Federal Court of Australia

Smithbridge Guam Inc v Swire Shipping Pte Ltd [2026] FCA 884

ORDERS

THE COURT ORDERS THAT:

1.    Order 1 of the Orders of Stewart J made on 5 March 2026 restraining the first defendant from:

continuing, prosecuting or taking any step either directly or indirectly in the arbitration purportedly commenced by the first defendant against the first plaintiff in London by Notice of Arbitration dated 23 February 2026, including any step to obtain emergency relief in the arbitration, unless such steps are taken to give effect to these orders;

(a)    commencing any further arbitration against the plaintiffs with respect to the Booking Note dated 15 May 2024; and

(b)    taking any further step either directly or indirectly in any arbitration or any other court proceeding to seek to restrain the plaintiffs from taking steps in this proceeding,

be discharged.

2.    The interlocutory application filed by the plaintiffs on 4 March 2026 be dismissed.

3.    Pursuant to s 7(2) of the International Arbitration Act 1974 (Cth), the whole of the first and second plaintiffs’ claims as against the first defendant in this proceeding be stayed and referred to arbitration in London in accordance with clause 4 of the Bill of Lading Terms that accompany and form part of the Liner Booking Note dated 15 May 2024.

4.    The plaintiffs pay the first defendant’s costs of the interlocutory applications filed on 4 March 2026 and 26 March 2026, and of the proceedings.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

1    These proceedings concern one issue – whether pursuant to s 11(2)(b) of the Carriage of Goods by Sea Act 1991 (Cth) (COGSA 91) an arbitration agreement in cl 4 of the first defendant-carrier’s (Swire Shipping Pte Ltd) bill of lading terms, which provides for arbitration in London on London Maritime Arbitrators Association (LMAA) terms is of no effect in so far as it purports to preclude or limit the jurisdiction of this Court. In short, Swire contends that the dispute which has arisen between the parties should be determined by arbitration in London in accordance with that clause. The plaintiffs disagree and contend that the proceedings they have commenced in this Court must be permitted to continue by reason of s 11(2)(b).

2    In summary, the contract between the plaintiffs and Swire was for the shipment of goods from Brisbane to Guam by one entity within the Smithbridge Group of companies to another entity within that same group of companies. It was a straightforward contract for the carriage of the plaintiffs’ cranes and associated specific cargo between two named ports in return for the payment of freight. In other words, it was a voyage charterparty, or more generally, a contract of affreightment. Because of the nature of the contract between the parties, and for the reasons that follow, Swire is entitled to rely on the arbitration agreement contained in cl 4 of its bill of lading terms.

Background

3    In May 2024, the plaintiffs, Smithbridge Guam Inc and Smithbridge Group Pty Ltd, entered into discussions with Swire for the carriage of two mobile cranes and related machinery and equipment from Tauranga, New Zealand and Brisbane, Australia (respectively) to Guam onboard the vessel “Pacific Endeavour”. The crane to be carried from Brisbane was a Grove GMK7450 7 Axle Mobile Crane (Grove Crane) and was supplied by Universal Cranes Pty Ltd, also part of the Smithbridge Companies (Affidavit of Michelle Marie Taylor dated 3 March 2026 (Taylor Affidavit), Annexure MMT-1 at p 21).

4    A Liner Booking Note was issued by Swire on 15 May 2024. It was signed and returned to Mid-Ship Australia, the broker, by the plaintiffs at 10.16am on 27 May 2024 in response to an email sent by Mid-Ship at 10.05am that same morning which said:

We’re following up and resending below/attached, please could you urgently review and return signed booking note.

Swire Projects have said they will not load cargo until the attached booking note is signed.

…

As such they have drafted attached booking note based on below updated clean recap for your review and signature.

…

5    Although Swire did not countersign the Booking Note until 6 June 2024, the parties agree that they entered into a binding contract on 27 May 2024. The Booking Note recorded the Carrier as Swire and the Merchant as Smithbridge Guam.

6    It is also common ground that the Contract of Carriage on which the plaintiffs rely is contained in the Booking Note which was attached to the recap received on 27 May 2024 at 10.05am and which included at page 2 “Full Terms of the Carrier’s Bill of Lading Form” (Bill of Lading Terms).

7    Between 28 and 29 May 2024, the New Zealand cargo was loaded onto the Pacific Endeavour at Tauranga, New Zealand. On 29 May 2024, Swire issued bill of lading number EN41TRGGUM01 in relation to that cargo. The Pacific Endeavour then sailed to Brisbane.

8    On 6 June 2024, whilst the Grove Crane was being loaded on board the Pacific Endeavour, it was dropped and became a constructive total loss.

9    On 8 June 2024, Swire issued a bill of lading at Brisbane for the carriage of the crane component parts only (EN41BNEGUM01). On 12 June 2024, the parties entered into an Addendum to the Booking Note providing for the Pacific Endeavour to sail to Newcastle in order to load a replacement crane. A replacement Grove GMK 7450 crane was loaded on board the Pacific Endeavour on 20 June 2024, and a bill of lading was issued by Swire in respect of that cargo (EN41NTLGUM01). The bill of lading recorded Universal Cranes as Shipper and the first plaintiff as Consignee.

10    By an originating application filed on 4 March 2026 and a statement of claim filed on the same date, the plaintiffs bring a claim for damages against Swire for breach of its duties of care pursuant to Sch 1A of COGSA 91, the Australian Hague Rules (as the High Court has now designated them: Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4; 281 CLR 171 at [1]), as bailee of the Grove Crane, and at common law and/or under the Contract of Carriage. The plaintiffs claim also against the second defendant-stevedores, Townsville Marine Logistics Pty Ltd, but it is not involved in this interlocutory skirmish and did not appear.

11    Swire disputes liability for the constructive total loss of the Grove Crane and claims for detention of the Pacific Endeavour.

12    Prior to the filing of the originating application and statement of claim in this proceeding, on 23 February 2026, Swire served a Notice of Arbitration on the first plaintiff and appointed an arbitrator. The plaintiffs appointed their arbitrator on 5 March 2026 without prejudice to their objection to the jurisdiction of the arbitral tribunal.

13    On 4 March 2026, the plaintiffs filed an interlocutory application in this proceeding for an “anti-arbitration”/“anti-suit injunction”. On 5 March 2026, Stewart J granted an ex parte injunction restraining Swire from: continuing, prosecuting or taking any step, either directly or indirectly, in the arbitration purportedly commenced against the plaintiffs by Notice of Arbitration dated 23 February 2026; commencing any further arbitration against the plaintiffs pursuant to the Booking Note; and taking any further step either directly or indirectly in any arbitration or any other proceeding to seek to restrain the plaintiffs from taking any steps in this proceeding. The injunction was continued by orders made by me on 10 and 23 March 2026.

14    The plaintiffs seek the further extension of those orders until the determination of this proceeding.

15    On 26 March 2026, Swire applied for a stay of this proceeding pursuant to s 7(2) of the International Arbitration Act 1974 (Cth) (IAA).

is The arbitration agreement rendered of no effect?

16    The answer to this question depends upon the appropriate characterisation of the Booking Note. That is because s 10 of COGSA 91 provides for the circumstances in which the Australian Hague Rules will apply. It provides:

(1)     The [Australian] Hague Rules only apply to a contract of carriage of goods by sea that:

(a)     is made on or after the commencement of Schedule 1A and before the commencement of Part 3 [the proposed application of the Hamburg Rules]; and

(b)     is a contract:

(i)     to which, under Article 10 of the [Australian] Hague Rules, those Rules apply; or

(ii)     subject to subsections (1A) and (2)—for the carriage of goods by sea from a port in Australia to another port in Australia [inter-State carriage]; or

(iii)    contained in or evidenced by a non-negotiable document (other than a bill of lading or similar document of title), being a contract that contains express provision to the effect that the [Australian] Hague Rules are to govern the contract as if the document were a bill of lading.

(1A) If a contract for the carriage of goods by sea referred to in subparagraph 10(1)(b)(ii) is contained in, or evidenced only by, a consignment note, the [Australian] Hague Rules apply to the contract only if paragraph 5 of Article 10 of those Rules so requires.

(2)     The [Australian] Hague Rules do not apply in relation to the carriage of goods by sea from any port in any State or Territory in Australia to any other port in that State or Territory [intra-State carriage].

(Emphasis added.)

17    It is therefore necessary to have recourse to Art 10 of the Australian Hague Rules to determine whether the Rules apply to the Booking Note.

18    Article 10 provides, relevantly

1.    Subject to paragraph 6, these Rules apply to sea carriage documents relating to the carriage of goods from ports in Australia to ports outside Australia, regardless of the form in which the sea carriage document is issued.

…

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.

(Emphasis added.)

19    However, even if the contract of carriage is one to which the Rules apply by virtue of Article 10, because it is a sea carriage document relating to the carriage of goods from ports in Australia to ports outside Australia, s 11(2)(b) prevents any agreement which purports to preclude or limit the jurisdiction of an Australian court in respect of a bill of lading, or a sea carriage document from an Australian port to a foreign port, or a non-negotiable document as described in s 11(1)(b).

20    Section 11 provides:

(1) All parties to:

(a)    a sea carriage document relating to the carriage of goods from any place in Australia to any place outside Australia; or

(b)     a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii), relating to such a carriage of goods;

are taken to have intended to contract according to the laws in force at the place of shipment.

(2)     An agreement (whether made in Australia or elsewhere) has no effect so far as it purports to:

(a)     preclude or limit the effect of subsection (1) in respect of a bill of lading or a document mentioned in that subsection; or

(b)     preclude or limit the jurisdiction of a court of the Commonwealth or of a State or Territory in respect of a bill of lading or a document mentioned in subsection (1); or

(c)     preclude or limit the jurisdiction of a court of the Commonwealth or of a State or Territory in respect of:

(i)    a sea carriage document relating to the carriage of goods from any place outside Australia to any place in Australia; or

(ii)     a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods.

(3)     An agreement, or a provision of an agreement, that provides for the resolution of a dispute by arbitration is not made ineffective by subsection (2) (despite the fact that it may preclude or limit the jurisdiction of a court) if, under the agreement or provision, the arbitration must be conducted in Australia.

21    If goods are carried by sea under a charterparty, the Rules do not apply unless a sea carriage document is issued for the carriage and then only if it is a negotiable sea carriage document: Art 10(6) and (7).

Characterisation of the Booking Note

22    As is apparent, in order to determine whether or not the Booking Note is a sea carriage document within the meaning of s 11(1)(a) of COGSA 91, one must nevertheless resort to the definitions in the very Rules themselves, even though they may be of no application because of Art 10(6) and (7).

23    The plaintiffs do not contend that the Booking Note is a bill of lading, nor a document that is similar to a negotiable bill of lading. They submit that the Booking Note is either a sea carriage document (as referred to in s 11(1)(a) and as defined in Art 1(1)(g)(iv)) or a non-negotiable document of the kind mentioned in s 10(1)(b)(iii) (as referred to in s 11(1)(b)), that is, a non-negotiable document evidencing a contract of carriage that contains express provision to the effect that the Australian Hague Rules are to govern the contract as if the document were a bill of lading. The plaintiffs submit the Booking Note could, in any event, satisfy both definitions.

24    Swire submits that the Booking Note is more properly characterised as being in the nature of a contract of affreightment or a voyage charterparty. If that submission is correct, then ipso facto, it is not a sea carriage document. So much was held by the Full Court in Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013] FCAFC 107; 216 FCR 469 at [15]–[16], [28]; see also Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038 (Poralu (First Instance)) at [248].

A sea carriage document?

25    A “sea carriage document” is defined in Art 1(1)(g) of the Australian Hague Rules to mean:

(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.

(Emphasis added.)

26    Given their concession that the Booking Note is not a bill of lading nor a negotiable document of title, the plaintiffs must establish that it falls within Art 1(1)(g)(iv).

27    A “contract of carriage” is defined in Art 1(1)(b) to mean:

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.

28    There is unhelpful circularity in the definitional provisions of the Australian Hague Rules, which does not assist with the proper construction of ss 10 and 11 of COGSA 91.

29    Leaving aside the possibility that the contract of carriage is in the nature of a contract of affreightment or a voyage charterparty, the Booking Note is a “non-negotiable document” which the parties agree contains the relevant contract in the present case. Nevertheless, the question is whether this contract, being the Booking Note, is “covered” by a sea carriage document within the meaning of Art 1(1)(b). Only if the Booking Note is “covered” by a bill of lading or negotiable document of title that is similar to a bill of lading will the Booking Note meet the criteria in Art 1(1)(g).

30    In order to establish that the Booking Note is covered by a bill of lading, the plaintiffs point to the incorporation of the Bill of Lading Terms by page 2 of the Booking Note and, in particular, to the supersession clause, which provides:

It is hereby agreed that this Contract shall be performed subject to the terms contained on Page 1 and 2 hereof which shall prevail over any previous arrangements and which shall in turn be superseded (except as to deadfreight) by the terms of the Bill of Lading.

Relevance of the supersession clause

31    The plaintiffs submit that, in circumstances where the parties had agreed to the carriage of goods under the terms of the Booking Note, which would be superseded by the terms of a bill of lading, the Contract of Carriage was a “sea carriage document” within the meaning of Art 1(1)(g) of the Australian Hague Rules because it is clear that the bill of lading that was intended to be issued would evidence the contract of carriage between the parties.

32    The plaintiffs submit that it is not to the point that no bill of lading had in fact been issued. They submit it is sufficient that the Booking Note, at its inception, provided for the issue of a bill of lading, such that it became “covered by” a sea carriage document and so met the definition of “contract of carriage” within Art 1(1)(b). The plaintiffs point to the decision of the English Court of Appeal in Kyokuyo Co Ltd v AP Møller-Maersk A/S (The Maersk Tangier) [2018] EWCA (Civ) 778; [2018] 2 Lloyd’s Rep 59 at [48] which, in the context of Art 1(b) of the Hague-Visby Rules (which defines a contract of carriage as one “covered by a bill of lading or similar document of title”), held that where the contract of carriage, at its inception, provides for the issue of a bill of lading on demand, the contract is so “covered” within the meaning of that article.

33    There are a number of difficulties with that submission. The plaintiffs’ reliance on Pyrene Co Ltd v Scindia Steam Navigation Co Ltd [1954] 2 QB 402, The Maersk Tangier, and the Full Court’s application of the reasoning in the latter case in Poralu Marine Australia Pty Ltd v MV Dijksgracht [2023] FCAFC 147; 300 FCR 290 at [92], is misplaced. None of those decisions was concerned with the factual context that arises in the present case. In Pyrene and The Maersk Tangier, the English courts were concerned with the meaning of “contract of carriage” in Art 1 of the Hague and Hague-Visby Rules and, more particularly, whether those Rules apply to a contract of carriage, which from its inception contemplates the issue of a bill of lading in due course, is one “covered by a bill of lading” even when none is issued.

34    In Pyrene, a fire tender was dropped before it crossed the ship’s rail on loading. No bill of lading had yet issued and the contract of carriage had been arranged by the buyers, to whom property in the goods had not yet passed. There was no suggestion that those arrangements had been reduced to writing, other than by the preparation of the unissued bill of lading. This was the context in which Devlin J observed, at 419:

The use of the word “covered” recognizes the fact that the contract of carriage is always concluded before the bill of lading, which evidences its terms, is actually issued. When parties enter into a contract of carriage in the expectation that a bill of lading will be issued to cover it, they enter into it upon those terms which they know or expect the bill of lading to contain. Those terms must be in force from the inception of the contract; if it were otherwise the bill of lading would not evidence the contract but would be a variation of it.

35    Similarly, in The Maersk Tangier, it was common ground that three containers of frozen tuna loins that were damaged in transit had been received by the carrier pursuant to a contract including the appellant’s Standard Terms and Conditions and containing an implied term that the shippers were entitled to demand that bills of lading be issued by the appellant. Instead, sea waybills were issued. Section 1(4) of the Carriage of Goods by Sea Act 1971 (UK) (COGSA 71) provides that nothing in the 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. In considering whether s 1(4) was satisfied the Lord Justice Flaux adopted, at [48]–[49], what had been said by Devlin J in Pyrene. Nevertheless, this was in the context of it being common ground that the contract provided by implication for the issue of such a bill of lading on demand.

36    In Poralu, the Full Court applied the reasoning in Pyrene to the interaction of the chapeau in Art 10 of the Hague-Visby Rules with Art 10(c), albeit in the context of the Australian Hague Rules, in circumstances where a recap telex stated, “BL including English law and London Arbitration => to be provided”. The Full Court held, at [94], that this statement “signified that the carrier would ‘provide’ (ie, issue) a bill of lading to evidence a contract of carriage that had to include English law and London arbitration rider clauses”. That is not the present case.

37    Further, none of the decisions was concerned with a contract of carriage which provides expressly to be superseded upon the issue of a bill lading but where no bill of lading is issued and where the cargo is not shipped. There is no dispute that the parties intended bills of lading to issue (Affidavit of Albert John Smith dated 3 March 2026 (Smith Affidavit) at [14]–[15] and Annexure AJS-1 at pp 77–80). It is however apparent on the face of that evidence that the parties did not appear to concern themselves with whether the bills to be issued conformed with the carrier’s bill of lading form that was page 2 of the Booking Note and which the plaintiffs plead constitutes part of the written contract of carriage (Statement of Claim at [7]). An email dated 21 May 2024 from Mid-Ship to Universal Cranes and Smithbridge Group, reveals questions being asked by Swire about the type of shipping document required:

Bill of Lading type; Seawaybill/Telex-release BL/Original BL. If a Telex-release BL is required, pls kindly complete the attached LOI accordingly.

38    The email asks Craig Welch, Terry Raymond and Carl Hawkings from Universal Cranes, and Albert Smith of Smithbridge Group to confirm “which kind of bill of lading you would require? If Telex bills are required pls see attached LOI”. By email dated 22 May 2024, Terry Raymond confirmed Telex Bills were required.

39    As detailed above, three bills of lading were in evidence for cargo shipped on board the Pacific Endeavour (Smith Affidavit, Annexure AJS-1 at pp 100–105). It is to be inferred that had a bill of lading been issued in respect of the Grove Crane in Brisbane, it would have been in the same form as the three bills of lading that were in evidence. They were described as “Bill of Lading for Combined Transport or Port to Port Shipment” and were issued by Swire Shipping (Swire Bills). The terms of the Swire Bills are not the same as those contained in the Contract of Carriage. By way of example, the Law and Jurisdiction clause, which lies at the heart of the controversy between the parties, does not provide for London arbitration on LMAA Terms but rather for the exclusive jurisdiction of the Singapore courts, or Singapore arbitration pursuant to the rules of the Singapore Chamber of Maritime Arbitration (cl 24).

40    A supersession clause can only be effected by the issue of a bill of lading in the specified form as has been agreed in the Booking Note. In Moscow V/O Exportkhleb v Helmville Ltd (The “Jocelyne”) [1977] 2 Lloyd’s Rep 121, the voyage charterparty, which contained a supersession clause requiring bills of lading to be in one of two specified forms and to contain certain specified clauses, provided for London arbitration in the event of a dispute. The bills of lading that were issued did not conform with the supersession clause and the plaintiffs commenced actions both in rem and in personam in the High Court of England and Wales. Mr Justice Brandon held (at 129) that, in the circumstances of that case, it was clear that the parties intended that the charterparty should only be superseded by bills of lading which satisfied the requirements both as to form and as to the clauses to be included in such bills. As the bills of lading did not conform, the charterparty was not superseded and it, together with the arbitration clause contained therein, remained the only contract between the parties.

41    In the present case, it is tolerably clear that the parties did not intend for the bills of lading, when issued, to operate as anything more than a receipt. They were not intended to be evidence of the contract of carriage. The supersession clause in the present case refers specifically to performance of the contract “subject to the terms contained on Page 1 and 2 hereof”, which shall in turn be superseded by “the terms of the Bill of Lading”. The reference to “the Bill of Lading” can only be construed, logically, to be a reference to a bill of lading issued in the Carrier’s Bill of Lading Form and containing the terms substantially as set out “on Page 2 hereof” with any relevant amendments. The Swire Bills do not conform to the Bill of Lading Terms contemplated by the Booking Note and the correspondence between the parties as to the type of shipping documents that were required did not suggest that either party was operating on the basis that bills would in fact be issued in conformity with the supersession clause.

42    For that reason, the existence of the supersession clause does not assist the plaintiffs in establishing that the Booking Note is a sea carriage document.

A contract of affreightment or voyage charter?

43    Swire submits that, in any event, the Booking Note is more properly characterised as a contract of affreightment or a voyage charterparty which means that it cannot be a “non-negotiable document … that either contains or evidences a contract of carriage of goods by sea” within the meaning of Art 1(1)(g)(iv). It submits that many of the express terms in the Booking Note (including some of the “Special terms” in box 13) are more in the nature of terms commonly used in contracts of affreightment or voyage charterparties than in a bill of lading.

44    The Booking Note form reflects the following as having been filled in each of the numbered boxes of what was an amended CONGENBILL2016:

1.    Agents – Shipbrokers: Mid-Ship

45    Swire points to the typical use of brokers in the negotiation of a contract of affreightment; a matter referred to by Stewart J in Poralu (First Instance) at [241] as a characteristic of such a contract.

2.    Place and date: Singapore, 15 May 2025

3.    Carrier: Swire Shipping

4.    Merchant (see Clause 1): Smithbridge Guam

46    Although little turns on it, cl 1 of the Bill of Lading Terms includes “charterer” within the meaning of “merchant”.

5.    Vessel’s name: MV “Pacific Endeavour” (IMO 9358022)

47    The contract contemplated performance by an identified performing vessel: Poralu (First Instance) at [241].

6.    Time for shipment: 30 May – 10 June 2024

7.    Loading port: 1st port of call Tauranga, NZ and 2nd port of call Brisbane, AU – Carrier’s Berth/Agent

8.    Discharging port: Guam US 1 gspb [Good Safe Port Berth] aaaa [Always Accessible, Always Afloat]

9.    Description of goods: Part cargo of:

•    Dismantled cranes and other machinery, total 2,764.08 frt, Max HL 94mt

•    Brisbane packing list: 1,443.82 RT

•    Tauranga packing list: 1,320.26 RT

•    Ex Tauranga: CKE 2500 crawler crane, GMK5130 crane and other machinery/equipment as per attached packing list with file name: 2024May17 Packing List CKE2500-2, GMK5130 & BB Tau-SBG TNR rev4

•    Ex Brisbane: GMK7450 crane and other machinery/equipment as per attached packing list with file name: 2024May17 Packing List GMK7450 BB Ex Brisbane to Guam V2 TNR…

10.    Freight rate…:

•    USD 500,000.00 Lumpsum, bss [basis] 2/1 and 3,000 FTs, excess cargo up to 3,300 FTs (Max Unit Weight 60 Mts) to be rated USD 100.00 per FT

•    Any additional cargo to be added on an open book basis subject to PLs/Owners approval

•    Freight based on Hook In / Free Out

•    Freight to be fully paid 2 days after completion of loading at last loading port

48    The fact that freight was to be paid, at least in part, as a lump sum up-front and not upon each component being shipped suggests a contract of affreightment.

11.    Demurrage/Detention rate (if agreed): USD 17,500.00 per day pro rata, free despatch

49    Demurrage and detention are terms most usually found in a contract of affreightment or a voyage charter.

12.    Merchant’s representatives at loading port: [names and telephone numbers provided]

13.    Special terms, if agreed

50    As Swire submits, several of the special terms provided for in box 13 are also more referable to a contract of affreightment or a voyage charterparty. These include: the detail of the full ownership chain with Swire identified as “Timecharterers”; the contemplated carriage is specified to be a series of voyages between three identified ports in three different countries; detailed provisions concerning the allocation of costs of loading and stowage to Owners’ account; a safe port warranty aaaa by Merchant; a specified laycan “as fast as vessel can receive” otherwise detention; demurrage and detention provisions; requirement for NOR to be tendered and laytime to commence in accordance with GENCON94; the inclusion of BIMCO VOYWAR 2013 Sanctions Clause for Voyage Charterparties 2020 and Ship-to-Ship Transfer & Stevedore Damages clauses; the inclusion of BIMCO Infectious or Contagious Diseases Clause for Voyage Charterparties; a freight beneficiary clause directing “Charterers” to pay, if required, “in accordance with OFAC Clause which is as incorporated in the Charter Party”; Owners’ guarantee in relation to nominated vessel; Owners’ obligations in the event the vessel/cargo is liened or arrested “during the currency of this Charter Party”; hold harmless clause in favour of Charterers in respect of ballast water; bunker fuel sulphur content clause “during the performance of this Charter”.

51    The request by Universal Cranes for Telex Bills is also more consistent with the Booking Note being a charterparty. It demonstrates that upon loading, Swire was to send a release authorisation to the Port of Guam to enable the first plaintiff, as charterer and consignee, to secure release of the cargo.

52    Other correspondence, both pre and post the fixture, is also consistent with the arrangement being in the nature of a contract of affreightment or voyage charterparty. By email dated 15 May 2024 requesting a lashing survey of the vessel, the plaintiffs referred to their arrangement of “another charter vessel … to be loaded ex Brisbane 5-6/06/2024 destined for Guam” (Smith Affidavit, Annexure AJS-1 at p 187). A further email dated 28 May 2024 refers to “charterers/shippers representative” (Smith Affidavit, Annexure AJS-1 at p 62). On 29 May 2024, the plaintiffs are informed that “Owners would like Smithbridge/Universal Cranes to declare … when all cargo will be ready to load” (Smith Affidavit, Annexure AJS-1 at p 58). Similarly, the plaintiffs are informed by email dated 29 May 2024 as to when laytime will commence (Smith Affidavit, Annexure AJS-1 at p 56). Further, albeit perhaps self-serving, on 23 February 2026, Swire wrote to Smithbridge Guam requesting “charterers” to appoint their own arbitrator subsequent to Swire’s appointment of its arbitrator (Taylor Affidavit, Annexure MMT-1 at p 27).

53    In my view, the Booking Note is properly characterised as a contract of affreightment or a voyage charterparty. As I have already concluded that it is not a sea carriage document, and as no sea carriage document has been issued for the carriage, Art 10(6) operates to preclude the operation of the Australian Hague Rules. Even if a bill of lading in similar form to those that are in evidence had been issued, it is doubtful that the Australian Hague Rules would have applied in any event. Although Art 10(6) purports to permit the application of the Australian Hague Rules to carriage under a charterparty where a sea carriage document is issued for the carriage, Art 10(7) then provides for the Rules to apply only where a sea carriage document issued under a charterparty is a negotiable sea carriage document, and then only while it regulates the relationship between the holder of it and the carrier. Although the drafting is tortuous, Art 10(7) would have no work to do if the second clause in Art 10(6) merely reapplied the Australian Hague Rules to all sea carriage documents. The Swire Bills were not negotiable and I infer that any bill of lading that would have been issued in respect of the Grove Crane would likewise be non-negotiable.

A document within s 10(1)(b)(iii)?

54    As has already been described, s 10(1)(b)(iii) of COGSA 91 provides that the Australian Hague Rules apply to a contract of carriage of goods by sea that is a contract:

1.    contained in or evidenced by

2.    a non-negotiable document (other than a bill of lading or other similar document of title)

3.    being a contract that contains express provision to the effect that the [Australian] Hague Rules are to govern the contract

4.    as if the document were a bill of lading.

55    The Booking Note satisfies the first two criteria in that it is a non-negotiable document containing the contract of carriage. As has already been observed, it is common ground that the Bill of Lading Terms were incorporated in the terms of the Booking Note, cl 3 of which provides, relevantly:

3.    Liability for Carriage Between Port of Loading and Port of Discharge.

(a)    The International Convention for the Unification of Certain Rules of Law relating to Bills of Lading signed at Brussels on 25 August 1924 (“the Hague Rules”) as amended by the Protocol signed at Brussels on 23 February 1968 (“the Hague-Visby Rules”) and as enacted in the country of shipment shall apply to this Contract.

…

(Emphasis added.)

56    The parties also accepted that the words, “Hague-Visby Rules … as enacted in the country of shipment [Australia]”, would include the Australian Hague Rules as enacted by COGSA 91, if the clause otherwise satisfied the requirements of s 10(1)(b)(iii): Poralu at [137]–[138].

57    Where the parties diverge is as to whether the wording of cl 3(a) expressly provides that the Australian Hague Rules are to govern the contract of carriage as if the Booking Note were a bill of lading. Swire submits that cl 3(a) does not do so and therefore is not a document of the type referred to in s 10(1)(b)(iii) of COGSA 91.

58    Section 1(6)(b) of COGSA 71 is in similar, albeit not identical, terms as s 10(1)(b)(iii). It provides:

(6)     Without prejudice to Article X(c) of the Rules, the Rules shall have the force of law in relation to—

    …

(b)     any receipt which is a non-negotiable document marked as such if the contract contained in or evidenced by it is a contract for the carriage of goods by sea which expressly provides that the Rules are to govern the contract as if the receipt were a bill of lading,

but subject, where paragraph (b) applies, to any necessary modifications and in particular with the omission in Article III of the Rules of the second sentence of paragraph 4 and of paragraph 7.

(Emphasis added.)

59    That section has been considered by English courts. In Browner International Ltd v Monarch Shipping Co Ltd (the “European Enterprise”) [1989] 2 Lloyd’s Rep 185, a consignment of meat, packed in a refrigerated tractor trailer unit, was shipped from Dover to Calais under a non-negotiable consignment note. The consignment note expressly incorporated the Hague-Visby Rules subject to a number of provisos, including a limitation of liability provision, which was substantially lower than that contained in Art IV r 5 of the Hague-Visby Rules. When the goods were damaged, the cargo owner argued that the contractually agreed lower limitation amount was rendered null and void by reason of s 1(6)(b) of COGSA 71.

60    Mr Justice Steyn held that a receipt that did not expressly provide that the relevant Rules were to govern the contract of carriage “as if the receipt were a bill of lading” was not sufficient to satisfy s 1(6)(b) of COGSA 71. His Lordship said, at 189:

The correct interpretation seems to me that the legislature laid down two formal requirements, viz (a) that the receipt, which is a non-negotiable document, must be marked as such and (b) that the contract must expressly provide that the rules are to govern the contract as if the receipt were a bill of lading. Only if these formal requirements are fulfilled, does s. 1(6)(b) confer on a voluntary contractual tie the statutory force which is ordinarily only applicable in the case of bills of lading.

(Emphasis added.)

61    Further, Steyn J also observed, at 189:

This is an interpretation which is supported by commentators in two important articles: See M.J. Mustill, Q.C., The Carriage of Goods by Sea Act 1971, art. iv for Sjorett, vol II, issue 4-5, 1972, at p. 697; A. Diamond, Q.C., The Hague-Visby Rules, (1978) 2 L.M.C.L.Q., at p. 37. (It is only right that I should add that I expressly invited Mr. Diamond to refer me to his article which, if I may say so, is a seminal work.) This view is also supported by the editors of the last two editions of Scrutton on Charterparties: 18th ed. (1974), at p. 452; 19th edn. (1984) pp. 415-416.

62    In observing that he did not agree with the contrary conclusion reached by Lloyd J in McCarren & Co Ltd v Humber International Transport Ltd (The Vechscroon) [1982] 1 Lloyd’s Rep 301, Steyn J identified as a “significant factor” in favour of his conclusion a matter which he said was not argued before Lloyd J. That fact was that the purpose of s 1(6)(b) of COGSA 71 was “to confer on a voluntary consensual tie a statutory binding character” (European Enterprise at 190). This factor, in Steyn J’s view, afforded “an explanation for the formal requirements of s. 1(6)(b), which were no doubt designed to bring clearly to the mind of parties what documents will attract the statutory regime ordinarily reserved for bills of lading”. His Lordship rejected any suggestion that there was any “warrant as a matter of ordinary language to treat the additional words ‘as if the receipt were a bill of lading’ as having no legislative force”. Accordingly, Steyn J concluded that the consignment note in the case before him failed to comply with s 1(6)(b) by reason of the absence of any express application of the Rules to that receipt as if the receipt were a bill of lading.

63    The most recent edition of Scrutton on Charterparties (25th ed, 2024 at [14-022] fn 58) continues to support that interpretation. The learned authors of Carver on Bills of Lading (5th ed, 2022 at [2-028] fn 158), Girvin, Carriage of Goods by Sea (3rd ed, 2022 at [18.23]–[18.24]) and Davies & Dickey, Shipping Law (5th ed, 2024 at [13.20]) also express preference for Steyn J’s interpretation.

64    The plaintiffs submit the difference in statutory language as between s 10(1)(b)(iii) of COGSA 91 and s 1(6)(b) of COGSA 71 requires this Court to reach a different conclusion from that in European Enterprise. They point to a passage in Mount Isa Mines Ltd v The Ship “Thor Commander” [2018] FCA 1326; 263 FCR 181 at [104]–[105] in which Rares J held that the Australian Hague Rules applied to the cargo on board the Thor Commander because the General Clause Paramount so provided, without including the words “as if the document were a bill of lading”. They submit that it is clear from Rares J’s reasoning that his Honour considered the requirements of s 10(1)(b)(iii) to have been satisfied.

65    The plaintiffs’ conclusion does not necessarily follow from the decision in Thor Commander. In the passage relied upon, Rares J said:

[104]    The [Australian] Hague Rules in Sch 1A to COGSA have force of law in Australia in respect of, and apply to, a contract of carriage of goods by sea pursuant to ss 7 and 10(1)(b)(i) and (iii) of that Act, where, as s 10(2)(b)(iii) [sic] provides …

[105]    The [Australian] Hague Rules apply to the carriage of the cargo on Thor Commander since cl 2(a) and (b) of the bill of lading so provides …

66    The General Clause Paramount in fact provided that “The Hague Rules … as enacted in the country of shipment, shall apply to this Bill of Lading” (emphasis added) (Thor Commander at [61]). By contrast, the Booking Note in this case provides that “(‘the Hague-Visby Rules’) … as enacted in the country of shipment shall apply to this Contract” (emphasis added).

67    Further, in Thor Commander, a straight bill of lading was issued by the carrier. Section 10(1)(b)(iii) was therefore irrelevant to the conclusion reached by Rares J. That is because the bill of lading that was issued fell within s 10(1)(b)(i), being a contract to which, under Article 10 of the Australian Hague Rules, those Rules apply.

68    Article 10 applies the Australian Hague Rules to “sea carriage documents”. Returning then to s 10, as a matter of statutory construction, s 10(1)(b)(i) and (iii) must be directed to different contracts. It is trite that a court is not at liberty to consider any word or sentence in a statutory provision to be superfluous: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71]. A contract which falls within the scope of subparagraph (i) will, because of the definition of sea carriage document in Art 1(1)(g), include: a bill of lading, a negotiable document of title that is similar to a bill of lading and that contains or evidences a contract of carriage by sea; a bill of lading that by law is not negotiable, or 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 by sea. In other words, the Australian Hague Rules apply mandatorily to each of those categories of documents.

69    Section 10(1)(b)(iii) enables parties to a contract for the carriage of goods by sea to voluntarily apply the Rules, as a matter of law, to non-negotiable documents that do not otherwise fall within the scope of s 10(1)(b)(i). So much was made explicit in the Explanatory Memorandum to the Carriage of Goods by Sea Bill 1991 (The Parliament of the Commonwealth of Australia, Senate, at 5). It has the effect of expanding the definition of “contract of carriage” in Art 1(1)(b) of the Australian Hague Rules to include contracts referred to in s 10(1)(b)(iii), provided such a contract “contains an express provision to the effect that the [Australian] Hague Rules are to govern the contract as if the document were a bill of lading”.

70    Understood in this context, the requirement to include the words “as if the contract were a bill of lading” can be seen as more than a matter of mere form. It has the effect of ensuring the Australian Hague Rules in their entirety are incorporated in the relevant contract. It also reflects the correlative provision in Art 6 whereby parties are at liberty to contract out of the Australian Hague Rules in certain circumstances, provided that, inter alia, a receipt or consignment note is “marked as being non-negotiable” and states “that no other sea carriage document has been or will be issued”.

71    Given the context and purpose of s 10(1)(b)(iii), I am compelled to come to the same conclusion in respect of that subparagraph as did Steyn J in respect of the analogous English provision. Consequently, the absence of an express provision required by the subsection means that the Booking Note is not a document of the kind mentioned in subparagraph (iii).

72    Properly construed, s 11(2)(b) of COGSA 91 does not apply to cl 4 of the Bill of Lading Terms.

Swire’s application for a stay    

73    Section 7 of the IAA provides, relevantly:

(2)     Subject to this Part, where:

(a)     proceedings instituted by a party to an arbitration agreement to which this section applies against another party to the agreement are pending in a court; and

(b)     the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration;

on the application of a party to the agreement, the court shall, by order, upon such conditions (if any) as it thinks fit, stay the proceedings or so    much of the proceedings as involves the determination of that matter, as the case may be, and refer the parties to arbitration in respect of that matter.

…

(5)     A court shall not make an order under subsection (2) if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed.

74    There is no dispute that the plaintiffs and Swire are parties to an “arbitration agreement” within the meaning of s 3(1) of the IAA. Clause 4 of the Bill of Lading Terms provides:

4.    Law and Jurisdiction

Any dispute arising out of or in connection with this Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in London in accordance with the Arbitration Rules of the London Maritime Arbitrators Association (LMAA) terms in force at the commencement of the arbitration, which rules are deemed to be incorporated by reference in this clause. The arbitration Tribunal is to consist of three arbitrators, one arbitrator to be appointed by each party and the two so appointed to appoint a third arbitrator. English law to apply.

75    That agreement is a foreign arbitration agreement within the meaning of s 7(1)(a) of the IAA. That is because the procedure under it, being the curial law or law of the seat, is governed by English law, which is the law of a Convention country, namely the United Kingdom. There is no dispute that the matter falls within the terms and scope of the arbitration agreement and is capable of settlement by arbitration within the meaning of s 7(2). Further, for the reasons already given in respect of the plaintiffs’ anti-suit injunction, the arbitration agreement is not null and void.

76    There is no residual discretion in the Court to refuse a stay in the present circumstances. Once the prerequisites in s 7(2) are satisfied, a stay is mandatory: Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 at 343–4 per Brennan and Dawson JJ, with whom Toohey J agreed, and 350 per Deane and Gaudron JJ.

77    Consequently, the whole of the plaintiffs’ claim against Swire in the current proceeding, including its non-contractual claims, must be stayed.

disposition

78    For these reasons, the whole of the plaintiffs’ claim against Swire in this proceeding must be stayed. The plaintiffs’ application for a permanent injunction restraining Swire from taking any steps in the London arbitration against the first plaintiff, commencing any further arbitration against the plaintiffs with respect to disputes arising under the Booking Note, or taking any other step either directly or indirectly in any arbitration or any court proceedings seeking to restrain this action must necessarily be refused.

79    The plaintiffs must pay Swire’s costs of the proceedings, including the interlocutory applications.

Associate:

Dated:    9 July 2026