FEDERAL COURT OF AUSTRALIA

 

Omega Tankers & Trailers Pty Ltd v East-West Air Services Co Ltd
[2009] FCA 648

 

 

 

 

 

OMEGA TANKERS & TRAILERS PROPRIETARY LTD v EAST-WEST AIR SERVICES CO LTD and AUSTRAL ASIA LINE B.V.

NSD 79 of 2009

 

RARES J

15 MAY 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 79 of 2009

 

BETWEEN:	OMEGA TANKERS & TRAILERS PROPRIETARY LTD Plaintiff
AND:	EAST-WEST AIR SERVICES CO LTD First Defendant   AUSTRAL ASIA LINE B.V. Second Defendant

 

JUDGE:	RARES J
DATE OF ORDER:	12 June 2009
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1.         The plaintiff have leave pursuant to O 8 r 3(2) of the Federal Court Rules to serve the first defendant with the application filed on 29 January 2009 in the Kingdom of Thailand.

2.         The plaintiff have leave pursuant to O 8 r 4 of the Federal Court Rules to serve with the application referred to in Order 1:

(a)                a sealed copy of the statement of claim referred to in the application;

(b)               a sealed copy of these orders;

3.         Service pursuant to the leave referred to in Orders 1 and 2 be effected by service of sealed copies of the application, statement of claim and these orders in:

(a)                the English language;  and

(b)               the Thai language with an attached certificate of translation by an accredited translator.

4.         Service pursuant to the leave referred to in Orders 1 and 2 be effected pursuant to the terms contained in the Agreement on Judicial Assistance in Civil and Commercial Matters and Co-operation in Arbitration between Australia and the Kingdom of Thailand.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 79 of 2009

BETWEEN:	OMEGA TANKERS & TRAILERS PROPRIETARY LTD Plaintiff
AND:	EAST-WEST AIR SERVICES CO LTD First Defendant   AUSTRAL ASIA LINE B.V. Second Defendant

 

JUDGE:	RARES J
DATE:	15 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an application to serve the application filed on 29 January 2009 on the first defendant, East-West Air Services Co Limited in the Kingdom of Thailand.  The application claimed damages for breach of contract or duty in and about the loading, handling, custody, care and discharge of the cargo of Omega Tankers and Trailers Pty Ltd, the plaintiff.  That cargo consisted of a number of aluminium, semi-trailer tankers, which were carried on board the MV “Cape Moreton” from Maptaphut in Thailand to the Port of Newcastle in New South Wales under bills of lading issued in Bangkok on or about 28 December 2007 and 7 January 2008.  East-West is apparently a freight forwarder.  The alleged actual carrier has also been sued.  It is the second defendant, Austral Asia Line BV, and today it has indicated that it will appear.

The pleaded claims

2                     Omega Tankers filed a statement of claim at the same time as its application.  That pleaded that East-West issued a bill of lading on 28 December 2007 at Bangkok, acknowledging shipment on board the MV “Cape Moreton” of six tankers in apparent good order and condition for carriage and delivery to Newcastle.  It pleaded that Omega was the holder of that bill and presented it at Newcastle for the purposes of obtaining delivery, and, that when the goods were delivered, they were not in the same good order and condition in which they were shipped.

3                     The statement of claim also pleaded that a second bill of lading was issued at Bangkok on 7 January 2008 in which Austral Asia acknowledged shipment on board the MV “Cape Moreton” at Maptaphut of the six tankers in apparent good order and condition for carriage to and delivery at Newcastle.  The statement of claim went on to allege that the plaintiff or its agent, Rohlig Australia Pty Limited, was the holder of the Austral Asia bill of lading and that, in the circumstances, it was Austral Asia’s duty or contractual obligation to deliver the cargo in the same good order and condition as when they were shipped.  The statement of claim alleged that, once again, Austral Asia was in breach of that duty or obligation, because of the damage to the cargo when delivered.

Prima facie Case

4                     I am satisfied by the evidence of Cheri Ann Chestnut in her affidavit sworn 14 May 2009 that there is prima facie evidence that each of the two bills of lading referred to in the statement of claim was issued, as alleged.  That affidavit annexed copies of those documents.  Each of the copy bills appears to be a clean, shipped on board bill, albeit that the Austral Asia bill was a non-negotiable copy.

5                     The survey reports exhibited to Ms Chestnut’s affidavit showing the condition of the six tankers on outturn in Newcastle indicated that, among other things, they suffered damage from sling marks and corrosion.  The surveyor observed that the damage was consistent with the tankers having been improperly handled, with the slings being placed directly around the barrels and unknown substances having dripped onto them.  There is no notation on either of the bills of lading of any such damage and that kind of damage would have been evident, prima facie, had the tankers been loaded in such a condition as is described in the survey reports.

Service in Thailand

6                     In her affidavit Ms Chestnut referred to email correspondence she had had with a person apparently connected to a related company of East-West in late January and early February this year.  She said that there was no local office of East-West in Australia and she had been unable to obtain agreement through those communications to East-West accepting service.

7                     The website of the Attorney-General’s Department’s Private International Law Section states that the currently applicable treaty for service of process between Australia and Thailand is the Agreement on Judicial Assistance in Civil and Commercial Matters and Co-operation in Arbitration between Australia and the Kingdom of Thailand [1998] ATS 18, which entered into force on 29 July 1998.

8                     Chapter 2 of the treaty provides a mechanism for the central authority of each contracting party to request its counterpart to serve documents.  Article 8 provides that the central authority of the contracting party from which documents originate must forward the request to its counterpart in the other contracting party without any requirement of legalisation or other like formality and attach the documents to be served.  Article 9 prescribes the particulars of the request and requires a number of steps to be undertaken, which will need to be followed after the grant of leave to serve outside the jurisdiction.

Are the proceedings within O 8 r 2?

9                     Omega Tankers argues that the basis on which the Court obtains power, under O 8 r 2, to order service in Thailand is principally that the proceedings are based:

·               on a breach of contract in Australia (item 2);

·               on or seeks the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission wherever occurring (item 5); 

·               on a cause of action arising in Australia (under item 1), (although this last basis was only faintly pressed).

10                  I am satisfied, on the material before me, that there is a prima facie case, that a breach of contract occurred in Australia by the delivery of the tankers in a damaged condition to Omega Tankers, the named consignee in the bill of lading issued by East-West.  The condition in which that alleged outturn occurred was other than the good order and condition of the tankers when loaded on board the MV “Cape Moreton” as described in the bill.  I am also satisfied that there is a prima facie case that the proceedings seek the recovery of damage suffered, at least, partly in Australia caused by a tortious act or omission.  That tort appeared from the apparent negligence or breach of a bailee’s duty of care of goods in its custody through the occurrence of the alleged handling damage from the sling marks and the external damage from substances which appear to have contaminated the outside of the goods.  That damage required repair in Australia and, thus, the need for Omega Tankers to incur expense to bring about those repairs.  Alternatively, Omega Tankers received goods that were worth less in Australia than it had paid for them.

11                  In either event, I am of opinion that there is a prima facie case that the requirements of each of items 2 and 5 in O 8 r 2 have been satisfied.  It is not necessary for me to consider whether item 1 could also be satisfied, since fulfilment of the elements of any one of the items in the table in O 8 r 2 suffices to attract the power to order service out of the jurisdiction:  see Beluga Shipping GmbH & Co KS “Beluga Fantastic” v Headway Shipping Limited (No 2) (2008) 251 ALR 620 at 627-628 [32]-[33] and the cases that I referred to there.

Order 8 r 3

12                  It is necessary to consider the requirements of O 8 r 3(2).  I am satisfied that the Court has jurisdiction in the proceedings.  First, the proceedings have been brought pursuant to ss 4(3)(e) and 9 of the Admiralty Act 1998 (Cth).  I am satisfied that the claim falls within the description of a general maritime claim in s 4(3)(e) being “… a claim for loss of, or damage to, goods carried by a ship”.  I am also satisfied that s 9(1)(a) confers jurisdiction on the Court in respect of this matter as an in personam action on a maritime claim.  Secondly, I am satisfied, for the reasons I have given, that the proceedings are of a kind mentioned in items 2 and 5 of O 8 r 2, and that Omega Tankers has a prima facie case for the relief claimed in its application and statement of claim.  Ms Chestnut’s evidence has established that the requirements of O 8 r 3(3) have been met.  Those are, that Thailand is the country in which it is proposed to serve East-West, that service will occur by the diplomatic process, and the treaty between Australia and Thailand applies to the proposed service.

13                  The findings that I have made as to a prima facie case have been arrived at by me on the basis of the test as explained in Beluga 251 ALR at 627-628 [32]-[33], and the cases that I cited there.

Convenient Forum

14                  Omega Tankers contends that the possible argument that Australia is not a convenient forum for the hearing of the matter should not prevent service outside the jurisdiction, at this stage.  I accept that this is so.  First, the second defendant has now submitted to the jurisdiction of the Court.  Secondly, the condition of the tankers when received in Australia and the steps taken to repair them will evidently be material matters in the proceedings.    While it may be that evidence as to their condition when received in Thailand may be able to be given by persons resident there, prima facie proof of their receipt there in good order and condition is contained on the face of the bill of lading.  And, on the material before me, I am satisfied that the balance of convenience would suggest that the issue of the condition of the tankers on outturn is more likely to be relevant than when they were shipped on board the MV “Cape Moreton”.  To the extent that there may be evidence as to the circumstances in which the goods were carried on the vessel, there does not appear to me to be any reason why Australia, as opposed to Thailand, would be other than the most appropriate place to hear the matter.  Any conflict of evidence between those on board the vessel dealing with the care and custody of the tankers and the persons in Australia who are able to give evidence as to the damage that was occasioned to them will be most conveniently dealt with here.

Other Matters

15                  I should also note that, since the filing of the application and statement of claim, Omega Tankers, on 1 April 2009, filed an amended statement of claim seeking to rely upon the carriage of two other tankers under two further bills of lading, issued on about 28 February 2008.  However, those two claims are not included in the application and there is no amended application.  Prima facie, therefore, the amended statement of claim seeks relief outside what is claimed in the current application.  There may well be an issue as to whether the application can be amended to permit those two claims to be included.  That is a matter which can be debated after service has been effected and about which I express no view.

Conclusion

16                  I am satisfied that I should grant leave to Omega Tankers to serve the application on East-West in Thailand, through the diplomatic channel of sending a letter of request issued by the Court to the Central Authority of the Kingdom of Thailand.  The original statement of claim may also be served with the application (O 8 r 4).  I will direct the plaintiff to bring in short minutes of the formal orders to give effect to these reasons.

 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:         15 June 2009

Counsel for the Plaintiff:	T Anderson
Solicitor for the Plaintiff:	DLA Phillips Fox

Date of Hearing:	15 May 2009
Date of Judgment:	15 May 2009
Date of Order	12 June 2009