Gove Aluminium Limited v EF Maritime Navigation SA

Introduction 1 Today, on the third day of trial, the plaintiffs have applied under r 16.53 of the Federal Court Rules 2011 (the Rules) for leave to amend their statement of claim. The application arose out of the defendant's objection to the admissibility of a supplementary report of Roy Carpenter of 3 June 2012. Mr Carpenter is an expert whose opinion is relied on by the plaintiffs. 2 Without summarising all the current statement of claim, I note that it currently pleads breach of contract evidenced by a bill of lading dated 4 May 2009. The statement of claim relevantly alleges: 1. wrongfully in breach of contract and/or duty the defendant failed to exercise due diligence before and at the beginning of the voyage to make the vessel "New Eternity" seaworthy; 2. wrongfully in breach of contract and/or duty the defendant failed to make the holds and other parts of the vessel "New Eternity" fit and safe for carriage of the cargo; and 3. wrongfully in breach of contract and/or duty the defendant failed properly and carefully to load, handle, stow, carry, keep, care for and discharge the cargo. 3 The plaintiffs submitted that the report was relevant to three allegations: (1) the voyage to Canada could not have been prosecuted from the time it was known that the number 2 fuel tank had become contaminated; (2) the vessel was not cargoworthy at the commencement of the voyage; and (3) the vessel was not seaworthy at the commencement of the voyage. 4 The defendant's case, as stated by senior counsel yesterday, is that "the contract of carriage under which the plaintiffs sue the defendant, which is the original bill of lading, was varied when that bill of lading was cancelled and the substitute or switched bills of lading were put in their place". This much appears from the defendant's Second Further Amended Defence. 5 In their reply, the plaintiffs in substance allege that the contract evidenced in the bill of lading dated 4 May 2009 was not discharged but new contracts evidenced by new bills of lading were entered into. 6 For present purposes, I accept that the supplementary report is relevant to the issue of lack of cargoworthiness. The defendant admits lack of seaworthiness at the commencement of the voyage but denies the other allegations: see second further amended defence at [7]-[9]. That is, the defendant admits a breach of art 3 r 1(a) of the (modified) amended Hague Rules set out in sch 1A of the Carriage of Goods by Sea Act 1991 (Cth). 7 The defendant's objection to admissibility and the plaintiffs' response exposed a deficiency in the plaintiffs' pleading. That is, the plaintiffs have failed to plead the case they now apparently seek to run. There is no pleaded allegation that the voyage to Canada could not have been prosecuted from the time it was known that the number 2 fuel tank had become contaminated. Further, I accept that, as the defendant maintained, the plaintiffs have not pleaded that the contract of carriage contained within the original bill of lading was brought to an end by reason of a repudiation, repudiatory breach or anticipatory breach, by the defendant. This is the case the plaintiffs now want to maintain. The plaintiffs have clearly not pleaded against the defendant that the contract was terminated because the vessel was incapable of performing the voyage to Kitimat. There is no indication that such might be the plaintiffs' case in any of the particulars that the plaintiffs have provided. 8 The plaintiffs' application for leave to amend their statement of claim was supported by a draft of their proposed pleading. Senior counsel for the plaintiffs first stated that the occasion of the amendment application was that the defendant had made discovery late, with the result that the plaintiffs had not been aware of relevant communications and correspondence. The plaintiffs maintained that, only when acquainted with the discovered information, had Mr Carpenter been able to make his supplementary report. Ultimately, however, it seemed to me that the plaintiffs accepted, as well they might, that there were deficiencies in their pleading that owed nothing to late discovery on the defendant's side and that some of the proposed amendments were designed to remedy these deficiencies. The plaintiffs have continued to maintain, however, that their proposed amendments to paras 10B and 10C of their proposed amended statement of claim really were the outcome of late discovery. I will come to this in due course. 9 In opposition to the application for leave to amend, the defendant submits that, save for a proposed amendment to para 8 of the statement of claim (which it did not oppose) the plaintiffs' proposed amendments introduced a new case that could have been pleaded earlier. If the amendments were allowed, the defendant stated that it would need time to address the amendments. As will be seen, this factor is significant for the disposition of the application for leave to amend.