FEDERAL COURT OF AUSTRALIA

Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038

ORDERS

THE COURT ORDERS THAT:

1.    The separate questions be amended and answered as follows:

Question 1: With regard to the limitation of liability regime applicable to the plaintiff’s claim in all the circumstances:

(a)    Is any liability of the carrier limited to £100 per package?

Answer: Yes

(b)    Is any liability of the carrier limited to the present value of £100 of gold in 1924 per package?

Answer: No

(c)    Is any liability of the carrier limited to 666.67 units of account per package or 2 units of account per kilogramme of gross weight of the goods (whichever is higher)?

Answer: No

Question 2: Does the answer to Question 1 apply equally to the plaintiff’s claims in bailment and negligence against the vessel’s owner?

Answer: Yes

2.    The proceedings be listed on 16 September 2022 to hear the parties’ agreed position or competing submissions on costs and for management of the further conduct of the proceedings.

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

REASONS FOR JUDGMENT

STEWART J:

I.    INTRODUCTION

1    Between 6 and 11 December 2019, 23 pontoons (described as “breakwater units”) and 11 pallets were loaded on board the motor vessel Dijksgracht at the port of Cork, Ireland, as breakbulk cargo. The cargo was consigned to Poralu Marine Australia Pty Ltd, the plaintiff in the proceedings before me, for installation at the Royal Geelong Yacht Club.

2    The cargo was discharged on or about 13 February 2020 at Geelong. Poralu alleges that the cargo was loaded on board the vessel in sound condition and that three pontoons were found to be damaged when the cargo was discharged.

3    Poralu commenced two actions for damages arising from the alleged damage to the cargo.

4    First, Poralu commenced an action in rem (proceeding NSD 139 of 2020) against the vessel in which it alleges that the owner of the vessel was the “relevant person”, ie, the person who would be liable on the claim in a proceeding commenced as an action in personam (Admiralty Act 1988 (Cth), s 3(1)). That liability is said to be on the basis of bailment and the tort of negligence, it not being asserted that there was any contractual nexus between Poralu and the owner. Poralu pleads that the owner of the vessel when the claim arose and when the action was commenced, being the relevant times, was Scheepvaartonderneming Dijksgracht CV, a company incorporated in The Netherlands.

5    Scheepvaartonderneming Dijksgracht CV, Spliethoff Transport BV, another Dutch company, and Rederij Dijksgracht, a Dutch company that claims to be the owner of the vessel, all entered appearances in the in rem proceeding.

6    Secondly, Poralu commenced an action in personam (proceeding NSD 96 of 2021) against Spliethoff Transport as the first defendant and Scheepvaartonderneming Dijksgracht CV as owner of the vessel as the second defendant, although that entity was recently substituted by Rederij Dijksgracht as the second defendant. I will refer to the relevant persons in the in rem proceeding and the defendants in the in personam proceeding as the defendants. As in the in rem proceeding, Poralu alleges causes of action in bailment and the tort of negligence against the owner. As against Spliethoff Transport, it alleges, in essence, the following:

(1)    The existence of a contract of carriage between Poralu, as “consignee”, and Spliethoff Transport, as carrier, arising from a series of emails between 7 and 9 November 2019.

(2)    By a sea waybill, the carrier acknowledged receipt of the cargo in good order and condition on 11 December 2019.

(3)    The contract of carriage was subject to and incorporated the Australian Hague Rules, ie, the “amended Hague Rules” in Sch 1A to the Carriage of Goods by Sea Act 1991 (Cth) (COGSA).

(4)    It was a term of the contract of carriage that a bill of lading would be issued to Poralu in respect of the cargo or, alternatively, it could be requested by Poralu and if so would then be issued.

7    By the defences filed in both proceedings, Spliethoff Transport and Rederij Dijksgracht deny any negligence by the owner and further plead, in essence, and as is relevant for present purposes, the following:

(1)    They admit that the cargo was carried pursuant to a contract of carriage between Poralu as consignee and Spliethoff Transport as carrier, but it was “subject to” the terms and conditions of Spliethoff Transport’s booking note form.

(2)    The sea waybill acknowledged receipt of the cargo only in “apparent” good order and condition.

(3)    They deny that the contract of carriage was subject to the Australian Hague Rules, and say further that:

(a)    the law of the Netherlands applies (cl 10);

(b)    Arts 1-8 of the Hague Rules of 1924 apply by contractual incorporation, but that the liability of the carrier shall not exceed £100 lawful money of the United Kingdom per package or unit (cl 3(a));

(c)    The Hague Rules apply by agreement within the meaning of Art 10(2) of the Australian Hague Rules, which is why the Australian Hague Rules do not apply;

(d)    Alternatively, the Australian Hague Rules do not apply because the contract of carriage is a charterparty within the meaning of Arts 10(6) and (7) of the Australian Hague Rules.

(4)    They deny that it was agreed that a bill of lading would be issued, and say that it was a term of the contract that a sea waybill would be issued if the consignee was known, which it was, that no request for a bill of lading was made, and that a sea waybill was requested by Poralu and then issued on 6 January 2020.

(5)    Alternatively to the carriage being governed by the original contract, it was governed by the terms of the sea waybill dated 6 January 2020 by reason of Poralu requesting a sea waybill on those terms and Spliethoff Transport issuing one.

(6)    Further alternatively, the sea waybill is a sea waybill containing or evidencing a contract for carriage within the meaning of s 5 of the Sea Carriage Documents Act 1997 (NSW) (or, if applicable, s 89 of the Goods Act 1958 (Vic)), and the rights and liabilities under that contract transferred to Poralu upon it taking delivery of the cargo subject to the sea waybill and making a claim under the sea waybill against Spliethoff Transport in respect of the goods pursuant to ss 8 and 10 of the NSW Act (or ss 92 and 94 of the Victorian Act).

(7)    The sea waybill terms and conditions included the same terms as the booking note relied on in relation to it with the same consequences as to the applicable law, limitation of liability and the non-application of the Australian Hague Rules.

(8)    The terms of the contract of carriage (as I understand, whether the booking note or the sea waybill) included:

(a)    an undertaking by the “merchant”, ie, including Poralu, not to make any claim against the vessel or its owner (cl 11(a)); and

(b)    a Himalaya clause entitling any servants or agents of the carrier, including the vessel owner, to rely on any exemption or limitation in the terms and conditions (cl 11(b)-(c)).

8    The defendants specifically plead that their liability is limited to the following amounts:

(1)    £100 legal tender of the UK per package under the agreed terms of the original contract or the sea waybill; or, failing that,

(2)    the price of the quantity of gold purchasable for £100 in 1924 per package under the Hague Rules of 1924; or, failing that,

(3)    666.67 Special Drawing Rights (SDRs) of the International Monetary Fund (ie, about $1,277 at present value) per package or 2 SDRs (ie, about $3.83 at present value) per kilogramme, whichever is the highest, under Art 4(5) of the Australian Hague Rules.

9    Poralu pleads the following in reply:

(1)    In reply to the proposition that the terms of the sea waybill applied, Poralu says there was no concluded contract of carriage at the time of the bailment or at the time that the cargo was damaged, no reasonable notice of the terms and conditions were given to the shipper or to Poralu, and, as alleged in the statement of claim, the contract of carriage contained a term for the issuing of a bill of lading rather than a sea waybill.

(2)    In reply to the proposition that the contract of carriage was governed by the law of the Netherlands, Poralu says the contract of carriage was at all material times a “contract of carriage covered by a bill of lading” within the meaning of Art 1(b) and a “bill of lading” within the meaning of Art 10 of the Hague-Visby Rules which apply by force of Irish law under ss 30 and 34 of the Merchant Shipping (Liability of Shipowners and others) Act, 1996 (IRE) (although it is not pleaded how Irish law would be the applicable law, it was explained in opening that the contention is that the English law and London arbitration clause and the Dutch law and Rotterdam jurisdiction clause would be invalid by reason of s 11(2)(b) of COGSA meaning that there would be no express choice of law leaving Irish law as the proper law being that system of law with which the contract is most closely connected).

(3)    Alternatively, as pleaded in the statement of claim, Poralu says that by Art 10(2) thereof the Australian Hague Rules apply by force of law to the contract of carriage.

(4)    Poralu pleads that the limitation of liability in cl 3(a) of the booking note or the sea waybill (ie, £100 lawful tender or gold value) is null and void by the operation of Art 3(8) of the Hague-Visby Rules (if applicable by Irish law) or the Australian Hague Rules (if applicable by COGSA) – although the case was run on the basis that if Dutch or English law applies then under that system of law the Hague-Visby Rules apply with the same result as to cl 3(a) being invalid.

(5)    Also, Poralu pleads that the owner does not get the benefit of the Himalaya clause because:

(a)    no consideration passed from Poralu to the owner; and

(b)    Spliethoff Transport did not act as the agent for the owner in agreeing the Himalaya clause with Poralu.

10    In the in rem proceeding, Rederij Dijksgracht denies any liability on the same basis as pleaded in the in personam proceeding. Poralu filed a reply which mirrors the reply in the in personam proceeding.

11    Although not presently relevant, there is also a cross-claim in the in personam proceeding by which Spliethoff Transport claims that, in breach of duty, Poralu failed to take delivery of the cargo.

12    On 21 April 2021, I made orders that the two proceedings be heard together and that evidence in the one be evidence in the other.

13    Following an application by the defendants, on 17 September 2021 I ordered that the following questions be tried separately from and before any other question in the two proceedings:

(a)     What limitation of liability regime is applicable to the plaintiff’s claim in all of the circumstances? In particular:

(i)     Does the Limitation Clause operate to limit any liability of the Defendants to £100 per package, being £300 in total?

(ii)     Does the Limitation Clause operate to limit any liability of the Defendants to £100 per package in today’s gold value?

(iii)     Does the Limitation Clause operate to limit any liability of the Defendants to 666.67 units of units of account per package or 2 units of account per kilogramme of gross weight of the goods (whichever the higher)?

(b)     Does the answer to (a) apply equally to the plaintiff’s claims in bailment and negligence?

14    The separate questions were originally listed for trial in February 2022 but that listing had to be vacated because the parties were not ready on account of their shifting positions as to the identification of the contract, the applicable law and the consequences if, in particular, Dutch law applies. The separate questions were then heard over three days in June 2022.

15    At the end of the third day, I raised an issue with the parties as to the basis on which it was contended by Poralu that one or other of the formal requirements in Art 10 of the Hague-Visby Rules for their application was satisfied, whether under Dutch or English law. That was because it appeared to me that there was an unexpressed assumption underlying how the parties had conducted the case that one or other of those requirements was met, yet it was not clear to me that that had been established in respect of any of them, in particular because the United Nations Treaty Series Online records that Ireland had neither ratified nor acceded to the Visby Protocol of 1968 or the SDR Protocol of 1979. On that basis I was not satisfied that Ireland was a Contracting State to the Hague-Visby Rules as required by Art 10(b) and I had not been addressed on Arts 10(a) and (c). Responding to my query led the plaintiff to reopen its case to adduce further evidence going to the status of Ireland in relation to the Hague-Visby Rules and to a short further hearing in July 2022.

II.    AN EXCURSUS ON TERMINOLOGY

16    As the introduction above reveals, four different liability regimes are relevant to this case, and yet another is referred to in COGSA. It is accordingly convenient to identify them and the manner in which I will refer to them.

17    The International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, opened for signature 25 August 1924 (entered into force 2 June 1931) was adopted by Diplomatic Conference at Brussels. It is sometimes referred to, as it is in COGSA, as the Brussels Convention. It had previously been adopted at a meeting of the International Law Association at The Hague in September 1921, which is where it gets its almost universal term of reference, namely the Hague Rules. Relevantly, in Art 4(5), it limits the liability of the carrier and the ship to “100 pounds sterling per package or unit”, and Art 9 provides that those monetary units are taken to be gold value.

18    The Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, Signed at Brussels on 25th August 1924, opened for signature 23 February 1968, 1412 UNTS 128 (entered into force 23 June 1977) was adopted by Diplomatic Conference at Brussels. The amendments were the outcome of deliberations of the Comité Maritime International (CMI) Conference in Stockholm in 1963, whereafter the CMI met in the City of Visby, which is where the protocol gets its term of reference, namely the Visby Protocol. The Visby Protocol is not a self-standing or independent convention, but rather effects amendments to the Hague Rules. The Hague Rules so amended are referred to as the Hague-Visby Rules. Relevantly, Art 4(5) was amended to provide for limitation of liability for the carrier and the ship to “the equivalent of 10,000 francs per package or unit or 30 francs per kilo of gross weight of the goods lost or damaged, whichever is the higher”, with further provisions about what that means. Since in the present case no one contends that that limitation applies, it is not necessary to go into it in any further detail.

19    The Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 25 August 1924, as Amended by the Protocol of 23 February 1968, opened for signature 21 December 1979, 1412 UNTS 146 (entered into force 14 February 1984) was adopted by Diplomatic Conference again at Brussels, Art II of which further amended Art 4(5) of the Rules to limit liability of the carrier and the ship to “666.67 units of account per package or unit or 2 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher”. The “units of account” referred to are Special Drawing Rights of the International Monetary Fund, with the result that the protocol is generally referred to as the SDR Protocol. The Hague Rules as amended by the Visby Protocol and the SDR Protocol are also generally referred to as the Hague-Visby Rules, unless it is necessary in any particular context to make it clear that the version of the Rules being referred to is with or without the amendments brought about by the SDR Protocol.

20    For reasons which it will be necessary to go into in some detail in due course, COGSA does not give the force of law to the Hague-Visby Rules, but rather gives the force of law to a version of the Hague-Visby Rules peculiar to Australia as set out in Sch 1A to COGSA. Although that version of the Rules is sometimes referred to as the amended Hague Rules, including in ss 4(1) and 7(1) of COGSA, that reference is liable to confuse because the “amended Hague Rules” is also sometimes used, internationally as well as domestically, to refer to the Hague Rules as amended by the Visby and/or SDR Protocols. For example, Sch 1 to COGSA, which is the text of the Hague-Visby Rules, is headed “The amended Hague Rules (unmodified text)”. In an effort to avoid confusion, I will refer to the Australian version of the Hague Rules, which is set out in Sch 1A, as the Australian Hague Rules (or AHR). Relevantly, in Art 4(5) they adopt the same limitation as that in the SDR Protocol.

21    Although not featuring in this case, it is to be noted that COGSA also refers to the United Nations Convention on the Carriage of Goods by Sea, 1978, opened for signature 31 March 1978, 1695 UNTS 3 (entered into force 1 November 1992) which was adopted at Hamburg and is referred to as the Hamburg Rules. There is also a further version of international rules governing bills of lading referred to as the Rotterdam Rules, being the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, opened for signature 11 December 2008, UN Doc A/RES/63/122; 48 ILM 659 (not yet in force). Neither the Hamburg nor Rotterdam Rules have received much international support and are seldom, if ever, encountered in practice.

22    In much of the literature concerning, and case law on, both the Hague Rules and the Hague-Visby Rules, the Articles are referred to using Roman numerals, and the provisions within those Articles are referred to as “rules” – eg, Art III r 8. However, neither the Hague Rules nor the Visby Protocol use Roman numerals to number their Articles – both use Arabic numerals; it is only the SDR Protocol that uses Roman numerals. Further, each of them refer to the provisions within their Articles as “paragraphs”. The Australian Hague Rules also uses Arabic numerals to number its Articles and refers to the provisions within those Articles as “paragraphs”. In what follows, I follow the numbering and nomenclature of what those instruments themselves use to refer to their provisions. It seems likely that the widespread practice of referring to provisions as, eg, Art III r 8 instead of Art 3(8) has its genesis in the United Kingdom where the amended version of the Hague-Visby Rules as adopted in the Schedule to the Carriage of Goods by Sea Act 1971 (UK) (the UK Act) numbers its Articles using Roman numerals and replaces references to “this convention” with “these Rules” (although it still refers to the provisions within its Articles as “paragraphs”).

III.    THE PLAYERS IN THE DRAMA

23    As mentioned, Poralu is the plaintiff and the consignee of the cargo.

24    On behalf of Poralu, Marie-Alexandra Hégot gave evidence in chief by way of affidavit and she was cross-examined by audio visual link. Ms Hégot is the Pacific area manager of Poralu and as such was responsible for the arrangements for the transportation of the breakwater units and ancillary equipment shipped on board the vessel which form the subject matter of the proceedings.

25    Poralu utilised a freight forwarder for the purpose of arranging the carriage of the cargo for it, namely Transport Paris International (TPI) in Paris, France. Yann Carrier is the person representing TPI who features in the correspondence arranging the carriage.

26    TPI in turn utilised a ship and chartering broker, Helmgale Sàrl, in Montpellier, France. Poralu accepts that Helmgale, as broker, was authorised to fix the booking on behalf of Poralu, but says that no broader authority of Helmgale is established. It is clear from the lengthy correspondence between the parties to which reference is made below that Helmgale acted for and on behalf of Poralu in concluding the booking and otherwise communicating with Spliethoff Transport. There is no pleading that its authority was subject to some relevant limitation, and in the absence of such a pleading it must be taken to have the authority that it appeared to have.

27    Pierre Gires and Mathieu Vidal are the people representing Helmgale who feature in the correspondence arranging the carriage.

28    Spliethoff Transport’s agent in the port of Cork was Doyle Shipping Group, specifically Doyle Shipping Cork. Andrew Whelan is the person representing Doyle who features in the correspondence arranging the loading and carriage.

29    Spliethoff Transport was variously represented in the correspondence arranging the carriage by “Jack” Oostrum, Thomas Zuijderduin and Patrick Schweinsbergen.

30    There were two witnesses on behalf of the defendants, Cynthia Hosken-Serpa and Frank Nietzman. Both gave evidence in chief by way of affidavit, and both were cross-examined, also by audio visual link.

31    Ms Hosken-Serpa is in-house counsel of Spliethoff Transport. As such, she has day-to-day management of the proceedings. Most of her evidence merely recounted the correspondence that passed between the various parties concerning the arrangements for the carriage of the cargo, including the contractual arrangements. That evidence was formal and undisputed. Ms Hosken-Serpa also gave generalised evidence with regard to the chartering and other contractual arrangements within the Spliethoff group, and in particular with regard to the chartering and operating arrangements for the Dijksgracht. That evidence was contested, principally with regard to its generalised nature. It is relevant only to the question whether Spliethoff was authorised by Rederij Dijksgracht to contract for its protection or benefit, ie, the Himalaya clause question. I will deal with the value and import of that evidence in due course.

32    Mr Nietzman is a director of Spliethoff Beheer BV, another Spliethoff company. Mr Nietzman also gave generalised evidence with regard to the chartering and contractual arrangements within the Spliethoff group concerning the vessels owned by the different shipowning companies. The import of that evidence is challenged by Poralu because of its generalised nature. It is also relevant only to the Himalaya clause question. I will return to deal with the value and import of Mr Nietzman’s evidence in due course.

33    In short, although there is an issue as to just what can be made of some of the evidence that was given in relation to the Himalaya clause question, there is very little factual contest between the parties. The essential facts are common ground and appear from the documents. All the witnesses struck me as seeking to give honest and accurate evidence. No submission was made to the contrary.

IV.    ESSENTIAL FACTS

A.    Ownership and operation of the vessel

34    Although Poralu has maintained its pleading in the in rem action that at the relevant times the owner of the vessel was Scheepvaartonderneming Dijksgracht CV, during the trial it amended its pleadings in the in personam action to allege that Rederij Dijksgracht was the owner which is accepted by the defendants. Poralu can maintain the claims in bailment and the tort of negligence in the in rem proceeding notwithstanding maintaining the pleading in that proceeding that the owner and relevant person is Scheepvaartonderneming Dijksgracht CV on the basis that whoever the owner is, that is the party who is liable on those claims which in turn gives rise to the in rem liability of the vessel. However, the identity of the owner is significant even in the determination of the separate questions because of the owner’s reliance on the Himalaya clauses in the booking note and the sea waybill.

35    Rederij Dijksgracht is a company incorporated and registered in the Netherlands and operating from Amsterdam. It is an entity in the Spliethoff corporate group. “Rederij” is Dutch for “shipowners society”. Dijksgracht is the name of a canal and parallel street in the centre of Amsterdam.

36    There are a number of vessels operated and managed by Spliethoff Transport on behalf of their respective Rederijen, of which the Dijksgracht is one. The Rederijen have independent investors, although typically the Spliethoff group also has an interest in each Rederij.

37    It is uncontested that, at the relevant times, Spliethoff Transport was at least a disponent owner of the vessel in the sense that it controlled the commercial operation of the vessel – that is what enabled it to make the carriage contract (whatever form that took) with Poralu to carry the cargo to Geelong on board the Dijksgracht. Poralu submits that the contractual basis of that relationship was not satisfactorily proved. I will return to the arrangements by which Spliethoff Transport was the disponent owner of the vessel in section IX.B below, which addresses whether the owner can rely on any defences raised by Spliethoff Transport.

B.    The contract

1.    The fixture recap emails

38    On 7 November 2019, Mr Gires of Helmgale (ultimately on behalf of Poralu) sent a “recap” email to Mr Oostrum of Spliethoff Transport which, after stating “confirm having fixed sfoar [sic]”, set out the terms of a fixture for the carriage of cargo from Cork to Geelong. There is nothing in the evidence to indicate what preceded that email, and in particular whether the terms said to have been “fixed so far” had been negotiated by email or orally, or both, or what the origin of any of the particular terms was.

39    A short while later on the same day, Mr Oostrum replied to Mr Gires seeking a minor correction to the terms recorded in the earlier email on the basis that something slightly different had already been agreed.

40    Still later the same day, Mr Gires replied to Mr Oostrum with a second recap email. Its terms, as written, are as follows – I have numbered the lines for ease of reference and I have inserted in square brackets descriptions or explanations of chartering abbreviations or short-hand used by the parties:

1    Subject: RE: recap Cork/Geelong

2    Date: 07/11/2019 17:08:52

3    …

4    Jack/Pierre [ie, to Jack from Pierre]

5    sorry for this omission, revised recap asf = [ie, agreed so far]

6    can you pls provide agency details both ends ?

7    pls also provide your BN, riders and BL

8    will most probably have the tech drawings tomorrow morning and chrtrs

9    subs shall follow

10    -intended vsl mv Dynamogracht – final performing vsl to be nominated

11    latest 15th November

12    FOR ACNT TPI, FRANCE

13    part cargo of 23 pontoons as described – total 3580 cbm Pontoons to be

14    stackabke 2 tiers max

15    PL = [ie, packing list]

16    9Nr. 15m x 6.1m x 1.61m each weighing 80T

17    3Nr. 16.5m x 6.1m x 1.61m each weighing 85T

18    6Nr.22m x 5.1m x 1.41m each weighing 80T

19    5Nr. 22m x 5.3m x 1.41m each weighing 80T

20    -on/under deck in owners option. Deckcargo at chrtrs risk and expense

21    -POL [ie, port of loading] : Cork Ringaskiddy Terminal

22    -POD [ie, port of discharge] : Geelong anchorage where max draft is 7.5m

23    if allowed by harbourmaster or Geelong port, in charterers option

24    discharge into water

25    -laycan 10/15th December 2019

26    -freight: Eur 130,-- per frtton [ie, freight ton]

27    -Terms and conditions :

28    -Liner in hook / Liner-out hook

29    -Hooking on /off for Merchant’s / Receivers account -Loading Discharging

30    as fast as vessel can

31    -detention euro 13.500,-- pdpr [ie, per day pro rata]

32    -transit time max 50 days agw/wp/wog [ie, all going well / weather

33    permitting / without guarantee]

34    penalties for late arrival applicable if vsl exceeds 50 days transit, weather

35    permitting and force majeure excepted Penalties 0.5pct of freight upto

36    max 5pct of the total freight.

37    -cargo to be fumigated, if required, by merchant’s at their risk and account

38    and valid certificates to be provided to owners.

39    – intended rotation to be supplied prior firm fixture

40    -Terms and conditions :

41    -Time lost due to swell, port congestion and/or in waiting for berth to

42    count as time for which damages for detention are due irrespective

43    whether the Carrier or the Merchant selected the berth,

44    -if discharge at anchorage any time lost due to swell to count as time on

45    detention.

46    Carrier’s Agents at both ends (pls adv details )

47    -Taxes/dues/duties levied on or over the performing vessel to be for

48    Carrier’s account

49    -Taxes/dues/duties calculated on or over the freight and/or cargo to be for

50    Merchant’s account

51    -UK Dock dues or Irish equivalent on cargo (if any) for merchants account

52    -Tonnage dues are charged on vessel and are for carrier’s account

53    -Otherwise as per Carrier’s WWBN including rider clauses / BL including

54    English law and London Arbitration => to be provided

55    - Commission = 2.5pct to helmgale on fdd [ie, freight, demurrage and

56    deadfreight]

57    -Sub shipper reconfirmation to be lifted max 24 hrs after fixing main terms

58    -Subject Carrier’s approval of transport drawings/technical details.

59    END

60    pls confirm

61    thanks sofar

62    Pierre GIRES

41    Poralu contends that that email constitutes an acceptance of the correction requested by Mr Oostrum in the preceding email such that the contract was concluded at that point on the terms recorded in it. I will return to that question.

2.    Bill of lading, sea waybill and booking note standard forms

42    A short while later, still on 7 November 2019, Mr Zuijderduin for Spliethoff Transport replied to Mr Gires giving the details of Doyle as Spliethoff Transport’s agent in Cork and Asiaworld Shipping Services as its agent in Geelong, and stating the following:

Reverting with our booking note asap. Meanwhile we have attached the “Original Bill of Lading” format but also our “sea way bill format” if the consignee is known we suggest to issue Sea way bills as these are easier to issue and do not require original stamped versions and can be send via email (thus saving time and cost for using mail services etc).

43    Attached to the email were blank pre-printed standard forms of a “Worldwide Services” bill of lading and sea waybill, each being two pages – page 1 containing “full terms, conditions and exceptions” and page 2 containing blocks for the relevant details to be filled in. Page 2 and clause 10 on page 1 of both forms also included a law and jurisdiction clause providing for the contract to be governed by and construed in accordance with the laws of the Netherlands and Rotterdam jurisdiction – exclusive for any suit by the “Merchant” and non-exclusive for any suit by the carrier.

44    On 8 November 2019, in accordance with his promise that he would be “reverting with our booking note asap”, Mr Zuijderduin sent an email to Mr Gires attaching a blank pre-printed standard-form two page booking note and stating “Please find attached blank format of our Booking-note, can you kindly fill in all details etc?” Page 1 of the booking note form included by clause 10 a law and jurisdiction clause providing that the booking note shall be governed by and construed in accordance with the laws of the Netherlands and for Rotterdam jurisdiction – as with the bill of lading and sea waybill forms, exclusive jurisdiction for any suit by the “Merchant” and non-exclusive for any suit by the carrier.

45    The bill of lading, sea waybill and booking note forms are standard forms for Spliethoff Transport – they all name Spliethoff Transport as the carrier and they record Spliethoff Transport’s copyright in them. They are also all apparently designed as a consistent or coherent suite of documents.

46    There followed brief emails between Mr Gires and Mr Zuijderduin in which Mr Gires asked for “the rotation of the intended performer” (ie, the order of port calls to be made by the vessel before reaching Cork, as contemplated by line 39 of the second email recap at [40] above) and the details of the “Owners” to appear in the booking note, and Mr Zuijderduin provided the details of Spliethoff Transport.

3.    The booking note

47    On 8 November 2019, Mr Gires replied to Mr Zuijderduin attaching page 2 of the booking note form with the details filled in and stating “pls confirm attached BN is ok”. The form reflected the following as having been filled in in each of the numbered blocks:

(1)    Agents: Helmgale

(2)    Place and date: Montpellier, 8 November 2019

(3)    Carrier: Spliethoff Transport

(4)    Merchant: TPI

(5)    Vessel’s name: “Intended vsl mv Dynamogracht – final performing vsl to be nominated latest 15th November”

(6)    Time for shipment (about): laycan 10/15th December 2019

(7)    Loading port: Cork Ringaskiddy Terminal, Ireland

(8)    Merchant’s representative at loading port: Celtic Shipping Agencies

(9)    Discharging port: Geelong anchorage where max draft is 7.5m if allowed by harbourmaster or Geelong port, in charterers option – discharge into water.

(10)    Description of goods (as part cargo): 23 pontoons… “On/under deck in owners option. Deckcargo at chrtrs risk and expense”

(11)    Freight rate and details, charges, etc.: EUR 130.00 per freight tons basis -Liner in hook / Liner-out hook; Hooking on/off for Merchant’s/Receivers account -Loading Discharging as fast as vessel can

(12)    Special terms: the remaining terms of carriage as reflected in the email recap were set out, save for those identified in the following paragraph.

48    All of the terms and conditions of the email recap at [40] above were included in the booking note, save for the following: line 39 (the intended rotation to be supplied prior firm fixture), line 46 (carrier’s agent at both ends), lines 53-54 (“Carrier’s WWBN including rider clauses / BL including English law and London Arbitration => to be provided”), and line 58 (subject to carrier’s approval of transport drawings / technical details).

49    The following pre-printed statement appears immediately above the signature blocks for both “carrier” and “merchant”:

It is hereby agreed that this Contract shall be performed subject to the terms, conditions and exceptions contained on Page 1 and 2 hereof, including any addenda, which shall prevail over any previous arrangements and/or the terms, conditions and exceptions of any Bill of Lading or Sea Waybill issued hereunder.

50    The booking note was not signed by either party at that time, or at any subsequent time.

51    On 12 November 2019, Mr Gires asked Spliethoff Transport “for good order sake pls lift your sub on technical drawing”. This is a reference back to the term recorded in the email recap that the fixture was subject to the carrier’s approval of the transport drawings/technical details (line 58 at [40] above). On 13 November 2019, Mr Schweinsbergen replied on behalf of Spliethoff Transport confirming that the suspensive condition with regard to approval of the technical drawings was lifted.

52    The next day, 14 November 2019, Spliethoff formally nominated the Dijksgracht as the performing vessel and stated that “Eta Cork will be 5 December agw/wp [ie, all going well / weather permitting]”. That satisfied the requirement in the booking note (recorded at [47(5)] above) that the final performing vessel be nominated by 15 November 2019.

53    On 18 November 2019, Mr Gires asked Mr Zuijderduin for the rotation of the vessel, and Mr Zuijderduin replied stating that the vessel would first load another cargo in Huelva (in Spain) and that its estimated arrival in Cork was 6 December 2019. By that reply, Poralu’s requirement of being informed of the vessel’s rotation was met.

54    It would appear that nothing further passed between the parties with regard to the booking note until 19 November 2019 when Mr Gires sent a follow-up email to Spliethoff Transport, this time to Mr Schweinsbergen, asking again for confirmation that the “attached bn is ok”.

55    On 20 November 2019, Mr Schweinsbergen replied to Mr Gires saying: “The booking note is ok, we can however adjust the laycan if required.” Page 2 of the booking note as previously completed by Mr Gires was attached.

56    As will be seen, Spliethoff Transport contends that the contract of carriage was concluded at this point, when the terms of the booking note were agreed. It says, in the alternative, that if the contract was concluded earlier on confirmation of the recap, as contended by Poralu, then the agreement as to the terms of the booking note amended or superseded the previous contract to the extent of any difference. The critical difference is with respect to law and jurisdiction. I will return to the question of contract formation in section V below.

4.    The sea waybill

57    On 5 December 2019, in anticipation of the upcoming loading, Mr Carrier of TPI by email to Ms Hégot of Poralu requested “the instructions for drafting B/L, as well as the invoice and packing so we can prepare the export customers”. It is not apparent what prompted that request, other than it being customary to make such a request in anticipation of a vessel being loaded. Ms Hégot replied almost immediately with the details of the shipper, being Inland and Coastal Marina Systems (ICMS), the details of the consignee, being Poralu, and the details of the notify party, being herself at Poralu.

58    There followed a discussion by email over a period of time between Mr Carrier and Ms Hégot about the description of the goods to be included in the “B/L”.

59    Loading of the cargo on board the vessel at Cork commenced on 6 December 2019. It was completed on 11 December 2019, which is the date recorded in the sea waybill which was issued much later. I will come to that in the chronology.

60    On 11 December 2019, Mr Zuijderduin wrote to Mr Gires as follows, including in much the same terms as he had on 7 November 2019 with regard to why a sea waybill is preferred to a bill of lading if the consignee is known:

If already available, can you please send us the BL instructions?

Kindly note that if the consignee is already known. We can issue our Sea Way Bills, these “SWB” have the advantage that we can simply send them to all parties concerned via email (instead of physical mail).

This means that we do not have the risk of loosing important documents or late arrival at the designated destination.

61    On 12 December 2019, Mr Zuijderduin emailed Mr Whelan at Doyle Shipping attaching “our prefer Sea Way Bill” and explaining “these doesn’t require to be send via mail so if you use this format we will present same to charterers and await their reply”. It is apparent that Mr Whelan then completed the details in two sea waybill forms, the cargo being split between the two sea waybills, and on 13 December 2019 sent those to Mr Zuijderduin for “approval”.

62    On the same day, ie, 13 December 2019, Mr Zuijderduin emailed Mr Gires saying, “Please find attached the draft BL’s for your good guidance and charterers approval.” Attached were not bills of lading, but rather the two sea waybills with the various blocks on page 2 filled in by Mr Whelan.

63    There followed an exchange between Messrs Gires and Zuijderduin about Spliethoff Transport invoicing Helmgale for freight, which included Mr Gires asking to be invoiced for the full amount as Helmgale wanted to collect its commission from Spliethoff Transport.

64    Still later the same day, 13 December 2019, Mr Zuijderduin again sent draft sea waybills to Mr Gires, saying “Attached draft swb for your good guidance/charterers approval …”. In response to a query from Mr Gires as to whether these drafts were the same as those sent earlier, Mr Zuijderduin replied that the pallet dimensions had been inserted. Mr Zuijderduin then sent a further email saying that certain details had not been included, and that final drafts would be sent as soon as possible. Thereafter, on 14 December 2019, Mr Zuijderduin sent to Mr Gires further draft sea waybills, saying “Attached revised versions for your/charterers good guidance.”

65    On 18 December 2019, Mr Zuijderduin enquired of Mr Gires, “Any news on the BL’s already?” Mr Gires replied, attaching an updated cargo list and asking that a new draft of a single “BL” be sent, ie, that all the cargo be reflected in one document.

66    While the discussions by email were ongoing between Spliethoff and Helmgale about how to describe the cargo in the sea waybill, discussions were also taking place between TPI and Poralu on the same subject of the proper or accurate description of the cargo. I infer that TPI and Poralu’s requirements were being provided to Helmgale who then made those requirements known to Spliethoff. For example, on 20 December 2019, Mr Carrier of TPI sent to Ms Hégot “the suggested documentation”. The record does not reveal what documentation was attached, but Ms Hégot confirmed in cross-examination that it was the document that was described in the correspondence as a “BL”. In the light of the discussions between Spliethoff and Helmgale outlined above, “the suggested documentation” sent to Ms Hégot could only have been, and I therefore find that it was, the sea waybill that was at that time the subject of those discussions.

67    On 23 December 2019, Mr Whelan of Doyle sent a draft sea waybill to Mr Zuijderduin, saying that he had condensed the previous two into one as requested. Mr Zuijderduin immediately sent that on to Mr Gires. Mr Gires replied, pointing out some errors in the way in which the cargo had been recorded. The same day, Mr Zuijderduin replied to Mr Gires attaching “revised swb for your good guidance.” Mr Gires replied, saying “we are almost there”, and pointing out further alterations to be made to the description of the cargo.

68    In the early hours of 24 December 2019, Mr Zuijderduin replied to Mr Gires saying “Attached for your good guidance”, and attached a further draft sea waybill.

69    That draft was apparently sent on by Mr Gires to Mr Carrier of TPI, as one would expect, because on the same day, Mr Carrier sent a copy of the draft sea waybill to Ms Hégot of Poralu and asked her to confirm her agreement. It is the same version as that which had most recently been sent by Mr Zuijderduin to Mr Gires, reflecting the most recent alteration requested by Mr Gires. Ms Hégot could not recall whether she had communicated any confirmation or acceptance to TPI at that time, although she accepted that she checked the document.

70    It is to be observed that although the correspondence referred to the document as a “B/L” and Ms Hégot referred to it as a bill of lading, the document itself was unmistakably a sea waybill and the electronic file that was emailed included the description “Waybill” in the filename with no mention of a bill of lading. The correspondence between the various parties shows that the references to “B/L” (or similar) generally included a sea waybill and were not confined to a bill of lading properly so-called.

71    On 24 December 2019, the vessel arrived at Lisbon, Portugal, after having suffered severe weather conditions in the North Atlantic. Although Poralu alleges that damage to the cargo occurred between 11 and 24 December 2019, when the vessel was steaming between Cork and Lisbon, and that damage to the cargo was first observed when the vessel was at Lisbon, there is at this stage of the proceeding no evidence in support of those allegations. Those may be matters for another day.

72    On 27 December 2019, Mr Zuijderduin emailed Mr Gires asking, “are we ready for releasing the BL’s?”

73    Mr Gires replied on 31 December 2019, saying “last version of B/L’s is ok for chrtrs”. Mr Zuijderduin then sent that version of the sea waybill to Mr Whelan at Doyle asking that it be signed and stamped, and for scanned copies to be returned. Mr Whelan did as requested, returning a scanned copy of the signed and stamped sea waybill on the same day. I find that he did that at Cork.

74    The sea waybill signed and stamped by Doyle on behalf of Spliethoff Transport on 31 December 2019 relevantly contained the following on page 2:

(1)    Shipper: ICMS (Inland and Coastal Marina Systems)

(2)    Consignee (not ‘to order’): Poralu

(3)    Carrier: Spliethoff Transport

(4)    Law and jurisdiction: “This Waybill shall be governed by and construed in accordance with the laws of the Netherlands, …”

(5)    Vessel: Dijksgracht

(6)    Port of loading: Port of Cork, Ireland

(7)    Port of discharge: Geelong, Australia

(8)    Freight details, charges etc.: As per Booking note 8th of November 2019 – Montpellier

(9)    A statement that the reflected cargo was received for shipment in apparent good order and condition “subject to the terms, conditions and exceptions overleaf”.

(10)    Place and date of issue: Cork, 11 December 2019.

75    On 6 January 2020, Mr Zuijderduin of Spliethoff Transport emailed the signed and stamped sea waybill to Mr Vidal of Helmgale in response to his request. That was apparently passed to TPI, because on 7 January 2020 it was emailed by Mr Carrier of TPI to Ms Hégot of Poralu. Although Ms Hégot raised a query with Mr Carrier with regard to the number of pallets recorded in the sea waybill, she appears to have then accepted Mr Carrier’s explanation as to why what was recorded was correct. No challenge or objection was made by or on behalf of Poralu, either as to what was recorded in the sea waybill or that a sea waybill was issued rather than a bill of lading.

76    The preceding correspondence and evidence establishes that the details of the sea waybill were agreed between Spliethoff Transport and Poralu, and that Poralu accepted the sea waybill in the form and on the terms that it was issued by Doyle on behalf of Spliethoff Transport. At no stage did Poralu request a bill of lading.

77    The Dijksgracht arrived at Geelong on 10 February 2020, and discharge commenced shortly thereafter. Ms Hégot attended the vessel for the discharge of the cargo. She observed that Poralu’s cargo was not the only cargo on the vessel, but that there was also an item of cargo destined for Tasmania. That Poralu’s cargo was a “part cargo” is consistent with what was recorded in the email recap (line 13 at [40] above) and the booking note.

V.    WHAT IS THE CONTRACT?

78    It is now settled that the proper law to determine the question of whether a contract was concluded is the law of the forum: Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453; 331 ALR 108 at [106] per Edelman J; Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; 247 FCR 1 at [45]-[46], [83] per Greenwood J and [128] per Beach J (Dowsett J agreeing).

79    Although it is not the exclusive analysis appropriate to determining the formation of a contract, given that whatever the contract was in this case, it was concluded by the consecutive exchange of correspondence, the analysis of offer and acceptance is particularly apt to determine when the contract was struck: Gibson v Manchester City Council [1979] 1 WLR 294 at 297 per Lord Diplock. As Steyn LJ observed in G Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd’s Rep 25 at 27, the coincidence of offer and acceptance represents the mechanism of contract formation in the vast majority of cases. That was accepted by Beaumont J in Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159; 102 FCR 464 at [131]. I adopt that analysis.

80    The objective theory of contract requires that the determination of the existence and terms of an offer requires that the words or conduct in question are construed from the perspective of a reasonable person in the putative offeree’s position: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [20] and [22]. Once there is an offer that has been communicated to the offeree, acceptance of the offer (or counter-offer) must be a clear and unequivocal acceptance of the terms of the offer or counter-offer: Ballas v Theophilis (No 2) [1957] HCA 90; 98 CLR 193 at 196 per Dixon CJ (in the context of exercising an option); Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396; 82 NSWLR 665 at [69] and [72] per Campbell JA (in the context of exercising an option), and must correspond to the terms of the offer: Carter v Hyde [1923] HCA 36; 33 CLR 115 at 126 per Isaacs J and 133 per Higgins J; Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 at [66] per Tobias JA (dissenting) and [130] per Bryson JA (Spigelman CJ agreeing). If a new term is included or a term is varied in a purported acceptance, there is no contract: Quadling v Robinson [1976] HCA 31; 137 CLR 192 at 201 per Gibbs J. Such a purported acceptance will amount to a counter-offer.

A.    The fixture recap emails

81    Mr Gires’s first recap email on 7 November 2019 (see [38] above) opens by stating that what follows is what has been “fixed so far” and closes with a request to “pls confirm”. Neither side of the case contends that that email constituted the acceptance of any offer, or confirmation of the conclusion of a contract. At most it constituted an offer, to which there was then a counter-offer by Mr Oostrum requesting a correction (see [39] above). However, at least because the first email recap included the provision that the “intended rotation to be supplied prior firm fixture” and that “rider clauses”, which are additional to the standard clauses, can vary considerably and were unknown, the first email recap was not open to unequivocal acceptance which would then constitute a contract. It follows that the first email recap was not an offer; it was merely a recordal of terms agreed to that point, but with further terms still to be agreed. The request for a correction could therefore also not have been the acceptance of an offer, but merely a correction to the mutual record of terms agreed thus far.

82    Turning now to Mr Gires’s response to the request for a correction, being his second recap email on 7 November 2019 (see [40] above), there are several indications that stand in the way of a conclusion that it was a clear and unequivocal acceptance of the terms of the preceding offer, or that it corresponded with the offer.

83    First, it opens (at line 5) by stating that what follows is “revised recap asf”. As indicated, I understand “asf” to mean “agreed so far”. No other meaning was suggested. That contemplates that there were matters still to be agreed.

84    Secondly, two lines further, and before the terms are set out, the request is made to “pls also provide your BN [ie, booking note], riders and BL [ie, bill of lading and/or sea waybill]” (line 7), which clears up any ambiguity with regard to what is referred to in the crucial lines (lines 53-54):

Otherwise as per Carrier’s WWBN including rider clauses / BL including English law and London Arbitration => to be provided

That is to say, it is Spliethoff Transport’s booking note including rider clauses and its “BL” that were still to be provided.

85    On one view it might be said that agreement could be reached on the basis that the terms of the carrier’s booking note and bill of lading were incorporated even without them having been seen because they are standard pre-printed terms and are therefore certain and ascertainable. However, it cannot be said that there was agreement on the terms of any “rider clauses” because, as explained in relation to the first email recap, those could vary substantially, and parties cannot be taken to be ad idem if the acceptance is not clear and certain, or leaves something to be arranged or for future discussion and decision: Appleby v Johnson (1874) LR 9 CP 158 at 163 per Grove J; Jones v Daniel [1894] 2 Ch 332 at 335 per Romer J; Carter v Hyde 33 CLR at 121-122 per Knox CJ, 126 per Isaacs J and 133 per Higgins J.

86    Thirdly, as with the first email recap, the recap states (at line 39) that the intended rotation of the vessel is “to be supplied prior firm fixture”. Therefore, read objectively, the recap did not record a concluded, or “firm”, fixture.

87    Fourthly, the email ends in the request to “pls confirm” (line 60) and “thanks sofar” (line 61). That is to say, what had been agreed thus far required confirmation and more was still to be agreed.

88    For those reasons, I do not accept the submission on behalf of Poralu that a binding contract was concluded at that point.

B.    The booking note

89    In contrast, Mr Gires’s email of 8 November 2019 containing the booking note with the blocks on page 2 filled in (see [47] above), which included almost all of the terms previously agreed in the recap, constituted an offer which was capable of acceptance. There was nothing in it indicating that there was still something to be agreed.

90    A follow-up email requesting confirmation that the booking note was accepted was sent by Mr Gires on 19 November 2019 (see [54] above). By then, the Dijksgracht had been nominated as the intended performing vessel, Poralu had been advised of the rotation of the vessel and the carrier had approved the technical drawings. Also, the follow-up requesting confirmation shows that the parties did not regard the booking note as a mere formality recording something previously agreed. It was apparently regarded as constituting the terms of the agreement, which were then accepted by Mr Schweinsbergen on 20 November 2019 (see [55] above). That acceptance resulted in a binding contract.

91    Poralu submits that the booking note was not the contract because it was not signed. However, it did not need to be signed. Although there is a place for signatures, there is nothing in the wording or what preceded the agreement that required that it be signed. Poralu also submits that it is not the contract because its terms are not the same as what was recorded as having been agreed at that stage in the email recap, particularly with reference to law and jurisdiction. But that difference cannot form part of the analysis of contract formation. It was open to the parties to agree different terms after the recap emails, and that is apparently what they did. The answer to any suggestion that the omission of English law and London arbitration from the booking note must have been a mistake is that it may not have been a mistake; it may have been deliberate, or at least not a mutual mistake, and since there is no case made for rectification, it must be regarded as reflecting the parties’ intention.

92    Poralu submits that the terms of the booking note must give way to the terms of the recap to the extent of any inconsistency because of the recap having stated “Otherwise as per Carrier’s WWBN” (emphasis added). Whilst I accept that on the ordinary use of language that would be so, because the recap was not itself the contract and the booking note was, there is no possibility for the recap terms to take precedence over the booking note terms. Indeed, the recap terms have no contractual force at all. Also, the booking note records that its terms “shall prevail over any previous arrangements” (see [49] above).

C.    The sea waybill

93    The next question is what role the sea waybill played. Did it evidence a new or different contract between Spliethoff Transport and Poralu and, if not, what role or effect did it have? Despite what they pleaded, the defendants do not submit that the sea waybill was a new or different contract as between Spliethoff Transport and Poralu, but they do submit that Poralu’s acceptance of the sea waybill had the result that there was a new and independent contract between the owner of the vessel and Poralu on the terms of the Himalaya clause so as to enable the shipowner to rely on any exceptions and limitations that were available to the contractual carrier, Spliethoff Transport.

94    It is just as well to deal with that submission immediately. Since the owner of the vessel is not a party to the sea waybill, the issuing of the sea waybill by Doyle on behalf of Spliethoff Transport cannot have created any contract between the shipowner and Poralu. Although the Himalaya clause in the sea waybill purports to protect the shipowner and extend to it the benefit of “every exemption, limitation, condition and liberty … and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled” (cl 11), such protection is only effective if the carrier had the authority of the shipowner to conclude such a clause for its benefit. That is the same issue that arises in relation to whether the shipowner can rely on the Himalaya clause in the booking note, to which I will return. The sea waybill does not add to or assist in that analysis.

95    Although the defendants do not submit that the sea waybill evidences or contains any new or varied contract terms to the contract recorded in the booking note, it remains necessary to consider the contractual role played by the sea waybill because of its potential relevance to the questions whether the carriage was “under” or “covered by” a bill of lading within the meaning of Art 8:377 of the Burgerlijk Wetboek [Civil Code] (Netherlands) (Dutch Civil Code or DCC) and whether the booking note is a charterparty within the meaning of Arts 10(6) and (7) of the Australian Hague Rules – questions to which I will return.

96    The law is settled that whenever an issue arises between the charterer and the shipowner (“shipowner” being used here to mean disponent owner), the relations between them are governed by the charterparty, even if the charterer is not the shipper and takes as indorsee of the bill of lading, at least when the master is only authorised to sign bills of lading. In such a case the bill of lading is not separate or severable from the charterparty, it is issued in pursuance of it; it does not evidence any separate contract as between charterers and shipowners and is only a receipt for the goods. See Love and Stewart Ltd v Rowtor Steamship Co Ltd [1916] 2 AC 527 at 540 per Lord Sumner (Lord Parker of Waddington and Lord Wrenbury agreeing); The President of India v Metcalfe Co Ltd (The Dunelmia) [1970] 1 QB 289 at 305-308; [1969] 2 Lloyd’s Rep 476 at 481-483 per Lord Denning MR (Edmund Davies LJ agreeing), adopted and applied in Gardner Smith Pty Ltd v Ship “Tomoe 8” (1990) 19 NSWLR 588 at 591 per Carruthers J.

97    The present case is potentially distinguishable on the ground, first, that the sea waybill was not signed by the master with no authority to sign bills of lading contrary to the charterparty, but by the carrier’s agent at the load port on the express authority of the carrier, Spliethoff Transport, and secondly, that the sea waybill is a non-transferrable document. As to the first, as mentioned, immediately above the signature blocks on the booking note it is provided that the contract shall be performed subject to the terms, conditions and exceptions of the booking note which shall prevail over the terms, conditions and exceptions of any bill of lading or sea waybill issued under the booking note. Thus, the reasoning in The Dunelmia with regard to the bill of lading being “subject to” the terms of the charterparty applies equally in the present case. As to the second, the reasoning in The Dunelmia does not depend on the bill of lading in that case having been negotiable and having come into the hands of the charterer by endorsement. Indeed, the issue of a negotiable document would be a stronger basis to contend that it gave rise to a separate contract than would the issue of a non-negotiable document.

98    In the present case, the contract for the carriage of the goods was concluded between Spliethoff Transport as carrier and Poralu as charterer (without yet addressing the question of whether the booking note is a “charterparty” which I consider in section VIII.D below). The booking note anticipated the issue of a bill of lading or a sea waybill, and provided that the booking note would prevail over the terms of such a document – I will refer to that as the override clause. Clauses of the booking note that show that a bill of lading or sea waybill was anticipated include the following:

(1)    Clause 14(d), which provides that the carrier shall deliver the goods upon presentation of a duly endorsed original bill of lading or copy of a sea waybill.

(2)    Clause 20, which provides that if certain particulars are shown on the face of any bill of lading or sea waybill “issued hereunder” (ie, issued under the booking note), they are there only for the merchant’s convenience and the merchant indemnifies the carrier from and against any and all consequences arising from such inclusion.

99    The terms of the sea waybill show that it was anticipated that, if issued, it would be issued under a booking note or other contract:

(1)    Clause 15(a), which provides that freight shall be deemed fully earned and due upon the conclusion of the “booking”, even though by its nature the sea waybill might not be issued until sometime later.

(2)    Clause 16, which provides that “unless otherwise agreed in a contract subject to which this Waybill is issued”, the carrier shall be paid liquidated damages by the merchant at a specified rate.

(3)    Clause 21, which provides for the merchant to declare a port of discharge where the sea waybill, “or any underlying contract”, grants the merchant an option to choose between one or more stipulated ports of discharge.

100    It is also to be observed that the sea waybill as issued recorded that the “freight details, charges etc” were “as per Booking note 8th of November 2019 – Montpellier”. That is to say, the sea waybill referred expressly to the very booking note concluded between the parties to the sea waybill and incorporated a provision of the booking note.

101    Reading the documents together, the override clause in the booking note means that the terms of the booking note must prevail over the sea waybill. Further, the booking, which is recorded in the booking note, necessarily preceded the shipment of the cargo, whereas the sea waybill was agreed and issued only long after the cargo had been shipped. The parties could at that stage have agreed a variation of the contract, and such a variation could have been recorded in a document such as a bill of lading or a sea waybill, but that is not what happened in this case. There is nothing to show that the parties intended any variation, and there is no express provision in the sea waybill, which would be required, to cause it to prevail over the override clause and hence the booking note. Also, neither side of the case contends that the sea waybill was a variation of the original contract, whether that was concluded in the email recap exchanges or on the terms of the booking note.

102    In the circumstances, and in accordance with authority with regard to bills of lading, the sea waybill in this case does not embody or evidence any contract between carrier and charterer but served only as a receipt for the cargo. That also means that the sea waybill is not a “sea waybill” as contemplated by s 5 of the Sea-Carriage Documents Act 1997 (NSW) or s 89 of the Goods Act 1958 (Vic) so the defences based on that legislation need be considered no further.

D.    Summary of conclusions on the contract

103    To summarise, the booking note in the form sent by Mr Gires on 8 November 2019 and accepted by Mr Schweinsbergen on 20 November 2019 formed the contract of carriage. The sea waybill signed and stamped by Doyle on behalf of Spliethoff Transport on 31 December 2019 and accepted by Poralu did not amount to or evidence any new or varied contract between the parties, but served rather as a receipt for the cargo.

VI.    WHAT ARE THE TERMS OF THE CONTRACT?

104    Once the contract and its express terms are identified, the construction of those terms and their validity is to be determined by the proper law of the contract. Where, as here, the parties have made a choice as to the applicable law, that is the law to be applied: Trina Solar at [83] and [128].

105    The relevant terms of the booking note include the following:

3.     GENERAL PARAMOUNT CLAUSE

(a)     Except in case of US Trade, articles I-VIII inclusive of the Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels, 25th August 1924, shall apply to this Booking-Note. … In determining the liability of the Carrier, the liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit.

(b)     In case of US Trade …

10.     LAW AND JURISDICTION

This Booking-Note shall be governed by and construed in accordance with the laws of the Netherlands, except as provided elsewhere herein and except for US Trade, as to which the US COGSA 1936 shall apply, and any dispute, claim or action under this Booking-Note shall be decided by the Court of Rotterdam, the Netherlands, to the exclusive jurisdiction of which the Merchant submits himself. The Court of Rotterdam has non-exclusive jurisdiction in respect of any dispute, claim or action by the Carrier under this Booking-Note.

11.     CARRIER CLAUSE, EXEMPTIONS AND IMMUNITIES OF SERVANTS

(a)     The Merchant undertakes that no claim, demand, suit, action, allegation or arrest, whether ‘in personam’ or ‘in rem’ and whether arising in contract, bailment, tort, negligence or otherwise, shall be made against any of the Carrier’s Servants (including the Vessel) which imposes or attempts to impose upon them or any vessel owned or chartered by the Servants any liability whatsoever in connection with the Goods or the Carriage of the Goods whether or not arising out of negligence on the part of such Servants. The Servants shall also be entitled to enforce the foregoing covenant against the Merchant; and if any such claim or allegation should nevertheless be made, the Merchant undertakes to defend, indemnify and hold the Carrier harmless from all consequences thereof.

(b)     It is expressly agreed that no Servants shall in any circumstances whatsoever be under any liability whatsoever to the Merchant for any loss, damage or delay whatsoever and howsoever arising or resulting, directly or indirectly, from any act, fault, neglect or default on the part of the Servants while acting in the course of or in connection with the Goods or the Carriage of the Goods or the Servants’ employment. Without prejudice to the generality of the foregoing provisions in this Clause, every exemption, limitation, condition and liberty contained herein (other than Art. III Rule 8 of the Hague/Hague-Visby Rules) and every right, exemption from liability, defense and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled hereunder including the right to enforce any jurisdiction or arbitration provision contained herein shall also be available and shall extend to protect every such Servants of the Carrier, who shall be entitled to enforce the same against the Merchant.

(c)     For the purpose of the foregoing provisions of this Clause the Carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of each Person who is or might be his Servants and such Person shall to this extent be or be deemed a party to this Booking-Note.

[On page 2, above the signature boxes:]

It is hereby agreed that this Contract shall be performed subject to the terms, conditions and exceptions contained on Page 1 and 2 hereof, including any addenda, which shall prevail over any previous arrangements and/or the terms, conditions and exceptions of any Bill of Lading or Sea Waybill issued hereunder.

The boxes on page 2 were filled in as described at [47] above.

106    As shown, under cl 3(a), Arts 1-8 of the Hague Rules were incorporated. Art 3(3) of the Hague Rules provides as follows:

3.     After receiving the goods into his charge the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things:

(a)     The leading marks necessary for identification of the goods …

(b)     Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper.

(c)     The apparent order and condition of the goods.

107    Thus, it was a term of the contract between Spliethoff Transport and Poralu that the “shipper” had a right to demand a bill of lading, and Spliethoff Transport as carrier would then have a corresponding obligation to issue a bill of lading. It was common ground between the parties in their submissions that that the “shipper” as referred to in that provision included, or was, Poralu. That stands to reason because although TPI as agent for Poralu was recorded in the booking note as the “merchant”, “merchant” was in turn defined in cl 1 to “include the Merchant, Shipper, Receiver, Consignee, and any Person who owns or is entitled to the possession of the Goods”. Poralu is the only party meeting that description, and it was thus Poralu that was given the right under the incorporated Art 3(3) to demand a bill of lading.

108    Moreover, the booking note was governed by and is to be construed in accordance with the laws of the Netherlands. Under Art 8:399 of the DCC, essentially the same rights and obligations with regard to demanding a bill of lading are provided for – Art 8:399 is the statutory embodiment in Dutch domestic law of Art 3(3).

109    It will be recalled that the defendants pleaded that it was a term of the contract that a sea waybill would be issued if the consignee was known. The defendants rely in that regard on the email communications from Spliethoff Transport in which it was suggested that a sea waybill would be better if the consignee was known (see [42] and [61] above). There is nothing in that correspondence, and the responses to it, that elevates its content to contractual status. As discussed, the booking note contract envisaged that either a bill of lading or a sea waybill would be issued and it gave Poralu the right to demand a bill of lading, and Poralu did not make such a demand but instead accepted a sea waybill. I therefore reject this aspect of the defendants’ case.

110    I also reject the plaintiff’s case that it was a term of the contract of carriage that a bill of lading would be issued by Spliethoff Transport. The express provision to the plaintiff of a right to demand a bill of lading from Spliethoff Transport is inconsistent with there being an obligation on Spliethoff Transport to issue a bill of lading to the plaintiff in the absence of any demand.

111    As will be seen, the contractual term as to the issuing of a bill of lading is relevant to the question whether the Hague-Visby Rules are applicable under Dutch (or English) law.

VII.    ARE THE HAGUE-VISBY RULES COMPULSORILY APPLICABLE UNDER DUTCH LAW?

A.    The Dutch law experts

112    Each side of the case adduced evidence of an expert on Dutch maritime law. The plaintiff relied on the evidence of Prof Dr Frank Smeele who is a full-time Professor of Commercial Law at the Erasmus University School of Law in Rotterdam. Prof Smeele is also a part-time Deputy Appeal Judge of the Court of Appeal at The Hague. The defendants relied on the evidence of Dr Jan Eckoldt who has worked as a practising lawyer in the field of transport and maritime law and is currently a partner of the Amsterdam-based law firm DECK Advocaten.

113    The experts each produced several reports, and a joint report. They gave concurrent oral evidence by way of audio visual link. I found both Prof Smeele and Dr Eckoldt to be very helpful and that they endeavoured to give considered and accurate evidence. I record my appreciation to them.

114    The relevant articles of the DCC to which reference will be made are in Chapter II of Book 8 of the DCC, ie, the maritime law chapter in the book dealing with transport law and means of transport.

115    In their joint report, the experts explained that in cases in which “the conditions for the formal and material scope of application of the Hague-Visby Rules are met”, Art 8:371(3) of the DCC grants direct force of law to the Hague-Visby Rules, ie, compulsory applicability. The “formal” requirements for the application of the Rules are those set out in Art 10 of the Rules and Art 8:371(3) of the DCC. I will return to those.

B.    The “material” requirement – Art 1(b)

116    The “material” requirement is that reflected in the definition of “contract of carriage” in Art 1(b) of the Rules that the contract of carriage in question is one “covered by a bill of lading or any similar document of title”. That is to say, under the Rules, they apply only to contracts of carriage “covered by a bill of lading or any similar document of title”. The equivalent provision in the DCC is Art 8:377 which provides that:

… vervoerovereenkomst onder cognossement verstaan de vervoerovereenkomst neergelegd in een cognossement dan wel enig soortgelijk document dat een titel vormt voor het vervoer van zaken over zee …

117    In English, that translates as follows:

‘contract of carriage under a bill of lading’ means: a contract of carriage embodied in (covered by) a bill of lading or any similar document forming a title for the carriage of goods by sea.

118    Thus, in respect of the material requirement under Dutch law, it would have to be concluded that the contract of carriage in this case was a contract “neergelegd in”, ie, laid down or embodied in or “covered by”, a bill of lading notwithstanding that there was no obligation to issue a bill of lading in the absence of a demand for one, there was no demand for a bill of lading, no bill of lading was ever issued, the consignee accepted a sea waybill and the actual contract was the booking note. It is common ground that the sea waybill was not “a similar document of title”.

119    In English law, where a contract of carriage at its inception provides for the issue of a bill of lading on demand, the contract of carriage is “covered by a bill of lading” within the meaning of Art 1(b) of the Hague-Visby Rules even where no bill of lading is ever issued: Kyokuyo Co Ltd v AP Møller-Maersk A/S (The Maersk Tangier) [2018] EWCA Civ 778; [2018] 2 Lloyd’s Rep 59. Much of the debate between the Dutch law experts centred on whether or not, and if so to what extent and in what circumstances, a Dutch court would follow, or depart from, The Maersk Tangier.

120    The Dutch law experts disagree regarding the application of the Hague-Visby Rules where the carrier and the shipowner did not agree, when concluding the contract, whether or not a bill of lading or sea waybill will eventually be issued. They disagree about whether the mere existence of the unexercised right of the shipper to demand a bill of lading (pursuant to Art 3(3) of the Rules or Art 8:399 of the DCC) is sufficient for the material application of the Rules or whether the shipper has to actually exercise its right to demand a bill of lading. The experts agree that that question is undecided by the Dutch courts. Prof Smeele leaves the question open, whereas Dr Eckoldt is of the opinion that in those cases, if the shipper does not demand a bill of lading and the carrier issues a sea waybill, the contract is not “covered by a bill of lading or similar document of title”.

121    Even that brief summary reveals that the question that it exposes is not an easy one. That explains the considerable lengths to which the parties and their experts went to try to answer it. However, neither expert was asked to address, and neither in fact addressed, whether the “formal” requirement for the application of the Rules was established. Given the conclusion that I have reached on that question, which I deal with next, it is not necessary for me to answer the question whether the “material” requirement is met. I consider that it is not justifiable to try to answer that question in circumstances where, if it becomes relevant in due course, another court will be in as good a position as me to do so as there is nothing in the demeanour of the witnesses or the way in which they gave their evidence that has a bearing on it.

C.    The “formal” requirement – Art 10

122    There are three possible bases on which the “formal” requirement might be met, as expressed in Art 10 of the Hague-Visby Rules:

The provisions of this Convention shall apply to every Bill of Lading relating to the carriage of goods between ports in two different States if:

(a)    the Bill of Lading is issued in a Contracting State, or

(b)     the carriage is from a port in a Contracting State, or

(c)     the contract contained in or evidenced by the Bill of Lading provides that the rules of this Convention or legislation of any State giving effect to them are to govern the contract

whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or any other interested person. …

Article 8:371(3) of the DCC is to equivalent effect.

123    The plaintiff contends that each of paras (a), (b) and (c) is satisfied and the defendants contend that none is. Since two of the paragraphs refer to a Contracting State, and if Ireland is a Contracting State para (b) will undoubtedly be satisfied, it is convenient to begin by considering whether Ireland is a Contracting State. The questions that arise in this section are to be answered with reference to the applicable law, namely Dutch law, specifically Art 8:371(3) of the DCC rather than Art 10 of the Hague-Visby Rules. However, because the Dutch law experts did not address them, I must do so, to the extent necessary, on the presumption that Dutch law on the questions is the same as Australian law. As will be seen, no peculiar rules of Australian law are called in aid to answer these questions; there are principles of international treaty law that are relevant, as well as the provisions of international instruments.

1.    Ireland as a Contracting State to the Hague-Visby Rules

124    The plaintiff and the defendants adduced the evidence of experts on Irish law. The plaintiff relied on the evidence of Helen Noble SC who is the founder and principal of Noble Shipping Law, an Irish law firm dedicated to shipping and transport law. Ms Noble is admitted to practice in Ireland and in England and Wales, and has been appointed Senior Counsel by Patent of Precedence conferred on her by the Government of Ireland. The defendants relied on the evidence of Hugh Kennedy, a partner of Kennedys Law LLP in its Irish head office. Mr Kennedy is a solicitor admitted to practice in Ireland. He specialises in admiralty, marine and aviation matters.

125    Given the way in which the issue arose (see [15] above), the Irish law experts were not asked whether Ireland is a Contracting State to the Hague-Visby Rules. They were briefed to answer other questions of Irish law which would arise only in the event that I concluded that Irish law was the proper law of the contract of carriage in the way explained above at [9(2)]. Since I have concluded that Dutch law is the proper law, those questions do not arise. Nevertheless, there are some limited respects in which their evidence is helpful with regard to the status of the Hague-Visby Rules in Ireland.

126    The Irish law experts agree that the Hague-Visby Rules are given force of law in Ireland by the Merchant Shipping (Liability of Shipowners and Others) Act, 1996 (IRE) (the Irish Act). The Irish Act was adopted on 14 December 1996 and commenced on 6 February 1997.

127    Ms Noble made reference to, and exhibited, the Constitution of Ireland. Article 29(4) of the Constitution provides that the executive power of the State in or in connection with its external relations shall be exercised by or on the authority of the Government. Further, by Art 29(6), no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas (ie, the National Parliament). Thus, as in Australia, the executive can conclude treaties and conventions on the international plane thereby giving rise to rights and obligations on that plain, but such treaties and conventions do not form part of domestic law unless and until they are adopted into domestic legislation. Unlike in the USA, it is nevertheless not necessary for the legislature to approve (sometimes confusingly referred to as “ratify”) the executive’s ratification of or accession to a treaty.

128    The evidence is that Ireland adhered to the Hague Rules of 1924 on 30 January 1962. In introducing the Merchant Shipping (Liability of Shipowners and Others) Bill, 1996 (IRE), which became the Irish Act and gave the Hague-Visby Rules the force of law in Irish domestic law, in the Seanad Éireann (the Upper House) on 21 February 1996, the Minister for the Marine said that the legislation was introduced to enable the State to accede to the Visby and SDR Protocols in due course. In written answers to questions in the Dáil Éireann (the Lower House) on 28 January 1998, the Minister for the Marine and Natural Resources said that the status of the Protocols was that signatures were “in the process of lodgement, subject to ratification”. Given the constitutional position outlined above, that reference to ratification must be a reference to ratification at the international level and not approval by the legislature. Also, by then the Irish Act had been adopted and come into force, ie, it had already been approved by the legislature.

129    Ireland’s signatures to the Visby and SDR Protocols were lodged with the depositary state, Belgium, on 15 April 1998.

130    The plaintiff accepts that Ireland has not ratified, or adhered or acceded to, the Visby or SDR Protocols. However, it submits that the acts of signing the protocols and lodging them with the depositary, taken together with the enactment of their terms in domestic law, gives rise to the conclusion that Ireland has “consented to be bound” by the protocols.

131    The wording “consented to be bound” comes from Art 2(1)(f) of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), which defines “Contracting State”, for the purposes of that Convention, to mean “a State which has consented to be bound by the treaty, whether or not the treaty has entered into force”. In para (g), “Party” is defined to mean “a State which has consented to be bound by the treaty and for which the treaty is in force”, ie, when by its terms it has received a sufficient number of ratifications to take effect.

132    Relevantly, the Vienna Convention provides that consent to be bound by a treaty can be expressed by signature (Art 12), an exchange of instruments constituting a treaty (Art 13), ratification, acceptance or approval (Art 14) and accession (Art 15). Under Art 12, consent to be bound is expressed by signature when the treaty provides that signature shall have that effect, or it is otherwise established that the negotiating states were agreed that signature should have that effect. Under Art 14, consent to be bound is expressed by ratification when the treaty provides for such consent to be expressed by means of ratification, or it is otherwise established that the negotiating States were agreed that ratification should be required. Thus, which of the options of expressing consent to be bound is available in respect of any particular treaty will depend on the relevant treaty’s final clauses.

133    The Visby Protocol has a number of Articles within its final clauses which are relevant to the question at hand, noting that references to “the Convention” are to the Brussels Convention (ie, the Hague Rules):

Article 10.

This Protocol shall be open for signature by the States which have ratified the Convention or which have adhered thereto before the 23rd February 1968, and by any State represented at the twelfth session (1967-1968) of the Diplomatic Conference on Maritime Law.

Article 11.

(1)     This Protocol shall be ratified.

(2)     Ratification of this Protocol by any State which is not a Party to the Convention shall have the effect of accession to the Convention.

(3)     The instruments of ratification shall be deposited with the Belgian Government.

Article 12.

(1)     States, Members of the United Nations or Members of the specialized agencies of the United Nations, not represented at the twelfth session of the Diplomatic Conference on Maritime Law, may accede to this Protocol.

(2)     Accession to this Protocol shall have the effect of accession to the Convention.

(3)     The instruments of accession shall be deposited with the Belgian Government.

Article 13.

(1)     This Protocol shall come into force three months after the date of the deposit of ten instruments of ratification or accession, of which at least five shall have been deposited by States that have each a tonnage equal or superior to one million gross tons of tonnage.

(2)     For each State which ratifies this Protocol or accedes thereto after the date of deposit of the instrument of ratification or accession determining the coming into force such as is stipulated in paragraph 1 of this Article, this Protocol shall come into force three months after the deposit of its instrument of ratification or accession.

134    The SDR Protocol also has a number of relevant final clauses:

Article V.

This Protocol shall be open for signature by the States which have signed the Convention of 25 August 1924 or the Protocol of 23 February 1968 or which are Parties to the Convention.

Article VI.

(1)     This Protocol shall be ratified.

(2)     Ratification of this Protocol by any State which is not a Party to the Convention shall have the effect of ratification of the Convention.

(3)     The instruments of ratification shall be deposited with the Belgian Government.

Article VII.

(1)     States not referred to in Article V may accede to this Protocol.

(2)     Accession to this Protocol shall have the effect of accession to the Convention.

(3)     The instruments of accession shall be deposited with the Belgian Government.

Article VIII.

(1)     This Protocol shall come into force three months after the date of the deposit of five instruments of ratification or accession.

(2)     For each State which ratifies this Protocol or accedes thereto after the fifth deposit, this Protocol shall come into force three months after the deposit of its instrument of ratification or accession.

…

Article X.

(1)     Each State may at the time of signature, ratification or accession or at any time thereafter declare by written notification to the Belgian Government which, among the territories for whose international relations it is responsible, are those to which the present Protocol applies. The Protocol shall three months after the date of the receipt of such notification by the Belgian Government extend to the territories named therein, but not before the date of the coming into force of the Protocol in respect of such State. …

135    Both the Visby Protocol (Art 11(1)) and the SDR Protocol (Art VI(1)) provide that the protocol “shall be ratified”. Aside from the possibility of accession specifically provided for (in Arts 12 and VII respectively), it is hard to avoid the conclusion that those words mean that ratification is required and that signature alone is insufficient. That, however, directs attention to the meaning or effect of the provisions that refer to signature. In particular, does the provision for “signature” under Art 10 of the Visby Protocol and Art V of the SDR Protocol mean that by signing the relevant protocol a State would become a Contracting Party?

136    In international treaty law, a distinction is drawn between “simple” signature and “definitive” signature. Signature is usually the first step in the process of becoming party to a treaty. Multilateral treaties generally provide for signature subject to ratification, acceptance or approval. That form of signature is called simple signature. It indicates the State’s intention to undertake positive action to express its consent to be bound by the treaty at a later date. Some treaties provide that States can express their consent to be legally bound by signature alone. This method, referred to as definitive signature, is most commonly used in bilateral treaties and is rarely used in modern multilateral treaties. See Treaty Section of the Office of Legal Affairs, United Nations, Final Clauses of Multilateral Treaties: Handbook (2003) pp 32-35; Aust A, Modern Treaty Law and Practice (3rd ed, Cambridge University Press, 2013) pp 89-90; Korontzis G, “Making the Treaty” in Hollis DB (ed), The Oxford Guide to Treaties (Oxford University Press, 2012) p 196.

137    In my view, on a proper construction of the final clauses of the two Protocols, the provisions for signature are for a form of simple signature. The purpose and effect of such signature is apparent from Art 18(a) of the Vienna Convention, namely that a State that has signed a treaty subject to ratification is obliged to refrain from acts which would defeat the object and purpose of the treaty until it shall have made its intention clear not to become a party to the treaty. There is also some kudos attached to being an early signatory to a treaty or convention, even though a State may require some time before being able to formally express its consent to be bound, which provides a reason for simple signature.

138    It is apparent from the answers given by the relevant Ministers of the Irish Government, referred to above, that the Irish Government considered signature of the Protocols in question to be insufficient, and that signature was merely a step in the process to ratification.

139    The plaintiff submits that the adoption of the Hague-Visby Rules into Irish domestic law is an expression of consent to be bound by the relevant protocols because it reflects Ireland to have undertaken its obligations under Art 16 of the Visby Protocol. That Article provides that the Contracting Parties may give effect to the Protocol either by giving it the force of law or by including the Rules adopted under the Protocol in their national legislation in a form appropriate to that legislation. However, such a means of expression of consent to be bound is not provided for in the Vienna Convention, or in the protocols concerned. Moreover, where a convention specifically provides for a particular method by which the intention to be become bound by the regime of the convention is to be manifested, namely by the carrying out of certain prescribed formalities, “it is not lightly to be presumed that a State which has not carried out those formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way”: North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Merits) [1969] ICJ Rep 3 at [28].

140    In the circumstances, Ireland is not a Contracting State to the Visby Protocol or the SDR Protocol. That is an unsurprising conclusion given its consistency with the records of the Office of Legal Affairs of the UN as reflected in the UN Treaty Series Online, and with leading textbooks, eg, Aikens, Sir Richard et al, Bills of Lading (3rd ed, informa law, 2021) (Aikens) pp 637-638.

2.    Article 10(a)

141    This element of the formal requirements requires that the bill of lading was “issued in a Contracting State”. Poralu contends that the sea waybill was issued by Spliethoff Transport in the Netherlands by email on 6 January 2020, that the electronic signature and nominated place of issue (ie, Cork) are not conclusive of its place of issue and that the issue of the sea waybill was the step of issuing the contemplated bill of lading. On that basis, it says that Art 10(a) is satisfied because, notionally, the bill of lading was issued in the Netherlands.

142    An obvious difficulty arises in trying to determine where a bill of lading was issued when, in respect of the carriage in question, no bill of lading was in fact issued. As mentioned, the absence of any bill of lading having been issued was found not to have defeated the “material” requirement of Art 1(b) that the carriage in question be carriage “covered by a bill of lading” in The Maersk Tangier. That was on the basis that Devlin J had held in Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402 at 419-420; [1954] 1 Lloyd’s Rep 321 at 329 (Pyrene v Scindia) that the use of the word “covered” in Art 1(b) recognises the fact that the contract of carriage is always concluded before the bill of lading, which evidences its terms, is actually issued. In that case, the damage had occurred on loading prior to the issue of a bill of lading, and it was held that the carriage was nevertheless “covered” by a bill of lading because the parties had entered into the contract of carriage in the expectation that a bill of lading would be issued to cover it.

143    Similarly, in Parsons Corporation v CV Scheepvaartonderneming “Happy Ranger” [2002] EWCA Civ 694; [2002] 2 Lloyd’s Rep 357 (The Happy Ranger EWCA), the contract of carriage incorporated a specimen bill of lading but at the time the damage occurred no bill had been issued. Lord Justice Tuckey (Aldous LJ agreeing) held (at [24]) that it is the fact that the bill of lading is issued or that its issue is contemplated which matters.

144    Returning to The Maersk Tangier, an argument was advanced that even though the carriage was from Spain which was a Contracting Party to the Hague-Visby Rules, Art 10(b) could not be satisfied because no bill of lading was actually issued and, by the chapeau to Art 10, it is provided that the provisions of the Rules shall apply to every bill of lading, ie, in the absence of a bill of lading they could not apply. It was also argued that the reference in Art 4(5)(c) to “the number of packages or units enumerated in the bill of lading” supported the proposition that a bill of lading in fact, as opposed to merely contemplated, was required in order for the Rules to apply. See [65]-[66].

145    Lord Justice Flaux (Gloster LJ agreeing) rejected these arguments (at [68]ff). His Lordship did so with reference to s 1(4) of the UK Act. Section 1(2) gives the Hague-Visby Rules the force of law. Section 1(4) provides that “nothing in this section shall be taken as applying anything in the Rules to any contract for the carriage of goods by sea, unless the contract expressly or by implication provides for the issue of a bill of lading or any similar document of title”. It was held that the clear intention is that where the contract of carriage “expressly or by implication provides for the issue of a bill of lading or any similar document of title”, the Rules will apply to that contract and will have the force of law pursuant to s 1(2). It was reasoned that s 1(4) would be superfluous if the issue of a bill of lading were a prerequisite to the application of the Rules.

146    On that basis, it was reasoned (at [69]) that one has to approach the provisions of the Rules themselves on the basis that, because the requirements of s 1(4) (and for that matter Art 1(b)) are satisfied, it is intended that the Rules should have the force of law in a case such as The Maersk Tangier, ie, where it was contemplated that a bill of lading would be issued but in fact none was. It was reasoned that if Art 10(b) and Art 4(5)(c) were interpreted literally as contended, that would clearly frustrate that intention and achieve a result flatly contrary to the decision of the Court of Appeal in The Happy Ranger EWCA. The following was then said:

70     In my judgment, the solution to any apparent conundrum is that these Articles should be given a purposive construction, so as to give effect to the clear intention that the Hague-Visby Rules apply compulsorily to the contract of carriage. Specifically, the references in article X to ‘bill of lading’ should be read as ‘contract of carriage which is covered by a bill of lading or similar document of title’, giving effect to the case law on the meaning of ‘covered by a bill of lading’ in article I(b). Some support for this purposive approach to article X is to be found in the article The Hague-Visby Rules by Mr Anthony Diamond QC in [1978] LMCLQ 225 at page 261 and in the textbooks Scrutton on Charterparties, 23rd Edition (paras 14–010 to 14–012) and Aikens, Bills of Lading 2nd Edition (2015) (para 10.23).

71     Likewise, in my judgment, where, as here, the requirements of article I(b) and section 1(4) of the 1971 Act are satisfied, the reference to enumeration in the bill of lading in article IV rule 5(c) must be read as encompassing any other document which contains the enumeration which would have been in the bill of lading if such a bill had been issued, here the sea waybills.

147    In short, it was held that Art 10(b) can be satisfied even where no bill of lading is issued, and that the reference to “enumeration in the bill of lading” in Art 4(5)(c) can be read as encompassing some other document where no bill of lading is issued. On that basis, it might be said that Art 10(a) can be satisfied even where no bill of lading is issued, and that the reference to “bill of lading” in that paragraph must be read as encompassing some other document, logically the sea waybill in the present case.

148    The first observation is that the Court of Appeal’s reasoning that “bill of lading” in Art 10 should be read as “contract covered by a bill of lading”, although stated more broadly, in truth can only have been intended to apply to the chapeau to Art 10. That is what the Court was addressing, and such a substitution of words can make no sense in the context of paragraph (a) of Art 10, ie, “the ‘contract covered by a bill of lading’ is issued in a Contracting State”. A further substitution would be required, namely that “issued” was substituted with “concluded”.

149    The second observation is that the reasoning of the Court of Appeal turns heavily on giving s 1(4) of the domestic statute that was applicable in that case a purposive construction, which statute is not applicable in the present case. There is also no apparent equivalent in the DCC. The reasoning is distinguishable on that basis.

150    There is nothing artificial in the principal reasoning of Pyrene v Scindia, The Happy Ranger EWCA and The Maersk Tangier that the wording “contract of carriage covered by a bill of lading” includes a contract of carriage where no bill of lading is in fact issued but in respect of which the issue of a bill of lading was contemplated, or in respect of which the shipper had a right to demand a bill of lading. That cannot, however, be said of any reasoning in support of the proposition that Art 10(a) can apply even when no bill of lading is issued. That arises, principally, from the word “issued” in that provision, and its obvious contrast with “covered” in Art 1(b) and Art 3(3) – the provision of a right to demand the issue of a bill of lading could have no operation if the Rules could only apply once a bill of lading had already been issued.

151    It is highly artificial, and indeed an exercise in unrestrained speculation, to identify the place where a bill of lading would have been issued had a bill of lading been issued. The bill of lading was traditionally issued by the master at the load port, although in modern trading it may be issued at the place of business of the carrier or its agents but can be issued anywhere in the absence of any contractual terms to the contrary: see Aikens at [3.37].

152    In my view, if no bill of lading is issued then Art 10(a) cannot be satisfied. To hold otherwise is too artificial a result.

153    If I am wrong in that conclusion, it becomes relevant to consider where the bill of lading in this case should be regarded as having been issued, even though no bill of lading was issued. My first answer to that question would be that any contemplated bill of lading would most likely be issued in Ireland, being the country of shipment. That is the most obvious and usual place for a bill of lading to be issued.

154    A second answer, if the first answer is wrong, is that, on the reasoning in The Maersk Tangier in relation to Art 4(5)(c), the only obvious existing proxy to the fictitious bill of lading is the sea waybill. That records on its face that it was issued in Cork, Ireland, and the evidence is that it was signed by Doyle on behalf of Spliethoff Transport in Ireland. Notwithstanding that, the plaintiff submits that it was issued to it by being transmitted by email from Mr Zuijderduin in Amsterdam to Mr Vidal in Montpellier on 6 January 2020 (see [75] above). As the Netherlands (with effect from 26 July 1982) and France (with effect from 23 June 1977) both ratified the Visby Protocol, both are Contracting States to the Hague-Visby Rules. On that basis, whether one approaches the matter from the perspective of the bill of lading being issued where it was transmitted from or from the perspective of where it was received on behalf of the shipper, Art 10(a) would be satisfied.

155    However, I am not persuaded that a bill of lading can be regarded as having been issued with reference to from or to where it was transmitted by email. The learned authors of Aikens express the view that “issued” refers to the place where signature or authentication of the carrier occurs: at [11.26]. I agree. The issue of a bill of lading is a unilateral, not a bilateral act. Thus, the place of issue of a bill of lading may be a different place to where the bill of lading is given to the shipper: see Treitel, Sir Guenter and Reynolds FMB, Carver on Bills of Lading (4th ed, Sweet & Maxwell, 2017) at [9-080]. Given that modern commerce is principally conducted by electronic communication in circumstances where the individuals concerned might, at any particular time, be just about anywhere, it would lead to intolerable uncertainty if the place of issue of a bill of lading depended on where a particular person was at any given time when they sent or received an email. In my view, the relevant document must be regarded as issued where it is stated in it to have been issued, and in the absence of such a statement then where it was in fact signed or authenticated.

156    The plaintiff contends that such an approach should be avoided because it would enable a carrier to evade the application of the Rules by deliberately issuing the bill of lading in a non-Contracting State. The first observation is that that would only be effective if neither Art 10(b) nor (c) applied, which rather reduces the possibility of the mischief that the plaintiff identifies.

157    Secondly, Art 10 of the Hague Rules contains only the equivalent of what is Art 10(a) of the Hague-Visby Rules, ie, Art 10 was amended to include (b) and (c). Article 10 of the Hague Rules was not enacted in English law because, in that form, it was understood that the Rules could be evaded on a shipment out of a Contracting State by the expedient of issuing the bill of lading in a non-Contracting State: Carver on Bills of Lading at [9-080]. In other words, avoidance of the very risk that the plaintiff identifies as a reason to construe “issued” in Art 10(a) in the Hague-Visby Rules as a bilateral act is the risk identified in relation to Art 10 of the Hague Rules when it was given force in English law, and which risk was limited by the Visby amendments.

158    Also, there is nothing in the debates on Art 5 of the Visby Protocol which amended Art 10 of the Hague Rules that suggests that any delegation regarded or understood “issued” in this context to refer to anything other than the unilateral act of the carrier signing the bill of lading: see The Travaux Préparatoires of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading of 25 August 1924, the Hague Rules, and of the Protocols of 23 February 1968 and 21 December 1979, the Hague-Visby Rules (Comité Maritime International, 1997) pp 684-741. The plaintiff’s construction is thus contrary to what would appear to be the common international understanding, and I reject it.

159    In the result, however I approach the matter, my conclusion is that Art 10(a) is not satisfied.

3.    Article 10(b)

160    As explained, Ireland is not a Contracting State to the Visby or SDR Protocols, with the result that the carriage was not from a port in a Contracting State within the meaning of Art 10(b). That requirement is not satisfied.

4.    Article 10(c)

161    By this paragraph, the Rules apply to a bill of lading relating to the carriage of goods between ports in two different states if “the contract contained in or evidenced by the bill of lading provides that the rules of this Convention or legislation of any State giving effect to them are to govern the contract”.

162    On this leg of the case, the plaintiff relies on the standard bill of lading terms that Spliethoff Transport would have used had a bill of lading been issued. There is an artificially to that approach because, as between the parties to the contract of carriage in question (ie, Poralu and Spliethoff Transport), if a bill of lading had been issued, it would not have evidenced the contract of carriage and the contract of carriage would not have been contained in it. That is for the reasons explained in section V.C above with reference to The Dunelmia. Any bill of lading would have served only as a receipt and, possibly, a document of title. For that reason, Art 10(c) is not satisfied.

163    However, in the event that that is wrong and it is necessary to look to the terms of the bill of lading that would have been issued, then the term the plaintiff relies on cl 3(a), the general paramount clause. It is in the following terms, with the sentences numbered by me for ease of reference:

1    Except in case of US Trade, the Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels, 25th August 1924, as enacted in the country of shipment, shall apply to this Bill of Lading.

2    If no such enactment is in force in the country of shipment, the articles I-VIII inclusive of the said Convention shall apply.

3    In trades where the International Brussels Convention 1924 as amended by the Protocols signed at Brussels on 23 February 1968 and 21 December 1979 (the Hague-Visby Rules) apply compulsorily, the provisions of the Hague-Visby Rules shall be considered incorporated in this Bill of Lading.

4    The Carrier reserves all its rights under the Hague Rules or Hague-Visby Rules, including the period before loading and after discharging and while the Goods are in the charge of another Carrier, and to deck cargo and live animals.

5    If the Hague Rules are applicable otherwise than by national law, in determining the liability of the Carrier, the liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit.

164    The plaintiff submits that the first sentence is applicable, and that its effect is that the Hague-Visby Rules apply as they are the rules “enacted in the country of shipment” (ie, Ireland) and the reference to “the Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels, 25th August 1924” is to be construed as a reference to the Hague Rules as modified by the Visby and SDR Protocol as enacted in the country of shipment. In that regard, the plaintiff relies on Yemgas FZCO v Superior Pescadores SA (The Superior Pescadores) [2016] EWCA Civ 101; [2016] 1 Lloyd’s Rep 561.

165    In that case the paramount clause provided, as in the first sentence of the paramount clause in the present case, that “the Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels, 25th August 1924, as enacted in the country of shipment, shall apply to this contract”. Lord Justice Longmore (Tomlinson and McCombe LJJ agreeing) concluded (at [37]) that any case in which a bill of lading is issued in 2008 (ie, well after the Visby Protocol took effect) incorporating the Hague Rules as enacted in the country of shipment and in which the country of shipment has enacted the Hague-Visby Rules, should be regarded as a case which is subject to the Hague-Visby Rules rather than the (old) Hague Rules. The plaintiff relies on that conclusion.

166    The obvious weakness in the plaintiff’s submission is that it depends on reading the first sentence separately from the rest of the paramount clause, and indeed the rest of the bill of lading terms. It is elementary that any words in an instrument must be read and understood in the context of the instrument as a whole. Even more so, words used in a particular clause must be read and understood in the context of the whole clause. It is beyond peradventure that cl 3(a) of the bill of lading refers separately to the Hague Rules of 1924 and the amendments to those rules in 1968 and 1979 which are now reflected in the Hague-Visby Rules – the third and fourth sentences make that plain. Moreover, the reference to the Hague Rules in the first sentence is plainly not a reference to the Hague-Visby Rules because it refers to the Hague Rules limitation of £100 and not to the Hague-Visby Rules limitations. In the circumstances, the reference to the Hague Rules in the first sentence would by ordinary principles be taken to be a reference to the Hague Rules of 1924 and not to the Hague-Visby Rules.

167    Moreover, contrary to the plaintiff’s submission, The Superior Pescadores confirms that approach. First, consideration was given to the first instance decision of Tomlinson J, as his Lordship then was, in Parsons Corporation v CV Scheepvaartonderneming Happy Ranger [2001] 2 Lloyd’s Rep 530; [2002] 1 All ER (Comm) 176 (QBD) (The Happy Ranger QBD). There, the first sentence of the paramount clause was essentially the same as in the present case and The Superior Pescadores. The country of shipment, Italy, had enacted the Hague-Visby Rules. Justice Tomlinson (at [31], and quoted in The Superior Pescadores at [34]) rejected the argument that the Hague-Visby Rules are to be regarded as the Hague Rules “as enacted” in the country of shipment. His Lordship said:

Quite apart from the important differences between the two codes, in the first two subclauses of [the paramount clause] a clear distinction is drawn between the Hague and the Hague-Visby Rules and their enactment.

168    With reference to that, Longmore LJ said (at [35]) that he did not understand it as saying that the words “as enacted in the country of shipment” could not refer to the Hague-Visby Rules if, for example, the particular paramount clause made no specific reference to the Hague-Visby Rules “in some other part of the same clause” but those Rules had in fact been enacted in the country of shipment. Lord Justice Tomlinson (at [49]) made some comments with regard to why he should not have referred to Italy having enacted the Hague-Visby Rules at [31] of his Lordship’s own judgment in The Happy Ranger QBD, but should rather have said that Italy had enacted the Hague Rules as amended by the Visby Protocol. His Lordship went on (at [51]) to say that he considered that the result reached was nevertheless correct (and was not disturbed by the Court of Appeal in The Happy Ranger EWCA) because the paramount clause there under consideration drew a distinction between the Hague Rules and the Hague-Visby Rules. That distinction exists in the present case.

169    Lord Justice Longmore referred (at [29]) to the decision of Thomas J in Lauritzen Reefers v Ocean Reef Transport Ltd SA (The Bukhta Russkaya) [1997] 2 Lloyd’s Rep 744 which held that a reference to the Hague Rules in the paramount clause was indeed a reference to those Rules and not to the Hague-Visby Rules. His Lordship said:

That is perhaps not a surprising decision in a case where the incorporating clause itself expressly refers to both the Hague Rules and the Hague-Visby Rules and makes clear that the Hague-Visby Rules are only to apply in certain defined circumstances.

170    His Lordship went on to say (at [30]), with reference to a statement in Wilford M et al, Time Charters (4th ed, Lloydʼs of London Press, 1995) p 561:

I think the late Mr Wilford was indeed correct to say that since 1977 a typical clause paramount, which did not differentiate in terms between the two sets of rules, would be taken by shipping men to incorporate the Hague-Visby Rules in a Baltime charter governed by English law and, by extension, to other charters and to bills of lading subject to such a clause (such as the Conline bills in the present case).

(Emphasis added.)

171    Since the paramount clause in the present case, as identified, refers separately and deliberately to the Hague Rules and the Hague-Visby Rules, the conclusion in The Superior Pescadores is inapplicable, but the reasoning of the Court of Appeal in relation to other cases where there was such a differentiation nevertheless applies.

172    In the circumstances, since the Hague Rules were not enacted in Ireland, the first sentence of the paramount clause has no application, and the second sentence does. On that basis, Art 10(c) is not satisfied.

5.    Conclusion on the “formal” requirement

173    For those reasons, none of the bases for the application of the Hague-Visby Rules in Art 10 (or DCC Art 8:371(3)) is satisfied. Therefore, the Hague-Visby Rules do not apply compulsorily under Dutch law regardless of whether the correct conclusion under Dutch law is that the carriage was “covered by a bill of lading” in circumstances where no bill of lading was actually issued, or demanded.

VIII.    ARE THE AUSTRALIAN HAGUE RULES COMPULSORILY APPLICABLE?

A.    Introduction

174    It will be recalled that the plaintiff contends that the Australian Hague Rules apply to the carriage in question. It is common ground that if they do apply by operation of COGSA, then that will by AHR Art 3(8) invalidate any inconsistent contractual clause that relieves the carrier or the ship from liability for loss or damage, or lessening their liability, relative to that pertaining under the Rules.

175    Since at this stage I have found that the contract of carriage by cl 3(a) incorporates Arts 1 to 8 of the Hague Rules with liability being limited to £100 lawful money of the United Kingdom per package or unit, and not gold value as provided for in Art 9, AHR Art 3(8) would cause that to be null and void and of no force or effect. The SDR limitation in AHR Art 4(5) would apply.

176    Section 10(1)(b)(i) of COGSA is the relevant provision for present purposes. It provides that the AHR shall only apply to a contract of carriage of goods by sea that is a contract to which, under AHR Art 10, those Rules apply. That directs attention to Art 10, which relevantly provides as follows:

2.     Subject to paragraph 6, these Rules apply to the carriage of goods by sea from ports outside Australia to ports in Australia, unless one of the Conventions mentioned in paragraph 3 (or a modification of such a Convention by the law of a contracting State) applies, by agreement or by law, to the carriage, or otherwise has effect in relation to the carriage.

3.     The Conventions are:

(a)     the Brussels Convention;

(b)     the Brussels Convention as amended by either the Visby Protocol or the SDR Protocol or both;

(c)     the Hamburg Convention.

…

6.     These Rules do not apply to the carriage of goods by sea under a charterparty unless a sea carriage document is issued for the carriage.

7.     These Rules apply to a sea carriage document issued under a charterparty only if the sea carriage document is a negotiable sea carriage document, and only while the document regulates the relationship between the holder of it and the carrier of the relevant goods.

177    It is also relevant that Art 1(1) provides:

(b)    “Contract of carriage” means a contract of carriage covered by a sea carriage document (to the extent that the document relates to the carriage of goods by sea), and includes a negotiable sea carriage document issued under a charterparty from the moment at which that document regulates the relations between its holder and the carrier concerned.

…

(f)     “Negotiable sea carriage document” means:

(i)     a bill of lading (other than a bill of lading that, by law, is not negotiable); or

(ii)     a negotiable document of title that is similar to a negotiable bill of lading and that contains or evidences a contract of carriage of goods by sea.

(g)     “Sea carriage document” means:

(i)     a bill of lading; or

(ii)     a negotiable document of title that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea; or

(iii)     a bill of lading that, by law, is not negotiable; or

(iv)     a non-negotiable document (including a consignment note and a document of the kind known as a sea waybill or the kind known as a ship’s delivery order) that either contains or evidences a contract of carriage of goods by sea.

178    The two questions that therefore arise for determination are:

(1)    The Art 10(2) question: does the contractual incorporation of Arts 1 to 8, with the amendment with regard to £100 meaning lawful tender of the UK and the exclusion of the gold value clause in Art 9, amount to the application of one of the Conventions mentioned in paragraph 3, or a modification of such a Convention by the law of a contracting State, by agreement or by law, or does the Convention otherwise have effect?

(2)    The Art 10(6) question: if the answer to that question is no, then is the carriage of goods by sea in this case carriage “under a charterparty unless a sea carriage document is issued for the carriage”?

179    Relevant to both these questions is the history behind Australia adopting its own version of the Hague-Visby Rules. I will turn to that issue next, but before doing so I observe that the parties have not addressed whether the contract of carriage in this case is a “contract of carriage” as defined in AHR Art 1(1)(b). More particularly, they have not addressed whether it is a contract “covered by a sea carriage document”. They have conducted the case on the basis that The Maersk Tangier is good law in Australia with the result that if, as I have found, Poralu had a contractual right to demand a bill of lading then the contract of carriage is a contract covered by, relevantly, “a sea carriage document”.

180    That seems, in the circumstances of this case, to be a potentially infirm basis to have conducted the case. That is because any bill of lading that might have been issued by the carrier to Poralu, as with the sea waybill that was in fact issued, would not have been or evidenced any contract as between the carrier and Poralu – it would have been only a receipt for the goods (see section V.C above). It may be a stretch to regard the booking note contract of carriage as being “covered by a sea carriage document” in those circumstances.

181    In any event, the wholesale adoption of the reasoning of The Maersk Tangier, which was decided on the basis of the Hague-Visby Rules as enacted in the schedule to the UK Act and s 1(4) of that Act, is not without difficulty.

182    One difficulty arises from the peculiar circularity of the definitions in Art 1(1) of the AHR: para (b) provides that “contract of carriage” means (rather than “applies only to” as in the Hague-Visby Rules) a contract of carriage covered by a sea carriage document and para (g) in turn defines “sea carriage document” to mean, inter alia, documents that contain or evidence a contract of carriage. That is, under the AHR, a contract of carriage is defined as a contract “covered by” a document which contains or evidences a “contract of carriage” as defined.

183    Another difficulty is that s 10(1)(b)(i) of COGSA provides that the AHR shall only apply to a contract of carriage of goods by sea that is a contract to which, under AHR Art 10, those Rules apply. That is materially different from ss 1(4) and 1(6) of the UK Act, as Art X of the Schedule to the UK Act is from AHR Art 10.

184    The point is that it seems doubtful to me that it can be said that a contract of carriage is “covered by” a sea carriage document when the document in question, whether actually issued or merely the subject of a right of demand to be issued, does not or would not contain or evidence the contract. In the case of a document being subject to a right of demand, the assumption that The Maersk Tangier is good law in Australia seems to conflict with Art 10(7) of the AHR, which circumscribes the application of the AHR even where a negotiable sea carriage document is issued. Nevertheless, the parties conducted the case on the basis that the contract of carriage in this case is a “contract of carriage” as defined in AHR Art 1(1)(b) (ie, “covered by a sea carriage document”) and the case must be decided on that basis. In view of the conclusion that I have come to, as will be seen, that the AHR in any event do not apply, this potentially erroneous basis on which to have conducted the case ultimately comes to nothing. In those circumstances, it is unnecessary to decide whether The Maersk Tangier should be followed.

B.    The Australian Hague Rules

185    The Australian Hague Rules were introduced into COGSA by the Carriage of Goods by Sea Amendment Act 1997 (Cth) and the Carriage of Goods by Sea Regulations 1998 (Cth), and amended – in irrelevant respects for present purposes – by the Carriage of Goods by Sea Regulations 1998 (No 2) (Cth). Much of the history is canvassed by Rares J in Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013] FCAFC 107; 216 FCR 469 at [29]-[38].

186    The Explanatory Memorandum to the Carriage of Goods by Sea Amendment Bill 1997 (Cth) explains that COGSA at that time gave effect in Australia to the Hague-Visby Rules but that the Hamburg Rules, which are more favourable to shippers, would come into force in Australia on 20 October 1997. The Bill would remove the trigger for implementing the Hamburg Rules and replace it with a mechanism for regular review of the situation regarding the international adoption of the Hamburg Rules. That was because general international practice was based on the Hague-Visby Rules and Australia’s major trading partners operated under those Rules rather than the Hamburg Rules.

187    The Explanatory Memorandum further explains that there had been a vigorous debate between shipper interests proposing the implementation of the Hamburg Rules and carrier interests opposing it. The view emerged that while the existing arrangements had some deficiencies, there were also drawbacks to the Hamburg Rules. That was with regard to the drafting of the Rules themselves and because Australia’s major trading partners had not adopted them. In October 1994, both Houses of Parliament passed resolutions to defer the question of acceptance or repeal of the Hamburg Rules for another three years. Discussions were to continue with industry to develop a regime providing fair and reasonable protection for both shippers and carriers.

188    The Cargo Liability Working Group was established in 1995 to examine the issues involved in the debate and make recommendations to improve the cargo liability regime for Australian shippers. The Working Group included representatives of shippers, carriers, shipowners, marine insurers and marine law groups. In October 1995, the Report of the Marine Cargo Liability Working Group (Marine Cargo Liability Working Group, September 1995) was presented to leading representatives of the industry interests concerned, which endorsed a package of measures. The industry-agreed compromise, which was the basis of the amendments, was based on the view that it was not appropriate that Australia adopt the Hamburg Rules at that time, but that various amendments should be made to COGSA to enhance the extent of the protection afforded to Australian shippers of marine cargoes. The Explanatory Memorandum explains that peak bodies representing carriers, the Australian Shipowners’ Association (ASA) and the Australian Chamber of Shipping (ACOS), agreed to the industry-initiated package that gave rise to the Bill. It was provided that changes to the Hague-Visby Rules that are made applicable by COGSA would be made by way of regulations following consultation with industry in order to broaden the protection provided to Australian shippers.

189    The Report reveals that one of the issues of concern in the debate between shipper and carrier interests was the question of extending coverage of the Rules to importers. It was explained that because “COGSA is premised on the ‘country of export’ rule, the issue for importers was not really one of the port of loading, but of possible exposure to unfavourable regimes where no conventions exist or liability limits are very low” (p 13). The shipper interests advocated legislating that where the country of origin is not a signatory to an international convention or the bill of lading does not otherwise provide for an international convention to apply, then Australian law would apply (p 13). Marine insurer interests identified that the “essential problem with the existing regime was lack of consistency in the way in which overseas countries had incorporated the Hague or Hague-Visby Rules into their domestic legislation” which led to “great inconsistency in the amounts Australian importers could expect to receive in the event of loss or damage to his cargo” (p 14). It was said that by making imports, as well as exports, subject to COGSA, a minimum and consistent recoverable amount would be set (p 14).

190    Relevantly, the discussions were summed up as follows (p 14):

[T]he group saw merit in trying to provide cover where there is none now. However, coverage of importers might be a compromise item. The same coverage as exporters receive may not be available for importers if the regime of the country of origin was less protective of shippers than was Australia’s, but a gap could be filled where that country was party to no regime. Appropriate drafting would be crucial if this avenue were to be pursued.

191    The recommendation of the Working Group was as follows (p 41):

If Australian importers can be provided with greater protection, this should be done. The Carriage of Goods by Sea Act should specify that, where the contract of carriage does not incorporate one of the international conventions, importers’ contracts of carriage are covered by the international convention in force in the Act. Appropriate drafting would be crucial if this avenue were to be pursued.

192    From that synopsis, it is apparent that the underlying objective of the Working Group with regard to the issue presently under consideration was to achieve for Australian importers the application of the Australian Hague Rules where no international liability regime otherwise applied. That was in order to prevent carriers from excluding or lessening their liability beyond that allowed by one or other of the international conventions when the terms of such a convention did not otherwise apply. That is the quality of “uniformity” that was proposed.

193    The Report also reveals that one of the points of discussion was whether the arrangements affecting charterparties needed to be changed (p 6). However, there is nothing in the Report with regard to the concerns underlying that issue, any proposals that were made by different interests or any recommendations by the Working Group. The Report thus appears not to say anything of particular relevance with regard to charterparties.

194    As mentioned, after the amendments to COGSA by the Amendment Act there were industry consultations which led to the Regulations which contained the Australian modifications to the Hague-Visby Rules. The Explanatory Statement to the Regulations explains that drafts of the Regulations were circulated to industry interests for comment and subsequent modification. Representatives of those interests, encompassing shippers, carriers, marine insurers and marine law groups, were involved in the development of the industry package. Responses received from the industry interests indicated that there was general agreement that the text of the final draft was appropriate. (See the Explanatory Statement at p 2.)

195    Specifically with regard to Art 10 of the Australian Hague Rules, the Explanatory Statement relevantly states as follows (pp 6-7):

Rule 2 applies the amended Hague Rules (as modified) to a limited category of import cargoes. Where an international convention listed in Rule 3, or a national modification of such a convention, does not apply, the COGSA will cover such cargo.

…

Rule 6 exempt goods carried under a charterparty from the amended Hague Rules (as now modified), unless a sea carriage document, as defined in Article 1, is issued.

196    Further, under the heading “Impact analysis” of the Regulatory Impact Statement attached to the Explanatory Statement, the following is stated (at pp 8-9):

The industry-agreed compromise will maintain the Hague Rules basis of the COGSA, thus maintaining compatibility with the regimes of our major trading partners, while broadening the protection the COGSA provides to Australian shippers, in some ways similarly to the intent of the Hamburg Rules.

The Regulations will increase the range of circumstances under which carriers will be made liable for loss or damage to marine cargoes, but not the maximum liability levels. Peak bodies representing carriers, the Australian Shipowners’ Association (ASA) and the Australian Chamber of Shipping (ACOS), have agreed to the industry initiated package.

197    Against that historical backdrop, I turn to the questions at hand.

C.    The Art 10(2) question

198    The defendants submit that the Australian Hague Rules are not applicable under this provision because the contractual incorporation of Arts 1 to 8 of the Hague Rules amounts to giving effect by agreement to the Hague Rules, referred to as the Brussels Convention in AHR Art 10(3)(a). The defendants submit that the omission of Arts 9 to 16 of the Hague Rules from contractual incorporation and the effective modification of Art 4(5) to provide that £100 is a reference to the lawful currency of the UK and not gold value is not so significant a change to the Hague Rules so as to mean that those Rules are not “in substance” applicable. They submit that AHR Art 10(2) requires only that the Hague Rules are “in substance” applicable in order to displace the application of the AHR.

199    Articles 10 to 16 of the Hague Rules are provisions peculiar to inter-State relations, and cannot meaningfully have application between parties to a contract of carriage. There is therefore little significance in the omission of those rules from contractual incorporation. However, Art 9 is the gold clause which provides, as mentioned, that the monetary units mentioned in the Rules “are to be taken to be gold value”. That includes the reference to “100 pounds sterling per package or unit” in Art 4(5). It is common ground that that refers to the gold value of £100 or the equivalent of that value in other currency in 1924: Brown Boveri (Australia) QI Ltd v Baltic Shipping Co (The Nadezhda Krupskaya) (1989) 15 NSWLR 448; [1989] 1 Lloyd’s Rep 518 at NSWLR 464; Lloyd’s Rep 529 per Kirby P and NSWLR 471; Lloyd’s Rep 533 per Hope JA (McHugh JA agreeing); The Rosa S [1989] QB 419; [1988] 2 Lloyd’s Rep 574.

200    On my rough estimate, the present value of £100 of gold in 1924 is approximately £38,167, ie, some 380 times more than the current value of £100 lawful currency of the UK. Whether or not that calculation is correct, there is no doubt that the contractually incorporated provisions are considerably more favourable to the carrier than what the position would have been if the Hague Rules had applied in an unmodified form – as the fact of the dispute in this case well illustrates. In Dairy Containers Ltd v Tasman Orient Line CV (The Tasman Discoverer) [2004] UKPC 22; [2004] 2 Lloyd’s Rep 647 at [11], Lord Bingham said that the marked depreciation in the value of the pound sterling over the 80 (now 98) year period since the Hague Rules were adopted means that “the practical effect of art IX has become increasingly great” (emphasis added).

201    The question immediately to hand is accordingly whether that great difference between the contractually incorporated provisions and the Hague Rules is such as to render the contractually incorporated provisions other than what is contemplated by AHR Art 10(2).

202    The starting point in the analysis is the text of the rule in question. A modification of one of the referred to Conventions might still be regarded as applying the Convention if the modification is “by the law of a Contracting State”. Spliethoff Transport’s modification is not covered by that wording. There is no provision for a modification by contract.

203    Further, the apparent intent of the provision in question is to apply the Australian Hague Rules to carriage into Australia if one of the international Conventions, whether in its adopted form or as modified by the law of a Contracting State – as Australia has done by its Australian Hague Rules – does not otherwise apply. The purpose is to promote international uniformity and to avoid carriers exploiting gaps in the applicability of the Conventions by excluding or lessening their liability in ways contrary to the Conventions, which is exactly what Spliethoff Transport has sought to do in the present case.

204    I reach that conclusion even without reference to the history canvassed above, but the history makes the position particularly clear. The extrinsic material referred to is available to be considered under s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth) to confirm the meaning of the provision as the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act. The Report of the Working Group was apparently not laid before either House of Parliament, and may not have been furnished to members by the Minister, as contemplated by s 15AB(2)(b). However, the list of materials in sub-s (2) is not exhaustive. That is made explicit by the chapeau, which states that sub-s (2) does not limit the generality of sub-s (1). See also Commissioner of Taxation v Murray [1990] FCA 83; 21 FCR 436 at 448-449 per Hill J (Sheppard J agreeing).

205    The Report is referred to in the Explanatory Memorandum to the Bill and the Explanatory Statement to the Regulations, as well as in the second reading speeches. In that sense it has a special status in relation to the legislation, and logically can have a bearing on the purpose behind it. The Report explains the agreed position between different interests in the industry as to the justification for the amendments in 1997 and 1998. It is part of the admissible context to discern the mischief that the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408. In the circumstances, it is material “capable of assisting in the ascertainment of the meaning of the provision” within the meaning of s 15AB(1).

206    The defendants seek to avoid that conclusion by submitting that the wording “or otherwise has effect in relation to the carriage” in AHR Art 10(2) would have no work to do if it did not allow a partial incorporation by contract of one of the Conventions as being sufficient to displace the application of the Australian Hague Rules. They submit that it is difficult to conceive of any situation in which the whole of one of the Conventions could apply other than “by agreement or by law”, so the wording in question must contemplate a different situation. They say that one such situation is where the Hague Rules have effect in relation to the carriage because they are partially incorporated into the contract.

207    I am not persuaded by that submission. The partial incorporation is still an incorporation by agreement, and it is also not giving the Hague Rules “effect in relation to the carriage” – it is only partially giving those Rules effect. Modifications are dealt with expressly, being, as mentioned, modifications made by the law of a Contracting State, which weighs against an argument that contractual modifications are allowed, either under the wording in question or otherwise.

208    The short point is that contractual modifications that lessen the liability of the carrier from that which it would be under one or other of the Conventions is what the provision seeks to avoid. If the defendants’ submission were correct, then the contractual incorporation of even substantially amended provisions of a Convention – as in the present case considering the substantial difference between £100 and its gold value in 1924 – would be sufficient to exclude the application of the Australian Hague Rules. That cannot be the intention. Indeed, the intention is precisely the opposite. There is also the difficulty of where and how to draw the line – how much modification is to be regarded as within the meaning of the wording and how much modification is too much so as to take it outside the wording?

209    I am prepared to accept in the defendants’ favour that a minor or insignificant modification by contract of a Convention that is otherwise incorporated will result in the Convention applying “in substance” (the defendants’ terminology) with the resultant exclusion of applicability of the Australian Hague Rules. That is particularly where the modification does not lessen the liability of the carrier from what it would be under the unmodified Convention in question. However, the modification in the present case is not such a modification. It very significantly lessens the liability of the carrier. It is also not the equivalent in national currency of the limitation amount “indicated in [the] Convention … in round figures” as contemplated by Art 9. It is therefore not a modification that could be made by a Contracting State under Art 9, so there is no reason to suppose that it was contemplated that a carrier could make such a modification with the result that the Hague Rules would nevertheless be regarded as applying under AHR Art 10(2).

210    It is not apparent just what “or otherwise has effect” refers to, being other than application “by agreement or by law”. There are two points of difference, namely “effect” rather than “applies” and by some mechanism other than by agreement or law. Perhaps the words have little or no effect and were included only out of an abundance of caution, or to cater for unknown or unforeseen mechanisms of effect in foreign legal systems. In any event, they do not assist the defendants.

211    My view is not shaken by the defendants’ reliance on Ahmad v Mitsui Osk Lines [2005] FCA 731; 222 ALR 338 at [72]-[81]. There, Emmett J dealt with a situation where cl 5(1)(a) of the bill of lading incorporated Arts 1-8 of the Hague Rules, and cl 6(1) then provided as follows:

If the Hague Rules are applicable by national law, the liability of the Carrier shall in no event exceed the limit provided in the applicable national law. If the Hague Rules are applicable otherwise than by national law, the liability of the carrier shall in no event exceed 100 pounds sterling per package or unit.

212    It was common ground that the Hague Rules were not applicable by national law. It was also apparently accepted by Emmett J that the Hague Rules by cl 5(1)(a) were applicable “otherwise than by national law”, with the result that the provision of cl 6(1) that the liability of the carrier shall in no event exceed £100 per package or unit applied (at [81]). The defendants submit that that reasoning is transferable to the present case, such that the wording “or otherwise has effect in relation to the carriage” in Art 10(2) covers the contractual incorporation of part of the Hague Rules.

213    In my view, the reasoning in that case is inapplicable. First, it is clearly obiter as his Honour had already held (at [68]) that the carrier was not liable at all as the applicant had no title to sue. Consideration of limitation only arose against the possibility that that conclusion was wrong. Secondly, Emmett J did not make a finding that the Hague Rules “were applicable otherwise than by national law” notwithstanding their modified incorporation by the contract, but rather assumed or was prepared to accept that to be the case for the purpose of the argument. The real question at stake was the need to reconcile different provisions of the contract covering the same issue that employed different words, namely the provision in the incorporated Art 4(5) that neither the carrier nor the ship shall “in any event” be liable for more than £100 per package or unit and the provision in cl 6(1) that, if the Hague Rules were applicable otherwise than by national law, the liability of the carrier would “in no event” exceed £100 per package or unit. That is a markedly different situation to the present where no need for reconciliation within any one instrument arises.

214    The defendants advance an alternative submission. They say that if the effect of the omission of Art 9 of the Hague Rules from the contract and the inclusion of the provision in cl 3(a) that “liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit” would have the result that that limitation was invalid by the application of the Australian Hague Rules, in particular Art 3(8), those provisions should be given no effect. The result would be, so the submission goes, that the incorporation of Art 4(5) of the Hague Rules would have the result that the limitation amount would be “100 pounds sterling per package or unit” which, in order again to avoid invalidity, should be interpreted as being gold value. The defendant submits that that result is reached by application of the principle that a contractual provision should be construed in a manner that makes it enforceable rather than unenforceable.

215    This submission suffers from its circularity. It says that if the inclusion of certain provisions in the contract would have the effect that the AHR apply, which would in turn have the effect that those provisions would be invalid, then the provisions should be given no effect so that the AHR do not apply. But if the AHR do not apply, then there is no reason for the provisions to have no effect, and if the AHR do apply then the remaining provision with regard to the limitation amount would also be invalid as lessening the liability of the carrier relative to Art 4(5) of the AHR. This is a novel, and unworkable, application of the principle that the defendants pray in aid.

216    In any event, the principle in question, reflected in the maxim verba ita sunt intelligenda ut res magis valeat quam pereat, ie, words should be construed in such a way as to render the transaction valid rather than destroyed, only finds application if, after application of the ordinary rules of construction, there is an ambiguity: Butt v Long [1953] HCA 76; 88 CLR 476 at 487 per Dixon CJ – “a restrictive interpretation of general words is not to be adopted simply to save a covenant or agreement from invalidity”. There is no relevant ambiguity in the provision in cl 3(a) that “liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit” and therefore no basis for recourse to the principle.

217    For those reasons, under s 10(1)(b)(i) of COGSA and AHR Art 10(2), but subject to Art 10(6) which I will consider next, the AHR apply to the carriage in question.

D.    The Art 10(6) question

1.    Introduction

218    It will be recalled that by Art 10(6) of the AHR, those Rules do not apply to the carriage of goods by sea under a charterparty unless a sea carriage document is issued for the carriage. Further, under para (7), the Rules apply to a sea carriage document issued under a charterparty only if the sea carriage document is a negotiable sea carriage document. Of further contextual relevance in relation to those provisions is that part of Art 5 which provides:

The provisions of these Rules shall not be applicable to charter parties, but if negotiable sea carriage documents are issued in the case of a ship under a charter party they shall comply with the terms of these rules.

219    Article 5 of the Hague Rules is to like effect insofar as the exclusion of application of the Rules to charterparties is concerned. The Visby Protocol made no amendment to Art 5 so the Hague-Visby Rules are to the same effect. As an aside, it is to be observed that Art 2(3) of the Hamburg Rules and Art 6(1) of the Rotterdam Rules, neither of which is otherwise relevant to this case, also exclude applicability to charterparties, thereby underscoring the importance of a dividing line between charterparties and non-charterparty contracts of carriage of goods by sea.

220    Thus, the scheme of the Hague and Hague-Visby Rules is that they are applicable to bills of lading and not to charterparties. The scheme of the Australian Hague Rules is relevantly the same, although rather than being applicable only to bills of lading they are applicable to “negotiable sea carriage documents” and, possibly, also to other “sea carriage documents”.

221    The defendants make two principal submissions. First, they submit that as there was no negotiable sea waybill issued in respect of the carriage in question there is no “negotiable sea carriage document” to which the Australian Hague Rules can apply – that is on the basis that paras (6) and (7) must be read together. Secondly, they say that the booking note which is the contract of carriage is a charterparty within the meaning of the AHR, with the result that the AHR do not apply to the carriage of goods by sea under it. They submit that notwithstanding that the contract in question is not easily categorised as one of the “main types” of recognised charterparty, it nevertheless has the hallmarks of a charterparty including terms as to the intended performing vessel, specified ports of loading and discharge, laycan, freight rate and detention or demurrage. They also refer to the fact that in the email exchanges leading to the conclusion of the booking note contract, and in places on the booking note, the cargo side of the contract is referred to as “charterer” or “charterers”.

222    Poralu submits that the booking note contract is not a charterparty as it does not fall within any of the three main categories of charterparty, namely bareboat, time and voyage, and it is not a slot charterparty – which is said to be a fourth category – because it cannot reasonably be considered to be the hire of part of the ship. That is because the carrier had the option of where to stow the cargo, on or under deck. Poralu submits that the contract is synonymous with a part cargo booking on a non-liner vessel. With reference to The Happy Ranger EWCA at [24], Poralu submits that the fact that its cargo was only a part cargo, there also having been another cargo for a different consignee (at a different discharge port), also supports its contention that this was not a charterparty.

2.    Consideration

223    In Dampskibsselskabet, the issue before the Full Court was whether a voyage charterparty was a “sea carriage document” within the meaning of that phrase in ss 11(1)(a) and 11(2)(c)(i) of COGSA. That boiled down in part to the question of whether the definition of “sea carriage document” in Art 1(1)(g) of the AHR was to be applied to the term “sea carriage document” in the Act, noting that there is no definition of that term in the Act itself. The leading judgment on that question is that of Rares J, with whose reasoning Mansfield J “generally agreed” (at [4] and [14]). Both Mansfield J (at [15]) and Rares J (at [57]) held that the definition in the AHR applied to the Act itself, principally because the relevant terms were introduced into the Act at the same time that the AHR in Sch 1A was introduced. By parity of reasoning, the definition of “contract of carriage” in Art 1(1)(b) must be taken to apply to that term where it is used in the Act.

224    The ultimate conclusion in Dampskibsselskabet is that a voyage charterparty is not a sea carriage document as referred to in COGSA. Justice Mansfield observed (at [15(1)]) that there has traditionally been a clear line drawn between a charterparty and a sea carriage document. His Honour held (at [16]-[17]) that COGSA and the AHR preserve the distinction between a charterparty and a sea carriage document. Justice Rares’s reasoning is to like effect (at [68]). In the result, in the scheme of COGSA and the AHR, if a contract for the carriage of goods is a charterparty it is not a sea carriage document.

225    In Dampskibsselskabet, the voyage charterparty, which was on the widely used Americanized Welsh Coal Charter (AMWELSH 93) form, was held not to be a sea carriage document. The Court’s discussion of the nature of voyage charterparties is consistent with the discussion below and draws on many of the same authorities. See Rares J at [60]-[62]. So, what is a charterparty where it is referred to in Arts 5, 10(6) and 10(7) of the AHR?

226    There is no universally accepted definition of a charterparty, and even if there was it would not necessarily apply in the particular statutory context at hand. However, recognising that the AHR have the Hague-Visby Rules as their foundation and the Hamburg Rules as the catalyst for their existence, the consistency of approach between each of those sets of rules in excluding their application to charterparties, and the international nature of the Hague-Visby and Hamburg Rules, the common understanding of what a charterparty is is likely to have great significance to the meaning of that term in the AHR. For that reason, it is necessary to look at the authorities both domestically and internationally on the nature of a charterparty.

227    In Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Maratha Envoy) [1978] AC 1 at 7-8; [1977] 2 Lloyd’s Rep 301 at 304, Lord Diplock discussed the nature of the charter market and the risks and contingencies that owners and charterers have to make allowance for in bargaining on such basic terms as rates of freight, demurrage and dispatch money. His Lordship explained:

My Lords, the freight market for chartered vessels still remains a classic example of a free market. It is world-wide in coverage, highly competitive and sensitive to fluctuations in supply and demand. It is a market in which the individual charterers and shipowners are matched in bargaining power and are at liberty to enter into charterparties in whatever contractual terms they please. …

So far as the profitability of the transaction to each party is concerned, there is an inter-relationship between rates of freight, demurrage and dispatch money and clauses of the charterparty which deal with the allocation between the charterer and shipowner of those risks of delay in the prosecution of the adventure contemplated by the charterparty which, being beyond the control of either party, have been conveniently called “misfortune risks” as distinguished from “fault risks.”

228    These are important features of the chartering market and distinguish voyage chartering from, for example, the booking of cargo on a liner service for carriage from A to B subject to the terms of a bill of lading or other sea carriage document to be issued. The latter is a paradigm example of a cargo booking that is not a charterparty. There may be negotiation about the amount of freight to be paid, but in that market there will be no negotiated allocation of risks in the manner identified. Notably, Lord Diplock identified agreement on freight, demurrage, dispatch money and the allocation of “misfortune” risks of delay as being typical features of charterparties.

229    Professor Bennett in Bennett H (ed), Carver on Charterparties (2nd ed, Sweet & Maxwell, 2021) at [1-001] describes a charterparty as “a contract whereby one party (the ‘shipowner’) contracts to place the whole or part of a vessel at the disposal of the other party (the ‘charterer’)” (emphasis added). Charterparties “divide into those that constitute a demise of the chartered vessel, so that the charterer acquires a possessory interest in the vessel, and those that amount to contracts for the supply of the ship’s services to the charterer without any transfer of possessory interest” (at [1-009]). The latter encompass both time and voyage charters. The learned author (at [1-024]) describes a voyage charterparty as:

a contract whereby the owner undertakes to provide the services of a vessel and crew for the accomplishment of a stipulated adventure involving the carriage of specified goods between designated places of loading and discharge. In return for the contractual services, the charterer undertakes to pay an agreed consideration, termed “freight”. A voyage charterparty, therefore, shares with a time charterparty its nature as a contract for services, but the pre-determined adventure denies a voyage charterer the freedom to determine employment enjoyed by a time charterer, albeit that the adventure may be defined at least initially in broad terms.

(Footnotes omitted.)

230    Professor Bennett observes (Carver at [1-047]) that notwithstanding the three principal forms of charterparty (demise, time and voyage charters), parties are free to construct whatever bargain they wish; there is no fixed list of permissible forms of charterparty from which contracting parties are obliged to choose. In Chiswell Shipping Ltd v National Iranian Tanker Co (The World Symphony and World Renown) [1991] 2 Lloyd’s Rep 251 at 257, after remarking on the many different recognised forms of charterparty, Hobhouse J observed as follows:

The variety of contractual structures that can be adopted by charterers and shipowners for any given transaction are as various as the ingenuity of chartering brokers and the ever changing demands of the market may determine. It is not for Courts to fit the parties’ transactions within a strict and limited frame-work which the parties themselves may have not chosen to adopt.

231    Professor Bennett (Carver at [1-048]-[1-053]) identifies a number of variant forms of charterparty, including mixed charters, consecutive voyage charters, trip time charterparties, space charterparties and slot charterparties. He describes (at [1-052]) a space charterparty as “a voyage charterparty under which the charterer contracts for the use of only part of the cargo-carrying capacity of the vessel”.

232    Turning to slot charters, Professor Bennett describes a slot charterparty as “a contract for the hire of limited space on a container vessel in the form of a specified number of container slots” (at [1-053]). Such a charterparty has been recognised as a “charterparty” in the context of the exercise of admiralty jurisdiction in rem in The Tychy [1999] 2 Lloyd’s Rep 11 and Northern Endeavour Shipping Pte Ltd v Owners of the MV NYK Isabel [2016] ZASCA 89; 2017 (1) SA 25. The same view had been expressed by Toohey J in Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55; 190 CLR 181 at 192-193 where his Honour said that “the term charter has a number of possible connotations such as voyage charter, time charter, slot charter or subcharter” and, with reference to “charterer” in ss 18(a) and 19 of the Admiralty Act 1988 (Cth), “the conclusion is inevitable that no limitation was intended” in those provisions.

233    The Convention on Limitation of Liability for Maritime Claims, 1976, opened for signature 19 November 1976, 1456 UNTS 221 (entered into force 1 December 1986) gives to shipowners a right to limit liability, and “shipowner” is defined in Art 1(2) to include the charterer. In Metvale Ltd v Monsanto International Sarl (The MSC Napoli) [2008] EWHC 3002 (Admlty); [2009] 1 Lloyd’s Rep 246, Teare J held that in that context a slot charterer is a charterer. His Lordship explained (at [17]):

the ordinary meaning of the word charterer is apt to include any type of charterer, whether demise, time or voyage charterer. There is no reason why it should not also include a slot charterer. Standard textbooks refer to slot charters when discussing types of charters; see Voyage Charters, 3rd Edition, para 1.1 and Scrutton on Charterparties, 21st Edition, article 30. There is good reason for a slot charterer being within the definition. Were slot charterers not within the definition, slot chartering, which is an established and, to judge from its growth, an efficient way of organising the carriage of goods, would or might fall into disuse. A slot charterer’s inability to limit liability would not encourage the provision of international trade by way of sea carriage, which was the object and purpose of the convention.

234    In International Marine Underwriters v MV Patricia S (SD NY, No 06 Civ 6273 (JFK), 11 January 2007) it was held that a slot charterer was prima facie a charterer within the meaning of a clause in the head-time charterparty giving “charterers” authority to sign bills of lading on behalf of the master and/or owners.

235    The cases surveyed in the preceding paragraphs show that it is widely accepted that slot charters are a form of charterparty in various contexts.

236    Returning to voyage charters, in T Co Metals LLC v The Federal Ems, 2012 FCA 284; [2014] 1 FCR 836 (Federal Court of Appeal, Canada), Gauthier JA (Pelletier and Mainville JJA agreeing) held that a voyage charterparty is not a “contract for the carriage of goods by water” for the purposes of the Marine Liability Act, SC 2001, c 6 (Can). Her Honour traced the history of the various international regimes governing the carriage of goods by sea, and noted that none of the Hague, Hague-Visby, Hamburg or Rotterdam Rules apply to charterparties. Her Honour quoted the following (at [60]) from Wilson JF, Carriage of Good by Sea (6th ed, Pearson Education, 2008) at pp 3-4, saying that it is common knowledge that:

A charterparty is a contract which is negotiated in a free market, subject only to the laws of supply and demand. While the relative bargaining strengths of the parties will depend on the current state of the market, shipowner and charterer are otherwise able to negotiate their own terms free from any statutory interference. In practice, however, they will invariably select a standard form of charterparty as the basis of their agreement, to which they will probably attach additional clauses to suit their own requirements.

237    Gauthier JA said (at [61]) that one can readily see that the imbalance in the bargaining power that is the mischief that led to the development of the various international regimes does not exist in relation to charterparties. Her Honour also observed that the “liner trade (common carriers operating regular services in certain areas, using the sea carriage documents covered by the various international regimes) is simply quite different from the tramp trade (chartered vessels)”.

238    On the nature of a voyage charterparty, Professor Bennett in Foxton D et al, Scrutton on Charterparties and Bills of Lading (24th ed, Sweet & Maxwell, 2020) at [1-008] says the following:

Under a voyage charter, the shipowner, who again retains possession and navigational control of the vessel, agrees to carry cargo on one or more specified voyages in return for the payment of freight by the charterer calculated according to the quantity of cargo carried or sometimes on a lump sum basis. … However, the risk of delay in loading and unloading cargo at the contractual ports will be addressed by a contractual scheme of “laytime” (period of time allowed for loading or unloading included within the agreed freight) and “demurrage” (liquidated damages payable for delay beyond the agreed laytime).

239    In Cooke J et al, Voyage Charters (4th ed, informa law, 2014) at [1.1], voyage charters are described as “those by which the owner agrees to perform one or more designated voyages in return for the payment of freight and (when appropriate) demurrage; the costs of, and responsibility for, cargo handling are left to the terms of the specific agreement”.

240    Returning now to the plaintiff’s reliance on The Happy Ranger EWCA, the details of the contract of carriage at issue in that case appear in The Happy Ranger QBD at [6]. They include detailed clauses covering loading, lashing, detention, the issue of bills of lading and the payment of freight. With minimal reference to those details, Tuckey LJ in the Court of Appeal (at [24]) rejected the submission that the contract was a voyage charterparty, saying that “although it does contain terms which are to be found in voyage charterparties, it emphatically calls itself a contract of carriage” and “the fact that the goods to be carried were a part cargo supports this conclusion, although I accept that this factor is not conclusive”. Given that a voyage charterparty is a form of contract of carriage, and the law’s concern with substance over form, what the contract was called can, respectfully, be of little significance. Also, as his Lordship noted, the fact that the contract was for a part cargo cannot be regarded as conclusive. In those circumstances, I do not consider The Happy Ranger EWCA to be particularly instructive in the resolution of the present issue.

241    Returning to the contract in this case, the following features of the circumstances of its conclusion and its characteristics and terms support a conclusion that it is properly to be regarded as a charterparty:

(1)    Its terms were negotiated by the exchange of emails over a period of time between a broker on behalf of Poralu and Spliethoff Transport, being parties at arms-length with no apparent inequality of bargaining power.

(2)    There was an identified performing vessel, with an allowance for the nomination of a final performing vessel by a particular date, and the final performing vessel was then nominated by that date. That is to say, the contract was with regard to the services of a specific vessel.

(3)    The negotiations dealt at some length with the specialist capabilities or characteristics of the intended performing vessel, particularly with regard to loading and discharge.

(4)    The terms of the recap email that were then included in the final booking note form describe Spliethoff Transport as “owners” and its counterparty as “charterers”, although the pre-printed booking note form itself describes those parties as “carrier” and “merchant”.

(5)    The vessel is a specialised break bulk vessel on a tramp trade.

(6)    There were various conditions to which the fixture was subject, including nomination of the performing vessel, notification of the intended rotation of the vessel prior to arrival at the load port and approval by the carrier of the charterer’s transport/technical drawings.

(7)    There were detailed provisions for the allocation of the costs of loading and discharge, and for detention (perhaps more accurately called demurrage given the specified rate) – recorded at lines 28-31 of the email recap (at [40] above) and in the booking note “special terms” box (see [47(12)] above).

(8)    There was a specified laycan – line 25.

(9)    The maximum transit time for the voyage was specified, with agreed penalties for late arrival, and there was thus an allocation of “misfortune” risks of delay – lines 32-36 and 41-45.

(10)    There was provision for the fumigation of the cargo (lines 37-38) and the allocation of liability for taxes, dues and duties (lines 47-52).

(11)    The contract itself provided for and contemplated the issue of a sea carriage document (in the neutral sense), being either a bill of lading or a sea waybill.

242    The last point, in particular, tells strongly against the contract being a sea carriage document itself. As with the voyage charter in Dampskibsselskabet (at [57]), the contract does not have the features of a sea carriage document that the shipper would have a right to demand under Art 3(3) of the AHR, and did have a contractual right to demand under the incorporated Art 3(3) of the Hague Rules. The terms identified at [241(7)]-[241(10)] above are terms typically, although not necessarily, found in charterparties.

243    As the writers and the authorities on slot charters show, the fact that the cargo was only a part cargo, or that the contract was for only part of the ship, does not weigh particularly against a conclusion that the contract is a charterparty. Indeed, a slot charter would seem to be further removed from a traditional charterparty than the form of contract employed in this case. If a slot charter is a charterparty for various analogous purposes, then the booking note contract in this case would surely also qualify as a charterparty.

244    The fact that the printed form of the contract called it a “booking note” is also not decisive. As mentioned, the focus must of necessity be on substance rather than form. It is the totality of the circumstances of the contract and the commercial role that it played that will determine whether it is a charterparty within the statutory meaning.

245    “Booking note” is not a term of art, and is used in maritime trade in different ways. The most common use is in the liner trade: when a shipper books cargo to be shipped the booking will often be confirmed in a booking note which will include, either expressly or by reference, the carrier’s standard form bill of lading terms and conditions to which the booking is subject. When the goods are shipped on board and the bill of lading is issued, it contains those terms and conditions and it serves to evidence the preceding contract contained or confirmed in the booking note. An example of such a booking note is the Conline liner booking note published by BIMCO. It has the bill of lading terms and conditions on the reverse (page 2). An example of the use of such a booking note is US Shipping Limited v Leisure Freight and Import Pty Ltd (in liq) [2015] FCA 347. In such use, the booking note does not have the features of a charterparty, but merely precedes the issue of a bill of lading which then evidences the contract of carriage.

246    Another use of “booking note” is to record the booking of cargo to be shipped under a voyage charter including the terms of the voyage charter. Examples of such use include Thor Shipping A/S v The Ship Al Duhail [2008] FCA 1842; 173 FCR 524 and A Meredith Jones & Co Ltd v Vangemar Shipping Co Ltd (No 2) (The Apostolis) [2000] 2 Lloyd’s Rep 337.

247    The booking note in the present case is not of the first type identified above. That is because, in particular, its terms differ from the bill of lading terms that could be issued under it – it is not the booking of the carriage of cargo subject to the terms of a bill of lading to be issued. Indeed, it records that its terms will prevail over the bill of lading terms (see [49] above). Undoubtedly it stands as its own contract on its own terms independently of any bill of lading, and, for the reasons already canvassed, if a bill of lading were issued it would not evidence a contract between the same parties. Rather, the booking note is of the second type identified above.

248    The booking note contract in this case appears to fulfil what Professor Bennett describes as a space charterparty, being a species of voyage charter (see [231] above), or is in any event a species of voyage charter. It does not seem to me to matter that the carrier could decide which space on the ship the cargo would occupy, or that the freight was calculated by weight rather than volume. Significantly, as mentioned, the terms regulate the risk of delay on loading and discharge, and of the voyage itself. The booking note contract is not a sea carriage document, for the reasons given in Dampskibsselskabet. I find that it is a charterparty within the meaning of the AHR. It is not necessary to decide whether there may be some form of contract of carriage of goods by sea that is neither a sea carriage document nor a charterparty.

249    Having concluded that the booking note contract is a charterparty, it is necessary to return to the wording of paras (6) and (7) of AHR Art 10.

250    There are some difficult issues of construction that arise in relation to paras (6) and (7) of AHR Art 10, in particular the relationship between them and between para (6) and Art 5. For example, if a non-negotiable sea carriage document is issued for the carriage as contemplated by para (6), does that have the consequence that the AHR might still apply to the carriage of goods under the charterparty notwithstanding that under Art 5 the AHR do not apply to charterparties and under para (7) the AHR apply to a sea carriage document issued under a charterparty only if the sea carriage document is a negotiable sea carriage document?

251    Fortunately, those issues do not arise in the present case for the simple reason that the sea waybill that was issued under the booking note contract, which I have found to be a charterparty, is not sea carriage document within the definition in AHR Art 1(1)(g). More specifically, it is not a non-negotiable document within the meaning of sub-para (iv) because it neither contains nor evidences a contract of carriage of goods by sea. As mentioned, it was merely a receipt for the cargo. Therefore, the subordinate clause following the conjunction “unless” in para (6) does no work to reapply (by para (2)) the AHR in the present case. There being no other provision of Art 10 that could apply the Rules, it follows that s 10(1)(b)(i) of COGSA does not make the AHR applicable.

3.    Conclusion

252    For those reasons, I find that the booking note contract is a charterparty with the result that the AHR do not apply to it. Spliethoff Transport can therefore rely on the limitation in cl 3(a) of the contract, namely its liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit.

IX.    CAN THE SHIPOWNER RELY ON THE CARRIER’S DEFENCES?

253    The next issue to consider is whether the shipowner can also rely on the limitation in cl 3(a) of the booking note contract even though it was not a party to that contract. In that regard, as mentioned, it relies on the Himalaya clause being cl 11 (quoted at [105] above).

A.    The applicable principles

254    In Scruttons Ltd v Midland Silicones Ltd [1962] AC 446; [1961] 2 Lloyd’s Rep 365, the House of Lords dismissed an appeal by stevedores who sought to rely on the protections given to a carrier by the terms applicable to a bill of lading. In the course of his Lordship’s reasoning, Lord Reid (at AC 474; Lloyd’s Rep 374) laid out four requirements which, if met, would by the agency of the carrier bring about a contractual relationship between the stevedore and the carrier’s contractual counterparty such as to allow the stevedore to rely on protections in the bill of lading:

I can see a possibility of success of the agency argument if (first) the bill of lading makes clear that the stevedore is intended to be protected by the provisions in it which limit liability, (secondly) the bill of lading makes it clear that the carrier, in addition to contracting for these provisions on his own behalf, is also contracting as agent for the stevedore that these provisions should apply to the stevedore, (thirdly) the carrier has authority from the stevedore to do that, or perhaps later ratification by the stevedore would suffice, and (fourthly) that any difficulties about consideration moving from the stevedore were overcome.

255    In 1975, the Privy Council in an appeal from the Court of Appeal of New Zealand in New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154 at 166; [1974] 1 Lloyd’s Rep 534 at 538-539 adopted those dicta of Lord Reid in Midland Silicones.

256    Shortly thereafter, in Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1978] HCA 8; 139 CLR 231 (The New York Star), Barwick CJ (at 240) and Mason and Jacobs JJ (at 269 and 276) adopted the four requirements articulated by Lord Reid. The judgment in that case was overturned on appeal to the Privy Council, but not on that point: Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1980] UKPCHCA 1; 144 CLR 300; [1980] 2 Lloyd’s Rep 317. The Judicial Committee (at CLR 305; Lloyd’s Rep 321) approved what had been said by Barwick CJ about Lord Reid’s four requirements. The expression of those requirements is accordingly the law binding on me, as the NSW Court of Appeal has held that it is binding on it: Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1988) 12 NSWLR 730 at 737 per Kirby P (Hope and Clarke JJA agreeing); Carrington Slipways Pty Ltd v Patrick Operations Pty Ltd (1991) 24 NSWLR 745 at 754 per Handley JA (Kirby P and Samuels JA agreeing).

257    There are many other Australian decisions that have followed the principles adopted by a majority of the High Court in The New York Star and affirmed by the Privy Council, including in relation to contracts other than bills of lading and to the benefit of servants, agents or sub-contractors other than stevedores: see, eg, Sidney Cooke Ltd v Hapag-Lloyd AG [1980] 2 NSWLR 587 at [14]-[15] and [22] per Yeldham J; Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606 at 612 per Yeldham J; Life Savers (Australasia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 at 436-437 per Hutley JA (Glass and Mahoney JJA agreeing); Godina v Patrick Operations Pty Ltd [1984] 1 Lloyd’s Rep 333 (Hutley, Samuels and Mahoney JJA); Council of the Shire of Noosa v Farr & Ors [2001] QSC 60 at [123]-[127] per Chesterman J; and my decision in Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653 at [101].

258    In Godina, it was said by Hutley JA (at 336) in relation to the application of a Himalaya clause that “narrow distinctions are not to be drawn”. Justice Samuels said (at 338) that “the necessary authority must be deduced in each case from particular evidence” and that “slight evidence will suffice”. The defendants submit that that is the approach that I should take.

B.    The facts of the present case and conclusion

259    It is common ground that of the four requirements identified by Lord Reid, only the satisfaction of the third requirement is in dispute in this case – Poralu does not press its pleaded point that the Himalaya clause fails for want of consideration. That is to say, Poralu only disputes that Spliethoff Transport was authorised by Rederij Dijksgracht to contract for and on its behalf to protect its interests. The defendants expressly disavow any reliance on ratification which is usually a readily available means of satisfying the authority requirement. Instead, they submit that the contractual arrangements between Rederij Dijksgracht as owners and Spliethoff Transport as pool managers under a pool management agreement and as time charterers under a time charterparty both evidence the requisite authority. Poralu submits that the evidence of the contractual arrangements is too general to provide a firm enough foundation for any positive finding with regard to authority.

260    Ms Hosken-Serpa stated in her third affidavit that the charter arrangements between the Rederijen (ie, the shipowning companies including Rederij Dijksgracht) and Spliethoff Transport are recurring. She explained that each vessel is chartered by the respective owners to Spliethoff Transport on a recurring rolling basis that commences on 1 January each year. She explained that a pro forma copy of a GENTIME time charterparty is kept on Spliethoff Transport’s computer system, updated from time to time and accessed there as and when required.

261    She explained that, in accordance with usual practice, when, in 2021, a copy of the applicable charterparty was sought in the preparation of this case, she printed a copy of the relevant form as it was at that time available to her on the system, filled in the relevant details specific to the year in question (2019) and the Dijksgracht, and produced it in evidence. However, that was two years after the relevant year so the form that she produced in evidence is not the applicable form – it includes terms that could only have been included in subsequent years. The existence of the form, and that it had been updated in such a way as to keep it current, nevertheless supports her evidence of there being a system in place within the company for the maintenance of the current charterparty form from time to time. However, it leaves open just what the terms of the form were at the relevant time.

262    Ms Hosken-Serpa also explained that a BIMCO POOLCON Standard Pooling Agreement is maintained on Spliethoff Transport’s computer system and that it forms the basis of recurring pool arrangements between the Rederijen and Spliethoff Transport. She produced a version of that agreement dated 1 January 2013 between Rederij Dijksgracht as owners and Spliethoff Transport as pool managers. The agreement refers to the “participating charter” as “GENTIME ’94”. As there is no GENTIME 1994 form, the only GENTIME form being that first published by BIMCO in 1999, that is clearly enough an error of reference; it was intended to refer to the GENTIME form charter that was maintained by the company on its system. The POOLCON therefore also supports there having been a charter on the GENTIME form at the relevant time.

263    Ms Hosken-Serpa’s evidence with regard to the charterparty is supported by Mr Nietzman’s evidence. He explained that four times a year, once in each quarter, he and others attend what he described as “the GENTIME meeting” on behalf of Spliethoff Beheer as authorised representative of Rederij Dijksgracht and, I infer, the other Rederijen. At the meeting in December 2018, in accordance with the usual practice, it was agreed that in the following year the vessel would continue to be chartered on the amended GENTIME form that was available on Spliethoff Transport’s computer system at that time. The form on the system at that time was not accessed for the purpose of the meeting, although it was available had it been needed. However, it was not needed because the discussion was a general discussion about continuing the arrangement on the GENTIME form. Two arrangements were discussed: one was the chartering of the vessel on the GENTIME form and the other was the management arrangement on the POOLCON form with the former being a “participating charter” in the latter. I understand that it was discussed that both arrangements were to continue the following year.