The Sanko Steamship Co. Ltd v Sumitomo Australia Ltd

[1993] FCA 678

THE SANKO STEAMSHIP CO. LIMITED and GRANDSLAM ENTERPRISE CORPORATION v.
SUMITOMO AUSTRALIA LIMITED
No. NG82 of 1991
FED No. 678
Number of pages - 3
Shipping And Navigation - Public International Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
IN ADMIRALTY
LOCKHART(1), GUMMOW(2), COOPER(3) JJ.

CATCHWORDS

Shipping And Navigation - limitation of liability - whether Limitation of Liability for Maritime Claims Act 1989 may be invoked in respect of occurrence before commencement of the Act.

Public International Law - Convention on Limitation of Liability for Maritime Claims, 1976 - effect of legislative declaration that provisions of Convention have "the force of law in Australia" - relevance to interpretation of Australian statute of Vienna Convention on the Law of Treaties, 1969.

Admiralty Act 1988

Limitation of Liability for Maritime Claims Act 1989

HEARING

SYDNEY, 3, 4 June 1993

#DATE 29:9:1993

Counsel and solicitors for the plaintiffs: Mr B.W. Rayment QC and

Mr A.J. Meagher instructed by Ebsworth and Ebsworth

Counsel and solicitors for the defendant: Mr W.W. Caldwell QC and

Mr P.E. King instructed by Dunhill Madden Butler

ORDER

THE COURT answers the question reserved for determination by the Full Court as follows:

Question:

Does the 1976 Limitation Convention set forth in the first

schedule to the Liability for Maritime Claims Act 1989 (Cth)

apply in respect of the grounding and sinking of the "Sanko

Harvest"?

Answer: No.

THE COURT ORDERS THAT the costs of the defendant of the Stated Case be paid by the plaintiffs.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

LOCKHART J I agree with the reasons for judgment of Gummow J, the answers which he proposes to the questions asked in the case stated and the order for costs proposed by his Honour.

JUDGE2

GUMMOW J This is a Stated Case, pursuant to s. 26 of the Federal Court of Australia Act 1976, by a Judge of the Court (Sheppard J). The matter was heard by the Full Court together with the case stated in Victrawl Pty Limited v A.O.T.C. Limited and other co-owners of Anzcan Cable. This was because the two proceedings posed similar and important issues of construction of the limitation of liability provisions in the Limitation of Liability for Maritime Claims Act 1989 ("the 1989 Act") and of the relationship between the 1989 Act and Part VIII of the Navigation Act 1912 ("the Navigation Act"). These reasons should be read with my reasons for judgment in the other matter, also to be delivered today.

1. The agreed facts may be summarised as follows. The second plaintiff ("Grandslam") was the demise charterer of the vessel "Sanko Harvest" under a long term charter party. Grandslam was the employer of the master and crew of the vessel. The first plaintiff ("Sanko") was the time charterer of the vessel for a period of years. The defendant ("Sumitomo") was the voyage charterer of the vessel from Sanko, for a voyage from the port of Tampa, Florida in the United States, to Esperance and two other ports in Western Australia. On that voyage, the vessel carried a cargo of fertilisers owned by Sumitomo. On 14 February 1991, during that voyage, the vessel ran aground whilst approaching the port of Esperance. On 18 February 1991, the vessel sank. The cargo was a total loss.

2. As I have indicated in the other judgment, the commencement date of the 1989 Act had not arrived. The 1989 Act commenced on 1 June 1991.

3. After the events of February 1991 and in the interval before the commencement of the 1989 Act, Sanko and Grandslam commenced a proceeding in this Court pursuant to s. 25 of the Admiralty Act 1988 ("the Admiralty Act"). They claimed an order limiting their liability pursuant to the provisions of what I have identified in the other judgment as the 1957 Convention. This had the force of law as part of the law of the Commonwealth pursuant to s. 333 of the Navigation Act.

4. This case is thus to be distinguished from the other matter where, whilst the crucial occurrence also occurred before 1 June 1991, the jurisdiction of this Court under s. 25 of the Admiralty Act was not invoked until 31 October 1991.

5. On 19 August 1991, Sumitomo filed a defence and cross-claim which was subsequently amended. Damages were claimed from each of Grandslam and Sanko for breach of the voyage charter party, for breach of bailment and for negligence in respect of the loss of the cargo. By their defence to the cross-claim, filed 30 September 1991, Grandslam and Sanko repeat the matters alleged in the statement of claim and assert that any liability they have is limited by reason of the provisions of the 1957 Convention.

6. On 31 July 1992, an amended defence to the cross-claim was filed. Grandslam and Sanko now sought to rely on the provisions of what in the other judgment I have described as the 1976 Convention.

7. All parties agree that the 1957 Convention as comprised in the Navigation Act applies in respect of the grounding and sinking of the vessel and that the application of Sanko and Grandslam for limitation under it may be pursued notwithstanding the repeal of Schedule 6. That repeal was effective, in the manner explained in the other judgment, on 31 May 1991.

8. However, Sumitomo contends and Sanko and Grandslam deny that, having regard to the circumstance that the events in February 1991 preceded the commencement of the 1989 Act, the 1976 Convention does not apply. The trial before Sheppard J commenced on 31 August 1992 and occupied a number of days. On 12 February 1993 his Honour reserved his decision.

9. The question reserved for determination by the Full Court is:
   

"Does the 1976 Limitation Convention set forth

in the first schedule to the Liability for

Maritime Claims Act 1989 (Cth) apply in respect

of the grounding and sinking of the 'Sanko Harvest'?"

1. In the other matter, I concluded that the Court should answer "Yes" to the question:
   

"Having regard to the date of the relevant

occurrence, before the coming into effect of the

Limitation of Liability for Maritime Claims Act

1989 (Cth), is the plaintiff precluded from

invoking the provisions of the Convention of

1976, set forth in the First Schedule to the

said Act?"

1. The reasoning which led to that conclusion also dictates an answer to like effect in the present case. There is no relevant distinction in the facts in the two cases. The circumstance that the first invocation of the jurisdiction of the Court in the present case occurred before the commencement of the 1989 Act is not a distinction which supports the operation here of the 1976 Convention.

2. Accordingly, the question reserved in the present case should be answered "No".

3. The defendant's costs of the Stated Case should be paid by the plaintiffs.

JUDGE3

COOPER J I have read the reasons for judgment of Gummow J. I agree with the answer which he proposes to the question asked in the case stated for the reasons he has given. I also agree that the plaintiffs should pay the defendant's costs of the case stated.