Keane v Australian Steamships Pty Ltd [1929] HCA 5

Keane v Australian Steamships Pty Ltd [1929] HCA 5 - HCA 1929 case summary — Zoe

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The case was tried by Irvine C.J. His Honor found as facts that the ship Mallina arrived in Sydney on 20th December 1926 and proceeded to unload its cargo; that according to the evidence the invariable practice or usage prevailing was that instead of a consignee or his carrier taking delivery at the moment of separation of the goods from the ship's slings the goods were taken by the ship's servants and passed into a store or bond; that this procedure did not apply to cargo known as " rough " cargo which was stacked outside the store ; that the entrance of the goods into the store or bond was tallied by a clerk stationed at the entrance door; that the goods were afterwards tallied out by a process of examination of packages on the carts of consignees or their carriers, and so consignees first in fact got actual possession of the goods upon the same being tallied out of the store; that the package in question being one of special cargo was tallied into the store ; that it was impossible to trace this package afterwards, and it was not possible to say whether the same was stolen or was passed out by inadvertence and without dishonesty. The learned Chief Justice said : - '' Mr. Fullagar properly admitted that the onus was on the defendant to show that the pack- age was not lost by its negligence. The defendant has not satisfied me as to that. There are some general statements by witnesses that every care was taken to avoid theft or mistake, but I am not satisfied that the care that ought to be taken was taken, and I have not sufficient materials to show that the defendant was not negligent. There is some evidence that the wharf main carting gates were locked at night, but I have no evidence as to the nature of the building where the goods were kept or as to its accessibility to thieves or as to the nature of the watch kept, &c., and I am not satisfied that the defendant has discharged the onus of proving that this case disappeared without the defendant's negligence. Mr. Fullagar has

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cited authorities by which I am bound, which show that the obliga- tion under the contract of affreightment (which is one of the present causes of action) came to an end on the separation of these goods from the ship's slings, which appears to have taken place on the 20th or 21st December, the particular time being now not possible to ascertain. But Mr. Kelly relies on the duty of the defendant upon an independent contract of bailment. I have already stated that under the practice and usage of the Company at the wharf it is practically impossible for consignees to carry goods away from the ship's slings, and for almost necessary reasons of convenience they are in fact taken by the ship's servants into the store already referred to. This course appears to be adopted by the tacit consent of all parties. In the facts of this particular case the . . . receipt for freight and charges given by the defendant to the consignees shows 6s. 6d. as paid for freight and 7d. under the head of stacking charges before the latter could get the necessary delivery order. This is quite in accordance with the practice, and seems to be in itself evidence of an agreement that that particular practice is to be adopted in regard to this particular shipment - that is, that delivery is to be postponed until the goods go into the shed and are tallied out. There was here no failure to take delivery up to that point. But, short of that, it amounts to an agreement that the defendant Company is to take possession of the goods on behalf of the plaintiff at the slings, and do something which is called 'stacking,' which includes, at any rate, taking the goods on the consignee's behalf from the ship's slings. There seems to me to be no difference in such a transaction between the consignee employing a third party to do this - to take the goods from the slings and stack them and by his employing the Company itself - and when this is done, whether by agreement by the Company or by a stranger, the effect in my opinion is the same. It cannot be said that there is a failure by the consignee to take delivery because it is taken by some other person, whoever it may be, who has agreed for payment of money so to take them." His Honor held that clause 7 of the bill of lading did not exempt the respondent from liability, because " when the shipowner agrees to take the goods and stack them, he does this on behalf of the consignee, so that there is no failure by the consignee

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Company or its agents the shipping receipt must be given up duly indorsed in exchange for the goods" (1). The goods were carried to the port of destination (Melbourne) and discharged from the ship. They were, according to the defendant, placed by it in a shed but they had disappeared when on the following day the consignee attended to obtain them. In his judgment my brother Isaacs says (2) : - " During the day the respondent's clerk called at the company's office, and paid the freight. He forwarded the bill of lading to their clerk, got a receipt for the freight, and a delivery order on the company's clerk on the wharf. Then he sent to the wharfage office and paid wharfage. Then the defendants' clerk stamped a delivery order ' Please deliver.' The defendants' delivery clerk says as to this : - 'Consignee can't get his goods till he presents delivery order receipt for wharfage dues stamped "Please deliver." The goods are retained on the wharf until these are brought. The shipowner keeps charge of them and insists on a receipt for them from consignee or his carrier. Goods are not allowed to be delivered unless and until the delivery order and stamped wharfage receipt is [sic] presented to me.'" According to the report in the Court below (3): "There was . . . some evidence that the custom of the port was to land goods on the wharf, either into or outside sheds, whether the consignee was present or not, and to let them wait there till the consignee applied for them." It had been found in that Court that there was no general notorious usage to treat the landing of the goods from the ship on to the wharf as a delivery to the consignee. '' All that can be said about it is that it is a practice that has prevailed " (4). As my brother Powers said (5) : "Tt was admitted that . . . thedefendant Company usually 'kept charge of the goods '.after they were freed from the ship's tackles in their sheds awaiting the necessary presentation of a delivery order and receipt for the wharfage dues." On these facts this Court held that, notwithstanding the Sea-Carriage of Goods Act 1904, the carrier was under the provisions of the shipping receipt free from liability to the consignee. (1) (1914) 18 C.LLR., at p. 648. (4) (1913) V.LR., at p. 405; 35 (2) (1914) 18 C.L.R., at p. 661. A.L.T., at p. 66,

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In support of his contention he relies upon the construction which in our joint judgment we placed upon the provisions of the shipping receipt. This we expressed in the following passage (1) :

"We think that these provisions taken as a whole are intended to specify the delivery which is to be given by the carriers and accepted by the owner of the goods, and that the words 'and all liability of the Company to cease as soon as the goods are free from the ship's tackles,' which in another context might be read as not dealing with the nature of the delivery to be made, but as providing for cesser of liability even where there has been no delivery, cannot be so read here. In Chartered Bank of India, Australia, and China v. British India Steam Navigation Co. (2) almost identical words were held to relieve the carriers, not because the delivery had in fact been made as soon as the goods were free from the ship's tackles, but because, though delivery had not been made, the clause relieved them from any liability for failure to deliver. In Petrocochino v. Bott (3) somewhat similar words in a different context were read as prescribing and limiting the nature of the delivery which the carrier was bound to make under his contract, as we think the words in question do here. If this be so, the parties contemplated that the shipowners should be at liberty to take the goods out of the ship's hold, land them, and cast them loose from the ship's tackles in the ordinary course of discharging cargo, and that, having done so, their duty of delivering under the bill of lading should be fulfilled. If the owner were not ready to take his goods away, the shipmaster would be at liberty to keep possession of the goods to secure payment of freight or other charges, but he would not be bound to do so, and the bill of lading, as one would expect, contains elaborate provisions under which the shipowners' rights and liabilities, while so keeping possession, are dealt with." It would be strange if, by adopting this construction of the shipping receipt, and so, as we thought, leaving it outside the scope of the Act of Parliament, we had without adverting to such a consequence rendered the defendant liable upon the provisions of the document and deprived the plaintiff's concession to the contrary of the ground upon which it rested. It is said, however,

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Avsrmatiaw new duty of care from which the provisions of the shipping receipt "S could not relieve it and the discharge of which it has not proved. This, in my opinion, is not a correct view either of the defendant's custody after the discharge of the goods from the vessel or of the operation which we ascribed to the words of the shipping receipt. The position in which the defendant's custody stood was not a matter overlooked in Hiskens' Case (1), but was canvassed during argument and is discussed in the judgment of Griffith C.J. (2), who, with my brother Gavan Duffy and myself, formed the majority, and is mentioned in the judgment of my brother Isaacs (3). The custody might conceivably be under a new bailment to the consignee. This is well described in the passage quoted by my brother Isaacs (4) from Pollock and Wright on Possession in the Common Law, where, at p. 74, the following occurs : - " Goods may cease to be in transitu while they are still in the carrier's custody, if he attorns to the purchaser and holds no longer as carrier but as his agent. But such agreement to hold the goods in a new capacity must, if relied on, be distinctly proved. It cannot be implied in or presumed from a contract of carriage made with the purchaser instead of the vendor." Another conceivable view of the defendant's continued custody is that it arose under the provisions of the contract itself which contemplated and provided for the possible delivery into the hands of the agents and servants of the defendant. A view to which the indorsement on exhibit A "Sorting and stacking charges at port of destination to be borne by consignees" lends some support. But, whatever view of this custody be preferred, the words of the shipping receipt "all liability to cease as soon as the goods are free from the ship's tackles " are explicit. My brother Gavan Duffy and I pointed out in Hiskens' Case (5) that their purpose was not to provide that although there was no delivery liability should cease, but they dealt with and determined the nature of the delivery itself. It appears to me to follow, if not to be implied, that they

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it was not possible for the consignee to take delivery as they came off the slings: the invariable practice in the case of goods of this class is that they are taken off ship's tackles by wharf labourers, and thence trucked away to a store controlled by the respondent, and delivery is actually given at the store. Upon the appellant or its servants attending at the store for the purpose of obtaining delivery of its goods, they could not be found, and they have never been delivered to the appellant. By the terms of the shipping receipt or bill of lading it is provided : " All liability of the Company " (that is, of the respondent) "to cease as soon as the goods are free from the ship's tackles.'" Now, the respondent contends that this is a provision for cesser of liability, and clearly protects the ship- owner whether the goods were or were not delivered according to the exigency of the contract. In Chartered Bank of India, Australia, and China v. British India Steam Navigation Co. (1) the bill of lading contained a clause that "in all cases and under all circumstances the liability . . . shall absolutely cease when the goods are free of the ship's tackle, and thereupon the goods shall be at the risk for all purposes and in every respect of the shipper or consignee." Lord Macnaghten, in delivering the judgment of the Privy Council in that case, said (2) : - '' Now it may be conceded that the goods in question were not delivered according to the exigency of the bills of lading by being placed in the hands of the landing agents, and it may be admitted that bills of lading cannot be said to be spent or exhausted until the goods covered by them are placed under the absolute dominion and control of the consignees. But their Lordships cannot think there is any ambiguity in the clause providing for cesser of liability. . . . There is no reason why it should not be . . . operative and effectual in the present case. They agree . . . that it affords complete protection to the respondent." In Australasian United Steam Navigation Co. v. Hiskens (3) a shipping receipt or bill of lading identical in terms with that in the present case was before this Court. The majority of the Court were of opinion that the provisions of the document taken as a whole specified the delivery which was to be given by

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the carriers and accepted by the owner of the goods, and that the words "all liability of the Company to cease as soon as the goods are free from the ship's tackles" should not be read as providing for cesser of liability though delivery had not been made, but as prescribing the nature of the delivery to be made pursuant to the contract (1). The Sea-Carriage of Goods Act 1904, referred to in that case had nothing to do with the construction given to the document, and in any case it has been repealed by the Sea-Carriage of Goods Act 1924. That decision, in my opinion, binds this Court, and the construction there adopted must be taken as the proper meaning of the shipping document now before us. Consequently the goods were in this case delivered according to the exigency of the contract, and no further obligation rested upon the shipowners. Indeed, the words " all liability of the Company to cease as soon as the goods are free from the ship's tackles " are an emphatic declara- tion excluding further liability. The same result would follow if the construction adopted in the Chartered Bank Case (2) were applied to the shipping receipt in this case, for the stipulation would then protect the shipowners from any liability for non-delivery as soon as the goods were free from the ship's tackles; and but for Hiskens' Case (3) I should have thought this construction was clearly the meaning of the document before us. It was argued, however, that the Chartered Bank Case was not in point, for the consignees there were in mord, whilst in the present case the shipowner was in mora: he would not deliver the goods to the consignees according to the exigency of the contract, although the consignees were always ready and willing to perform their obligations under the contract according to its terms, - which is, perhaps, open to some question, in view of the invariable practice in the discharge of cargo already referred to. The distinction made is not, I think, important, for if the shipowner holds the goods as a carrier, he is entitled to the benefit of the exception: he has contracted for the cesser of his liability so soon as the goods are free from the ship's tackles. Some argument was addressed to us for the purpose of establishing a variation in the mode of delivery stipulated for in the shipping

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Judgment (66 paragraphs)