Heilbrunn v Lightwood PLC

Jurisdiction: Is there a general maritime claim? 6 The jurisdiction of the Court is conferred by laws of the Commonwealth Parliament. The Court only has jurisdiction here if the plaintiff's claim is a general maritime claim under the Act, such that the claim for damages in bailment and tort can be seen as a claim in federal jurisdiction, in the exercise of the Court's Admiralty and maritime jurisdiction, having its source in s 76(iii) of the Australian Constitution. 7 The evidence is sufficient for me to conclude that the Court has jurisdiction on the basis that the plaintiff's claim is a general maritime claim of the legal character set out in s 4(3)(f) of the Act, being a claim "arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise". 8 The precise conclusions that can be drawn from the evidence as to the structure and terms of the contractual arrangements are not clear. A number of factual matters are, however, clear and they give foundation for the conclusion that the Court has jurisdiction. 9 The arrangement of the outward and return voyages of the cars (including the plaintiff's car) was made by a member of the car club of which the plaintiff was a member, a Mr Seymour. It can be accepted that Mr Seymour made the arrangements on behalf of the plaintiff, that is, as his agent. 10 Mr Seymour apparently engaged Vantage Freight Services Pty Limited ("Vantage"), a freight forwarder in Sydney, to arrange the carriage. Vantage engaged an English freight forwarder, Planetwide Ltd ("Planetwide") to assist. The car was carried to England. The only evidence of any contractual arrangements to effect the transportation from Sydney to England was a document issued on 12 March 2003 by Vantage, which was expressed to be an "FBL" (which I take to stand for freight forwarder's bill of lading) and to be a "NEGOTIABLE FIATA MULTIMODAL TRANSPORT BILL OF LADING issued subject to UNCTAD/ICC Rules for Multimodal Transport Documents (ICC Publications 481)". The bill also had a notation that "the goods and instructions are accepted and dealt with subject to the Standard Conditions printed overleaf." "FIATA" is, of course, the International Federation of Forwarding Agents Association. This bill (under which Vantage undertook the responsibility for the carriage of the goods to England, with a liberty to subcontract) identified Mr Seymour as the consignor and stated that the goods were consigned to his order "c/o" another gentleman in England. Mr Seymour was also the notify party. 11 After the trial, arrangements were made to bring the cars back to Australia. It is common ground that Planetwide engaged the defendant to receive the cars at the defendant's premises in North Weald, Essex, load them into 40 foot shipping containers and transport them by road to Tilbury for loading for the return sea voyage. The evidence was inadmissible to demonstrate the precise terms under which that was done. Each of Planetwide and the defendant had its own standard terms (the defendant appeared to have two sets, one of which was not in evidence). The evidence was inadequate to permit me to come to a conclusion about the terms governing the defendant's work for Planetwide in respect of the loading of the plaintiff's car on 16 July 2003. It was common ground, however, that there was an agreement between Planetwide and the defendant to do this work. 12 The evidence was silent about the nature of any contract and its terms as between Mr Seymour and Planetwide or the plaintiff (as Mr Seymour's principal, disclosed or undisclosed) and Planetwide, on 15 July 2003 when the car was delivered, or on the next day when the car was damaged. Later, on 12 August 2003, Planetwide issued a bill of lading of almost identical kind to that issued earlier in March by Vantage. Mr Seymour was once again the consignor, the bill was issued to his order "c/o" Vantage in Sydney, the bill was signed by Planetwide by a stamp "as carrier". The bill was a similar FIATA negotiable multimodal bill, with the same notations on the face of the bill as to subject terms and terms overleaf, as appeared on the earlier Vantage bill. 13 I admitted into evidence the FIATA standard terms which I am satisfied constituted the back of both the Vantage bill and the Planetwide bill. 14 There was, however, no evidence about the terms of any contract to transport the goods to Australia in existence at the time of delivery of the car by the plaintiff, 15 July 2003. No doubt arrangements had been made. No doubt Planetwide had agreed to arrange for the transportation to Australia, in all likelihood with Vantage, who in turn had agreed with Mr Seymour to bring this about. 15 There was no evidence of the terms of any agreement with the ocean carrier under which the ocean carriage was undertaken, assuming, as I think I can infer (from the apparent roles and businesses of Vantage and Planetwide and the names of the ships on the bills), that an ocean carrier, or carriers, separate from Vantage and Planetwide carried out the sea transportation both ways. No ocean bills were in evidence. 16 I can, and do, conclude, however, that Planetwide agreed with the defendant that the latter should load or stuff the container and transport it to Tilbury, to enable Planetwide to cause the container to be located on board a ship for sea carriage to Australia. 17 I can, and do, conclude that Planetwide had agreed with Vantage to arrange for the carriage of the cars to Australia, partly by sea, and that the cars should be delivered for loading into the containers at the defendant's premises in North Weald. 18 There was also no evidence about who received the Planetwide bills on or after 12 August 2003. Neither the plaintiff nor the defendant appeared to possess a full copy of the bill. 19 The causes of action pleaded in the statement of claim are in bailment and tort. Though the application mentions a claim in contract, none is pleaded. The plaintiff does not seek to sue Planetwide, whether by relying upon the Planetwide bill or otherwise. 20 A "general maritime claim" is, of course, one of two types of "maritime claim" as defined in s 4(1) of the Act, the other being a "proprietary maritime claim" (the content of which phrase is defined by s 4(2) of the Act). 21 Jurisdiction is conferred upon the Court in respect of proceedings commenced (as this one was) as actions in personam on a maritime claim: s 9(1)(a) of the Act. As to the maritime jurisdiction conferred on the Court by the Act, see Elbe Shipping SA v The Ship 'Global Peace' (2006) 154 FCR 439 at 451-460 [53]-[76]. The fact that the events took place in the United Kingdom does not affect the question of jurisdiction. The Act confers jurisdiction irrespective of the place where events took place: s 5 of the Act, "all maritime claims, wherever arising"; see this respect The 'Global Peace' 154 FCR at 454 [58]. 22 The relevant question to address is whether the assertions of right or interest recognised by law and carrying an entitlement to relief made by the plaintiff in the application and statement of claim (being the claim of the plaintiff) have (and has) the legal character of that which is set out in s 4(3)(f): Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 422 and 426; and The 'Global Peace' 154 FCR at 459-60 [73]-[76]. 23 This task is to be undertaken with the meaning and content of s 4(3)(f) understood. 24 Mr Cutler for the defendant submitted, in a careful and clear argument, that the claim of the plaintiff did not "arise out of an agreement that relates to the carriage of goods by a ship". First, he stressed that the events in question concerned the loading of the container prior to the land leg of the transportation - the carriage to Tilbury. The liability was not said to arise from any contract under which sea carriage would occur. The defendant was merely the sub-contractor of Planetwide, which caused damage to the goods while loading the container 30-40 kilometres from the port. 25 Mr Cutler argued that the correct approach to the interpretation of s 4(3)(f) could be found in Port of Geelong Authority v The 'Bass Reefer' (1992) 37 FCR 374 at 380-82 in which case Foster J adopted the approach of Lord Keith of Kinkel in Gatoil International Inc v Arkwright-Boston Manufacturers Mutual Insurance Co [1985] AC 255 at 270-71 and said that the relationship connoted by the words "that relates to" in s 4(3)(f) must be "some reasonably direct connection". The same passage from Lord Keith's speech in Gatoil [1985] AC at 270-71 was cited with apparent approval by Gummow J in Empire Shipping Company Inc v Owners of the Ship 'Shin Kobe Maru' (1991) 32 FCR 78 at 95 (at first instance). 26 Mr Cutler submitted that the claim did not arise out of an agreement, since the claim was pleaded only in bailment and tort. He also submitted that there was an insufficiently direct connection between any relevant agreement (if there were one) out of which the claim arose and the carriage of goods by a ship to satisfy the test laid down in The 'Bass Reefer' 37 FCR 374. 27 These submission are answered by the proper application not only of Gatoil [1985] AC 255, but also of Samick Lines Co Ltd v Owners of the 'Antonis P Lemos' [1985] AC 711. Two phrases in s 4(3)(f) are central to understanding the reach of the provision in the circumstances here: "a claim arising out of an agreement" and "that relates to the carriage of goods… by a ship". The former was the subject of consideration in The 'Antonis P Lemos' [1985] AC 711, the latter in Gatoil [1985] AC 255. 28 Before dealing with these cases, it is appropriate to set out, by reference to settled Australian law, some important considerations that attend the construction and interpretation of the Act. The first consideration is the proper approach to the construction of the Act. In Tisand Pty Limited v The Owners of the Ship MV 'Cape Morton' (Ex 'Freya') (2005) 143 FCR 43 at 59-61 [59]-[65], the Full Court set out relevant governing principles. It is unnecessary to repeat those passages other than to say the Act should be read in its legal and historical context, and that the Act and the definitions of maritime claims have an international as well as a domestic maritime context, including the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships 1952, done at Brussels on 10 May 1952 (the "1952 Convention") and the Australian Law Reform Commission Report No 33 on Civil Admiralty Jurisdiction (the "ALRC Report"). 29 The second consideration is that provisions conferring jurisdiction or granting powers to courts should be interpreted liberally and without imposing limitations not found in the express words: The 'Shin Kobe Maru' 181 CLR at 421 and see the numerous other High Court authorities to like effect referred to in Hewlett Packard Australia Pty Limited v G E Capital Finance Pty Limited (2003) 135 FCR 200 at 264 [187]. 30 The third consideration is a particular aspect of the importance of the context provided by the ALRC Report. In Owners of MV 'Iran Amanat' v KMP Coastal Oil Pte Ltd (1999) 196 CLR 130 at 138 the High Court in a joint judgment (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) stressed the importance of the background of English legislation and authority and any settled international construction: The Australian legislation having been enacted against the background of English legislation and authority set out above, the definition of "relevant person" should be understood as having the same meaning as the courts had given to the corresponding words in the English statute. When the Parliament has enacted legislation, affecting the subject of international shipping, and followed a statutory precedent from overseas which has by then received a settled construction, there is every reason to construe the statutory language in the same way in this country unless such construction is unreasonable or inapplicable to Australian circumstances. … 31 The ALRC Report made reference to both Gatoil (at [168] and [173] of the ALRC Report) and The 'Antonis P Lemos' (at [146] and [169] of the ALRC Report). No particular assistance is obtained from the discussion of these cases in the Report. The ALRC did recommend, however, in the context of these cases, that the proposed head of jurisdiction (s 4(3)(f)) follow the language of the Supreme Court Act 1981 (UK) (the "1981 UK Act"), s 20(2)(h), which was the provision dealt with in The 'Antonis P Lemos' and which was the successor provision to the Administration of Justice Act 1956 (UK) (the "1956 UK Act"), ss 1(1)(h) and 47(2)(e), being the relevant provisions dealing with England and Scotland, respectively, discussed and dealt with in Gatoil. 32 Section 4(3)(f) did follow, though not precisely, the language of the 1981 UK Act, s 20(2)(h). That section was as follows: "any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship" 33 The 1956 Act, ss 1(1)(h) and s 47(2)(e) were in the following terms: s 1(1)(h): "any claim arising out of any agreement relating to the carriage of goods in a ship or to the use of hire of a ship;…" s 47(2) Any claim arising out of any one or more of the following: … (e) any agreement relating to the carriage of goods in any ship whether by charterparty or otherwise;…" 34 It is also important for the application of the principles attending construction of the Act to which I have referred to understand that the provisions in the 1956 UK Act (and, through it the 1981 UK Act) were passed to enable the United Kingdom to ratify and to comply with its international obligations under the 1952 Convention: The 'Eschersheim' [1976] 1 WLR 430 at 434 (per Lord Diplock) and Gatoil [1985] AC at 266 (per Lord Keith). Article 1(1) of the 1952 Convention contained the following as part of the list of "maritime claims": "Maritime claim" means a claim arising out of one or more of the following: … (d) agreement relating to the use or hire of any ship whether by charterparty or otherwise; (e) agreement relating to the carriage of goods in any ship whether by charterparty or otherwise; … 35 Thus, both Gatoil and The 'Antonis P Lemos' can be seen as unanimous decisions of the final court of appeal in the United Kingdom interpreting domestic legislation having its origins in an international convention, one aim of which was to bring uniformity of approach among different legal systems. The existence of those decisions, the desirability of international uniformity, or at least broad consistency, and an expressed suggestion by the ALRC (which was heeded) that Parliament follow the wording of the 1981 UK Act, which had been (recently) interpreted (as well as the antecedent provision in the 1956 UK Act) by the House of Lords in Gatoil and The 'Antonis P Lemos' necessarily constrain the interpretation of s 4(3)(f), certainly at first instance. Further, two judges, of this Court (Foster J in The 'Bass Reefer' and Gummow J in The 'Shin Kobe Maru') at first instance have applied Gatoil. 36 The arguments of Mr Cutler that the claims here cannot "arise out of an agreement" because they are not framed in contract must be rejected as contrary to The 'Antonis P Lemos'. So too, for the same reasons, must the argument that even if the claims that can so arise can be non-contractual they must arise out of an agreement between the plaintiff and the defendant. 37 The 'Antonis P Lemos' concerned the claim of sub-charterers (Samick Lines) against the shipowners based on the asserted negligence of the master in permitting the ship to be loaded to a draught (greater than 32 feet) that exceeded the draught that Samick Lines had guaranteed to its sub-sub voyage charterer in respect of the voyage under that sub-sub charter to Alexandria. The ship had been time chartered by the owner's agent to a company called Sammisa Ltd, which had sub-time chartered the ship to Samick Lines, which had in turn sub-sub chartered the ship, by voyage charter, to Agri Industries. The voyage charter was for the carriage of grain from North America to Alexandria. The breach by Samick Lines of the express guarantee as to draught for the call at Alexandria led to Samick Lines being liable to the voyage charterer, Agri Lines, for the costs of lightening and delay at Alexandria. The claim was in tort. Mr Saville QC (as his Lordship then was) argued two points for the owners in seeking to set aside the writ in rem based on s 20(2)(h) of the 1981 UK Act, which were set out by Lord Brandon of Oakbrook (who delivered the leading speech in which Lords Scarman, Diplock, Roskill and Templeman agreed) [1985] AC at 725, as follows: …Their primary contention was that section 20(2)(h) applied only to claims of a purely contractual character, founded on some agreement of the kinds referred to in it and made directly between the two parties to an action; and that the paragraph did not extend to other claims founded on tort, even though such claims were connected, directly or indirectly, with such an agreement. Their second and alternative contention was that, even if section 20(2)(h) extended also to claims in tort, it only did so if they were directly connected with some agreement of the kinds referred to in it, and provided further (and this was the crucial limitation) that the agreement concerned was one made between the two parties to the action themselves. In terms of the present case this would mean some agreement made directly between the appellants and the respondents relating to the carriage of goods in the vessel, or to the use or hire of the vessel, which it is common ground was never made. … 38 After discussion at 725-731, and for the reasons expressed at 731, Lord Brandon rejected the first contention of the owners. A wide and liberal, not narrow, construction was, his Lordship said, to be given to the phrase "arising out of", equivalent to "in connection with". In his discussion, Lord Brandon said at 727: With regard to the first point, I would readily accept that in certain contexts the expression "arising out of" may, on the ordinary and natural meaning of the words used, be the equivalent of the expression "arising under," and not that of the wider expression "connected with". In my view, however, the expression "arising out of" is, on the ordinary and natural meaning of the words used, capable, in other contexts, of being the equivalent of the wider expression "connected with". Whether the expression "arising out of" has the narrower or the wider meaning in any particular case must depend on the context in which it is used. 39 Lord Brandon was of the view that the wider construction was to be preferred and the first contention argued for by Mr Saville QC should be rejected because (a) the words were the implementation of an international convention and should, in general, be given a broad and liberal construction; (b) the text and structure of the words in Article 1 of the 1952 Convention in introducing all the listed maritime claims tended to a broad construction; (c) the rearrangement of the words from Article 1 to those in s 20(2) was not to be taken as intending a narrowing of the meaning found in the 1952 Convention; and (d) the existing English authorities, The 'St Elefterio' [1957] P 179 and the The 'Sennar' [1981] 1 Lloyd's Rep 295, supported the capacity to bring a claim in tort under the antecedent to s 20(2)(h). 40 I should apply The 'Antonis P Lemos' in this regard. All the reasoning of Lord Brandon is equally applicable to s 4(3)(f). I would only add the following remarks. Given the need for the 1952 Convention to apply to a wide variety of legal systems and given the capacity of maritime claims to arise by reference to chartering and carriage arrangements often of some complexity, it would make little practical sense to limit the types of claims to which this paragraph was directed to contractual claims between parties to the agreement. Secondly, the provision is one in which jurisdiction is given to a court. It should be read liberally: The 'Shin Kobe Maru' 181 CLR at 421. Thirdly, The 'Antonis P Lemos' was recently applied by a Full Court of this Court, though in a different context: that of construing an arbitration clause containing the phrase "arising out of", in Comandate Marine v Pan Australia Shipping Pty Limited (2006) 157 FCR 45 at 89 [171]. The Full Court, though in that different context, gave the same wide meaning to the phrase "arising out of"': Comandate Marine v Pan Australia 157 FCR at 87-91 [162]-[176]. 41 Thus, for these reasons, the fact that the plaintiff's claim is in tort and bailment does not mean that it cannot arise out of an agreement of the character described in s 4(3)(f). 42 Lord Brandon then went on to reject the second contention of the owners propounded by Mr Saville QC, that even if claims in tort were covered, only those which were "directly connected" with an agreement covered by the provision (that is one that related to the carriage of goods in a ship) and that such agreement was one between the plaintiff and defendant. His Lordship rejected this argument for the reasons Parker LJ had rejected it in the Court of Appeal: see, in the Court of Appeal, [1985] AC at 715-720, and in the House of Lords, [1985] AC at 732. That reasoning and Lord Brandon's reasoning and conclusions on both contentions permit the following to be stated: the claim which may be non-contractual need only arise out of, in the sense of be connected with, some agreement having the relevant relationship with the carriage of goods in a ship (or other relational fact in s 4(3)(f)) even if that agreement is one to which the plaintiff is not a party. Thus, in The 'Antonis P Lemos' the claim in tort could be seen to arise out of, that is be connected with any and all of the sub-sub-voyage charter, the sub-time charter and the head time charter. 43 Here, the claim by the plaintiff undoubtedly arose out of the agreement between Planetwide and the defendant to load the cargo into the container. It can also be seen to be connected with the agreement between Planetwide and Mr Seymour evidenced by the bill of lading. It also can be seen to arise out of, that is be connected with, the agreement between Planetwide and Vantage for the former to arrange for the transportation of the cars from England to Australia. It may also be seen to arise out of, that is be connected with, the agreement between Mr Seymour and Vantage to attend to the transportation of the car to and from England. 44 The next question is whether any one or more of these agreements answers or answer the description of "an agreement that relates to the carriage of goods… by a ship", as that phrase was interpreted by the House of Lords in Gatoil. 45 In Gatoil [1985] AC 255 Lord Keith of Kinkel (with whose speech Lords Fraser of Tullybelton, Scarman, Wilberforce and Roskill agreed) concluded that the phrase "related to" should not be construed widely, but rather there should be "some reasonably direct connection" with the activities described in the provisions (there ss 1(1)(h) and 47(2)(e) of the 1956 UK Act). 46 It is to be noted that Lord Keith said there was "much force" in the comments of Lord Wylie in The 'Aifanourios' [1980] SC 346, which Lord Keith quoted extensively and which can be seen as influential in his reasoning. There, Lord Wylie thought that s 47(2)(d) and (e) should not be construed broadly because to do so would encompass what fell within other provisions of s 47(2). This argument was put by Mr Saville QC to the House in The 'Antonis P Lemos' [1985] AC at 726 (the second point at 726 G). The argument was rejected by Lord Brandon at [1985] AC at 727, who said that having regard to the clear policy of the 1952 Convention and the enacting legislation, to provide a full and complete list of specific maritime claims or kinds of them, rather than a few general formulations comprehending them all "some degree of overlap" was only "natural and inevitable". 47 It is also to be noted that the limited approach to the construction of the provision in Gatoil was put forward to the House in The 'Antonis P Lemos' as a reason for narrowly construing the phrase "arising out of" in s 20(2)(h). Lord Brandon dealt with this principally by recognising the textual importance of "arising out of" in the 1952 Convention and demonstrating the clearly unintended consequences of giving that phrase a narrow meaning there and in all the places in the 1956 UK Act and 1981 UK Act where the phrase appears. 48 It is also be noted that in The 'Antonis P Lemos' at 730 Lord Brandon expressed the view that what "tilted the balance in favour of giving a narrow meaning to the expression 'relating to'" was the existence of two authorities, The 'Zeus' (1888) 13 PD 188 and The 'Aifanourios' [1980] SC 346 (the reasoning in which latter case can be seen as contrary to some of the comments of Lord Brandon about the natural and inevitable overlap in the list of maritime claims). Lord Brandon said (at [1985] AC at 730 G-H) that in the absence of these authorities it might not be right to give the expression "relating to" (in s 4(3)(f) "relates to") a narrow meaning as given by the House in Gatoil. 49 This apparent degree of tension between the two decisions (though the word "tension" is not used in any way disrespectfully, in particular since Lords Scarman and Roskill concurred in both decisions) can be set against the background of the clear injunction of the High Court in The 'Shin Kobe Maru' 181 CLR at 421 (and the numerous other High Court decisions earlier referred to) to read provisions conferring jurisdiction and discretion on courts liberally. 50 For the reasons that I have earlier given, however, it is not appropriate that, sitting at first instance, I do other than apply Gatoil. Further, in what might be said to be in support of a wide construction of "arising out of" and a narrower approach to "relates to", the former expression should be wide to catch all claims that have a connection with an agreement that has the appropriate maritime connection or character. The appropriate maritime connection or character for s 4(3)(f) might be seen to be assisted by the recognition that all the general maritime claims in Article 1 of the 1952 Convention and in s 4(3) are expressed to be the foundation of an action in rem against a ship and to found the remedy of arrest. The relational connection in the phrase "that relates to" is to be seen in that context. It also may be important to see the appropriate maritime connection by reference to the Constitutional reach of s 76(iii). Section 4(3) must at all times be construed within the confines of the Constitutional authority given to Parliament: cf the Acts Interpretation Act 1901 (Cth), s 15A. 51 Approaching the matter by applying Gatoil, does or do any one or more of the agreements referred to in [43] above have a reasonably direct connection with the activity of carriage of goods by a ship and thereby "relates or relate to the carriage of goods by a ship" for s 4(3)(f)? 52 The answer, it seems clear to me, is "yes". As to the first agreement posed, that between the defendant and Planetwide, that agreement was essential to the performance of the sea carriage. The cars had to be loaded into the shipping container in preparation for sea transport. That is what the defendant undertook to do. The loading of the container was, in substance, for the sea carriage. Although the Planetwide bill was not issued until 12 August 2003, it can be concluded that the agreement between Planetwide and the defendant was in fact to perform obligations which (on the evidence, later) Planetwide undertook in the Planetwide bill to undertake as carrier. The agreement to load the shipping container between the arranger of the carriage and its subcontractor had a reasonably direct relationship with the carriage of goods by the ship. 53 The above conclusion is even stronger once one appreciates that the agreement was in fact Planetwide's method of performance of its obligations undertaken in the house bill (though issued in August) to transport, as carrier, the goods to Australia (including a leg by sea) from the defendant's premises in North Weald (being the place of receipt on the bill). There are difficulties and some controversy about the status of the so-called house bills issued by freight forwarders or non-vessel owning contractual carriers (NVOCCs): compare Carrington Slipways Pty Limited v Patrick Operations Pty Limited (1991) 24 NSWLR 745 at 751-753 and Comalco Aluminium Ltd v Mogal Freight Services Pty Limited (1993) 113 ALR 677 as to the different views of Handley JA and Sheppard J, respectively, as to the characterisation of house bills of freight forwarders. As to the role of such bills, see Norfolk Southern Railway Co v James N Kirby Pty Limited 545 US 14 (2004) and the discussion in Treitel G and Reynolds F Carver on Bills of Lading (2nd Ed) at 548-49 [9-103] and the other cases and articles there cited. Notwithstanding those difficulties, there can be little doubt that a freight forwarder can agree with a shipper or consignor to perform the duties of a carrier, including a sea carrier, even though it will not be in possession of the goods while they are on the water. The Planetwide bill here made clear that Planetwide was issuing the bill as principal. Although issued after the events, it reveals that the defendant was carrying out duties that were in fact undertaken by Planetwide as part of a multimodal carriage. 54 In my view, the agreement between the defendant and Planetwide was sufficiently directly related to the carriage of goods by sea to satisfy s 4(3)(f). In short, the agreement was to load a shipping container for transport by road to port and then by sea to Australia. That has reasonably direct connection with the anticipated sea carriage by ship. It is unnecessary in these circumstances to discuss the other agreements posited. 55 Whilst there was no argument about the reach of s 76(iii) of the Constitution before me (as there could not have been without the issue of notices under the Judiciary Act 1903 (Cth), s 78B), I am fortified in my conclusion that the circumstances here fell within s 4(3)(f) and thereby necessarily within the reach of s 76(iii) by reference to Norfolk Southern Railway Co v James N Kirby Pty Limited 543 US 14. There the Supreme Court was under no doubt that a dispute arising from a freight forwarder's contract for combined land and sea transportation (the accident happening during railroad carriage in the United States) was part of maritime jurisdiction for Art 3 sec 2 of the United States Constitution (in identical terms to s 76(iii)). See in particular at 543 US at 26 for a discussion and rejection of the lower federal courts decisions spatially dividing multimodal transport.

Dismissal or stay? 56 The claims for summary dismissal and stay are both based on the asserted clear incorporation into the relationship between the plaintiff and the defendant of terms that provide for a time bar period that has been exceeded, or an exclusive jurisdiction clause nominating the courts of England as the only forum. 57 There are two main bases for these assertions. First, it is said that the United Kingdom Warehouseman's Association (UKWA) terms were part of the arrangement between Planetwide and the defendant. It was argued initially that these terms bound the plaintiff through the application of the principles in The 'Pioneer Container' [1994] 2 AC 324. This argument was abandoned in oral address. 58 There would be a number of difficult questions that would arise if one could be clear about what terms governed the relationship between Planetwide and the defendant. It is unclear in Australia whether The 'Pioneer Container' is applicable to quasi-bailment as distinct from true sub-bailment where the bailee, sub-bailor obtains possession, before the sub-bailment: cf Mathew Short & Associates Pty Limited v Riviera Marine (International) Pty Limited [2001] NSWCA 281. Secondly, it is unclear on the evidence that the plaintiff consented to the terms of the sub-bailment. It is certainly not possible on the evidence to conclude that any terms of the defendant directly bound the plaintiff from anything that passed to or from him, or Mr Seymour. 59 Most fundamentally, however, the evidence does not reveal the terms of the arrangement between Planetwide and the defendant. Three possible sets of terms applied: British International Freight Association (BIFA) Terms, referred to on Planetwide correspondence (which terms were in evidence), standard terms of the UKWA, referred to as one alternative on the defendant's correspondence (which terms were in evidence) and standard terms issued by "RHC Coples", referred to as another alternative on the defendant's correspondence (which terms were not in evidence). 60 There was no satisfactory proof of any terms between Planetwide and the defendant. This argument thus fails in limine. 61 In any event, the argument based on The 'Pioneer Container' was not pressed. 62 The second basis of attribution of terms with a time bar and exclusive foreign jurisdiction clause to the plaintiff was the Planetwide bill. If the terms of that bill reflected a binding contract between the plaintiff and Planetwide, binding on the plaintiff by being entered into on his behalf by his agent, Mr Seymour, difficult questions of construction and interpretation would arise. It is unnecessary to set out the clauses in full, but issues as to the reading of the "Himalaya clause" would arise. It is not clear that one would read a number of the clauses as protecting any sub-contractors as if the protections were read for their express benefit. 63 These questions need not be addressed because there is no evidence upon which one could conclude that the terms of the bill issued in August 2003 were evidence of a contract entered with the consignor (Mr Seymour) as at July 2003, and thus through him, with the plaintiff as at July 2003. 64 The Planetwide bill was expressed to be negotiable. If it had been negotiated (which it does not appear to have been) it may be that its terms evidenced the contract of multimodal transportation between Planetwide and the third party. Here, there is no satisfactory evidence as to the terms of any contract between Planetwide and Mr Seymour (or the plaintiff) at the time the car was delivered to the defendant and damaged: cf Pyrene Company Ltd v Scindia Steam Navigation Company Ltd [1954] 2 QB 402 at 413-414; Teys Bros (Beenleigh) Pty Limited v ANL Cargo Operations Pty Limited [1990] 2 Qd R 288 at 295; Hines Exports Pty Limited v Mediterranean Shipping Co [2000] SADC 71; and see generally Davies M and Dickey A Shipping Law (3rd Ed) at 195-196. 65 Thirdly, there was an argument that the permission in the Planetwide bill to sub-contract made the terms of any subcontract relevant. This argument faces the combined difficulties of the absence of evidence in relation to both contracts. 66 For these reasons, the motion should be dismissed with costs. The plaintiff sought indemnity costs. I do not think that it is an appropriate case for such costs. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 3 October 2007 Counsel for the Plaintiff: Dr A Bell and Mr N Wright