Parlux SpA v M & U Imports Pty Ltd ; M & U Imports Pty Ltd v Gava International Freight SpA [2008] VSCA 161

Court of Appeal (Vic)|2008-08-26|Before: BUCHANAN and REDLICH JJA and CAVANOUGH AJA

Carriage of Goods - Sale of goods - Sale FOB Italian port - Bill of lading - Part goods missing on arrival Melbourne - Whether goods lost before loading at Italian port - Non-delivery by seller - Whether bill of lading port to port bill or land/sea bill - Whether shipper liable for non-delivery.

For the Respondent Gava International Freight S.p.A

1 I agree with Cavanough AJA that the appeals should be dismissed for the reasons stated by his Honour.

2 I agree for the reasons given by Cavanough AJA that the bill of lading, though in a form capable of being 'multi modal', did not extend to the land carriage of the goods in Italy.[1] The appellant has also failed to demonstrate any error in the trial judge's conclusion that the land carriage of the goods by GIF was pursuant to a contractual arrangement with Parlux which was separate and distinct from the bill of lading.

3 M & U 's pleadings, though amended at trial to extend the alleged coverage of the bill of lading to the land carriage in Italy, remained, at all material times, to the effect that M & U was the original contracting party with GIF under the bill of lading. It appears that despite this pleading, M & U was allowed to argue at the very end of the trial that Parlux, not it, was the original contracting party to the bill of lading. It had argued that it became entitled to sue on the bill of lading as transferee and holder of the bill, having become the successor to the rights of Parlux which originally contracted with GIF.[2] Counsel for M & U acknowledged on the appeal that it was 'uncontroversial that the land carriage was undertaken by or on behalf of GIF pursuant to a contract between Parlux and GIF'[3] as the trial judge found. Accordingly, on the appeal M & U conceded that its claim against GIF must fail unless it was Parlux that was the original contracting party under the bill of lading. Its claim against GIF rested upon its derivative rights as transferee under the bill of lading.

4 His Honour concluded, after referring to the evidence that related to the

contract for the land carriage of the goods, that GIF:

was acting in two distinct capacities in its dealings with these goods. Its capacity with respect to the land transport in Italy was as contractor with Parlux. [4]

5 The trial judge was plainly referring to two distinct contractual capacities in which GIF had contracted. His Honour found that Parlux and GIF entered into a contract for the land carriage that was distinct from any contractual arrangement of GIF for the sea carriage under the bill of lading. For present purposes it matters not whether GIF contracted with Parlux or M & U under the bill of lading. What is critical is that there was a finding that GIF's responsibilities for the land leg sprang from a contract with Parlux separate from the bill of lading. Thus his Honour found that M & U had no 'interest or concern in the movement of the goods before they reached the ships rail.'[5] That finding was supported by evidence that it was Parlux that engaged GIF to carry the goods to the ship's rail, the invoicing of Parlux by GIF and payment by it of this part of the leg of carriage.

6 Although the appellant did not appeal this finding of the trial judge, it is implicit from the grounds pursued on the appeal that such a finding was in dispute. If it be assumed that the trial judge's finding was put in issue on the appeal, the appellant has not shown any error by the trial judge in his finding that GIF undertook the land carriage of the goods pursuant to a contract separate from the bill of lading.

7 For these reasons and those given by Cavanough AJA, I agree that the appeals should be dismissed.

8 Before the Court are two appeals arising out of a judgment of Byrne J in a proceeding in the Admiralty List.[6]

9 The first appeal relates to a short issue of fact. Should this Court overturn his Honour's finding that it was in Italy, not in Australia, that certain goods, sold on FOB Italian Port terms by an Italian exporter to an Australian importer, were stolen from a container?

10 The second appeal turns on the proper interpretation of a bill of lading issued in relation to the carriage of the same goods from Italy to Australia. Did it apply to the Italian land leg of the journey (as well as to the sea carriage)?

11 In my view both appeals should be dismissed. I would not disturb the finding of Byrne J that the goods were stolen in Italy, before the container was loaded onto the vessel bound for Australia, with the result that the Italian exporter was liable in damages to the Australian importer. And I agree with his Honour that the bill of lading did not apply to the transportation of the goods by land in Italy, with the result that the Australian importer could not succeed against the carrier.

12 The importer, M & U Imports Pty Ltd ('M & U'), operates in the hairdressing industry. By an agreement made in or about March 2003, it agreed to purchase from the exporter, Parlux SpA ('Parlux'), a consignment of 10,000 electrical hairdryers and some ancillary parts. As mentioned above, the terms of the sale were 'FOB Italian Port'.

13 His Honour found that on 4 June 2003 all of these goods were loaded into a 40 foot container designated MSCU 402521/4 and despatched by road from the Parlux factory at Trezzano in Italy. It is common ground that the truck left the factory at 10.50 am. The truck took the container to the Milan rail freight terminal and from there it was sent by rail to the port of La Spezia, where it arrived at 7.20 am on 5 June.

14 His Honour further found, and it is not in dispute, that on 16 June 2003 the container was loaded on the vessel MSC Bruxelles bound for Melbourne. The container was unloaded at Melbourne on 18 July 2003 and stored at the Patrick's terminal. On the following day, 19 July, the container was transported by truck to the yard of Cahill Transport where it remained until Monday 21 July. Early on that day the truck with the container on board was driven to the M & U warehouse at Moorabbin.

15 When the container was opened on arrival it was discovered that only 333 cartons out of the full load of 573 cartons were in the container. These contained only 6,188 hairdryers and certain spare parts. The contents of the container were photographed before any person entered the container.

16 M & U sued Parlux for its failure to deliver all of the 10,000 hairdryers and the spare parts. It claimed A$159,229.64 as the value of the missing goods. There was no dispute about quantum. M & U obtained judgment against Parlux for this sum plus costs.

17 M & U also sued a second defendant, Gava International Freight SpA ('GIF'), for failing to deliver the goods in accordance with the bill of lading issued by it on 16 June 2003. This claim was dismissed with costs.

18 Parlux contends not only that the evidence did not justify his Honour's findings and but also that his reasons did not sufficiently explain his chain of reasoning. Accordingly it is desirable to set out the balance of his Honour's judgment in full, insofar as it deals with M & U's claim against Parlux. His Honour said:

Since its purchase agreement was on terms FOB La Spezia, the entitlement of M & U to the damages sought depends upon its establishing on the balance of probabilities that, at the time the container crossed the ship's rail at La Spezia, the contents of the container were as they were when it was opened in Moorabbin. It was sought to discharge this burden by establishing that the container was not entered and its contents not pilfered from the time it was loaded on the vessel until it was opened and the shortage was discovered in Moorabbin.
The evidence offered in support of this was very strong. It showed that, on arrival, the container was found to be sealed, by seal MSC943524, and that there was no sign that the seal had been tampered with. The evidence also showed that the seal, once properly affixed, could not be opened and re-affixed without visible sign, or at all. There was evidence, too, that entry without disturbing the seal was difficult, but not impossible, but that there was no indication of such entry.
Roberto Scotto, the customer service director of La Spezia container terminal, said that the practice of the terminal personnel is to inspect the containers in the terminal upon arrival to ensure that they are in a sound condition and that their seals are intact. The general practice was attested to by Captain Razzak Syed, a marine surveyor. If upon inspection at La Spezia it appeared that the seal was not intact, Mr Scotto said, the terminal would advise the shipper, Mediterranean Shipping Co SA ("MSC"), which would inform the carrier, GIF. His evidence was not challenged.
Captain Syed expressed the opinion that, in the circumstances of this case including the storage conditions, it is not possible for the container to have been entered and its contents pilfered when it was on board the vessel. Counsel for all parties appeared to accept this to be the case.
Damian Joseph Ryan is the Victorian operations manager of Patrick's terminal. He spoke of the security in place at the terminal in July 2003 saying that there was no prospect of anybody obtaining entry to the container while it was at the terminal.
Peter John Gipton was the driver engaged by Cahill Transport to deliver the container by truck from Patrick's container terminal in Footscray. He said that when he called to collect the container, he inspected it and found no damage. The seal was intact. He said that he took the truck and the container to the Cahill Transport Depot on Saturday 19 July where it remained until the morning of Monday 21 July. He said that it was located under the awning where security cameras are. He also discounted the possibility of entry and pilferage during the time it was at the Cahill Terminal.
I accept this evidence. Accordingly, counsel for M & U argued, I should be satisfied on the balance of probabilities that the container was not full when it was loaded at La Spezia so that the breach of contract was made out.
The response of Parlux to this was to adopt the evidence led of the security offered by the seal on the container. Evidence was then led from witnesses from the Parlux store in Italy. These were Francesco Suriano, Antonio Centrangolo and Ivan Soldati. They said that they loaded all 573 cartons into the container, that the door was closed and the seal properly affixed immediately before the truck left for Milan railway. The evidence of these witness[es] was challenged, at least as to fixing of the seal, but they were unshaken. From my perspective, I saw nothing in their evidence or in the way they presented it to doubt the genuineness of their recollection. Nevertheless, the logical consequence of the acceptance of their evidence in the circumstances, is that there could be no shortage on arrival, a fact which I accept as established.
There are really two possibilities. First, is that these witnesses were lying when they swore that they loaded the container with 573 cartons. The evidence was that this would virtually fill the 40 ft container. I am not prepared to make such a finding.
The second possibility is that proposed by Captain Lawrence McDonald, a marine surveyor with 18 years' worldwide experience. He said that he had had experience in recent years of cases where the seal had not been properly affixed to the container by the shipper. In such a case it would be relatively easy for a thief later to gain entry, to pilfer the contents and to close up and seal the container so that it was delivered to the consignee with the seal intact.
Counsel for Parlux also led evidence which was directed to the conclusion that the pilferage must have occurred after it left Patrick's terminal in Melbourne. This was to the effect that the condition, location and quantity of the cartons in the container on arrival at Moorabbin were such that it was probable that they had not been subjected to movement which an ocean voyage and terminal handling in La Spezia and Melbourne would be likely to produce. It was put to the marine surveyors that, if the container was only 44 percent full, as it was on arrival, the remaining cartons would show damage due to being thrown about or at least shifted during these operations. Furthermore, it was suggested, the stevedores would notice that the container was underweight or that the weight was not evenly distributed within the container when they moved the containers on the wharf.
I accept the evidence of Captain Mehernosh Feroze Captain that the condition of the boxes upon the opening of the container was consistent with the pilferage having occurred before it reached La Spezia. The boxes each weigh about 20 kilograms. The manner of stacking would tend to protect them from shifting and the two cartons in the foreground appear to have been disturbed, perhaps by movement in transit.
I return now to the evidence of Captain McDonald. When asked about the proper affixing of the seal he said this:

" ... we went through the exercise yesterday down at one of the container terminals. We had to change a bolt seal on a container. We hacked the existing seal off and we put an MSC seal on that particular container. While we did that I asked the person who was doing it to go through the process and he explained how it's done and the seal is in two parts, a long part and you've got the bottom part. You insert one into the other and to properly seal it you have to give a really hard blow, a strong man with two good hands, press it, you hear a firm click, it's locked forever. He went through the exercise of just pressing it in, there's a minor click and you can separate it, and that can happen.

Just inadvertently? --- Intentionally or inadvertently and we repeated the exercise several times. So it is possible to put the seal on and it's not properly secured."

It seems to me, that this provides the probable explanation for the apparent conflict between the witnesses from the Parlux store and those from the M & U store. It is true that Mr Soldati said he heard a click when the seal was closed, but it must have been only the preliminary click.
In these circumstances, the evidence offered by Parlux does not lead me to conclude that M & U has failed to discharge its burden of showing that the container was not full when it passed the rail of the MSC Bruxelles at La Spezia. The breach of contract has been established. There was no challenge as to the quantum of damage alleged by M & U.

19 Parlux's submissions may be divided into three parts: first, that on the evidence his Honour was not entitled to find that the seal had not been properly affixed at Parlux's premises; second, that it is not apparent from his Honour's reasons on what basis he concluded that the Parlux employees merely believed that the seal had been properly affixed; and, third, that even if the seal was not properly affixed at Parlux's premises, it remained just as likely that the theft had occurred in Australia as in Italy.

20 All three of Parlux's contentions tend to ignore the plain fact that the goods did not arrive at Moorabbin, in circumstances when it is now common ground that they could not have gone missing on the vessel and where the evidence that they did not go missing in Australia was comprehensive and 'very strong'.[7] I will return to this.

21 Parlux makes the following points about the affixing of the seal:

(a) the only direct evidence of the sealing of the container was given by the three Parlux employees being:

(i) Mr Soldati who stated that he properly shut the seal;

(ii) Mr Suriano who stated that Mr Soldati properly locked the seal; and

(iii) Mr Centrangolo who stated that Mr Soldati properly closed the seal;

(b) this direct evidence was not contradicted by any eye witness account;

(d) there was no surrounding circumstance from which his Honour might have inferred that, despite what the three witnesses said they collectively did, watched and heard, their evidence should be rejected, for instance because they were not familiar with how to secure a seal to a container;

(e) Captain McDonald's expert opinion evidence in the circumstances was no more than what might fairly be described as conjecture or speculation, a working hypothesis to explain the disappearance of the goods; and

(f) there was evidence that it was not impossible, albeit difficult, to gain entry to the container without disturbing the seal.

22 Parlux elaborates on these points as follows. Mr Soldati had been employed by Parlux for 16 years. Mr Suriano had worked for the company for 26 years. Mr Centrangolo had been with Parlux for about six months at the time. All three were storemen. They all took part in packing the container. Mr Soldati said that he affixed the seal. Mr Suriano was in charge of the warehouse. He said that he saw Mr Soldati affix the seal. Mr Centrangolo also said that he saw Mr Soldati affix the seal. It is 'unlikely'[8] that Mr Soldati did not properly secure the seal given his experience and the relative simplicity of the act of securing a seal. Despite the fact that Parlux had a long history of trading with each other, there had been no previous occasion where goods had gone missing. The prospect of the seal having been deliberately left unsecured is remote; Mr Soldati (who said that he affixed the seal) had been with the company for many years. He would have to have been party to any theft. His Honour accepted the evidence that the three employees had loaded the container with all of the ordered goods. There was no reason not to accept their evidence in relation to the sealing. Captain McDonald's evidence was an explanation of what might have happened but it was not evidence of what in fact did happen. Such evidence might have had weight if any of Parlux's three witnesses had resiled in cross-examination but they in fact firmed up in their evidence. His Honour did not give sufficient weight or consideration to the evidence that it was possible to remove the doors of a container without interfering with the seal. The evidence of Messrs Soldati, Suriano and Centrangolo was uncontradicted by any eye witness account. It was inherently reasonable: securing a seal is a simple thing to do; it is what they had done on many previous occasions; and what they had done before without prior incident. Their evidence was probable. All three were otherwise accepted on their oath. It was conclusive of the matter in that Mr Soldati gave evidence in chief which was elaborated on in cross-examination that he properly secured the seal.

23 According to Parlux, his Honour's conclusion[9] that the 'click' that Mr Soldati heard 'must have been only the preliminary click' was against the evidence and the weight of the evidence, being:

(a) Mr Soldati's evidence that he pushed the seal together firmly with his hands, and that he tried to pull it apart but that it did not come off;

(b) Mr Suriano's evidence that Mr Soldati waited for the spring to click, and checked that it did not come off; and

Parlux submits that if his Honour had had any doubt about the evidence of the three Parlux employees it should have been removed at the conclusion of their cross-examination in which they firmed up in their evidence.

24 Parlux relies on a passage from the judgment of Anderson J in Hardy v Gillette[10], and also on a passage from the judgment of Marks J in Read v Nerey Nominees Pty Ltd[11], as to when a Court ought to accept uncontradicted evidence.

25 In my view his Honour's reconciliation of the competing evidence was open to him. Putting aside for a moment any possibility that the doors of the container were opened without interfering with the seal[12], the logical consequence of the acceptance of the Parlux employees' evidence on the sealing issue is, as his Honour said[13], that there could have been no shortage on arrival, a fact which his Honour accepted as established and which Parlux did not challenge before this Court. Captain McDonald's evidence pointed to an explanation consistent with the genuineness of the Parlux employees' recollections and consistent also with the plain fact that there was a shortage on the arrival of the goods at Moorabbin.

26 It is true that the recollection of the Parlux employees was that the seal had been affixed 'properly'. However notwithstanding that their evidence was given after Captain McDonald's evidence, not one of them was specifically asked, in evidence-in-chief or in cross-examination or otherwise, to say how many clicks he had heard. Perhaps all counsel were fearful of the answer that might be given. In Mr Soldati's witness statement, which he adopted as part of his evidence-in-chief but which, like those of his colleagues, had been prepared prior to the emergence of Captain McDonald's 'one click only' theory, Mr Soldati simply asserted (so far as relevant):

I affixed the seal to the door of the container. [The other two Parlux employees] and the driver were present at the time.

The oral evidence of Messrs Soldati, Suriano and Centrangolo was given by video link from Italy, in each case through an interpreter. Mr Soldati was asked in chief how he affixed the seal to the container. He replied:

The seal is made like a nail and it fits in certain holes. It's put through and then there is a click and when that click has happened you know it is hermetically sealed.

He said that that was what he had done on this occasion.

27 In cross-examination of Mr Soldati by counsel for M & U, the following exchanges occurred:

Counsel: Can you tell us, please, the procedures you used to use to bolt the seal to the container?

Witness: [He mentioned certain procedures and continued]. At that stage the driver shuts the door and I personally affix the seal because I have to check that the seal is put on properly.

Counsel: Do you agree that to lock the seal you need to push it together quite firmly with your hands?

Counsel: But you can attach the seal to the container without snapping it shut?

Witness: I'm absolutely sure because there is a spring in it that makes a spring noise, a clicking noise, and after that you also have to pull it to make sure it doesn't come off.

Counsel: But was it not possible that on this occasion the seal was not snapped together tightly?

Witness: It's impossible because I heard the click and because we did try and the seal did not come off.

28 Mr Suriano, the supervisor, said in his witness statement (which he adopted in chief):

The seal was affixed and checked on the container by [Mr Soldati]. I saw him do it. [Mr Centrangolo] and the driver were both there at the time as well.

In cross-examination, it was put to Mr Suriano that Mr Soldati might not have locked the bolt seal together completely. He replied:

No, because when [Mr Soldati] puts on the seal, he checks that he pushes it completely. He waits for the spring to click and then he checks that it doesn't come off and I was present when all that was done.

29 Mr Centrangolo adopted in his evidence-in-chief the following passage from his witness statement:

The seal was affixed and checked on the container by [Mr Soldati]. He did that in the presence of [Mr Suriano], the driver and me.

In cross-examination the following exchange occurred:

Counsel: And are you sure that the bolt seal was properly attached to the container?

Witness: I was present there and the seal was put on to perfection.

Counsel: Yes, but perhaps [Mr Soldati] just closed it but not completely?

Witness: No, no, no, absolutely not. The container was sealed, I'm sure 100 per cent because the spring clicked and I was there when it happened. It did make a click sound.

30 As these passages of evidence indicate, each of the witnesses was adamant about what happened, but none referred to having heard two clicks. Although the witnesses recollected that the seal had been 'checked' after it was affixed, it remains possible that the check was deficient. When to that is added the fact that three years had passed between the time of the incident and the time of the trial, the fact that the Parlux witnesses had not been asked until the time of the trial to provide any detail about the manner of affixing the seal on the occasion in question or generally, the lack of any significant challenge to the expert evidence of Captain McDonald on the point in question, the trial judge's advantage in having heard and seen all of the witnesses in the context of the whole trial and the inescapable fact that the hairdryers did go missing, it seems to me that this was not a case of 'uncontradicted evidence' of the kind referred to in Hardy v Gillette and Read v Nerey Nominees Pty Ltd. In any event, if a court thinks the better view in all the circumstances is that witnesses giving uncontradicted evidence are mistaken in their evidence, the court is not obliged to accept the evidence.[14] In my view, his Honour's finding was not, in all the circumstances, against the evidence and the weight of the evidence.

31 I consider that his Honour explained his reasoning process clearly enough, albeit succinctly.

32 There is no substance in Parlux's submission that even if the seal was not properly affixed it remained just as likely that the goods were stolen in Australia as in Italy. As mentioned already, there is no challenge to his Honour's finding that the evidence offered to establish that the container was not entered (and its contents not pilfered) in Australia was very strong. I think it is implicit in his Honour's reasons that he regarded the corresponding evidence concerning the Italian land leg to be less strong. On reviewing the relevant evidence, I consider that there was ample justification for such a view. Parlux could not identify the Italian truck driver, and accordingly there was no evidence from him at all. As a result there was a period in Italy of the best part of a day that was not fully accounted for. This would have been ample time for a thief to steal the goods if the seal had not been properly affixed. By contrast, the Australian truck driver, Mr Gipton, gave evidence which was fully accepted and which, together with the fully accepted evidence of the manager of the Patrick's terminal and the fully accepted evidence of the employees of M & U, indicated strongly that no theft occurred in Australia.

33 I have mentioned that Parlux complains that his Honour did not give sufficient weight or consideration to the evidence that it was possible to remove the doors of a container without interfering with the seal. It seems that his Honour discounted that possibility in this case because, contrary to an assumption made by the expert witness Mr Chalmers (who was in fact called by M & U), there was no indication that, at the relevant time, the container had suffered the kind of damage that it would have suffered had such interference taken place.[15]

34 There was evidence from Mr Chalmers, supported to an extent by the evidence of Captain McDonald, to the effect that the process of removing the doors, taking the goods and replacing the doors would have been difficult, but could have been done in about an hour with two or more people involved. On the evidence given and accepted about the Australian land leg, such a manoeuvre could not have escaped detection in Australia. The same cannot be said about the Italian land leg. So, even if the doors were removed to facilitate the theft, it is more likely, on the evidence, that that occurred in Italy, and in particular during the period for which Parlux could not fully account.

35 For these reasons I would dismiss Parlux's appeal.

36 The ultimate issue in M & U's appeal against GIF is whether the bill of lading issued by GIF on which M & U relies extended to cover the Italian land leg of the carriage of the goods. His Honour held that it did not. Although the matter is not free from doubt, I consider that, on balance, the considerations pointing towards the conclusion to which his Honour came outweigh those pointing in the opposite direction.

37 It is desirable to set out the whole of his Honour's (once again) succinctly expressed reasons for dismissing M & U's claim against GIF. His Honour said[16]:

This claim was for breach of an agreement made between M & U and GIF to carry the goods to Melbourne. The agreement is contained in bill of lading No 013301576-CO2, issued by GIF at Genova on or about 16 June 2003. As originally pleaded, the bill of lading was for carriage by sea from La Spezia to Melbourne. By an amendment permitted on 26 June 2006 M & U alleged, in the alternative, that the carriage under the bill of lading commenced at the Parlux factory at Trezzano. Given the evidence that the loss did not occur on board the vessel, counsel for M & U accepted that his client's claim against GIF could succeed only if the commencement of the carriage was at Trezzano. It is to this issue that I now turn.
The contract of carriage is said to be wholly in writing and contained in the bill of lading. The bill was, as I have mentioned, issued at Genova on 16 June 2003, that is, the date on which the container left La Spezia. On its face, the bill is expressed to be a multimodal bill. In the boxes provided, the Place of Receipt and the Place of Delivery contain no entry. The boxes for the Port of Loading and the Port of Discharge, respectively, have entries La Spezia and Melbourne. The reverse of the bill contains 19 standard conditions and some definitions. GIF is the Freight Forwarder referred to in the conditions. The following clauses are relevant for my purposes:

"2.1. By issuance of this FBL the Freight Forwarder:

(a) undertakes to perform and/or in his own name to procure the performance of the entire transport, from the place at which the goods are taken in charge (place of receipt evidenced in this FBL) to the place of delivery designated in this FBL;

(b) assumes liability as set out in these conditions.

6.1. The responsibility of the Freight Forwarder for the goods under these conditions covers the period from the time the Freight Forwarder has taken the goods in his charge to the time of their delivery.

6.2. The Freight Forwarder shall be liable for loss of or damage to the goods [as] well as for delay in delivery if the occurrence which caused the loss, damage or delay in delivery took place while the goods were in his charge as defined in Clause 2.1. a, unless the Freight Forwarder proves that no fault or neglect of his own, his servants or agents or any other person referred to in Clause 2.2. has caused or contributed to such loss, damage or delay... ."

FBL is the abbreviation for FIATA Multimodal Transport Bill of Lading.

Counsel for M & U argued that the starting point for the carriage was "the place at which the goods are taken in charge". In the definitions -

"Freight Forwarder" means the Multimodal Transport Operator who issues this FBL and is named on the face of it and assumes liability for the performance of the multimodal transport contract as a carrier.

"Merchant" means and includes the Shipper, the Consignor, the Consignee, the Holder of this FBL, the Receiver and the Owner of the Goods.

"Consignor" means the person who concludes the multimodal transport contract with the Freight Forwarder.

"Consignee" means the person entitled to receive the goods from the Freight Forwarder.

"Taken in charge" means that the goods have been handed over to and accepted for carriage by the Freight Forwarder at the place of receipt evidenced in this FBL.

"Goods" means any property including live animals as well as containers, pallets or similar articles of transport or packaging not supplied by the Freight Forwarder, irrespective of whether such property is to be or is carried on or under deck.

Since there is no place of receipt specified on the face of the bill, I should construe it as containing no starting point for the carriage, alternatively, that the starting point must be the place at which GIF actually took control of the goods.

The correspondence in evidence shows that, in November 2001, M & U advised Parlux that it had appointed Gava International (Aust) Pty Ltd ("GIA") as its regular freight forwarder and that henceforth all "our shipments" would be organised by GIF, a different, albeit possibly a company associated with GIA. In its order for the shipment the subject of this litigation, M & U instructed Parlux to:

"Please contact our forwarder Gava International [sic] (as usual) to collect and ship the goods once they are ready."

The contractual arrangements between Parlux and M & U were such that this collection should only apply to the sea transit leg and thereafter; M & U had no interest or concern in the movement of the goods before they reached the ships rail.
What then happened was that the administration in Parlux contacted GIF to send one of its containers and this duly arrived on a tray truck. After loading, the truck took the container to Milan where it was loaded on a train for La Spezia. When the goods were loaded in the container at Trezzano the driver signed the documento di transporto DT in a box marked "Firma Del Vettore" beside the date and time of collection, 10.50 am on 4 June 2003, which is itself beside the box with the name and address of GIF inserted.
It seems that GIF does not itself by its own employees perform any cartage. The carriage from Trezzano to La Spezia was entrusted to Agenzia Marittima Le Navi SpA, an agent of the shipping company MSC. MSC provided its container MSCU402521/4 and the blank seal MSC943524 which were sent by truck to the Parlux warehouse in Trezzano.
Ezio Saracco, the President of GIF, said that GIF arranged for Le Navi to carry the goods from Trezzano to La Spezia. LeNavi charged GIF for this and GIF, in turn, invoiced Parlux €729.85. The sea transport, he said, was carried out by MSC by arrangement with his company which in turn invoiced GIA.
I conclude from this that GIF was acting in two distinct capacities in its dealings with these goods. Its capacity with respect to the land transport in Italy was as contractor with Parlux. There is nothing in this factual background to support the contention put on behalf of M & U that the bill of lading covered this sector of the carriage.
I return to the bill itself. Although the form is that of a multimodal transport bill, it is applicable to the case where one mode of transport only is used. The details which are inserted on its face are strongly suggestive of a port to port bill. There is nothing that unequivocally points to a land/sea bill. I conclude that the goods were received by GIF under the bill when they were loaded on the vessel at La Spezia.
It follows from this that the claim against GIF must fail.

38 M & U submits that if the missing goods were removed from the container during the Italian land leg of the carriage, and if the land leg were undertaken under the bill of lading, then, in the absence of evidence establishing that there was no fault or neglect on the part of GIF, GIF must be liable to M & U under cl 6.2 of the bill. Whatever M & U may have alleged previously (see below), M & U now contends that as the transferee and holder of the bill of lading issued by GIF, it has succeeded, pursuant to s 8 of the Sea-Carriage Documents Act 1998 (Vic), to the rights of the party which contracted with GIF originally, and it says that that party was Parlux.

39 M & U submits that a 'multimodal bill of lading' which purports to cover both sea and land transport is a bill of lading within the meaning of the Sea-Carriage Documents Act 1998 and that s 8 of that Act is capable of applying to such a document not only in relation to any carriage by sea under it but also in relation to any carriage by land under it. GIF did not demur to that submission. I will proceed accordingly, although without forming any concluded view on those matters myself.[17]

40 M & U acknowledges that it cannot succeed against GIF otherwise than as successor to the rights of Parlux (if any) under the bill. However it will be noted that Byrne J made no express reference to M & U's alleged status as a transferee of the rights of Parlux. Indeed, his Honour commenced the relevant part of his reasons by recording that the claim was 'for breach of an agreement made between M & U and GIF.' M & U's original statement of claim contained no allegation that the Italian land carriage was covered by the bill of lading. Rather, M & U pleaded in paragraph 6 of the statement of claim that M & U itself (as distinct from Parlux) retained GIF and that the retainer was 'to carry the goods from La Spezia in Italy to Melbourne'. This was defined as the 'carriage agreement' and it was particularised as follows:

The carriage agreement was evidenced by bill of lading 013301576 - C02 ("the bill of lading") issued by [GIF] at Genova on or about 16 June 2003 at the request of Gava International (Australia) Pty Ltd as agent of M & U.

Over GIF's objection, M & U sought and obtained leave to amend paragraph 6 of the statement of claim on the first day of the trial, 26 June 2006. As amended by leave, paragraph 6 reads:

M & U retained [GIF] to carry the goods from La Spezia Trezzano sul Naviglio, alternatively La Spezia, in Italy to Melbourne ("the carriage agreement").[18]

The particulars to paragraph 6 as amended remain exactly the same as before, thus apparently confirming that the allegation was that M & U, not Parlux, was the party contracting with GIF.

41 GIF points out, also, that the tenor of the evidence called by M & U itself was to the effect that the Italian land carriage was the subject of a contract or arrangement between Parlux and GIF, and that the sea carriage was the subject of a separate and distinct contract to which M & U (not Parlux) and GIF were the original parties. The evidence of Mr Di Pietrantonio, M & U's managing director, in his adopted witness statement included the following statements:

As it was for M & U to arrange for carriage from the Italian port to the port of Melbourne, I made the booking through the Australian freight forwarder, [GIA].

... The standard practice was for [GIA] to deal with [GIF], an Italian company. [GIF] would be retained as carrier issuing its own bill of lading for carriage from the Italian port to the port of Melbourne.

... [GIF] would arrange for carriage of the container from the Italian port (to which Parlux would make delivery) to Melbourne. [GIF] would issue a bill of lading in respect of that carriage.

42 M & U submits that this Court should disregard these statements of its managing director on the ground that they represent no more than a characterisation of the legal nature of the relevant arrangements, and an ill-informed characterisation at that. I disagree. In my view the statements have at least some evidentiary significance. They indicate that Mr Di Pietrantonio, M & U's most senior executive officer, was centrally involved in the making and implementation of the relevant arrangements. If he believed at all material times, including at all times prior to the making of the relevant arrangements, that it was up to Parlux to arrange (with GIF) carriage from Trezzano to La Spezia and up to M & U to arrange (with GIF, through GIA) carriage from La Spezia to Melbourne, the probability is increased that, one way or another, distinct arrangements of those very kinds were made in fact. Mr Di Pietrantonio's evidence in these respects was not challenged. It was supported to some extent by the evidence of the President of GIF, Mr Saracco, who said four times in his adopted witness statement that M & U (as distinct from Parlux) entered into the contract of carriage with GIF evidenced in the bill of lading. He also said therein that the contract was for the 'sea transportation' of the container. However Mr Saracco's oral evidence was more equivocal, and it was rather unenlightening as to the physical facts from which an inference of a separate agreement might be drawn. He was asked in chief to tell of 'the commercial relationship between Parlux and [GIF] in relation to the carriage of goods from Trezzano sul Naviglio to the Port of La Spezia'. He replied: 'In our case the relationship with Parlux is one where we pick up the goods, take them to the ship, ship them; so it's a relationship of picking up and carrying the goods so they can be sent away'. He was also asked: 'In relation to the commercial relationship between [GIF] and Parlux, was there some sort of agreement in place? He replied: 'No, we just served Parlux on an occasional basis, they paid our costs and we shipped the goods for them'. Mr Saracco also gave evidence about the sub-contracting and invoicing arrangements entered in relation to the various transport tasks involved in the present case. I will return to those matters.

43 I would not accept GIF's submission that it is not even open to M & U to argue its appeal on the basis that Parlux was an original party, as shipper, to the contract of carriage constituted or evidenced by the bill of lading. The bill of lading itself recites that Parlux was the 'shipper'.[19] Contrary to GIF's submission to this Court (which was made only faintly), M & U's current argument was in fact put below. We were provided with a partial transcript of the hearing below, and it shows beyond question that in final address, at least, senior counsel for M & U put the argument[20], and that no objection to his putting it was raised by counsel for GIF.[21]

44 However there is more merit in GIF's associated submission that this Court should at least view with care M & U's submission that its argument is bolstered by the non-inclusion in the evidence of any consignment note or like document constituting or evidencing a separate contract between Parlux and GIF in respect of the Italian land carriage. Counsel for GIF provided us with a single page[22] of the transcript of the hearing on 26 June 2006 which indicates that his Honour allowed the amendment on terms that M & U would not invite the Court to draw a 'Jones v Dunkel type inference' against GIF.[23] On the other hand, the transcript page seems to suggest that GIF's only concern in that regard related to the drawing of an inference from its failure to call a witness in relation to a defence that might arise under the bill of lading, as distinct from failing to call a witness or to tender a document in relation to the question whether the bill of lading was applicable at all to the Italian land carriage. However, on the state of the pleadings prior to the amendment, GIF could not have been expected to anticipate that it might need to protect itself against, or to search for or give discovery of documents in relation to, an allegation by M & U that it (GIF) was liable to M & U in relation to a loss occurring during the Italian land leg. Even as the pleadings stood after the amendment, the basis of the argument later put was not clearly apparent. GIF is an Italian-based company. The hearing lasted only 3 days. This Court has not been referred to any evidence that in Italy one would expect to see a consignment note or the like if there had been a separate contract or arrangement in relation to the Italian land leg. Senior counsel for M & U apparently made no mention, either in cross-examination or in his final address below, of the absence of such a document. In all of the circumstances I consider that the Court should attach little or no significance to the non-inclusion in the evidence of any consignment note or like document as between Parlux and GIF.

45 The trial judge concluded[24] that GIF was acting in two distinct capacities in dealing with the goods in question, and that its capacity with respect to the land transport in Italy was as contractor with Parlux. This seems to imply a finding that there was a separate contract, constituted or evidenced by the bill of lading, for the sea leg, being a contract between GIF and M & U. At the very least, the trial judge found that GIF entered into two separate contracts, even if both of them were with Parlux. M & U has not persuaded me that the evidence did not justify such a finding, at least. Moreover, on any view, I am not persuaded by M & U's arguments that the bill should be read as extending to the Italian land leg of the carriage. I will deal with those arguments in the order in which they are advanced in M & U's outline of submissions.

46 First, M & U submits that the GIF bill is expressed to be a multimodal/combined transport bill, in standard printed form. Byrne J seems to have accepted the accuracy of that description. However, the main heading of the document which is set out in capital letters on the front of the bill, is simply 'BILL OF LADING'. In smaller print below that heading, in smaller capitals, the somewhat equivocal expression 'CARRIER/MULTIMODAL TRANSPORT OPERATOR' appears. It is only in small print near the bottom of the page that one sees for the first time any express reference to the document itself being anything other than a conventional bill of lading. The expression Combined Transport Bills of Lading, referring to the document itself, appears in each of two successive sentences, but not as a heading or title. On the back, in quite small print, there is a heading 'Standard Conditions (1992) governing the FIATA MULTIMODAL TRANSPORT BILL OF LADING'. Clause 1, headed 'Applicability', provides:

Notwithstanding the heading FIATA Multimodal Transport Bill of Lading (FBL) these conditions shall also apply if only one mode of transport is used.

M & U submits that because the printed terms are 'so inconsistent in nature with single modal transport', a clear, express endorsement to that effect, or some similarly unambiguous terms, would be required to show that the bill was intended to be 'transformed' into a single modal bill. I cannot agree. The most important part of the bill, for present purposes, is the front.[25] The pre-printed terms on the front do little or nothing to indicate that the bill is multimodal, save for the matters to which I have already referred, together with the provision of spaces for specifying a 'Place of receipt' and a 'Place of delivery' (in addition to a 'Port of Loading' and a 'Port of discharge'). There is provision for the specification of the 'Ocean vessel' but no provision for the specification of any details in relation to the mode of land transport. And, as I will explain further, I agree with the trial judge that the details inserted on the front of the bill are strongly suggestive of single modal transport by sea. Even the standard terms on the back - notwithstanding a few references to multimodal transport - are all drawn so as to be applicable to either single modal transport or multimodal transport, as clause 1 thereof envisages.

47 Second, M & U submits that the fact that the spaces on the front of the bill for 'Place of receipt' and 'Place of delivery' were not filled in should not be deemed particularly significant. M & U contrasts the GIF bill with the bills considered in The Antwerpen[26] and in The Resolution Bay[27], each of which was held to be a port-to-port bill. As pre-printed, those bills were relevantly identical. There was a definition clause which provided:

"Combined transport" arises when the place of acceptance and/or place of delivery are indicated on the face hereof in the relevant spaces and "Port to port shipment" arises when the carriage called for by this bill of lading is not combined transport.

Further, a notation to both the 'Place of Acceptance' box and to the 'Place of Delivery' box, to which attention was drawn by asterisks, read: 'Applicable only when document used as combined transport B/L. Place of acceptance/delivery always to be an address'. In The Antwerpen, the name 'Felixstowe' was typed into the box for Place of Acceptance. 'Felixstowe' was also typed in as the Port of Loading (Ocean Vessel). The box for Place of Delivery was left blank. The name 'Sydney' was typed into the Port of Discharge box. It was held by Sheller JA (with whom Handley JA relevantly agreed and Cripps JA agreed), upholding the trial judge (Carruthers J), that the word 'Felixstowe' did not 'trigger' the use of the document as a combined transport bill of lading because it was not an address and was accordingly meaningless and could be ignored.[28] In The Resolution Bay, the letters CFS (apparently an abbreviation for Container Freight Station) had been typed into the Place of Acceptance and Place of Delivery boxes. Carruthers J, applying the words of Sheller JA from The Antwerpen, held that the inclusions were meaningless, with the result that the bill was a port-to-port bill.[29] Carruthers J proceeded[30]:

This case emphasises that if carriers wish to ensure that a bill of lading takes effect as a combined transport bill they must insert a meaningful address in the "Place of Acceptance" and/or "Place of Delivery" boxes on the face of the bill.

These decisions were distinguished by the English Court of Appeal in East West Corporation v DKBS 1912 and Another[31], partly on the basis of the express requirement in the bills considered in the Australian cases for the insertion of an 'address'. Absent such a requirement in the two bills the subject of the East-West case, the English Court of Appeal held that the insertion in the Place of Receipt and Place of Delivery boxes of place names corresponding with the names of the ports of loading and discharge had the effect that the bills were to be regarded as combined transport bills.

48 However, the critical feature of the present case is that nothing at all has been included in the 'Place of receipt' and 'Place of discharge' boxes. I regard this as a very strong indication that the parties did not intend that the bill should apply to any transport other than the sea transport. Although the GIF bill as pre-printed lacks the statements and notations contained in the bills considered in The Antwerpen and The Resolution Bay, and lacks even the less rigorous statements and notations contained in the bills the subject of the East-West case, nevertheless it seems to me that statements and notations of those kinds serve principally to make explicit what is really implicit in the very provision of separate, additional spaces for 'Place of receipt' and 'Place of delivery', namely that unless something is entered in at least one of those spaces, the bill should be understood as a port-to-port bill only.[32] In any event, it seems to me that work similar to the work done by those statements and notations is done in the GIF bill by two references in the pre-printed standard terms to the place of receipt 'evidenced in this FBL' and by a reference therein to the place of delivery 'designated in this FBL'. I will elaborate on this in dealing with M & U's third, fourth and fifth arguments (which are related to its second argument and to each other) to which I now turn.

49 M & U's third, fourth and fifth arguments are linked by the underlying proposition that the true facts as to when and where the goods came into the physical possession of GIF, not what was or was not filled in on the front of the bill, determine the extent of GIF's responsibility under the bill. But this conflicts with basic principle relating to the interpretation of a commercial agreement alleged to be wholly comprised in a written document. The Court cannot look beyond the bill itself except to the extent that the background or the 'factual matrix' known to both parties, or the purpose or object of the transaction, might throw light on the meaning of the language of the document, construed in a commercially sensible manner.[33]

50 M & U points to clause 2.1(a) of the bill under which GIF undertook to perform or procure the performance of the 'entire transport from the place at which the goods are taken in charge (place of receipt evidenced in this FBL) to the place of delivery designated in this FBL'. M & U submits that the absence of the endorsement of places of receipt and delivery on the face of the bill cannot have the effect of rendering clause 2.1(a) nugatory; and that the parties must have intended that GIF would 'assume an obligation in respect of the entire period of the agreed carriage, irrespective of whether or not the spaces were filled in'.[34] This submission assumes what it is intended to prove, namely that all of the carriage which was in fact done or procured by GIF was carriage which it agreed, by this very bill, to do or procure. The true task is to ascertain, primarily from the bill itself, what obligations were imposed on GIF by the bill. In referring to the 'entire transport', the bill is not, in my view, referring to all transportation of the relevant goods which happens to be done by or on behalf of GIF. Rather, clause 2.1(a) is careful to confine the 'entire transport' to transport from the place which is identified, in the bill itself, as the place of receipt to the place which is likewise identified as the place of delivery. On this approach, if the boxes in question are both left blank, clause 2.1(a) is not rendered nugatory. A port specified in the Port of loading box can appropriately be regarded as a place of receipt for the purposes of cl 2.1(a) and a port specified in the Port of discharge box can appropriately be regarded as a place of delivery for those purposes. Indeed, given that clause 1 of the pre-printed terms expressly envisages the use of the document as a single mode bill of lading, and given what was said by Carruthers J in The Resolution Bay about what carriers need to do to ensure that a bill of lading takes effect as a combined transport bill[35], one might well think that leaving the relevant boxes blank is a particularly apt way of signifying the intent of the parties that it was envisaged that only sea transport would be covered by the bill.

51 Clause 6.1 of the GIF bill, which provides that GIF's responsibility 'covers the period from the time the Freight Forwarder has taken the goods in his charge to the time of their delivery' does not advance M & U's position. The phrase 'taken in charge' is a defined term, and I think that the defined meaning is intended to apply also to 'taken in his charge'. It is defined to mean 'that the goods have been handed over to and accepted for carriage by the Freight Forwarder at the place of receipt evidenced in this FBL'.[36] If M & U's argument were correct, there would be little or no work for the words which I have italicised (or for the corresponding words in cl 2.1(a)) to do.

52 Sixth, M & U relies on the correspondence from itself to Parlux, firstly in November 2001 advising that it had appointed GIA as its freight forwarder and that its shipments from Italy would thereafter be organised by GIF, and secondly in March 2003 asking Parlux to contact 'our forwarder Gava International (as usual) to collect and ship the goods once they are ready'. This correspondence adds little or nothing to the acknowledged fact that GIF assumed ultimate responsibility for at least two legs of the relevant carriage. GIF itself was neither an author nor an addressee of the correspondence. It is hard to see how the correspondence can legitimately be used as an aid to construction of the bill of lading.

53 M & U's seventh argument is based on the so-called absence of any evidence of a separate contract between GIF and Parlux for the Italian land carriage. I do not agree that there is no evidence of a separate agreement. There is testimonial evidence of the existence of a separate agreement, namely the abovementioned evidence of Mr Di Pietrantonio and of Mr Saracco, and it is not irrelevant that M & U's own original pleadings asserted, by implication, that there was a separate agreement. The belated amendment appears to have coincided with a realisation by M & U's lawyers that the sole allegation that it originally made against GIF, namely that the goods were lost in the course of the sea transit, was doomed to failure. As already indicated, I take the view that little or no significance can be attached to the omission of GIF to produce any consignment note or like document between itself and Parlux.

54 Contrary to M & U's eighth argument, it is not at all surprising that the parties would choose to leave the land carriage aspects of the envisaged transport to be covered by separate arrangements, uncomplicated by the rather special principles and rules that have grown up over the years in relation to carriage by sea under bills of lading. [37] It is noteworthy that M & U does not submit that the Australian land leg was covered by the bill of lading.

55 Ninth, M & U seeks to deflect the fact that the bill was not issued until the goods were loaded on to the vessel at La Spezia by pointing out that it is a commonplace that an ocean bill of lading is issued after the contract of carriage is formed.[38] However M & U needs to demonstrate that the GIF bill is not (merely) an ocean bill of lading. It produced no evidence that a delay of 12 days between the so-called 'taking in charge' of the goods at the Parlux factory and the issue of the bill (as in this case) was normal (or not unusual) for a multimodal bill. And the fact is that the issue of the bill coincided with the completion of the loading of the goods on the vessel.

56 M & U's tenth point was that there was no need to insert the places of receipt and delivery in the respective spaces on the face of the bill because this information was already contained therein. Parlux's address is contained within the 'shipper' box on the face of the bill and M & U's details are contained in the consignee box. M & U says that this is exceptional (and therefore relevant). There was no expert or other evidence to that effect. GIF submits that the inclusion of the addresses was merely for identification purposes. It seems to me that that explanation is the better one, notwithstanding that the address given for Parlux did coincide with the place where the truck collected the goods. The reference to M & U's address seems irrelevant given that M & U does not submit that the bill covered the Australian leg. In any event, the addresses were not specified in the bill as places of receipt and delivery, and I do not think it can be said that Parlux's address was the 'place of receipt evidenced in this FBL' within the meaning of the definition clause or that of clause 2.1(a) of the bill.

57 Eleventh, M & U submits that the trial judge was incorrect to say that the details inserted on the face of the bill are strongly suggestive of port-to-port carriage. In purported support of that submission, M & U says that the whole thrust of the printed document is as to multimodal transport. For the reasons stated above, I disagree with that characterisation even of the printed document. M & U refers to the use of the expression 'taken in charge' rather than 'shipped' or 'received for shipment'. However, so far as the front of the bill is concerned (the front being more important than the back for present purposes[39]), the phrase 'taken in charge' appears only as part of a sentence contained within the standard pre-printed terms, and in small print at that. By contrast, the expressions 'GOODS ON BOARD'[40] and 'CLEAN ON BOARD' have been stamped on the front of the bill in large capital letters. These are endorsements commonly used in relation to shipping, but not commonly, as far as I can tell, in relation to other forms of transport. The same can be said about the words 'Shipper's stow, load and count' which have also been inserted on the face of the bill. When to those matters is added the entry of the names of the ports of loading and discharge, the entry of the name of the ocean vessel and the leaving blank of the spaces for places of receipt and delivery, it seems to me that the trial judge's observation that the details inserted on the face of the bill are strongly suggestive of port to port carriage is unassailable. As to the bill as a whole, it is true that the phrase 'taken in charge' is a broad one, and no doubt it is used so as to encompass multimodal transport where appropriate. But the phrase is itself defined by reference to the phrase 'place of receipt evidenced in this FBL' and its use by no means overrides the impression created by the specific details on the face of the bill.

58 Twelfth, M & U refers to the bill of lading that was issued by the shipping company MSC, to which GIF subcontracted at least some of its responsibilities. The MSC bill was issued on the same day as the GIF bill, namely 16 June 2003. It was signed by a representative of Agenzia Marittima Le Navi SpA (AMLN) as agents for the named carrier, MSC. The named shipper was GIF and the consignee was 'To order'. The bill contained a provision for 'through transport', which, pursuant to clause 3 of the standard terms set out on the back of the bill, was to be indicated by the filling in of a box (numbered 5) marked 'From (through transport)' and/or a box (numbered 9) marked 'Final destination (through transport)'. 'Trezzano S. Naviglio' was typed into box 5. Nothing was entered in box 9. So far as relevant, clause 3 provided:

The Carrier agrees to carry the goods from the Port of Loading to the Port of Discharge ... If boxes 5 and/or 9 are filled out, the Carrier will, acting as shipper's agent, only arrange for transport of the cargo by other carriers from the place of origin to the Port of Loading and/or from Port of Discharge to destination, and during such segments of Through Transport, handling and storage of the goods shall be subject to freight contracts and tariffs of the other Carriers. It is expressly understood that the Carrier's liability as "Carrier" applies only from Port of Loading to Port of Discharge under this Bill of Lading, and only while the goods remain in its actual custody and control, whether as Carrier or bailee.

The limitation of the liability of MSC to the period between loading on and discharge from the vessel was restated in clause 17.

59 M & U submits that the MSC bill reflected 'the multimodal nature of the contract effected between GIF and Parlux', and says that it can be presumed that the information in the MSC bill was given to MSC by GIF. On that basis, M & U submits, GIF clearly saw its obligations as commencing at Trezzano.

60 However, it is not in doubt that GIF had contractual responsibilities that commenced at Trezzano. The question is whether the GIF bill of lading (with all its accoutrements) applied to the Italian land leg. Reference to the MSC bill hardly seems to help M & U in this regard. Clauses 3 and 17 of the MSC bill emphasise that MSC is not to be regarded as a Carrier or otherwise to be liable for loss of or damage to the goods otherwise than in respect of the sea voyage. Hence it does not seem to help M & U that Mr Saracco said in his adopted witness statement that GIF contracted with MSC on 'back to back' terms as those with M & U. Further, whatever the MSC bill may say, the evidence of Mr Saracco indicates that in fact GIF communicated (and perhaps contracted) directly with AMLN in relation to the transportation of the goods from Trezzano to La Spezia.[41] It is unnecessary to form any concluded view on that point, but in all the circumstances M & U gains no assistance from the terms of the MSC bill.

61 Thirteenth, M & U says that the fact that GIF separately invoiced for land and sea carriage merely reflects the fact that different parties were known by GIF to be ultimately responsible for the cost of the different legs of carriage. It was logical as a matter of practice, M & U says, for GIF to separately invoice.

62 It is true that Mr Saracco gave answers in cross-examination consistent with this explanation for the separate invoicing, but those answers were certainly not inconsistent with the existence of separate contracts, nor (if it matters) with the continued existence of a belief on the part of Mr Saracco that there were separate contracts. At no stage did counsel for M & U directly put to Mr Saracco or, for that matter, to his own witness, Mr Di Pietrantonio, that they had been mistaken in their beliefs.

63 Fourteenth, M & U points out that the invoice raised by GIF for the Italian land carriage (which was dated 20 June 2003) referred to M & U as consignee and to the name of the carrying vessel; that it referred to 16 June 2003, being the date of issue of the GIF bill; and that it included the GIF bill of lading number within the GIF invoice reference. According to M & U, it was clearly issued within the umbrella of, and in the context of, the overall, multimodal, contractual arrangements of carriage; and, contrary to the trial judge's view, it did not reflect GIF having contracted in two capacities.

64 However, the issuing of the invoice was post-contractual conduct. It cannot be used directly to construe the bill of lading. Even if I assume that there was a long standing practice of invoicing in the same way, and that all previous bills of lading had been in precisely the same form, I can gain little assistance from the features of the invoice relied on by M & U. It is quite understandable that for administrative purposes the invoice would contain references to the matters to which M & U refers. There are obvious connections between the matters referred to. The goods were the same. They were the subject of a single contract of sale. GIF was responsible one way or another for getting them from Trezzano to the Port of Melbourne. But this does not necessarily indicate that the bill of lading was intended to apply to the Italian land leg. No questions were put to any of the witnesses about the significance of the inclusions on the invoice. I regard those aspects of the invoice as being of only limited weight in favour of M & U's position. They are outweighed significantly by the terms of the bill of lading itself. And, for what it is worth, the fact remains that separate invoices were issued to Parlux (by GIF) and to M & U (by GIF).

65 Fifteenth, M & U submits that the trial judge placed undue weight on the FOB nature of the contract of sale. It concedes that evidence of surrounding circumstances, as a part of the factual matrix, may be considered in construing a contract, but says that the circumstances must be known to the contracting parties.[42] M & U submits that there was no evidence that, prior to the formation of the contract, GIF had knowledge of the terms on which Parlux and M & U had contracted.

66 This submission has no merit. It is inconsistent with the acknowledgment by Mr Saracco, sought and obtained by senior counsel for M & U himself, that Mr Saracco 'knew that this was an FOB sale and Parlux was to pay the Italian costs'.[43]

67 Sixteenth, M & U submits that there is significance in the following standard printed wording on the face of the GIF bill:

Taken in charge in apparent good order and condition, unless otherwise noted herein, at the place of receipt for transport and delivery as mentioned above.

I see little or no significance in this. I have already contrasted the expression 'Taken in charge', as it appears in this sentence in small print on the face of the bill, with the well known shipping expressions endorsed in large capital letters thereon.

68 Seventeenth, M & U submits that the inclusion of those shipping expressions should be accorded little significance for the very reason that they were 'subsequently endorsed' on the bill as distinct from constituting part of the printed form of the bill. M & U submits that in The Antwerpen the Court regarded the 'fact'[44] that the words 'shipped on board' were pre-printed as part of the form of the bill rather than being subsequently endorsed as being significant in indicating that the bill was for port to port carriage.

69 However this submission misconceives what happened and was said in The Antwerpen. The Court indicated that it saw significance in the fact that the expression 'SHIPPER'S LOAD, STOWAGE AND COUNT SHIPPED ON BOARD: 30/7/87' was included 'as part of its form when issued and not as a subsequent notation'.[45] The expression, which included a particular date, was obviously not part of a pre-printed standard form. It had been endorsed specially on the bill. The significant thing was that the endorsement had been included by the time of the issue of the bill and not subsequently. The same thing occurred in the present case.

70 Seventeenth, M & U submits that ordinarily, under a port to port bill, the carrier's liability will cease upon discharge (either crossing the ship's rail or release from the ship's tackle), whereas in the GIF bill it is stated:

For delivery of goods please apply to: GAVA INTERNATIONAL (AUSTRALIA) PTY LTD.

I simply cannot see any inconsistency or contrariety between these two things. The statement on the bill is merely a piece of useful information. It does not purport to extend or affect GIF's liability under the bill.

Further, by clause 12, it is provided that the goods shall be deemed to be delivered when they are [handed over] or placed at the disposal of the consignee.

Again, this is inconsistent with GIF's bill being a port to port bill and is more consistent with a multimodal bill.

I do not accept this submission. It misstates the effect of clause 12, which refers to handing over 'in accordance with this FBL'.

72 In any event, by reason of clause 1 of the Bill, the form must be capable of operating as a single mode bill. Clause 12 therefore cannot be read as being inconsistent with GIF's bill being a port to port bill.

73 For these reasons I would dismiss M & U's appeal against GIF.

[2] Section 8 Sea Carriage Documents Act 1998 (Vic).

[3] Appellant's Outline of submission [2].

[6] M & U Imports Pty Ltd v Parlux [2006] VSC 237.

[12] A possibility which, if it exists, tends on balance against the appellant on the broader facts, in my view.

[14] Taylor v Ellis [1956] VicLawRp 72; [1956] VLR 457, 463-465 (Sholl J).

[15] Reasons, [8]. Trial transcript , 129, 132-133.

[17] Cf Gaskell et al, Bills of Lading: Law and Contracts, 2000, para [4.60]; Comalco Aluminium Ltd v Mogal Freight Services Pty Ltd (1993) 113 ALR 677, 698-700; Carver on Bills of Lading, 2nd edition, 2005 para [8-070]; Davies and Dickey, Shipping Law, 3rd edition, 2004 at pp 247-251, 272-273.

[18] Paragraph 12 of the statement of claim continued to allege, as against GIF, that 'the goods in their entirety were delivered and stuffed into the container which was on or about 16 June 2003 shipped on board the vessel at Le Spezia for carriage to Melbourne.' (My emphasis).

[19] Cf Carver, Bills of Lading, para 4-013, 4-024; President of India v Metcalfe SS Co Ltd [1970] 1 QB 289.

[23] See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[25] Hamburg Houtimport BV and Others v Agrosin Private Ltd and Another ('The Starsin') [2003] UKHL 12; [2004] 1 AC 715, 747 [45].

[26] (1993) 40 NSWLR 206, 225-226; [1994] 1 Lloyd's Rep 213, 218, 236-237.

[27] Unreported, Carruthers J, SC of NSW, 6 December 1994, BC 9403463, 4-5.

[31] [2003] 1 Lloyd's Rep 239, 260-263.

[32] Cf East-West Corporation v DKBS and Another [2003] 1 Lloyd's Rep 239, 261 [75]-[77].

[33] Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451, 461-462 [22]; Gaskell et al, Bills of Lading: Law and Contracts, 2000, para [2.26].

[35] See above. His Honour's statement was expressed in general language, although no doubt it must be read in the light of the particular terms of the bill in question.

[36] See the definition set out in para 24 of the reasons of Byrne J (my emphasis).

[37] Cf Carver on Bills of Lading, 2nd edition, 2005, [8-070], [8-073]-[8,075].

[38] Indeed it has been said by the Privy Council that it is a commonplace that shipped bills of lading may be issued on a date after the date of completion of the shipment of the goods: Westpac Banking Corporation v South Caroline National Bank (1986) 64 ALR 30, 36.

[39] The Starsin [2003] UKHL 12; [2004] 1 AC 715, [45].

[40] With a date, 16 June 2003, added. The reference to that date further assists GIF.

[42] Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165.

[43] Trial transcript, 198. See also at 199.

Sea-Carriage Documents Act 1998(Vic)

Carriage Documents Act 1998

Sea-Carriage Documents Act 1998(Vic)

Carriage Documents Act 1998

At a glance

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Judgment (183 paragraphs)

Legislation Cited (6)

Cases Cited (6)