D.2 Did the STCs apply?
21 On the question whether the STCs applied to the particular contract for services under which the Goliath entered port on 28 January 2022, it is convenient to begin with the relevant facts.
22 It is a requirement of TasPorts that the entering of, berthing at or departing from one of its major ports, including the Port of Devonport, by any ship should be subject to its STCs. An updated version of the STCs was approved by the TasPorts executive in about September 2020, whereafter steps were taken to notify all of TasPorts' customers of the new conditions.
23 On 13 October 2020, an email was sent to all TasPorts' existing customers, including to CSL at an email address that CSL acknowledges is an appropriate email address for that purpose (T80:5-25, 149:28). The subject line of the email and an emboldened heading in the body of the email made it clear that the email was giving notice of TasPorts' "Updated Terms and Conditions of Port Access".
24 The email explained that TasPorts had introduced a new port management information system called PortMate. It said that PortMate would enable shipping agents to submit "Movement Requests", replacing the Vessel Movement Advice. It was said that TasPorts had commenced a transition period with PortMate running alongside the previous system.
25 In bold, the following was then stated:
As part of the introduction of PortMate, TasPorts has also taken the opportunity to update its Standard Terms and Conditions of Port Access to ensure these complement the new system.
26 The email continued:
The revised terms and conditions have not materially changed from the previous version, however we encourage you to familiarise yourself with the revised terms and conditions, attached to this email. The updated Terms and Conditions of Port Access can also be found on our web site at [hyperlink to the STCs].
27 Thereafter, there was a period of transition when CSL and some other major customers of TasPorts whose vessels were on regular schedules were excused from using the PortMate system. Instead, CSL would notify TasPorts of requests to enter the port by submitting spreadsheets setting out the sailing schedule for the relevant vessel. That transition period is said to have ended in about December 2021.
28 From the time that PortMate was introduced until the voyage on which the allision occurred (ie November 2020 to January 2022), the Goliath entered the Port of Devonport approximately 100 times pursuant to requests from CSL by way of notification of sailing schedules. Of those times, with reference to the recorded "Created Date" it can be seen that notifications were made by way of sailing schedules in the period between the email of 13 October 2020 giving notification of the new STCs and 31 October 2020 on five occasions (being those with Visit IDs 1414, 1415, 1475, 1477 and 1540). I will return to the significance of those notifications.
29 For the voyage immediately preceding the voyage in question, CSL made the request for services to enter the Port of Devonport using the PortMate system. That was done by Captain Imran Ali, the then-Master of the Goliath, on behalf of CSL on 18 January 2022 for the vessel's call on or about 22 January 2022. The request was approved by TasPorts on the PortMate system. It is common ground that that request and approval attracted the application of TasPorts' STCs. Given the notification in the email of 13 October 2020 of the transition period, there can also be little doubt that on the approximately 105 occasions in which sailing schedules were used, the STCs applied.
30 It is a feature of the PortMate system that when a customer enters a Movement Request, a screen pops up with two buttons, "yes" and "no", one of which must then be clicked on. The buttons are immediately below a "Confirmation" which includes the following:
It is agreed and understood that:
• all services provided by Tasmanian Ports Corporation Pty Ltd (TasPorts) including, but not limited to, any services requested in this Movement Request are provided subject to the Terms and Conditions of Port Access;
• the Schedule of Port Charges referred to in the Terms and Conditions of Port Access also apply to this Movement Request;
• the Terms and Conditions of Port Access impose obligations on the shipping agent submitting this Movement Request as well as its principal;
• the shipping agent as well as its principal each acknowledge that they have received, read and understand the Terms and Conditions of Port Access and the shipping agent and its principal agree to be bound by the Terms and
• the Movement Request is only valid for 30 days from the date of submission. Subsequent movements outside 30 days require an additional Movement Request to be submitted (excluding cruise ships and AAD vessels).
(The underlining indicates hyperlinks to the relevant documents.)
31 It is not possible for a customer to submit the Movement Request unless and until they click on the "yes" button. In submitting the Movement Request, Captain Ali must have clicked on that button, thereby indicating CSL's assent to the STCs for "all services provided by [TasPorts] including, but not limited to, any services requested in this Movement Request".
32 Just how Captain Ali came to use the PortMate system is apparent from an email the previous month. Craig Ward, the manager of TasPorts' Vessel Traffic Services (VTS), sent an email to the generic email address for the Master of the Goliath on 7 December 2021. The salutation in the email is to "Joe and Imran", being the first names of Captain Abeysena and Captain Ali respectively - the two alternating Masters of the Goliath. The email explained that the PortMate system had been introduced but that up until then VTS had been submitting Movement Requests on "your behalf" - which is consistent with the interim arrangement outlined in [27] above. It said that in future vessels or agents would have to submit their own Movement Requests, and it offered training to the two Masters of the Goliath for that purpose. The email recorded that VTS had entered the vessel's visits into PortMate for the rest of that month, but that it planned for a transition to the Masters entering their own visits from the commencement of the New Year (ie 2022).
33 It is apparently because of that email, and what that email explains, that Captain Ali entered the vessel Movement Request on PortMate on 18 January 2022 and came to agree, on behalf of CSL, by clicking on the "yes" button that TasPorts' STCs would apply, at least to the vessel Movement Request in question and possibly also for the later movement in which the allision occurred - I will return to that question shortly.
34 As mentioned, Captain Abeysena rejoined the Goliath from leave as Master on 21 January 2022, relieving Captain Ali. On that day, he replied to Mr Ward's email of 7 December 2021 detailed above explaining that he had rejoined the Goliath that day and requesting a username and password to enable him to log in to PortMate. He explained that he had registered as a user of PortMate back in August 2020 and he attached an email from then to demonstrate that.
35 Captain Abeysena explained in his affidavit that prior to 27 January 2022, he had not utilised PortMate to make a vessel Movement Request for the Goliath. He made all requests for the vessel to enter the Port of Devonport by emailing a copy of the vessel's schedules to VTS and by calling VTS to confirm the approval to enter the port limits and berth upon each approach to the port.
36 On 27 January 2022, Captain Abeysena submitted a request to VTS for the Goliath's scheduled entry into the Port of Devonport the following day. That was done by email to which was attached the vessel's sailing schedule - named "Goliath Schedule January 22" - for five voyages between 8 January and 7 February 2022. The first three of those voyages between Melbourne and Devonport had been completed, with the identified voyage (Voy 21/071) scheduled to commence "Depart Mel (RFA)" (ie "ring full away", meaning when on sea navigation speed having departed Melbourne) that day and the vessel to arrive at "Devonport PBG" (ie the pilot boarding ground for the Port of Devonport) the next day, 28 January, at 11.30am.
37 The Goliath was permitted to enter the port on 28 January 2022. From that, I infer that TasPorts accepted the vessel Movement Request in the form of the schedule.
38 Having made the relevant factual findings, I turn now to consider whether, on those facts, TasPorts' STCs applied to the vessel movement in question.
39 As mentioned, it is common ground that CSL was given proper notice of the new STCs on 13 October 2020. Terms relevant to the question of whether the STCs applied include the following.
40 In cl 1, "Application" is defined to mean a vessel movement advice received by TasPorts at any time before 31 October 2020, or a "Movement Request" or a "Slip Application Form". The last of those is applicable to the use of a slipway. That did not occur, so it can be put to one side.
41 "Movement Request" is defined to mean either a request submitted electronically via PortMate or "in circumstances where it is not possible to use Port Mate", a request "communicated to TasPorts in a manner acceptable to TasPorts".
42 Clause 2(a) provides that by completing and submitting an "Application", the customer and its agent each "acknowledge that they have received, read, understood and agree" that the STCs "are expressly incorporated into the agreement evidenced by the completed Application".
43 The question whether the STCs applied by their terms thus turns on whether there was an "Application", which in turn depends on whether there was a "Vessel Movement Advice" before 31 October 2020 or a "Movement Request" as defined.
44 As mentioned above, there were five Vessel Movement Advices made and accepted between the time that the new STCs were notified and 31 October 2020. That means that on five occasions, someone on behalf of CSL acknowledged and agreed that the STCs were expressly incorporated into the agreement evidenced by the completed application. That may be sufficient to give rise to incorporation of the STCs into subsequent agreements by way of a course of conduct, but it is not necessary to decide that question because of the other bases for applicability of the STCs.
45 Two possibilities present themselves as potentially applicable Movement Requests in the present case.
46 First, there is the Movement Request made by Captain Ali on PortMate on 18 January 2022 in respect of the immediately preceding voyage. That is not the relevant Movement Request in the sense that the request was not for the intended call of the vessel on 28 January 2022, but rather for the call on 22 January 2022. It nevertheless has relevance because of Captain Ali's agreement on behalf of CSL that "all services" provided by TasPorts including, but not limited to, any services requested in the Movement Request submitted by him "are provided subject to the [STCs]".
47 Although I accept that there may be some point of remoteness at which Captain Ali's agreement that "all services" provided by TasPorts would be subject to the STCs might not apply - whether by the passage of time, change in circumstances, change in the nature of services, services for a different vessel, or change in the place where the services are provided - no such point of remoteness was reached in respect of the subject voyage. In my assessment, Captain Ali's agreement by clicking the "yes" button applied to the services rendered by TasPorts for the call of the Goliath on 28 January 2022. That is because it was for the same vessel, in the same port, for the same nature of services, for the very next voyage which was only one week away, and it was in respect of a voyage for which TasPorts had already been given notice.
48 I infer the last of those points from the schedule subsequently provided by Captain Abeysena which included full details for the by then already completed first two voyages for January 2022. The schedule must have been provided to, and accepted by, TasPorts for those voyages. That is because the spreadsheet of occasions on which the Goliath berthed in the port from when PortMate was introduced until the subject voyage, and which shows that the third of the January 2022 voyages was notified via PortMate, does not show that the first and second of the January 2022 voyages were notified via PortMate. It stands to reason that they were notified via the submission of schedules that was used for major customers during the transition period, as explained by Mr Hoggett. I draw that as the most natural and probable inference.
49 On that basis, I conclude that the STCs applied to the contract for the services that were requested by Captain Abeysena on 27 January 2022.
50 The second, and alternative, possibility of a Movement Request is the request by Captain Abeysena on 27 January 2022. That request was accepted by TasPorts and was therefore "communicated to TasPorts in a manner acceptable to TasPorts" within the meaning of that phraseology in the definition of Movement Request. However, CSL contends that the requirement that the request be made "in circumstances where it is not possible to use PortMate" was not met, or established, and that the STCs therefore had no application by their terms.
51 There are at least two answers to that contention.
52 It is not explained in the evidence why Captain Abeysena did not use PortMate to make the vessel movement request, and why he followed the previous practice of submitting - or, in this case, re-submitting - the vessel's sailing schedule. Noting that Captain Abeysena replied to Mr Ward's email of 7 December 2021 on the first day he returned to the vessel some six or seven weeks later, and he was organised and diligent enough to attach an email from about 18 months earlier to show that he had registered to use PortMate, I infer that he was organised and diligent in the way he went about his work. From that, I also infer that had he been able to, he would have made the subject vessel movement request on PortMate - he had been requested to do so only a week before. That is the most natural and probable inference to draw. It is supported by the appreciation that all evidence is to be weighed according to the proof of which it was in the power of one side to have produced, and in the power of the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970. If Captain Abeysena was able to use PortMate and chose instead to submit the movement request in a different way, it was an easy matter for him to have said so in this evidence. It is not something that TasPorts could readily have dealt with in its evidence.
53 Indeed, CSL's failure to canvass with Captain Abeysena in his evidence in chief why he did not use PortMate for the subject voyage indicates "as the most natural inference" that CSL "feared to do so". This fear is then "some evidence" that such examination in chief "would have exposed facts unfavourable to [CSL]": see Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 320-321 per Windeyer J; Commercial Union Insurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-419G per Handley JA with whom Kirby P agreed.
54 On that basis, I conclude that it was not possible for Captain Abeysena to use PortMate within the meaning of the definition of Movement Request.
55 Another answer, which I am also persuaded by, is that properly and sensibly construed, the relevant clause does not require that it was literally "not possible" to use PortMate. In the context of TasPorts' requirement that all ship movements would be subject to its STCs and its stated transition to PortMate, which was commonly known to the parties through the email of 13 October 2020, and its evident purpose in shepherding all movement requests to PortMate, the Movement Request definition demonstrates a primary requirement that customers use PortMate, but if for some reason they do not do so, and TasPorts accepts the method by which they communicate a movement request, then that also attracts the application of the STCs. That is to say, the phrase "in circumstances where it is not possible to use PortMate" is not a precondition to not using PortMate, but is rather in the nature of instructional information to the customer, ie "you must use PortMate if you can". It also provides a reason for TasPorts to not accept a movement request other than via PortMate, ie "you can and therefore must use PortMate".
56 That reading is supported by the consideration that there can be no commercial purpose or rationale to providing for two limited forms of Movement Request which are subject to the STCs yet allowing some other movement request at the customer's election which would not be subject to the STCs, albeit only if acceptable to TasPorts. Objectively, all relevant applications, if accepted, were intended to be subject to the STCs.
57 On that basis, even if it were "possible" for Captain Abeysena to use PortMate but for some unexplained reason he failed to do so, his Movement Request would nevertheless attract the application of the STCs under para (b) of the definition of Movement Request.