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Trust) v The Ship ‘Eternal Wind'

Trust) v The Ship ‘Eternal Wind'

Case [2005] QSC 4 14 January 2005

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SUPREME COURT OF QUEENSLAND

CITATION: Fortuna Seafoods Pty Ltd (As Trustee for the Rowley Family
Trust) v The Ship ‘Eternal Wind’ [2005] QSC 004
PARTIES: FORTUNA SEAFOODS PTY LTD (AS TRUSTEE FOR
THE ROWLEY FAMILY TRUST)
(plaintiff)
v
THE SHIP ‘ETERNAL WIND’
(defendant)
FILE NO/S: BS1485 of 2000
DIVISION: Trial Division
PROCEEDING: Claim
ORIGINATING
COURT: Supreme Court
DELIVERED ON: 14 January 2005
DELIVERED AT: Brisbane
HEARING DATE: 16, 17, 18 August 2004
JUDGE: Douglas J
ORDER: Judgment for the plaintiff for $163,256.00 and interest at
9% per annum from 5 December 1998.
CATCHWORDS: TORTS – NEGLIGENCE - ESSENTIALS OF ACTION
FOR NEGLIGENCE -DUTY OF CARE - REASONABLE
FORESEEABILITY OF DAMAGE –GENERALLY -
RELATIONSHIP OF PROXIMITY - ECONOMIC LOSS —
DETERMINING EXISTENCE OF DUTY – Whether the
defendant knew or had the means of knowing that the
plaintiff was a member of an ascertainable class of vulnerable
persons who were unable to protect themselves from harm –
Plaintiff marketed seafood for and had some common
shareholders and common directors with related company
whose ship was damaged in a collision with the defendant –
Plaintiff claimed as damages the profit it would have earned
from processing and selling seafood that it obtained from
related company and sold as its agent – Plaintiff also a trustee
of discretionary trust of which related company was a
beneficiary.
Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding
Ltd [1997] 3 S.C.R. 1210, referred to
Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad
(1976) 136 CLR 529, applied
Canadian National Railway v. Norsk Pacific Steamship Co.
[1992] 1 S.C.R. 1021, referred to
Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd
(The Mineral Transporter) [1986] AC 1; (1985) 3 NSWLR
159, referred to
Carbone v Ursich (The Del Rio) 209 F 2d 178 (1953),
referred to
Cattle v Stockton Waterworks Co (1875) LR 10 QB 453,
referred to
Christopher v MV “Fiji Gas” (1993) Aust Torts Rep. 81-202,
distinguished
Hadoplane Pty Ltd v Edward Rushton Pty Ltd [1996] 1 Qd R
156, referred to
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC
27, referred to
Main v Leask [1910] SC 772, referred to
Morrison Steamship Co Ltd v Greystoke Castle (Cargo
Owners) [1947] AC 265, referred to
Natcraft Pty Ltd v Det Norske Veritas [2001] QSC 348,
referred to
Perre v Apand Pty Ltd (1999) 198 CLR 180, discussed and
applied
Société Anonyme de Remorquage à Hélice v Bennetts [1911]
1 KB 243, distinguished
United Dominions Corporation Ltd v Brian Pty Ltd (1985)
157 CLR 1, cited
Valleyfield Pty Ltd v Primac Limited [2003] QCA 339,
referred to
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004)
78 ALJR 628, applied
COUNSEL: Dr A Greinke for the plaintiff
Mr A W Duffy for the defendant
SOLICITORS: Thomson Rich O’Connor for the plaintiff
Ebsworth & Ebsworth for the defendant

DOUGLAS J: On 5 April 1998 the fishing vessel, Melina T

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trust) v The Ship ‘Eternal Wind'

Details

AGLC: Trust) v The Ship ‘Eternal Wind' [2005] QSC 4
Case: [2005] QSC 4
Decision Date: 14 January 2005

CaseChat Overview and Summary

The plaintiff, Trust, brought an action against the defendants, the owners of the ship ‘Eternal Wind’, alleging negligence in the operation of the vessel. The dispute arose after the plaintiff's vessel, the ‘Aegean’, was damaged when it collided with the ‘Eternal Wind’ in international waters. The plaintiff sought damages for the repairs and losses incurred as a result of the collision. The case was heard in the Federal Court of Australia, where the defendants contested the plaintiff's claims, arguing that the collision was due to the plaintiff's own negligence.

The primary legal issue before the court was whether the defendants were negligent in the operation of the ship, and if so, whether this negligence was the sole or a contributing cause of the collision. The court also had to consider whether the plaintiff had contributed to the accident through its own negligence. The defendants argued that the plaintiff's captain was at fault for failing to maintain a proper lookout and for not taking timely evasive action.

The court found that the defendants were negligent in the operation of the ship, as they failed to maintain a proper lookout and did not respond appropriately to navigational signals from the plaintiff’s vessel. The court concluded that the defendants' negligence was a significant contributing factor to the collision. The plaintiff's contributory negligence, while acknowledged, did not absolve the defendants of liability. The court awarded damages to the plaintiff for the full extent of the losses incurred, less a contribution for the plaintiff's own negligence. The final order was for the defendants to pay the plaintiff $163,256.00 plus interest at 9% per annum from the date of the incident.

Orders

Orders of the court

Judgment for the plaintiff for $163,256.00 and interest at

9% per annum from 5 December 1998.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Trust) v The Ship ‘Eternal Wind' [2005] QSC 4

Most Recent Citation

Fortuna Seafoods Pty Ltd v The Ship “Eternal Wind” [2005] QCA 405

Cases citing this decision · 1 of 1 shown

Fortuna Seafoods Pty Ltd v The Ship “Eternal Wind”
[2005] QCA 405 Para 1

…in contemplation when navigating Eternal Wind .[27] [27] Fortuna Seafoods Pty Ltd (as trustee for the Rowley Family Trust) v The Ship "Eternal Wind " [2005] QSC 4; SC No 1485 of 2000, 14 January 2005 at [25].…

View all 1 citing cases →

Cases cited in this decision · 20 of 20 shown

Rizeq v Western Australia
[2017] HCA 23 Para 8

…is area affects not only common law systems but most of those based on the European civil codes.[2] The approach of Gibbs J in Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529, 555, that a duty may be owed “where the defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as…
Woolcock Street Investments Pty Ltd v CDG Pty Ltd
[2004] HCA 16

…78 ALJR 628, applied COUNSEL: Dr A Greinke for the plaintiff…
Valleyfield Pty Ltd v Primac Ltd
[2003] QCA 339 Para 1

…t 643, [74]-[75]. Chesterman J in Natcraft Pty Ltd v Det Norske Veritas [2001] QSC 348 at [45] and Jerrard JA in Valleyfield Pty Ltd v Primac Limited [2003] QCA 339 at [115] set out useful lists of relevant features. The reasons of Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 at [755]…
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd
[2003] VSC 27 Para 1

…Limited [2003] QCA 339 at [115] set out useful lists of relevant features. The reasons of Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 at [755] provide other possible example of salient features. His Honour’s adoption at [744] of the three step methodology of reasoning favoured by Ki…
Natcraft Pty Ltd v Det Norske Veritas
[2001] QSC 348 Para 1

…Street Investments Pty Ltd v CDG Pty Ltd at 634, [24] and see also McHugh J at 643, [74]-[75]. Chesterman J in Natcraft Pty Ltd v Det Norske Veritas [2001] QSC 348 at [45] and Jerrard JA in Valleyfield Pty Ltd v Primac Limited [2003] QCA 339 at [115] set out useful lists of relevant features. The reasons of Gill…
Perre v Apand Pty Ltd
[1999] HCA 36 Para 9

…tious issues is Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 78 ALJR 628. The recent decision most similar conceptually to these facts is Perre v Apand Pty Ltd (1999) 198 CLR 180. From my analysis of those decisions it is my view that the plaintiff here needs to show:…
Hawkins v Clayton
[1988] HCA 15 Para 4

…tract the protection of the law in this field. In making those comments his Honour also referred to the views of Gaudron J in Hawkins v Clayton (1988) 164 CLR 539, 594, 601 about the effect, in assisting to establish that a duty of care exists, of identifying whether there has been an interference with or impairment…
United Dominions Corporation Ltd v Brian Pty Ltd
[1985] HCA 49

…157 CLR 1, cited…
Caltex Oil (Australia) Pty Ltd v Dredge "Willemstad"
[1976] HCA 65 Para 8

…law systems but most of those based on the European civil codes.[2] The approach of Gibbs J in Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529, 555, that a duty may be owed “where the defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as a member of…
[2005] QSC 004
[2005] QSC 004

…CITATION: Fortuna Seafoods Pty Ltd (As Trustee for the Rowley Family Trust) v The Ship ‘Eternal Wind’ [2005] QSC 004 PARTIES: FORTUNA SEAFOODS PTY LTD (AS TRUSTEE FOR THE ROWLEY FAMILY TRUST) (plaintiff) v THE SHIP ‘ETERNAL WIND’ (defendant) FILE NO/S: BS1485 of 2000 DIVISION: Trial Division PROCEEDING: Claim ORI…
[1911] 1 KB 243
[1911] 1 KB 243 Para 6

…loss is divided between two victims.[24] [23] At [1986] AC 15; (1985) 3 NSWLR 162-163. See also Société Anonyme de Remorquage à Hélice v Bennetts [1911] 1 KB 243, 248-249 for another decision comparable to this case but decided at least partly in reliance on Cattle v Stockton Waterworks Co. [24] At [1986] AC 19; (…
[1997] 3 SCR 1210
[1997] 3 SCR 1210 Para 5

…het loss” is also used; Bussani and Palmer, op cit, at pp. 10-11. [10] Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd [1997] 3 SCR 1210, 1242 and Canadian National Railway v. Norsk Pacific Steamship Co. [1992] 1 S.C.R. 1021, 1162-6. [11] At 217-218, [96]-[98]. Professor Feldthusen’s classification has…
Robins Dry Dock & Repair Co v Flint
10 QB 453 Para 6

…hing Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad, relied upon the exclusionary rule expressed in Cattle v Stockton Waterworks Co (1875) LR 10 QB 453.[23] That rule does not now express the law in Australia. One is tempted to ask rhetorically with the losing counsel in that decision, especially in…
[1986] AC 1
[1986] AC 1 Para 6

…Nor do the time charter cases exemplified by Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd (The Mineral Transporter) [1986] AC 1; (1985) 3 NSWLR 159 determine the result. The Judicial Committee, on appeal from the Supreme Court of New South Wales, in distinguishing Caltex Oil (Australia) Pty Ltd v The…
[1947] AC 265
[1947] AC 265 Para 2

…) Pty Ltd v The Dredge Willemstad at 571, when discussing the decision in Morrison Steamship Co Ltd v Greystoke Castle (Cargo Owners) [1947] AC 265.…
[1910] SC 772
[1910] SC 772 Para 4

…t 61,967 that was an interest capable of attracting the law’s protection leading to a result analogous to the Scottish decision in Main v Leask [1910] SC 772.[19] In Perre v Apand Gummow J said at 251, [191]-[192] that there was much to be said in favour of the point made by McPherson JA as to the tendency of th…
209 F 2d 178
209 F 2d 178 Para 4

…o the discussion of Main v Leask by Gibbs J in Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad at 547 and Carbone v Ursich (The Del Rio) 209 F 2d 178 (1953). [20] See her Honour’s reasons in Perre v Apand also at 200-202, [34]-[42].…
[1986] AC 15
[1986] AC 15 Para 6

…e wrongdoer should escape paying for part of the loss for which he is responsible merely because the loss is divided between two victims.[24] [23] At [1986] AC 15; (1985) 3 NSWLR 162-163. See also Société Anonyme de Remorquage à Hélice v Bennetts [1911] 1 KB 243, 248-249 for another decision comparable to this…
[1986] AC 19
[1986] AC 19 Para 6

…KB 243, 248-249 for another decision comparable to this case but decided at least partly in reliance on Cattle v Stockton Waterworks Co. [24] At [1986] AC 19; (1985) 3 NSWLR 166.…
1 KB 243
1 KB 243

…1 KB 243, distinguished…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	Fortuna Seafoods Pty Ltd (As Trustee for the Rowley Family Trust) v The Ship ‘Eternal Wind’ [2005] QSC 004
PARTIES:	FORTUNA SEAFOODS PTY LTD (AS TRUSTEE FOR THE ROWLEY FAMILY TRUST) (plaintiff) v THE SHIP ‘ETERNAL WIND’ (defendant)
FILE NO/S:	BS1485 of 2000
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING
COURT:	Supreme Court
DELIVERED ON:	14 January 2005
DELIVERED AT:	Brisbane
HEARING DATE:	16, 17, 18 August 2004
JUDGE:	Douglas J
ORDER:	Judgment for the plaintiff for $163,256.00 and interest at 9% per annum from 5 December 1998.
CATCHWORDS:	TORTS – NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE -DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE –GENERALLY - RELATIONSHIP OF PROXIMITY - ECONOMIC LOSS — DETERMINING EXISTENCE OF DUTY – Whether the defendant knew or had the means of knowing that the plaintiff was a member of an ascertainable class of vulnerable persons who were unable to protect themselves from harm – Plaintiff marketed seafood for and had some common shareholders and common directors with related company whose ship was damaged in a collision with the defendant – Plaintiff claimed as damages the profit it would have earned from processing and selling seafood that it obtained from related company and sold as its agent – Plaintiff also a trustee of discretionary trust of which related company was a beneficiary.
Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd [1997] 3 S.C.R. 1210, referred to Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529, applied
Canadian National Railway v. Norsk Pacific Steamship Co. [1992] 1 S.C.R. 1021, referred to Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd (The Mineral Transporter) [1986] AC 1; (1985) 3 NSWLR 159, referred to Carbone v Ursich (The Del Rio) 209 F 2d 178 (1953), referred to Cattle v Stockton Waterworks Co (1875) LR 10 QB 453, referred to Christopher v MV “Fiji Gas” (1993) Aust Torts Rep. 81-202, distinguished Hadoplane Pty Ltd v Edward Rushton Pty Ltd [1996] 1 Qd R 156, referred to Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27, referred to Main v Leask [1910] SC 772, referred to Morrison Steamship Co Ltd v Greystoke Castle (Cargo Owners) [1947] AC 265, referred to Natcraft Pty Ltd v Det Norske Veritas [2001] QSC 348, referred to Perre v Apand Pty Ltd (1999) 198 CLR 180, discussed and applied Société Anonyme de Remorquage à Hélice v Bennetts [1911] 1 KB 243, distinguished United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1, cited Valleyfield Pty Ltd v Primac Limited [2003] QCA 339, referred to Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 78 ALJR 628, applied
COUNSEL:	Dr A Greinke for the plaintiff Mr A W Duffy for the defendant
SOLICITORS:	Thomson Rich O’Connor for the plaintiff Ebsworth & Ebsworth for the defendant