See also Toll (FGCT) Pty Ltd v. Alphafarm Pty Ltd[8] where the court emphasised that the rights and liabilities of parties to a written contract are determined by an objective analysis of its terms.
17 Construing clause 15(ii) in accordance with these principles, it seems to me from the language of the agreement that the parties were concerned to define their respective rights and liabilities as to the performance of the agreement essentially by reference to Pakistan. Thus, for example, the contract price was plainly fixed by reference to AWB's obligation to bear the cost of freight, but only to Pakistan. Consistently with this, the agreement provided, in terms, that the discharge of the cargo was restricted to one or other of the two ports in Pakistan, at the option of Tradesmen,[9] and the quarantine requirements that had to be satisfied in relation to the wheat were those of the Pakistan authorities. And, as has been noted,[10] the agreement contained an express prohibition on wheat being milled or sold anywhere other than in Pakistan without AWB's agreement. Further, a number of the terms of the agreement were concerned with timely delivery of the wheat to Pakistan and, although many of them would be performed by the shipping company, it was AWB that was to be held responsible to Tradesmen for any non-performance of those provisions. Thus, AWB had the obligation to arrange ocean transport of wheat "to PQA (Port Qasim/Karachi Port for each lot offered" and, if there was failure to meet the nominated arrival date of the cargo in Pakistan, AWB was liable to a penalty that was payable to the Pakistan Agricultural Storage and Service Office. Moreover, it was for AWB to ensure that the vessel that it procured to transport the wheat to Pakistan conformed, in respect of a number of physical requirements, with the specification of the Pakistan Port authorities. And, critically, I think, any relevant rejection of the goods would take place in the Pakistan port.
18 It was said by Mr Thompson, however, that any reliance on the provisions which imposed obligations on AWB in respect of the shipping of the wheat were unhelpful to the construction of clause 15(ii). Counsel argued, as I understand it, that those provisions were inserted in the agreement to make clear to AWB the terms on which it was to procure a charter party so that the reliance on them for the purpose of construing clause 15(ii) would be misleading. Mr Thompson went on to point out that the sale was effectively executed and complete by AWB once it entered into the required charter party and placed the wheat on the vessel. Thus, it was said, although AWB may have had liability under the agreement if the carrier relevantly defaulted, such default was, in the first instance at least, that of the carrier and not of AWB.
19 It is plain enough, I think, that the agreement cannot be properly construed by reference to the terms of the charter party, and the contrary was not sought to be put by Mr Austin. But the fact remains that there were terms of the agreement that made AWB liable for failure to meet a number of requirements, the performance of which was to be carried out in Pakistan, albeit by the shipping company. What is of relevance is that these requirements, the performance of which AWB effectively "guaranteed", were directed to the performance of the agreement only in Pakistan and, I think, evinced the parties' intention that the discharge of the wheat and all relevant acts pertaining to it would be performed in Pakistan.
20 In the circumstances, I consider that it is plain enough that the parties intended the term "final port of discharge" to be a reference to one or other of the ports in Pakistan that was specified in the agreement. Such a construction of the clause would be consistent with the underlying rationale of it, namely, to provide the seller with notice of claim arising out of the rejection of the goods at the place, and by the authorities, contemplated by the agreement. On the other hand, the construction preferred by the arbitrators would lead to the uncommercial consequence that the "final port of discharge" might be determined many months after the vessel had arrived at the Pakistan port for discharge but, because the cargo was rejected there by the authorities, it was taken, sequentially, at the behest of Tradesmen, to a number of ports around the world where the cargo was similarly rejected until, finally, it was discharged many months after it was first rejected by the Pakistan authorities. On Tradesmen's argument, the time-bar would only operate from the date of actual discharge notwithstanding that the claim would be referrable to alleged failure by AWB to provide wheat acceptable to the Pakistan authorities. Such a result, I think, would fly in the face of the commercial and commonsense purposes of the requirements of clause 15(ii) to give AWB relevant notice of claim within a relatively short period of the rejection of the goods in Pakistan.
21 Thus, it would be commercially unworkable, I think, as Mr Austin submitted, to treat the event that triggers the time-bar as being related to the actual discharge of the bulk cargo given that the event would never occur under the agreement for reasons already explained. The delivery of the wheat to Jakarta in this case, for instance, was not performed under the agreement. The only exception may be where the point discharge that has been nominated in the agreement was varied by the parties, in which case the time-bar would operate from the time of the vessel's arrival at the new destination for discharge. And as Mr Austin pointed out, correctly, I think, if the vessel never arrived at the contract destination, any claim that Tradesmen may have against AWB under the agreement would not be affected by the time-bar in clause 15(ii).
22 That clause 15(ii) uses the term "port of discharge" whereas the other parts of the agreement use "discharge port" to refer to the point of discharge under the contract does not, as I have noted, detract from my above conclusion. There is no difference in substance between the two expressions and I consider that such difference in language does not cast serious doubt on the primary aim of clause 15(ii), namely, that AWB be informed of any claim under the agreement within six months of the arrival of the vessel for discharge at one of the nominated Pakistan ports where the goods have been rejected.
23 Similarly, the word "final" does not alter the situation notwithstanding that, on the face of it, it could be argued that it points to the port of actual, and not contractual, discharge. The term is consistent with the operation of the agreement where the contract point of discharge would be one or other of the two ports in Pakistan. And the mere use of that word, taken by itself, or in conjunction with the different use of the words "discharge port", does not detract from the underlying object of clause 15(ii) to which I have referred.
24 Thus, as I have said, I consider that, on a proper construction of clause 15(ii), the term "final port of discharge" is a reference to the contractual point of discharge, in the present case, Port Qasim. In my view, a contrary construction is plainly wrong. I mention for completeness that, although the respondent submitted that it need not rely on the contra proferentem rule, it nevertheless claimed, but faintly, that it would apply to AWB's disadvantage if it was considered that there was ambiguity as to the meaning of "final port of discharge" in clause 15(ii). I agree with Mr Austin's submission, however, that this is a rule of last resort in the sense that the words of the contract should, in the first instance, be given their ordinary meaning and the rule applied where there is, nevertheless, ambiguity.[11] For the reasons I have given, however, I consider that, upon a proper construction of clause 15(ii) no relevant ambiguity arises such as to justify the invocation of the contra proferentem rule.
Remaining issues
25 It follows that the next matters to be considered are whether, if the first notice purported to be a notice of arbitration, it had to comply with Article 3.3 of the Arbitration Rules and, if so, whether it did so comply and, if not, whether it is an effective "notice of ... other claim for the purposes of clause 15(ii).
Whether notice is valid notice of arbitration
26 I agree, with respect, with his Honour's determination that there was no error in the arbitrators' conclusion that, to be a valid notice of arbitration, the document must comply with the provisions of Article 3.3 of the Arbitration Rules and that the first notice did not satisfy that requirement. It seems plain enough that the Arbitration Rules are incorporated, by reference, into the agreement given that clause 15(i) relevantly provides that "[a]ny dispute arising out of or in connection with this contract shall be referred to and finally resolved by arbitration under the ... Arbitration Rules for the time being in force." Article 1 provides that the arbitration is to be governed by the Arbitration Rules and Article 3 prescribes: