stevedoring activity in relation to the shipment should it occur. Also the description of what follows on that performance is called by their Lordships "a full contract" by which I take them to mean an agreement supported by consideration and thus a contract strictly so-called as distinct from an agreement or arrangement lacking consideration moving from the relevant party. (at p247)

36. I would add, however, if contrary to my own opinion the result of the acceptance by the consignor of the bill of lading, containing the Himalaya clause, were properly analysed as the making of an offer by the consignor susceptible of acceptance by the doing of the work, I should be of opinion that it was established in this case that the appellant had accepted the offer. The knowledge by the stevedore of the terms of the bill, of the ship's manifest and its usual employment in discharging and stevedoring the Blue Star ships would, in my opinion, require the conclusion that the acts of the appellant were done in relation to the bill containing the Himalaya clause. (at p247)

37. The relationship between the carrier and the stevedore was of long standing. The use of a bill of lading for consignments to Australia containing a Himalaya clause was well known between them. The ship's manifest would disclose to the stevedore the shipment in question and the identity of the consignor. The stevedore, in fact, removed from the ship's side into store, sorted and stacked the consignment. Charges for stacking and storing were presented to and paid by the consignee through the ship's agent. In the ordinary course, the goods would have been delivered to the consignee against presentation of the bill of lading. I would find it extremely difficult to fail to conclude in those circumstances that in stevedoring the shipment the stevedore was responding to the terms of the bill of lading, accepting both its obligations and seeking the benefit of its restrictions. (at p248)

38. I would therefore conclude that the appellate court was in error upon the ground on which it based its conclusion in favour of the respondent. (at p248)

39. Before dealing with the question as to the scope of the cll. 2 and 17 of the bill of lading I ought to note the argument actually put forward by the respondent in support of the dismissal of the appeal. Particular attention was called to the evidence as to how the goods came to leave the possession of the appellant. A servant of the appellant handed the thirty-three cartons of razor blades to a person who had no authority to receive or to take them. The appellant's servant did so apparently under the belief that that person held papers which he would exhibit to another servant of the appellant before removing the goods finally from the wharf and that those papers entitled the person to whom the goods were given to take delivery of and to remove them. But in fact that person was a thief and due to a weakness in the appellant's system of control of the custody and delivery of goods in its possession, the thief was able to receive the goods and by his own audacity to elude the customs officers at the gate of the wharf. The trial judge found that the appellant was negligent both in the adoption of a system which inadequately guarded against such an event as did occur and also in the manner in which its servants had operated the system in fact adopted by the appellant. (at p248)

40. It was on the particular circumstances of the delivery of the goods that the respondent built its argument. It was emphasized that the appellant having taken possession of the goods ex the ship's slings was a bailee of them. Indeed, as I have said, the respondent sued the appellant as a bailee for reward. It was then said upon its true construction cl. 17 of the bill of lading was limited to protect the stevedore against failure properly to carry out the obligations of a bailee. It was said that by handing the goods over to a person who is not authorized to receive them was not a negligent act in the performance of the obligation of a bailee but rather an act which stood outside the contract of bailment, as well as I understand the argument. In this connexion, much reliance was placed upon some of the reasoning in the Court's decision in Sydney City Council v. West (1965) 114 CLR 481, esp at pp 488-489 . It was in the course of presenting this argument that counsel for the respondent expressly conceded that if it could properly be said that the goods were lost through the negligent performance of the bailee's obligations the case would fall within the operation of cll. 2 and 17 of the bill of lading so as to entitle the appellant to succeed. (at p249)

41. But, in my opinion, the citation from West's Case does not support the respondent's proposition. In West's Case the contract of bailment was express and was construed in its protective clauses as in substance confined to acts done in the course of garaging the car. Consequently, the protective clause did not extend to cover the delivery of the car to someone other than the bailor or at his direction. Here the time limitation clause, if applicable, is universal in its scope. It opens with the words "in any event". It is not directed to protection from loss or damage of the goods as earlier clauses are. It is directed only to the time within which proceedings should be commenced. The endeavour of the respondent to limit the generality of cl. 17 by what counsel conceded was a narrow construction was, in my opinion, misconceived. (at p249)

42. But in any case, in my opinion, the act of the appellant's employee in handing over the goods, though negligent in the circumstances, was in purported performance of the obligation of the appellant as bailee. One of its obligations was to deliver the goods but of course to the consignee or its order. In my opinion, it matters not in this case whether the act of handing over the goods be described as an unauthorized delivery, a misdelivery or a delivery resulting from the negligence of the appellant as the bailee of the goods. Subject to the question as to the scope of the clauses of the bill of lading, in my opinion the fault of the appellant fell fairly within the terms of the clauses of the bill of lading. (at p249)

43. I now turn to the final question, namely, whether upon its proper construction did the contract made between the consignor and the stevedore through the agency of the carrier and the acts of the stevedore apply only to acts of the stevedore done in the performance of the carrier's obligation to carry and to deliver ex slings? (at p249)

44. First, I must notice that the event which gave rise to liability in the stevedore in The Eurymedon (1975) AC 154 occurred before the ship's obligation to deliver had been performed. Thus the stevedore at the time of that event was executing on behalf of the carrier part of the contract of carriage. Here the event giving rise to liability in the stevedore occurred after the carriage by the ship was complete (at least theoretically) but before the consignee had obtained delivery of the consignment. Thus it can properly be said that their Lordships' decision related in terms only to the period of carriage. But their Lordships in expressing themselves did not use any language which would confine the principle of their decision to the activities of the stevedore up to the time the goods became free of the ship's tackle. Indeed, it might be said that there is some ambiguity in their Lordships' use of the word "discharge" used as if distinct from "carriage" (1975) AC, at p167 . Carriage is not complete till the goods are ex slings. Thus it is possible to treat the word "discharge" as covering the on movement of the goods into store. But I am content in disposing of this appeal not to ground anything upon this possible ambiguity. (at p250)

45. Their Lordships' decision in The Eurymedon was of great moment in the commercial world and, if I may say so, an outstanding example of the ability of the law to render effective the practical expectations of those engaged in the transportation of goods. It is not a decision of its nature to be narrowly or pedantically confined. It established, as I have said, that the acceptance of the bill of lading by the consignor followed by the acts of the stevedore produced a binding contract to which consignor and stevedore were parties. If I may say so, I entirely and most respectfully agree with their Lordships' decision and I have indicated my own explanation, not disconformable to that adopted by their Lordships, of the legal justification for it. (at p250)

46. The proper construction of the relevant clauses of the bill to determine whether the agreement covered the stevedoring following the removal of the goods from the ship's tackle remains to be considered. (at p250)

47. The consignee by accepting the bill, of course, accepts the situation which has been created between consignor and stevedore and becomes in substance a party to the conditions of the bailment. The ship's obligation as the carrier under the bill of lading is to deliver ex slings on arrival at the stipulated port. The consignee is obliged to take delivery at the ship's side when the goods are free of the ship's tackles. See cl.8 which provides for demurrage if the goods are not taken from the ship's side. But, of course, it is in general quite impractical for consignees to do so in the ordinary course of the discharge of a ship: and delivery of consignments carried by a general cargo ship is rarely, if ever, taken at the ship's side. (at p250)

48. The practice of handling goods discharged from a vessel carrying general cargo was not evidenced in the case. However, I think judicial knowledge of that practice extends to a sufficient degree to warrant the following description of the course followed in handling general cargo on its being off-loaded from the carrying ship. (at p251)

49. The goods on the ship's manifest are progressively brought to the wharf where the ship berths alongside, as was the case with the New York Star. Both the manner and place of their storage and the ship's convenience in relation to clearing its several holds influence the time at and the order in which consignments are off-loaded. Any given consignment does not necessarily come overside in one parcel or at the one time or at immediately successive times. The ship is at liberty to discharge the cargo by day and by night, and on any day of the week, Sundays and holidays included. It is necessary in the practical course of the unloading of a ship that the cargo be progressively removed from the ship's side. It could not be just left where and as it emerged from the tackles. Generally it is placed in a shed on the wharf, or at any rate at a point well removed from the ship's side, being sorted and stacked appropriately for delivery to the various consignees. Inevitably, either the ship or a stevedore must to do this work. Clearly enough, each consignee could not either attend to take his consignment or send a stevedore of his own to handle it. The practical course in general is for the stevedore who undertakes to discharge the ship to remove the cargo to store as it becomes free of the ship's tackles. Of course, the carrier may itself fill the role of stevedore instead of engaging an independent contractor to stevedore the cargo, in which case the carrier acting as stevedore removes and stores the cargo. As I have indicated, the bill of lading deals with the carrier's liability if the carrier does handle the cargo after it has left the ship's tackles. But, in general, a stevedore is engaged to unload the ship and stevedore the cargo into store. (at p251)

50. This course of handling the consignments making up the cargo has great convenience for consignees who, as a result, need not present themselves at the precise time that their goods come overside and land on the wharf. As the stevedore attends to the removal of the goods into store, the consignee can present his bill of lading and take delivery of his goods from the hands of the stevedore out of the store at his convenience. This was the course pursued by the respondent in this case. (at p251)

51. It is apparent, therefore, that in order to facilitate the practical course of cargo handling some arrangement for the removal of the goods from the place on the wharf where they rest after release from the ship's tackles must be made before the ship's arrival. Therefore the carrier, unless it acts itself as stevedore, engages a stevedore to remove, sort and stack the cargo when it is free of the slings: and does so in advance of the arrival or expected arrival of the ship. For this there may be a standing arrangement between shipping company and stevedore: or the stevedore may be engaged ad hoc. The course of discharging cargo and of delivery through the hands of a stevedore who has removed it from the tackles and stored it, must be taken to have been known to the consignor and, at the time of acceptance of the bill of lading, by the consignee. Thus, it must be accepted, in my opinion, as in the contemplation of consignor, carrier and, if it matters, of consignee that arrangements will most probably be made for the removal by a stevedore of consignments from the ship's side to store, unless the carrier undertakes that work not in its capacity of carrier but of stevedore. The commercial expectation is that this course will be followed and provision to cover carrier and stevedore is effected by or through the bill of lading. The means now commercially adopted to cover the onward movement of the consignment from wharf to shed and to provide the protection of a time limitation is the inclusion of appropriate provisions in the bill of lading (e.g. cll. 2 and 17 in the present bill). It was, in my opinion, in the contemplation therefore of the consignor that if the ship did not itself stevedore the cargo into store it was certain that a stevedore would be engaged to perform that operation. (at p252)

52. Clause 17 in relation to the carrier's acts is clearly universal in terms, so that it clearly applies to the acts of the carrier as bailee in itself stevedoring the goods from ship's tackles to store, etc. If the clause covers the carrier when acting as stevedore and bailee of the goods, as in my opinion it does, I am unable to discover any reason why it should not cover the independent stevedore in the movement of the cargo. There can, in my opinion, be no justification for refusing to give the carrier the benefit of cl. 17 in respect of its own acts or omissions as bailee of the goods following upon their removal from the ship's side. To confine the scope of the agreement with the stevedore to a period ending with the discharge of the goods from the ship's tackles is not only seriously to limit the efficacy of the clauses of the bill of lading and to defeat the reasonable commercial expectation of the consignor and carrier, but it is in my opinion an unwarranted interpretation of the language of the bill of lading. I am unable to discover any reason why it should not cover the independent stevedore in the on movement of the cargo. (at p252)

53. I should add that the stevedore in discharging the cargo and in stevedoring it into store is not acting as the agent of the ship. It is an independent contractor, itself a bailee of the goods, the terms of the bailment including the relevant clauses of the bill. (at p253)

54. Thus, in my opinion, the principle on which The Eurymedon (1975) AC 154 was decided and the clauses of the bill properly construed covered the situation in this case and required that the judgment of the primary judge be supported. (at p253)

55. Two matters might be mentioned in conclusion. It is to be noticed that some emphasis was placed in the passage from the reasons for judgment of the appellate Court which I have quoted upon the existence of the document headed "Port Jackson Stevedoring Pty. Ltd. Basic Terms and Conditions for Stevedoring at Sydney, N.S.W.". As I have indicated this document was not, in truth, an agreement to stevedore but determined the terms and conditions upon which stevedoring might take place. It appeared in the evidence that the ship's agent, Joint Cargo Services, engaged the appellant on behalf of the carrier to act as stevedore in connexion with the discharge of the ship carrying the consignment and in the handing over of cargo to consignees. But the existence of an employment by the carrier of the appellant as a stevedore, even if antecedent to the making of the arrangement on its behalf through the bill of lading, in my opinion, was irrelevant to the question sought to be decided. As long ago as 1861 it was decided in Scotson v. Pegg (1861) 6 H &N 295 (158 ER 121) the performance by a stevedore of his duties as such should be regarded as consideration for a promise by the consignor of a shipment although the stevedore may have been bound as between itself and the carrier, the shipping company, to stevedore those goods in the very manner in which it had done so. I might add that if the situation is analysed as I have done, i.e. as an arrangement as to the consequence of acts if subsequently done, the existence of the said document is even less significant. (at p253)

56. In the course of the case, both at trial and before the appellate court, there was discussion as to whether or not those parts of cl. 2 which purported to exempt the carrier and the independent contractor from all liability for breach of obligation were enforceable. Having regard to my expressed view as to the availability to the stevedore of the time limitation contained in cl. 17 there is no need for me to examine the question whether the exempting clauses were available in whole or in part to protect it against all liability. On these matters I express no opinion. There are obvious differences between the operation of time limitation clauses and of clauses which purport to displace liability. Suffice it to say that I see no reason in principle or authority why cl. 17, however strictly construed, should not be held to be enforceable according to its terms and effective to bar the respondent's action. (at p254)

57. In my opinion, the appeal should be allowed and the judgment for the appellant entered by the primary judge restored. (at p254)

STEPHEN J. The appellant stevedore, when sued in the Supreme Court of New South Wales by the consignee of goods stolen from a wharfside warehouse, relied upon a time limitation provision contained in the bill of lading issued by the carrier to the shipper. It contended that the terms of cl. 2 of that bill of lading conferred upon it the benefit of that time limitation. Clause 2 is in all material respects identical to the clause which, in New Zealand Shipping Co. Ltd. v. A. M. Satterthwaite &Co. Ltd. (The Eurymedon) (1975) AC 154 , a majority of their Lordships found to confer immunity upon a negligent stevedore, although not a party to the bill of lading. (at p254)

2. The stevedore succeeded at first instance, Sheppard J. applying the decision in The Eurymedon. The consignee's appeal to the New South Wales Court of Appeal succeeded upon an argument which had not been advanced before Sheppard J. Because the stevedore, although knowing of the promised immunity contained in the bill of lading, was not shown to have relied upon it when it performed its work of discharging the ship, the Court of Appeal held that the unloading of the goods by the stevedore did not provide any consideration for the shipper's promise (1977) 1 Lloyd's Rep 445 . The stevedore now appeals to this Court. (at p254)

3. I would dismiss the appeal, but for reasons other than those which found favour with the Court of Appeal. In my view, the loss of the goods occurred at a time when the stevedore was no longer acting in performance of any of the carrier's obligations under the bill of lading. The benefits of cl. 2, if ever available to the stevedore, had for that reason ceased to apply and could no longer be availed of by it. (at p254)

4. Why this is so requires close examination of the bill of lading. However, I should first explain the reasons for my qualified acknowledgement of the availability to the stevedore, in any circumstances, of the benefit of cl. 2 of the bill of lading. In neither of the Courts below was the decision of the majority of their Lordships in The Eurymedon open to challenge. On the present appeal neither party has sought to cast doubt upon the correctness of what was there decided and I would not be disposed to canvass the decision were it not that my dismissal of this appeal might otherwise be taken as involving the acceptance of that decision. Accordingly I will endeavour to state, as concisely as possible, why, with respect, I take a view different from that of the majority in The Eurymedon. (at p255)

5. That case turned upon the view to be taken of the equivalent of cl. 2 of the present bill of lading. The effect of these clauses is, first, to exempt the carrier's servants and agents and "every independent contractor from time to time employed by the Carrier" from liability to the shipper, consignee or owner of the goods for loss or damage or delay while acting in the course of or in connexion with their employment. Every exemption and limitation to which the carrier is entitled is then expressly made available to them. Finally, "for the purpose of all the foregoing provisions" of the clause the carrier is "deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be his servants or agents from time to time (including independent contractors as aforesaid)" all of them being "to this extent" deemed to be parties to the contract in or evidenced by the bill. The latter part of the clause thus acknowledges, as between shipper and carrier, that the carrier is, for the purpose of what goes before, contracting as agent for each of its servants, agents and independent contractors, who are to that extent deemed to be parties to the contract with the consignor. What goes before is the conferring upon each of them of the benefit of every exemption from liability and immunity to which the carrier is entitled under the bill. But for the doctrine of consideration the legal consequence would be clear; a stevedore would be entitled to the benefit of those exemptions in the bill. (at p255)

6. However, because, at the date of the bill, the stevedore at the port of discharge had as yet provided no consideration, the learned trial judge in The Eurymedon (1975) AC 154 , Beattie J., concluded that that could not be the effect in law of this clause. Nevertheless, he felt able to give the clause effective operation by reading it as an offer of immunity by the shipper to all persons of the class mentioned, including the stevedore, the carrier being their agent to receive that offer. Performance by any of them of services for the consignor was an acceptance of the offer and resulted in a unilateral contract of the familiar Carlill v. Carbolic Smoke Ball Co. (1893) 1 QB 256 type. On appeal, the members of the New Zealand Court of Appeal agreed with Beattie J. concerning the effect of the want of consideration on the part of the stevedore but unanimously rejected his alternative reading of the clause; they did not see it as involving any offer by the shipper to all persons of the class involved. The fullest statement of this approach appears in the judgment of Perry J. in A. M. Satterthwaite &Co. Ltd. v. New Zealand Shipping Co. Ltd. (1973) 1 NZLR 174, at pp 184-186 . The stevedore's reading of the clause, as his Honour saw it, would involve an offer by the shipper addressed to all the carrier's servants, agents and independent contractors, and capable of acceptance by an infinite variety of acts of performance. His Honour regarded such an interpretation as neither reflecting the parties' intention nor as justified by any fair reading of the words of the clause, which spoke only of one contract, a concluded and specific contract evidenced by the bill of lading. (at p256)

7. On appeal to their Lordships' Board the majority, in reversing the Court of Appeal, did not precisely adopt in its entirety the view which had found favour with Beattie J. at first instance. The analysis which their Lordships accepted was that of a bargain made at the outset between shipper and carrier, the latter acting as agent for the stevedore. This was a bargain unilateral in character but capable of becoming mutual and in fact becoming a "full contract" when, by discharging the cargo for the shipper's benefit, the stevedore provided consideration to the shipper for the latter's agreement that the exemptions and limitations in the bill should enure to the stevedore's benefit. (at p256)

8. Of the dissentients, Viscount Dilhorne viewed the clause as recording an agreement between shipper and carrier, the latter contracting both on its own behalf and on behalf of its agents, servants and independent contractors. He regarded the analyses adopted by Beattie J. and by the majority of their Lordships as each essentially requiring the clause to be construed as an offer by the shipper which the stevedore might accept, a reading of the language which his Lordship was unable to accept. Lord Simon of Glaisdale would also have dismissed the appeal, broadly for the reasons stated by the members of the New Zealand Court of Appeal. His Lordship thought that to construe the clause as an offer by the shipper was inconsistent with its express words and the absence of any stipulated mode of acceptance was, he thought, itself a fatal defect. (at p256)

9. The genesis of The Eurymedon lies in what was said by Lord Reid in Midland Silicones Ltd. v. Scruttons Ltd. (1962) AC 446, at p 474 . Lord Reid there suggested a means whereby a stevedore might possibly be given the benefit of those immunities which by its bill of lading a carrier might secure for itself as against a shipper. In all the successive judgments in The Eurymedon Lord Reid's suggestion was accepted as authoritative and the question was whether the clause in fact answered the description of what Lord Reid had suggested, in particular whether, when applied to a discharging stevedore, Lord Reid's requirement as to overcoming "any difficulties about consideration moving from the stevedore" had been satisfied. Whereas Beattie J. overcame these difficulties by discerning a Carlill-type unilateral contract, the majority of their Lordships, while acknowledging no substantially different analysis, preferred to express the relationship as involving an initial "bargain" between and shipper and stevedore, albeit devoid of consideration moving from the latter. That has, no doubt, the advantage that it better accords with the language of the clause, couched as it is in terms of an immediately concluded agreement but, as I would understand it, it differs from a Carlilltype unilateral contract only in that persons to whom the offer is made are present at the time of its making (in the present case, in the shape of the carrier who is their agent to receive the offer). It is their presence and their assent (if that be not too strong a word) to the making of the offer to them that enabled their Lordships to say that although no binding agreement had been concluded a "bargain" had been struck which might mature into a "complete" contract if one to whom the offer was made performs part of the work contemplated under the bill of lading and thereby, at the same time, provides consideration in exchange for the shipper's promise which is involved in the offer. (at p257)

10. It is not surprising that there should have been difficulty in reconciling the operation of the clause with Lord Reid's earlier suggestion since, as Lord Simon of Glaisdale points out in his dissenting judgment in The Eurymedon (1975) AC, at p 183 , that form of clause was not drawn in the light of what his Lordship had said but, on the contrary, antedates Lord Reid's judgment in Midland Silicones. Indeed I would have thought, from the terms in which Lord Reid speaks in Midland Silicones, that his Lordship cannot have contemplated anything in the way of Carlill-type unilateral contract. His Lordship speaks of the carrier "contracting as agent for the stevedore that these provisions should apply to the stevedore" and of the carrier having authority from the stevedore "to do that", words which contemplate the creation of a contract having immediate effect as binding both parties and which are as inappropriate to an orthodox Carlill-type unilateral contract as they are to the particular formulation favoured by the majority of their Lordships. (at p257)

11. In my view cl. 2, which was not designed to give effect to Lord Reid's suggestion in Midland Silicones, is not in fact capable of giving effect to it. I respectfully share with those of their Lordships who dissented and with the members of the New Zealand Court of Appeal an inability to read its words as recording anything other than a contract then and there concluded, and which, in relation to the stevedore, necessarily falls foul of the doctrine of consideration. Nor am I, with respect, satisfied that, either in the interests of international commercial comity or upon grounds of public policy, this is a case in which the language of the parties ought to be strained in an endeavour to give it an efficacy which, according to its ordinary meaning, it does not possess. (at p258)

12. On the score of public policy the observations of Sheppard J. at first instance are of cogency. His Honour thought it proper to refer to aspects of the evidence which had disturbed him, aspects which suggested a lack of effective supervision and perhaps a degree of irresponsibility on the part of those whose task it was to care for goods discharged in the port of Sydney. As his Honour points out, while to enable such persons to contract out of liability may reduce freight and stevedoring rates, it may also tend to increase insurance premiums for consignees. The vice lies in the relative inability of the latter, although bearing the burden of increased premiums, or of their insurers, to insist upon reasonable diligence on the part of the employees of the carrier or its contractors; they wholly lack the power to control those employees. At the same time the carrier and its contractors, in a position to exercise control and supervision, lack the incentive to do so which the sanction of increased premiums or possible liability involves. This divorcing of the power of control from any liability for the consequences of its non-exercise not only attracts that natural antipathy to exemption clauses and to the saving of "grossly negligent people from the normal consequences of their negligence", of which Fullagar J. spoke in Wilson v. Darling Island Stevedoring &Lighterage Co. Ltd. (1956) 95 CLR 43, at p 71 but may also be thought to be positively undesirable in the public interest. (at p258)

13. There is a further public policy consideration which at one and the same time bears upon the question of international commercial comity. While it is in the interests of great fleet-owning nations that their ocean carriers, and the servants and independent contractors which they employ, should be as fully protected as possible from liability at the suit of shippers and consignees, the interests of those nations which rely upon those fleets for their import and export trade is to the contrary. It was in response to such national interests that the United States of America and Australia, which both fell into the latter category, enacted the Harter Act of 1893 and our own Sea Carriage of Goods Act 1904, measures which circumscribed the carrier's freedom to contract out of liability. Each was more stringent than were the subsequent Hague Rules. Many nations, particularly developing nations, have come to regard those Rules as unduly favouring carriers at the expense of cargo owners, especially because of the quite restricted duration of the carrier's compulsory period of responsibility which they impose, ending as it does immediately upon discharge. It is not clear to me that Australian courts should regard it as in any way in the public interest that carriers' exemption clauses, effective before loading and after discharge, should be accorded any benevolent interpretation, either so as to benefit carriers or so as to benefit independent contractors by extending the scope of such clauses to include such contractors. If public policy does not dictate such a course, neither do considerations of comity. To read the transactions of the seminars on International Trade organized by the Attorney-General's Department is to appreciate the powerful movement among trading nations in a contrary direction, towards extension of the period during which both the ocean carrier and its land-based agents are to be denied the ability freely to exclude themselves from liability for damage to or loss of cargo. The draft Convention on carriage of goods by sea adopted at the ninth session of the United Nations Commission on International Trade Law (UNCITRAL) in 1976 provides evidence of this. (at p259)

14. Finally, in relation to international comity, it is worth noting that uniformity is little likely to be promoted by a clause such as the present cl. 2. The decision in The Eurymedon turned upon quite special facts, that the appellant stevedore not only habitually acted as such for the carrier in New Zealand but was its parent, so that, as Lord Wilberforce observed (1975) AC, at p 167 , "The carrier was, indisputably, authorised by the appellant to contract as its agent for the purposes" of the relevant clause. It was the absence of such circumstances which recently led the British Columbia Supreme Court in Calkins &Burke Ltd. v. Empire Stevedoring Co. Ltd. (1976) 4 WWR 337 to distinguish The Eurymedon, the carrier in the Canadian case not being shown to have had the stevedore's authority to contract on its behalf. It is to be noted that in that case the 1971 decision of the Supreme Court of Canada in Canadian General Electric Co. Ltd. v. Pickford &Black Ltd. (1970) 14 DLR (3d) 372 which applied to stevedores the principles in Midland Silicones (1962) AC 446 , was preferred to that of The Eurymedon (1975) AC 154 - see at p. 350. Not only will circumstances vary from case to case but recent American experience suggests that clauses employed in United States bills of lading are, as might be expected, by no means uniform. In a number of recent United States cases the outcome, so far as concerns the ability of stevedores to rely upon examination clauses, has varied depending upon the precise wording of the clause. Thus the decision to which Lord Wilberforce referred when he said that "Commercial considerations should have the same force on both sides of the Pacific", that of a United States District Court in Carle &Montanari Inc. v. Amercian Export Isbrandtsen Lines Inc. (1968) 1 Lloyd's Rep 260 may be contrasted with that of the United States Supreme Court in Krawill Machinery Corpn. v. Robert C. Herd &Co. Inc. (1959) 1 Lloyd's Rep 305 (where the bill of lading did not specifically extend protection to the stevedore), that of the United States Court of Appeals, Second Circuit in The Mormacstar (1973) 2 Lloyd's Rep 485 (where the bill of lading defined "carrier" so as to include all persons rendering services in connexion with performance of the contract) and that of the United States Court of Appeals, Ninth Circuit in Tessler Bros (B.C.) Ltd. v. Italpacific Line and Matson Terminals Inc. (1975) 1 Lloyd's Rep 210 (where the bill of lading specifically referred to stevedores). In the first two of these cases the stevedores were denied the protection of exemption clauses but they gained their protection in the third. (at p260)

15. Anything approaching uniformity of the law affecting international trade is no doubt difficult of attainment but it may be that the path to it lies rather by route of international conventions and subsequent national legislation than by the adoption of any deliberate direction in the judicial interpretation of the parties' documents in particular cases. (at p260)

16. If, contrary to the views which I have expressed, cl. 2 of the bill of lading is effective to confer immunities upon the stevedore while engaged in the actual discharge of the vessel, does it also afford protection to the stevedore after completion of discharge but before a consignee has actually taken delivery of the goods and removed them from the wharf area? In the present case the loss occurred some time after discharge and while the goods were in the stevedore's custody awaiting collection by the consignee. (at p260)

17. Clause 2 of the bill of lading is expressed to operate in favour of "every independent contractor from time to time employed by the Carrier . . . while acting in the course of or in connexion with his employment", the carrier's immunities being extended to such independent contractors "acting as aforesaid". It follows, I think, that only so long as the stevedore is carrying out obligations of the carrier under the bill of lading will it be entitled to the immunities of the carrier; only so long will it be relevantly employed by the carrier and be acting in the course of or in connexion with the employment to which the clause refers. (at p261)

18. Accordingly the precise limits of the carrier's obligations under the bill of lading become critical. The opening words of the body of the bill refer to receipt of the goods for transport to the port of discharge "there to be delivered" on payment of charges, the transport of the goods being subject to "all the terms of this bill of lading"; then follow over twenty clauses of which cll. 5, 7 and 8 are of present relevance. (at p261)

19. Clause 5 is concerned not so much with the carrier's obligations as with the limitation and, in some instances, the exclusion of its liability; it narrowly confines the carrier's responsibility "as a carrier" to the period from the loading of the goods aboard until the goods leave the ship's tackle at the port of discharge. (at p261)

20. Clause 8 is exclusively concerned with a quite different subject matter, the mode of delivery of the goods. It provides that delivery of the goods shall be taken by the consignee from the vessel's rail immediately the vessel is ready to discharge. It goes on to provide that "Delivery ex ship's rail shall constitute due delivery of the goods described herein and the carrier's liability shall cease at that point notwithstanding consignee receiving delivery at some point removed from the ship's side and custom of the port being to the contrary". There are some obvious infelicities in the drafting of this clause. The word "delivery" is clearly used in different senses, the reference to the consignee receiving "delivery" at some point removed from the ship's side referring to the taking of actual physical possession of the goods by the consignee or its agent. (at p261)

21. However it is otherwise clear enough that the carrier's contractual obligation to deliver the goods is to be discharged by delivery ex ship's rail whether or not the consignee takes actual possession of the goods at that point. There is, no doubt, a certain circularity in the phrase "delivery ex ship's rail shall constitute due delivery", but if for "due delivery" one reads "due performance of the obligation to deliver" the meaning is clear enough. This is a common enough provision in bills of lading and once the goods have passed over the ship's rail then, in the words of Starke J. in Keane v. Australian Steamships Pty. Ltd. (1929) 41 CLR 48, at p 501 , they will have been "delivered according to the exigency of the contract, and no further obligation" will rest upon the carrier. Again, in the words of Griffith C.J. in Australasian United Steam Navigation Co. Ltd. v. Hiskens (1914) 18 CLR 646, at p 657 :
"The mode in which the transfer of possession is to be effected is, in my opinion, entirely a matter for agreement between the consignor and the carrier in each case, and when the carrier has done the stipulated acts in the agreed mode of making the transfer his contract to deliver has been performed". (at p262)

22. Clause 7 is of interest only by way of analogy; it deals with the situation where the goods are discharged otherwise than at the port of discharge and in relation to that situation deals both with the carrier's responsibility (cf. cl. 5), which "shall cease at the vessel's rail when the goods are so discharged", and with the question of due delivery (cf. cl. 8). As to the latter it provides that discharge over the ship's rail "shall constitute due delivery of the goods under this Bill of Lading", the carrier acting as forwarding agent only after the goods have left the vessel's rail. "Discharge" is spoken of rather than "delivery", no doubt because where goods are unloaded otherwise than at the port of discharge it would be inapposite to speak of there being a "delivery". By way of contrast the word "delivery" is appropriate enough in cl. 8 where the goods are in fact unloaded at the port of discharge. However whether it be "discharge", as in cl. 7, or "delivery", as in cl. 8, the effect is the same: in each case it is "due delivery of the goods" which is referred to in the sense of due performance of the carrier's contractual obligations. (at p262)

23. So interpreted, the carrier's obligations under the bill of lading determine once and for all when, by discharge ex ship's rail, the carrier effects due delivery of the goods. Those provisions of cl. 5 designed to exclude or diminish liabilities to which the carrier may otherwise become subject after discharge of the goods do not, I think, negate the ending of its obligations upon discharge. Read in context they are, I think, no more than an instance of the carrier then and there obtaining for itself the benefit of a contractual limitation of liability of which it may later have occasion to avail itself should it subsequently find itself in the position of a bailee of the goods under some bailment arising not ex contractu under the bill but from some dealing by it with the discharged goods. One other provision of the bill of lading calls for comment. In the attestation clause signed by the ship's agents occurs the usual reference to the carrier's agent having affirmed to three bills of like tenor, one of which being accomplished the others to stand void; then follows the statement that one of the bills "must be given up, fully endorsed, in exchange for release or delivery order". This provision does not, I think, lend any support to the view that the carrier's obligations persist after discharge, it is concerned with the function of the bill as a negotiable document of title rather than as a contract of carriage. (at p263)

24. If the carrier's obligations under the bill determine upon due delivery over ship's rail the relevant employment of the stevedore referred to in cl. 2 will be coextensive and the immunities conferred by that clause will also determine at that point. They will therefore have no operation at the later time when the goods are lying in storage in the stevedore's custody awaiting collection by the consignee. (at p263)

25. At first instance Sheppard J. rejected this view after careful consideration both of the clauses of the bill to which I have referred and of the authorities. I have already indicated the different view which I take of the various clauses and it remains to refer to certain authorities which his Honour referred to. His Honour linked the words in the attestation clause with a reference to Sze Hai Tong Bank Ltd. v. Rambler Cycle Co. Ltd. (1959) AC 576, at p 586 where their Lordships discuss the liability of carriers who deliver goods without production of the bill of lading. The case was one in which their Lordships cut down the extreme width of an exemption clause which would otherwise have defeated what was described as one of the main objects of the contract, the proper delivery of the goods against production of the bill of lading. So far as appears from the report of the case (which is also, and rather more fully, reported in (1959) 2 Lloyd's Rep 114 the bill of lading in question contained no such provision as cl. 8 of the present bill and their Lordships treated the contractual obligation as being to deliver, on production of the bill of lading, to the person entitled. There was a breach of that obligation and the only question was whether the carrier would gain protection by an exemption clause. The case has, therefore, nothing to say of a case such as the present where the parties have agreed upon "delivery by discharge upon the wharf", as Rich J. put it in Keane's Case (1921) 41 CLR, at p 499 and such delivery has been effected; no question of exemption clauses arises. The distinction is between clauses of exemption such as their Lordships were concerned with and a clause such as the present cl. 8 which is not concerned with exemption from liability for breach but with a definition of the act of due delivery. (at p264)

"Limitations on the Application of the Rules.

Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connexion with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by sea."

And the words "carriage of goods" are stated in art. 1 (e) to cover the period from the time when the goods are loaded on to the time when they are discharged from the ship. (at p279)

23. By cl. 5 of the bill of lading the carrier's responsibility in respect of the goods as a carrier terminates as soon as the goods leave the ship's tackle. By cl. 8 the consignee is required to take delivery from the vessel's rail immediately the vessel is ready to discharge. Delivery ex ship's rail is by the same clause to constitute due delivery of the goods and it is provided that the carrier's liability shall cease at that point notwithstanding the consignee receiving delivery at some point removed from the ship's side. Nevertheless, it is envisaged that the carrier may unload the goods without the consignee taking delivery ex the ship's rail and it is then made clear that the obligations of the carrier as a carrier are at an end, and at most its obligations are those of a bailee with the exceptions to liability expressed in cl. 5. And that liability is further limited by the limitation of time for action provided for in cl. 17. (at p279)

24. The carrier, having completed the carriage of the goods, employed the appellant stevedore to deliver the goods on its behalf to the holder of the bill of lading. The first question which arises is whether the carrier employed the appellant to do anything after the termination of the sea carriage except to deliver the goods against a copy of the bill of lading. Can it be said that the appellant was performing in the course of or in connexion with an employment by the carrier a duty arising under the bill of lading to keep the goods safe pending delivery to the holder of the bill of lading? The answer is - No. Any duty of the carrier to take care of the goods, after the completion of the sea carriage and if delivery was not taken ex ship's rail, would arise, not from an obligation under the bill of lading, but from the fact of any actual possession of the goods which it might have as a bailee. The bill of lading in cl. 5 does not impose this obligation. It defines the contractual obligation as ending when the goods are unloaded and thereby limits any further obligation to that which would arise under the general law of bailment as distinct from the law governing sea-carriage of goods. We do not mean thereby that the operation of the bill of lading is exhausted. Clearly it is not. The exemption and limitation provisions continue to operate according to their terms. There remains the obligation under the contract to deliver the goods in exchange for a copy of the bill of lading. (at p280)

25. However, it does not follow that the appellant was acting as the agent of the carrier when it stacked and stored the goods on the wharf. The appellant stacked and stored the goods on the wharf on behalf of and at a charge to the holder of the bill of lading. The obligation to stack and store pending delivery was not imposed by the bill of lading upon the carrier or upon anyone else. Neither the carrier nor his port agent, the first named defendant, was in possession of the goods as bailee when the goods had been unloaded on to the wharf even though the goods remained at their order until a copy of the bill of lading was exchanged for them. Cf. York Products Pty. Ltd. v. Gilchrist Watt &Sanderson Pty. Ltd. (1968) 3 NSWR 551; (1970) 2 Lloyd's Rep 1 . Sheppard J. at first instance concluded that the ship's agent did not have possession of the goods after they had been unloaded on to the wharf, and we agree with this conclusion. If follows that any liability of the appellant arising from its possession of the goods is a liability which arose independently of any liability in the carrier. If there were any doubt that this was so, the position is made quite clear by the concluding words of condition 5. These words have the effect that when the carrier has through the appellant as stevedore unloaded the goods into the hands of the appellant, it, having ceased to have actual custody of the goods, was not liable for loss of the goods in any capacity, either that of carrier or of bailee. (at p280)

26. Whereas in The Eurymedon (1975) AC 154 the stevedore was held entitled to the immunity in circumstances where the carrier was entitled to the same immunity arising under the same provision in the bill of lading, in the present case the appellant claims, independently of the carrier, the limitation of time for action contained in cl. 17. However, the carrier's immunity arises from it not having had actual custody. It therefore had no need to rely on condition 17. (at p280)

27. The question then arises whether condition 17 gives the appellant the benefit of the limitation contained therein in cases where the carrier is otherwise not liable or only in cases where there is a concurrent liability in the carrier. In our opinion, the reasoning underlying the implication in The Eurymedon of a contract between shipper and stevedore is that there can be found to exist an agreement between shipper and stevedore that where in particular circumstances the carrier has the benefit of a clause giving immunity or limitation, then in those circumstances the stevedore shall be entitled to rely on that same immunity or limitation to which the circumstances have given rise. The reasoning underlying the finding of a contract between shipper and stevedore is that the immunity or limitation is transferred, that what has been called a vicarious immunity or limitation of action arises in favour of the stevedore. It would be a great extension of The Eurymedon doctrine to apply it to a case where the immunity or limitation of action is not one which the carrier, its servants and agents (including independent contractors) all could claim, but is one where no liability would arise in the circumstances in the carrier. It is not an extension which in our opinion ought to be made. There was something commercially unreal in the way legal principle could be applied to give a sea-carrier an immunity but at the same time to deny it to his servant or his agent even though an immunity in their favour was intended. The benefit of the immunity could for instance be lost to the carrier if under the general law or as a result of a particular contract he was bound to indemnify his servant or agent. However, if the negligence of the independent contractor is not negligence for which the carrier would, in the absence of the immunity or limitation clauses, be vicariously liable but is the sole responsibility of the independent contractor, the expressed reasons of the majority in The Eurymedon cease to be applicable. The case remains one where it is proper to apply the course of decision relied on by the minority. The rule in Tweddle v. Atkinson (1861) 1 B &S 393 (121 ER 762) can properly be applied, especially when recourse may properly be had to the rule that immunity and limitation clauses in contracts will be strictly construed. The various considerations referred to by Sheppard J. at the conclusion of his judgment strongly support a conclusion that The Eurymedon should not be applied to a case where the carrier has completed the due performance of its obligations of carriage and unloading and a stevedore or wharfinger has undertaken independently of the carrier the storage of the goods on the local wharf. (at p281)

28. If the case were one of misdelivery and not of negligence in the safekeeping of the goods on the wharf, the appellant might be able to claim the benefit of cl. 17. The stevedore was the agent of the carrier to deliver the goods to the consignee in exchange for a copy of the bill of lading. A delivery of the goods to a stranger without requiring the production and exchange of a copy of the bill of lading would be an act which, even though unauthorized by the carrier, might create a vicarious liability in the carrier. Further, it might be outside the immunity provisions of the bill of lading on the true construction of the latter. See Sze Hai Tong Bank Ltd. v. Rambler Cycle Co. Ltd. (1959) AC 576 . We say "might" create a vicarious liability because we do not find it necessary to determine whether in the concluding words of cl. 5 the words "occurring while the goods are not in the actual custody of the Carrier" govern the words "non-delivery or misdelivery" as well as the words "loss of or damage to the goods". The facts of the present case do not support a case of misdelivery of the kind considered in the last mentioned case or in Sydney City Council v. West (1965) 114 CLR 481 . In the latter case, it will be recalled, the Council was held not to be exonerated from liability for the loss of the respondent's vehicle by an exemption clause which excluded liability for loss of a vehicle (however such loss may arise or be caused). The clause was one of the conditions on a parking ticket issued to the respondent when he parked his car in the Council's parking station. The ticket also bore the notation "IMPORTANT. This ticket must be presented for time stamping and payment before taking delivery of the vehicle". The attendant permitted a stranger who presented a duplicate ticket relating to another vehicle to drive the vehicle out of the station. It was held that the exemption clause did not exempt the appellant Council from liability for the misdelivery. Barwick C.J. and Taylor J. said (1965) 114 CLR, at pp 488-489 :
"To our minds the clause clearly appears as one which contemplates that, in the performance of the Council's obligations under the contract of bailment, some loss or damage may be caused by reason of its servants' negligence but it does not contemplate or provide an excuse for negligence on the part of the Council's servants in doing something which it is neither authorized nor permitted to do by the terms of the contract." (at p282)

29. Their Honours, after referring to evidence which established that the function of the attendant who was posted at the exit was to permit vehicles to proceed only upon the surrender by the driver of an appropriate parking ticket, the ticket being the customer's "entrance card into and out of the parking station", concluded by saying (1965) 114 CLR, at p 489 :
"To our minds, therefore, the act of the attendant in permitting 'Robinson' to proceed after handing over the duplicate ticket which he had obtained constituted an unauthorized delivery of possession by him to 'Robinson' and not a mere act of negligence in relation to some act authorized by the contract of bailment." (at p283)

30. Windeyer J. decided the case adversely to the Council on the related ground that the Council had undertaken to deliver the vehicle only upon presentation of the appropriate parking ticket and it had released the vehicle from its custody without such presentation. (at p283)

31. In the present case the goods were allowed to be loaded on to the thieves' truck but the loading was not an unconditional but mistaken delivery of the goods. The loading was on condition that a delivery order and copy of the bill of lading be exchanged for a gate pass in respect of the goods. The thieves, once the goods had been loaded, drove off and forced their way through the gate. The negligence lay in a system which allowed a conditional loading of the goods, not in delivering the goods without requiring a copy of the bill of lading. It was a failure to keep the goods safely on the wharf and it makes no difference that the loss of the goods occurred, not by pilfering or robbery, but by tricking the servants of the respondent into allowing the goods to be loaded on to a vehicle and then forcing a way out of the wharf. It follows therefore that the appellant stevedore did not as agent for the carrier misdeliver the goods; rather, it as bailee failed to take reasonable care of the goods. This separate act of negligence was not the subject of cl. 2 of the bill of lading and therefore the appellant was not entitled to rely on the limitation of action provision in cl. 17. (at p283)

32. The particular grounds of appeal relating to the form of the order for costs made in the Court of Appeal were not argued and it is not necessary to consider them. For these reasons we would dismiss the appeal with costs. (at p283)

33. No argument was presented upon the cross-appeal in respect of that order for costs and this appeal should also be dismissed with costs. (at p283)

MURPHY J. One of the grounds of appeal is that, as the Court of Appeal reversed Sheppard J.'s decision "upon an argument not urged or agitated before him and not the subject of factual enquiry at the trial", the respondent should not have been granted leave to present the argument and it should not be allowed to rely upon it. The resolution of this point, and, therefore, of this decision, involves the application of the Judiciary Act 1903, as amended, and of the High Court Rules (an instrument made under that Act). The Court of Appeal stated in its reasons for judgment that the appellant had conceded that it would not have sought to tender any other evidence if the issue had been raised before the primary judge. The correctness of this statement was denied by the appellant, but asserted by the respondent. The appellant sought to rely on an affidavit it had filed in this Court detailing part of the course of proceedings before the Court of Appeal, but was not permitted to add to the record filed in accordance with the High Court Rules. The proper application of this Court's appeal powers under the Judiciary Act allows the respondent to rely upon the argument. (at p284)

2. The first question is whether Port Jackson Stevedoring Pty. Ltd. ("the stevedore") is entitled to rely on the terms of the contract between Blue Star Line Ltd. ("the carrier") and the consignor, to which the respondent consignee, Salmond and Spraggon, became a party. In New Zealand Shipping Co. Ltd. v. A. M. Satterthwaite &Co. Ltd. (The Eurymedon) (1975) AC 154 the Privy Council held that the stevedore can rely on the terms of a contract, although not a party to it, if certain conditions are satisfied. One of these conditions is that there is consideration by the stevedore, but in this case, the Court of Appeal thought there was no consideration as the stevedore was not shown to have relied upon the promised immunity in the bill of lading when it performed its work of discharging the ship. However, the evidence that the stevedore knew of the terms of the bill of lading and acted in accordance with them raises a presumption that it relied upon them. (at p284)

3. The insistence upon an element of consideration in the attempt to preserve a general theory of contract applicable in every situation forces the law into undesirable technicalities. The general theory of contract has some shaky foundations and the doctrine that consideration is necessary was a late development. In the carriage of goods by sea, there are special practical considerations which suggest that the requirement of consideration by the stevedore may be undesirable. There are strong reasons for contract law to evolve so that obligations which a consignee undertakes (and the immunities expressed to be conferred by him on the stevedore by a bill of lading) should apply for a stevedore's benefit irrespective of whether there was any consideration. As The Eurymedon shows, there is no great difficulty in finding a theory to justify extending to a stevedore the immunities and other advantages which are expressed to be extended to it by a bill of lading. If the adoption of such a theory as part of our decisional law would serve Australia's interests, this should be done. However, the overseas carriage of goods and the stevedoring industry are enmeshed by restrictive practices. Australian importers have no real freedom in their arrangements; to regard these as being in the area of contract is a distortion. The bill of lading in this case shows that, although there are references to the carrier's obligations, the thrust of the document is to relieve the carrier and its agents from virtually all responsibility. I agree with Stephen J.'s observations on the aspects of public interest. (at p285)

4. My conclusion is that a contract should not be conjured up out of the circumstances in order to extend the exemptions and immunities under the bill of lading to the stevedore. For this reason, I would dismiss the appeal. (at p285)

5. I will deal with the other main contention. Sheppard J. rejected the respondent's argument that (assuming the stevedore was entitled to the immunities of the bill of lading) the carrier's obligations and the stevedore's immunity ended when the goods were passed over the ship's sides or discharged from the ship's tackles, that is, before the events giving rise to the claim. The respondent repeated the argument to the Court of Appeal, which rejected it as being without substance and adopted Sheppard J.'s reasons. In this Court, the respondent's counsel stated that he was reluctant to put the argument again "because it does appear, at least on a fair reading of parts of the bill of lading, that it extends beyond the time the goods pass over the ship's side or are discharged from the ship's tackle". (at p285)

6. Clause 5 of the bill of lading provides that "the carrier's responsibility in respect of the goods as a carrier . . . shall terminate without notice as soon as the goods leave the ship's tackle at the port of discharge". Clause 8 provides that "delivery of the goods shall be taken by the consignee or holder of the bill of lading from the ship's rail immediately the vessel is ready to discharge", that "delivery ex ship's rail shall constitute due delivery of the goods" and that "the carrier's liability shall cease at that point notwithstanding consignee receiving delivery at some point removed from the ship's side". These suggest that the bill of lading required the carrier to do no more than discharge the goods at the port of discharge. It was stated in Sze Hai Tong Bank Ltd. v. Rambler Cycle Co. Ltd. (1959) AC 576, at p 586 that "the contract is to deliver, on production of the bill of lading, to the person entitled under the bill of lading", but in this bill, the attestation clause provides "as required by the carrier or his agents, one of the bills of lading will be given up, fully endorsed, in exchange for release or delivery order". This suggests that the carrier may, but need not, require exchange of bill for delivery. Once the cargo is discharged, the carrier and its agents have no further obligation (see Keane v. Australian Steamships Pty. Ltd. (1929) 41 CLR 484 ). But cl. 8 of the bill contemplates that delivery may occur "at some point removed from the ship's side" and also provides that any responsibility of the carrier in respect of the goods continuing after leaving the ship's tackle shall not exceed that of an ordinary bailee. (at p286)

7. A view fairly open is that if the carrier does assume the role of bailee by storing or caring for the cargo, the exemptions and immunities apply to it whilst so acting, and also to any agent, including the stevedore. If the bill were looked at in isolation, I would be inclined to read the immunities and exemptions as extending beyond the discharge of the cargo. On that construction, as the suit was not commenced until after one year from the loss, cl. 17 would give the stevedore immunity. The respondent claimed that immunity in cl. 17 is restricted to the liabilities mentioned in exemption clauses. This cannot be right. Where the exemption clauses apply, there is no room for the operation of immunity from suit as no liability arises. The words, "in any event", are intended to cover such liability as exists despite the exemption clauses. It is thus unnecessary to decide whether the exemption clauses, if available, applied. I think they did. (at p286)

8. However, the document is not to be read in isolation. As I indicated earlier, this one-sided document arises in circumstances where consignees have no real choice and the bill reflects this. The question whether the carrier's obligations extended beyond the discharge of the cargo conceals the real question which is whether the zone of irresponsibility extends beyond the discharge. The document is confused enough to treat it as ambiguous. I would read it strongly against the carrier and its agent and hold that the exemptions and immunities ceased upon discharge of the cargo. Thereafter the stevedore assumed the role of bailee and should be liable as such without the exemptions and immunities in the bill of lading. (at p286)

9. The respondent did not advance any argument based on the Sea-Carriage of Goods Act 1924, s. 9 (2) which provides:
"Any stipulation or agreement, whether made in the Commonwealth or elsewhere, purporting to oust or lessen the jurisdiction of the Courts of the Commonwealth or of a State in respect of any bill of lading or document relating to the carriage of goods from any place outside Australia to any place in Australia shall be illegal, null and void and of no effect." (at p286)

10. The appeal should be dismissed. (at p286)

Orders

Appeal and cross-appeal dismissed with costs.