FEDERAL COURT OF AUSTRALIA

Dollar Sweets Company Pty Ltd v Peaceline (Shipping) GmbH [2014] FCA 312

THE COURT ORDERS THAT:

1.    The plaintiff be granted leave to serve the first defendant in the Federal Republic of Germany in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at The Hague on 15 November 1965, as acceded to by that country.

2.    The proceedings be stood over to 16 May 2014 and the originating application, as between the plaintiff and second defendant, be returnable on that day for first directions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an application for the plaintiff to be granted leave to serve the application, statement of claim and genuine steps statement on the first defendant in the Federal Republic of Germany. The proceedings are brought on a general maritime claim under s 4(3)(e) and (f) of the Admiralty Act 1988 (Cth) and under the Carriage of Goods by Sea Act 1991 (Cth) in respect of damage that the plaintiff claimed was sustained to its goods carried from Hamburg to Melbourne on Rio Grande Express between December 2012 and February 2013 under bills of lading issued by the first defendant, Peaceline (Shipping) GmbH, a company incorporated in the Federal Republic of Germany. The second defendant, Herocean Australia Pty Ltd, has been served and has appeared in the proceedings.

2    The plaintiff led evidence that Peaceline might be a freight forwarder. Its business address in Germany is at Spaldingstraße 74, 20097 Hamburg. Germany is a party to The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at The Hague on 15 November 1965. The statement of claim alleges that the plaintiff retained Herocean to arrange the shipment of the goods the subject of the proceedings from the premises of the shipper in Germany to Australia.

3    The claim is based on Peaceline’s alleged failure to ship a cargo of chocolate in a refrigerated or reefer container. The plaintiff alleges that the cargo was shipped in an ordinary, unrefrigerated container and that other goods that were accompanying the cargo were wrongly placed in the reefer container. Unfortunately, the only method of compelling the appearance of Peaceline in the proceedings, on a claim for only $56,239.12 plus interest and costs, is to make orders for service abroad.

4    Germany is a party to The Hague Convention. Peaceline can be served at its principal place of business in Germany under the Convention and pursuant to Div 10.6 of the Federal Court Rules 2011 (Cth).

5     I am satisfied by the evidence in the affidavits of Stuart William Hetherington, sworn 4 March 2014, and Andrew Charles Pedrana, sworn 13 March 2014, that the proceedings are of a kind in item 5 in the table to r 10.42 of the Federal Court Rules, being a proceeding seeking the recovery of damage suffered wholly or partly in Australia caused by a tortuous act or omission wherever occurring, being the delivery of damaged cargo; under item 15, being a proceeding seeking a remedy under the Admiralty Act and or the Carriage of Goods by Sea Act; or under item 20, in the circumstances that the proceedings have been properly brought against Herocean, being a person in Australia, and where Peaceline has been properly joined as a party by reason of its having issued the bill of lading.

6    I am satisfied by the evidence to which I have referred that the plaintiff has a prima facie case for breach of the contract of carriage because the bills of lading indicate, on their face, that the cargo that was to be carried in the non-reefer container was sugar sprinkles and that all the chocolate in the cargo was to be carried in a reefer container. There is an endorsement on the bills of lading in respect of the chocolate for the temperature of plus 15 degrees Celsius. The evidence shows that, when delivered to the plaintiff’s premises in Victoria, some of the chocolate goods were in the non-reefer container that arrived at those premises on 5 February 2013, while the sugar goods were in the reefer container that had arrived at the plaintiff’s premises the day before.

7    Accordingly, the evidence above satisfies the requirements of r 10.43(4)(b) and (c). Those requirements are analogous to those under the previous Federal Court Rules 1979 (Cth) that were summarised by Finn and Weinberg JJ and myself in Ho v Akai Pty Limited (in Liquidation) (2006) 24 ACLC 1526 at 1529 [10].

8    For these reasons, I will order that the plaintiff be granted leave to serve Peaceline in Germany in accordance with The Hague Convention.

Associate:

Dated:    31 March 2014