Tutt Bryant Group Limited v Japan Vanlines Co. Ltd

[2010] NSWSC 1464

CITATION:	Tutt Bryant Group Limited v Japan Vanlines Co. Ltd [2010] NSWSC 1464
HEARING DATE(S):	9 November 2010
JUDGMENT DATE :	9 November 2010
JURISDICTION:	Equity Division Admiralty List
JUDGMENT OF:	Rein J
DECISION:	1. Judgment for the first plaintiff against the defendant. 2. Defendant to pay to the first plaintiff the Australian Dollar Equivalent of the amount of 43,000 Special Drawing Rights being AUD $67,080.00. 3. Second plaintiff's claim against the defendant dismissed with no order as to costs. 4. Defendant to pay the costs (as agreed or assessed) of the first plaintiff on an ordinary basis up to 7 June 2010 and on an indemnity basis from 8 June 2010 to today's date. 5. Defendant to pay the first plaintiff interest on the amount of AUD $67,080.00 from 4 April 2008 calculated in accordance with the Uniform Civil Procedure Rules and Practice Note (vis in accordance with Schedule 5 of the Uniform Civil Procedure Rules to 30 June 2010 and Practice Note No. SC Gen 16 from 1 July 2010 to 24 November 2010).
CATCHWORDS:	SHIPPING AND NAVIGATION - bills of lading and carriage of goods by sea generally - actions for loss or injury in transit - limitations on liability and exceptions as to liability - where pieces of equipment lost in transit - where defendant's liability limited by Hague-Visby Rules - whether plaintiffs entitled to summary judgment pursuant to Rule 13.1 of Uniform Civil Procedure Rules
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY:	Principal judgment
PARTIES:	Tutt Bryant Group Limited (first plaintiff) BT Equipment Pty Ltd (second plaintiff) Japan Vanlines Co. Ltd (defendant)
FILE NUMBER(S):	SC 2009/287053
COUNSEL:	C H Withers (plaintiffs) D Coogans (solicitor) (defendant)
SOLICITORS:	Piper Alderman (plaintiffs) Coogans & Co. (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADMIRALTY LIST

Rein J

Date of Hearing: 9 November 2010
Date of Judgment: 9 November 2010

2009/287053 Tutt Bryant Group Limited and anor v Japan Vanlines Co. Ltd

JUDGMENT (EX TEMPORE)

1 REIN J: These proceedings concern the carriage of goods from Nagoya, Japan to Brisbane, Australia in 2008. The first plaintiff, Tutt Bryant Group Limited (“Tutt Bryant”), bought two Hitachi Sumitomo cranes and associated equipment from Tat Hong Heavy Equipment (PTE) Ltd in Japan. The second plaintiff, BT Equipment Pty Ltd (“BT Equipment”), bought one crane. The plaintiffs contracted with the defendant, Japan Vanlines Co. Ltd (“Vanlines”), for the carriage of the goods from Japan to Australia. The contract is evidenced by three house bills of lading dated 19 March 2008. Two of the bills of lading named Tutt Bryant as the consignee, and a third bill was issued by the defendant naming BT Equipment as the consignee.

2 The bills of lading noted receipt of the equipment by the carrier in good order and condition, but on arrival in Brisbane, certain parts of the equipment were found to be missing. This was the subject of an email sent by the ship’s representative to Hitachi Sumitomo and forwarded to Tutt Bryant, which is annexure MGRL 6 to the affidavit of Mr Maurice Gerard Rowley Lynch sworn 20 October 2010, a solicitor for the plaintiffs. The email is in the following terms, relevantly:

“Lost this morning at 06 50hrs LT 2pcs deck cargo due to weather conditions”.

3 Following receipt of that email, the plaintiffs appointed a surveyor who attended at the wharf in Brisbane, surveyed the equipment, and prepared a report dated 16 May 2008, which (excluding annexures to the report) is found at pages 23-27 of the annexures to Mr Lynch’s affidavit (annexure MGRL 7). Importantly, the surveyor stated in his report that he had tallied the cargo and confirmed that two pieces of equipment, the two pieces identified in the email from the ship, were not landed. This was also noted by the ship’s surveyor and agents of the ship’s representatives. It was found that a number of items had sustained scratch marks, although I do not think that is relevant to the present case. Further, there was damage to cross-members, rollers and some of the other equipment.

4 The report went into great detail, but importantly, on the second paragraph of page 26 of the annexures to Mr Lynch’s affidavit, the surveyor wrote this:

“Having regard to the aforementioned, it must be concluded that the two items lots overboard were not adequate [sic] secured to the deck/hatch cover. There being no evidence of exceptional weather conditions prevailing at the time, the loss can only be attributed to the ship’s failure to adequate [sic] stow and secure the cargo.”

5 Tutt Bryant and BT Equipment commenced proceedings against Vanlines in May 2009. The Statement of Claim puts the case on various bases, including a claim based on the Hague-Visby Rules. The Defence admits a number of paragraphs of the Statement of Claim, denies some paragraphs, and does not admit other paragraphs. Vanlines, as part of its defence pleaded in the alternative, places reliance on the Hague-Visby Rules, particularly Article 4 Rule 5 which has a limitation of liability provision, which I shall return to in a moment.

6 Importantly, the defendant accepts that the consignments in question were shipped on board the MV “Alblasgracht” on 19 March, that following the arrival of the vessel in Brisbane, it was observed that parts of the consignments were missing, and that those parts are the same as the missing items to which I have earlier referred.

7 In the section of the Defence dealing with the plaintiffs’ claim under the Hague-Visby Rules, the defendant admits that the contracts of carriage contained in or evidenced by the house bills were subject to the provisions of the Hague-Visby Rules and that Article 3 Rule 2 of the Rules required it properly and carefully to load, handle, carry, keep, care for and discharge the consignments. However, the defendant denied the allegation that followed, which was that it had breached these obligations. Without the assertion of reliance on any of the exculpatory provisions of the Hague-Visby Rules, this is a little difficult to reconcile with the admissions I referred to in [6] above. In any event, I will indicate the defendant’s position in relation to this application in a moment.

8 The plaintiffs now bring an application for summary judgment pursuant to Rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The plaintiffs have filed a Notice of Motion for that purpose. Rule 13.1 of the UCPR 13.1 provides:

“(1) If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief:
(a) there is evidence of the facts on which the claim or part of the claim is based, and
(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,
the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.
(2) Without limiting subrule (1), the court may give judgment for the plaintiff for damages to be assessed.
(3) In this rule, a reference to damages includes a reference to the value of goods.”

9 It will be seen that Rule 13.1 of the UCPR requires a person on behalf of the plaintiffs to state his or her belief that the defendant has no defence to the claim, or no defence except as to the amount of any damages claimed.

10 Mr C Withers of counsel, who appears for the plaintiffs, submits that on the evidence before the Court, there is no triable issue. He submits that not only are the specifically stated requirements of Rule 13.1 of the UCPR met, but the substance of the material which is presented to the Court, in the form of Mr Lynch’s affidavit, its annexures and the admissions made by the defendant, combine to make a compelling case for summary judgment.

11 The plaintiffs accept that the second plaintiff is not entitled to judgment, but the first plaintiff is, on the basis that the first plaintiff was not only the consignee of two of the bills of lading, but it was also the party who paid the money and had the contract for the purchase of the goods, as evidenced at annexure MGRL 3 to Mr Lynch’s affidavit.

12 Mr D Coogans, the solicitor who appears on behalf of Vanlines, has indicated that his instructions are neither to oppose nor consent to the relief sought. Indeed, his instructions go so far as neither to oppose nor consent to the form of orders which have been specifically sought by the plaintiffs and forwarded to him and to the Court yesterday. It is somewhat of an unusual situation, as everyone agrees, where a defendant who has put on a Defence does not oppose summary judgment in favour of one or other of the plaintiffs.

13 Mr Withers has provided the Court with written submissions in support of summary judgment, and he points out that on this application, the first plaintiff relies only on the Hague-Visby Rules. He draws attention to the fact that there was an order made by the Court on 21 October 2010 which required the defendant to serve any evidence upon which it relied in opposition to the application for summary judgment. No evidence has been filed. Mr Withers also points out that the Defence does not raise any of the exculpatory provisions that are available under Article 4 Rule 5 of the Hague-Visby Rules, such as perils of the sea, insufficiency of packing, or any other matter that might arise without the actual fault or contribution of the carrier, to use a shorthand expression.

14 Paragraph 9 of the Defence pleads a limitation on the defendant’s liability by reference to the weight of the consignments. I should indicate that the first plaintiff accepts that the limitation asserted is correct, and therefore that its claim is limited. There is evidence that the first plaintiff’s claim for damages suffered is in excess of $230,000, but under the Hague-Visby Rules, its claim is limited by a formula which is set out in Article 4 Rule 5 of the Rules. Liability is to be calculated in terms of “units of account”, and the number of units of account here is 43,000. The value of those units of account has been calculated in a separate affidavit of Mr Lynch sworn 8 November 2010 and leads to an amount of $67,080 as at yesterday’s date. The material upon which the calculation is based is annexed to Mr Lynch’s affidavit, and there is nothing to suggest that it is incorrect or inaccurate.

15 I accept the plaintiffs’ submissions and I think that there is no triable issue. The first plaintiff is entitled to judgment in this matter in the sum of $67,080. There will be judgment in that amount in its favour. Tutt Bryant is also entitled to interest in accordance with Schedule 5 of the UCPR and Practice Note No. SC Gen 16, and I will make orders in relation to its calculation shortly.

16 I turn now to the question of costs. I am satisfied that an offer of compromise was made by the plaintiffs and not accepted by the defendant, that offer being equal, or more advantageous, to the defendant than the judgment which has been obtained. The plaintiffs are entitled to costs up to 7 June 2010 on the usual basis and from 8 June onwards on an indemnity basis.

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