Poralu Marine Australia Pty Ltd v MV Dijksgracht

Federal Court of Australia|2022-09-06|Before: Stewart J

Introduction 218 It will be recalled that by Art 10(6) of the AHR, those Rules do not apply to the carriage of goods by sea under a charterparty unless a sea carriage document is issued for the carriage. Further, under para (7), the Rules apply to a sea carriage document issued under a charterparty only if the sea carriage document is a negotiable sea carriage document. Of further contextual relevance in relation to those provisions is that part of Art 5 which provides: The provisions of these Rules shall not be applicable to charter parties, but if negotiable sea carriage documents are issued in the case of a ship under a charter party they shall comply with the terms of these rules. 219 Article 5 of the Hague Rules is to like effect insofar as the exclusion of application of the Rules to charterparties is concerned. The Visby Protocol made no amendment to Art 5 so the Hague-Visby Rules are to the same effect. As an aside, it is to be observed that Art 2(3) of the Hamburg Rules and Art 6(1) of the Rotterdam Rules, neither of which is otherwise relevant to this case, also exclude applicability to charterparties, thereby underscoring the importance of a dividing line between charterparties and non-charterparty contracts of carriage of goods by sea. 220 Thus, the scheme of the Hague and Hague-Visby Rules is that they are applicable to bills of lading and not to charterparties. The scheme of the Australian Hague Rules is relevantly the same, although rather than being applicable only to bills of lading they are applicable to "negotiable sea carriage documents" and, possibly, also to other "sea carriage documents". 221 The defendants make two principal submissions. First, they submit that as there was no negotiable sea waybill issued in respect of the carriage in question there is no "negotiable sea carriage document" to which the Australian Hague Rules can apply - that is on the basis that paras (6) and (7) must be read together. Secondly, they say that the booking note which is the contract of carriage is a charterparty within the meaning of the AHR, with the result that the AHR do not apply to the carriage of goods by sea under it. They submit that notwithstanding that the contract in question is not easily categorised as one of the "main types" of recognised charterparty, it nevertheless has the hallmarks of a charterparty including terms as to the intended performing vessel, specified ports of loading and discharge, laycan, freight rate and detention or demurrage. They also refer to the fact that in the email exchanges leading to the conclusion of the booking note contract, and in places on the booking note, the cargo side of the contract is referred to as "charterer" or "charterers". 222 Poralu submits that the booking note contract is not a charterparty as it does not fall within any of the three main categories of charterparty, namely bareboat, time and voyage, and it is not a slot charterparty - which is said to be a fourth category - because it cannot reasonably be considered to be the hire of part of the ship. That is because the carrier had the option of where to stow the cargo, on or under deck. Poralu submits that the contract is synonymous with a part cargo booking on a non-liner vessel. With reference to The Happy Ranger EWCA at [24], Poralu submits that the fact that its cargo was only a part cargo, there also having been another cargo for a different consignee (at a different discharge port), also supports its contention that this was not a charterparty.

Consideration 223 In Dampskibsselskabet, the issue before the Full Court was whether a voyage charterparty was a "sea carriage document" within the meaning of that phrase in ss 11(1)(a) and 11(2)(c)(i) of COGSA. That boiled down in part to the question of whether the definition of "sea carriage document" in Art 1(1)(g) of the AHR was to be applied to the term "sea carriage document" in the Act, noting that there is no definition of that term in the Act itself. The leading judgment on that question is that of Rares J, with whose reasoning Mansfield J "generally agreed" (at [4] and [14]). Both Mansfield J (at [15]) and Rares J (at [57]) held that the definition in the AHR applied to the Act itself, principally because the relevant terms were introduced into the Act at the same time that the AHR in Sch 1A was introduced. By parity of reasoning, the definition of "contract of carriage" in Art 1(1)(b) must be taken to apply to that term where it is used in the Act. 224 The ultimate conclusion in Dampskibsselskabet is that a voyage charterparty is not a sea carriage document as referred to in COGSA. Justice Mansfield observed (at [15(1)]) that there has traditionally been a clear line drawn between a charterparty and a sea carriage document. His Honour held (at [16]-[17]) that COGSA and the AHR preserve the distinction between a charterparty and a sea carriage document. Justice Rares's reasoning is to like effect (at [68]). In the result, in the scheme of COGSA and the AHR, if a contract for the carriage of goods is a charterparty it is not a sea carriage document. 225 In Dampskibsselskabet, the voyage charterparty, which was on the widely used Americanized Welsh Coal Charter (AMWELSH 93) form, was held not to be a sea carriage document. The Court's discussion of the nature of voyage charterparties is consistent with the discussion below and draws on many of the same authorities. See Rares J at [60]-[62]. So, what is a charterparty where it is referred to in Arts 5, 10(6) and 10(7) of the AHR? 226 There is no universally accepted definition of a charterparty, and even if there was it would not necessarily apply in the particular statutory context at hand. However, recognising that the AHR have the Hague-Visby Rules as their foundation and the Hamburg Rules as the catalyst for their existence, the consistency of approach between each of those sets of rules in excluding their application to charterparties, and the international nature of the Hague-Visby and Hamburg Rules, the common understanding of what a charterparty is is likely to have great significance to the meaning of that term in the AHR. For that reason, it is necessary to look at the authorities both domestically and internationally on the nature of a charterparty. 227 In Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Maratha Envoy) [1978] AC 1 at 7-8; [1977] 2 Lloyd's Rep 301 at 304, Lord Diplock discussed the nature of the charter market and the risks and contingencies that owners and charterers have to make allowance for in bargaining on such basic terms as rates of freight, demurrage and dispatch money. His Lordship explained: My Lords, the freight market for chartered vessels still remains a classic example of a free market. It is world-wide in coverage, highly competitive and sensitive to fluctuations in supply and demand. It is a market in which the individual charterers and shipowners are matched in bargaining power and are at liberty to enter into charterparties in whatever contractual terms they please. … So far as the profitability of the transaction to each party is concerned, there is an inter-relationship between rates of freight, demurrage and dispatch money and clauses of the charterparty which deal with the allocation between the charterer and shipowner of those risks of delay in the prosecution of the adventure contemplated by the charterparty which, being beyond the control of either party, have been conveniently called "misfortune risks" as distinguished from "fault risks." 228 These are important features of the chartering market and distinguish voyage chartering from, for example, the booking of cargo on a liner service for carriage from A to B subject to the terms of a bill of lading or other sea carriage document to be issued. The latter is a paradigm example of a cargo booking that is not a charterparty. There may be negotiation about the amount of freight to be paid, but in that market there will be no negotiated allocation of risks in the manner identified. Notably, Lord Diplock identified agreement on freight, demurrage, dispatch money and the allocation of "misfortune" risks of delay as being typical features of charterparties. 229 Professor Bennett in Bennett H (ed), Carver on Charterparties (2nd ed, Sweet & Maxwell, 2021) at [1-001] describes a charterparty as "a contract whereby one party (the 'shipowner') contracts to place the whole or part of a vessel at the disposal of the other party (the 'charterer')" (emphasis added). Charterparties "divide into those that constitute a demise of the chartered vessel, so that the charterer acquires a possessory interest in the vessel, and those that amount to contracts for the supply of the ship's services to the charterer without any transfer of possessory interest" (at [1-009]). The latter encompass both time and voyage charters. The learned author (at [1-024]) describes a voyage charterparty as: a contract whereby the owner undertakes to provide the services of a vessel and crew for the accomplishment of a stipulated adventure involving the carriage of specified goods between designated places of loading and discharge. In return for the contractual services, the charterer undertakes to pay an agreed consideration, termed "freight". A voyage charterparty, therefore, shares with a time charterparty its nature as a contract for services, but the pre-determined adventure denies a voyage charterer the freedom to determine employment enjoyed by a time charterer, albeit that the adventure may be defined at least initially in broad terms. (Footnotes omitted.) 230 Professor Bennett observes (Carver at [1-047]) that notwithstanding the three principal forms of charterparty (demise, time and voyage charters), parties are free to construct whatever bargain they wish; there is no fixed list of permissible forms of charterparty from which contracting parties are obliged to choose. In Chiswell Shipping Ltd v National Iranian Tanker Co (The World Symphony and World Renown) [1991] 2 Lloyd's Rep 251 at 257, after remarking on the many different recognised forms of charterparty, Hobhouse J observed as follows: The variety of contractual structures that can be adopted by charterers and shipowners for any given transaction are as various as the ingenuity of chartering brokers and the ever changing demands of the market may determine. It is not for Courts to fit the parties' transactions within a strict and limited frame-work which the parties themselves may have not chosen to adopt. 231 Professor Bennett (Carver at [1-048]-[1-053]) identifies a number of variant forms of charterparty, including mixed charters, consecutive voyage charters, trip time charterparties, space charterparties and slot charterparties. He describes (at [1-052]) a space charterparty as "a voyage charterparty under which the charterer contracts for the use of only part of the cargo-carrying capacity of the vessel". 232 Turning to slot charters, Professor Bennett describes a slot charterparty as "a contract for the hire of limited space on a container vessel in the form of a specified number of container slots" (at [1-053]). Such a charterparty has been recognised as a "charterparty" in the context of the exercise of admiralty jurisdiction in rem in The Tychy [1999] 2 Lloyd's Rep 11 and Northern Endeavour Shipping Pte Ltd v Owners of the MV NYK Isabel [2016] ZASCA 89; 2017 (1) SA 25. The same view had been expressed by Toohey J in Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55; 190 CLR 181 at 192-193 where his Honour said that "the term charter has a number of possible connotations such as voyage charter, time charter, slot charter or subcharter" and, with reference to "charterer" in ss 18(a) and 19 of the Admiralty Act 1988 (Cth), "the conclusion is inevitable that no limitation was intended" in those provisions. 233 The Convention on Limitation of Liability for Maritime Claims, 1976, opened for signature 19 November 1976, 1456 UNTS 221 (entered into force 1 December 1986) gives to shipowners a right to limit liability, and "shipowner" is defined in Art 1(2) to include the charterer. In Metvale Ltd v Monsanto International Sarl (The MSC Napoli) [2008] EWHC 3002 (Admlty); [2009] 1 Lloyd's Rep 246, Teare J held that in that context a slot charterer is a charterer. His Lordship explained (at [17]): the ordinary meaning of the word charterer is apt to include any type of charterer, whether demise, time or voyage charterer. There is no reason why it should not also include a slot charterer. Standard textbooks refer to slot charters when discussing types of charters; see Voyage Charters, 3rd Edition, para 1.1 and Scrutton on Charterparties, 21st Edition, article 30. There is good reason for a slot charterer being within the definition. Were slot charterers not within the definition, slot chartering, which is an established and, to judge from its growth, an efficient way of organising the carriage of goods, would or might fall into disuse. A slot charterer's inability to limit liability would not encourage the provision of international trade by way of sea carriage, which was the object and purpose of the convention. 234 In International Marine Underwriters v MV Patricia S (SD NY, No 06 Civ 6273 (JFK), 11 January 2007) it was held that a slot charterer was prima facie a charterer within the meaning of a clause in the head-time charterparty giving "charterers" authority to sign bills of lading on behalf of the master and/or owners. 235 The cases surveyed in the preceding paragraphs show that it is widely accepted that slot charters are a form of charterparty in various contexts. 236 Returning to voyage charters, in T Co Metals LLC v The Federal Ems, 2012 FCA 284; [2014] 1 FCR 836 (Federal Court of Appeal, Canada), Gauthier JA (Pelletier and Mainville JJA agreeing) held that a voyage charterparty is not a "contract for the carriage of goods by water" for the purposes of the Marine Liability Act, SC 2001, c 6 (Can). Her Honour traced the history of the various international regimes governing the carriage of goods by sea, and noted that none of the Hague, Hague-Visby, Hamburg or Rotterdam Rules apply to charterparties. Her Honour quoted the following (at [60]) from Wilson JF, Carriage of Good by Sea (6th ed, Pearson Education, 2008) at pp 3-4, saying that it is common knowledge that: A charterparty is a contract which is negotiated in a free market, subject only to the laws of supply and demand. While the relative bargaining strengths of the parties will depend on the current state of the market, shipowner and charterer are otherwise able to negotiate their own terms free from any statutory interference. In practice, however, they will invariably select a standard form of charterparty as the basis of their agreement, to which they will probably attach additional clauses to suit their own requirements. 237 Gauthier JA said (at [61]) that one can readily see that the imbalance in the bargaining power that is the mischief that led to the development of the various international regimes does not exist in relation to charterparties. Her Honour also observed that the "liner trade (common carriers operating regular services in certain areas, using the sea carriage documents covered by the various international regimes) is simply quite different from the tramp trade (chartered vessels)". 238 On the nature of a voyage charterparty, Professor Bennett in Foxton D et al, Scrutton on Charterparties and Bills of Lading (24th ed, Sweet & Maxwell, 2020) at [1-008] says the following: Under a voyage charter, the shipowner, who again retains possession and navigational control of the vessel, agrees to carry cargo on one or more specified voyages in return for the payment of freight by the charterer calculated according to the quantity of cargo carried or sometimes on a lump sum basis. … However, the risk of delay in loading and unloading cargo at the contractual ports will be addressed by a contractual scheme of "laytime" (period of time allowed for loading or unloading included within the agreed freight) and "demurrage" (liquidated damages payable for delay beyond the agreed laytime). 239 In Cooke J et al, Voyage Charters (4th ed, informa law, 2014) at [1.1], voyage charters are described as "those by which the owner agrees to perform one or more designated voyages in return for the payment of freight and (when appropriate) demurrage; the costs of, and responsibility for, cargo handling are left to the terms of the specific agreement". 240 Returning now to the plaintiff's reliance on The Happy Ranger EWCA, the details of the contract of carriage at issue in that case appear in The Happy Ranger QBD at [6]. They include detailed clauses covering loading, lashing, detention, the issue of bills of lading and the payment of freight. With minimal reference to those details, Tuckey LJ in the Court of Appeal (at [24]) rejected the submission that the contract was a voyage charterparty, saying that "although it does contain terms which are to be found in voyage charterparties, it emphatically calls itself a contract of carriage" and "the fact that the goods to be carried were a part cargo supports this conclusion, although I accept that this factor is not conclusive". Given that a voyage charterparty is a form of contract of carriage, and the law's concern with substance over form, what the contract was called can, respectfully, be of little significance. Also, as his Lordship noted, the fact that the contract was for a part cargo cannot be regarded as conclusive. In those circumstances, I do not consider The Happy Ranger EWCA to be particularly instructive in the resolution of the present issue. 241 Returning to the contract in this case, the following features of the circumstances of its conclusion and its characteristics and terms support a conclusion that it is properly to be regarded as a charterparty: (1) Its terms were negotiated by the exchange of emails over a period of time between a broker on behalf of Poralu and Spliethoff Transport, being parties at arms-length with no apparent inequality of bargaining power. (2) There was an identified performing vessel, with an allowance for the nomination of a final performing vessel by a particular date, and the final performing vessel was then nominated by that date. That is to say, the contract was with regard to the services of a specific vessel. (3) The negotiations dealt at some length with the specialist capabilities or characteristics of the intended performing vessel, particularly with regard to loading and discharge. (4) The terms of the recap email that were then included in the final booking note form describe Spliethoff Transport as "owners" and its counterparty as "charterers", although the pre-printed booking note form itself describes those parties as "carrier" and "merchant". (5) The vessel is a specialised break bulk vessel on a tramp trade. (6) There were various conditions to which the fixture was subject, including nomination of the performing vessel, notification of the intended rotation of the vessel prior to arrival at the load port and approval by the carrier of the charterer's transport/technical drawings. (7) There were detailed provisions for the allocation of the costs of loading and discharge, and for detention (perhaps more accurately called demurrage given the specified rate) - recorded at lines 28-31 of the email recap (at [40] above) and in the booking note "special terms" box (see [47(12)] above). (8) There was a specified laycan - line 25. (9) The maximum transit time for the voyage was specified, with agreed penalties for late arrival, and there was thus an allocation of "misfortune" risks of delay - lines 32-36 and 41-45. (10) There was provision for the fumigation of the cargo (lines 37-38) and the allocation of liability for taxes, dues and duties (lines 47-52). (11) The contract itself provided for and contemplated the issue of a sea carriage document (in the neutral sense), being either a bill of lading or a sea waybill. 242 The last point, in particular, tells strongly against the contract being a sea carriage document itself. As with the voyage charter in Dampskibsselskabet (at [57]), the contract does not have the features of a sea carriage document that the shipper would have a right to demand under Art 3(3) of the AHR, and did have a contractual right to demand under the incorporated Art 3(3) of the Hague Rules. The terms identified at [241(7)]-[241(10)] above are terms typically, although not necessarily, found in charterparties. 243 As the writers and the authorities on slot charters show, the fact that the cargo was only a part cargo, or that the contract was for only part of the ship, does not weigh particularly against a conclusion that the contract is a charterparty. Indeed, a slot charter would seem to be further removed from a traditional charterparty than the form of contract employed in this case. If a slot charter is a charterparty for various analogous purposes, then the booking note contract in this case would surely also qualify as a charterparty. 244 The fact that the printed form of the contract called it a "booking note" is also not decisive. As mentioned, the focus must of necessity be on substance rather than form. It is the totality of the circumstances of the contract and the commercial role that it played that will determine whether it is a charterparty within the statutory meaning. 245 "Booking note" is not a term of art, and is used in maritime trade in different ways. The most common use is in the liner trade: when a shipper books cargo to be shipped the booking will often be confirmed in a booking note which will include, either expressly or by reference, the carrier's standard form bill of lading terms and conditions to which the booking is subject. When the goods are shipped on board and the bill of lading is issued, it contains those terms and conditions and it serves to evidence the preceding contract contained or confirmed in the booking note. An example of such a booking note is the Conline liner booking note published by BIMCO. It has the bill of lading terms and conditions on the reverse (page 2). An example of the use of such a booking note is US Shipping Limited v Leisure Freight and Import Pty Ltd (in liq) [2015] FCA 347. In such use, the booking note does not have the features of a charterparty, but merely precedes the issue of a bill of lading which then evidences the contract of carriage. 246 Another use of "booking note" is to record the booking of cargo to be shipped under a voyage charter including the terms of the voyage charter. Examples of such use include Thor Shipping A/S v The Ship Al Duhail [2008] FCA 1842; 173 FCR 524 and A Meredith Jones & Co Ltd v Vangemar Shipping Co Ltd (No 2) (The Apostolis) [2000] 2 Lloyd's Rep 337. 247 The booking note in the present case is not of the first type identified above. That is because, in particular, its terms differ from the bill of lading terms that could be issued under it - it is not the booking of the carriage of cargo subject to the terms of a bill of lading to be issued. Indeed, it records that its terms will prevail over the bill of lading terms (see [49] above). Undoubtedly it stands as its own contract on its own terms independently of any bill of lading, and, for the reasons already canvassed, if a bill of lading were issued it would not evidence a contract between the same parties. Rather, the booking note is of the second type identified above. 248 The booking note contract in this case appears to fulfil what Professor Bennett describes as a space charterparty, being a species of voyage charter (see [231] above), or is in any event a species of voyage charter. It does not seem to me to matter that the carrier could decide which space on the ship the cargo would occupy, or that the freight was calculated by weight rather than volume. Significantly, as mentioned, the terms regulate the risk of delay on loading and discharge, and of the voyage itself. The booking note contract is not a sea carriage document, for the reasons given in Dampskibsselskabet. I find that it is a charterparty within the meaning of the AHR. It is not necessary to decide whether there may be some form of contract of carriage of goods by sea that is neither a sea carriage document nor a charterparty. 249 Having concluded that the booking note contract is a charterparty, it is necessary to return to the wording of paras (6) and (7) of AHR Art 10. 250 There are some difficult issues of construction that arise in relation to paras (6) and (7) of AHR Art 10, in particular the relationship between them and between para (6) and Art 5. For example, if a non-negotiable sea carriage document is issued for the carriage as contemplated by para (6), does that have the consequence that the AHR might still apply to the carriage of goods under the charterparty notwithstanding that under Art 5 the AHR do not apply to charterparties and under para (7) the AHR apply to a sea carriage document issued under a charterparty only if the sea carriage document is a negotiable sea carriage document? 251 Fortunately, those issues do not arise in the present case for the simple reason that the sea waybill that was issued under the booking note contract, which I have found to be a charterparty, is not sea carriage document within the definition in AHR Art 1(1)(g). More specifically, it is not a non-negotiable document within the meaning of sub-para (iv) because it neither contains nor evidences a contract of carriage of goods by sea. As mentioned, it was merely a receipt for the cargo. Therefore, the subordinate clause following the conjunction "unless" in para (6) does no work to reapply (by para (2)) the AHR in the present case. There being no other provision of Art 10 that could apply the Rules, it follows that s 10(1)(b)(i) of COGSA does not make the AHR applicable.

Conclusion 252 For those reasons, I find that the booking note contract is a charterparty with the result that the AHR do not apply to it. Spliethoff Transport can therefore rely on the limitation in cl 3(a) of the contract, namely its liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit.

IX. CAN THE SHIPOWNER RELY ON THE CARRIER'S DEFENCES? 253 The next issue to consider is whether the shipowner can also rely on the limitation in cl 3(a) of the booking note contract even though it was not a party to that contract. In that regard, as mentioned, it relies on the Himalaya clause being cl 11 (quoted at [105] above).

A. The applicable principles 254 In Scruttons Ltd v Midland Silicones Ltd [1962] AC 446; [1961] 2 Lloyd's Rep 365, the House of Lords dismissed an appeal by stevedores who sought to rely on the protections given to a carrier by the terms applicable to a bill of lading. In the course of his Lordship's reasoning, Lord Reid (at AC 474; Lloyd's Rep 374) laid out four requirements which, if met, would by the agency of the carrier bring about a contractual relationship between the stevedore and the carrier's contractual counterparty such as to allow the stevedore to rely on protections in the bill of lading: I can see a possibility of success of the agency argument if (first) the bill of lading makes clear that the stevedore is intended to be protected by the provisions in it which limit liability, (secondly) the bill of lading makes it clear that the carrier, in addition to contracting for these provisions on his own behalf, is also contracting as agent for the stevedore that these provisions should apply to the stevedore, (thirdly) the carrier has authority from the stevedore to do that, or perhaps later ratification by the stevedore would suffice, and (fourthly) that any difficulties about consideration moving from the stevedore were overcome. 255 In 1975, the Privy Council in an appeal from the Court of Appeal of New Zealand in New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154 at 166; [1974] 1 Lloyd's Rep 534 at 538-539 adopted those dicta of Lord Reid in Midland Silicones. 256 Shortly thereafter, in Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1978] HCA 8; 139 CLR 231 (The New York Star), Barwick CJ (at 240) and Mason and Jacobs JJ (at 269 and 276) adopted the four requirements articulated by Lord Reid. The judgment in that case was overturned on appeal to the Privy Council, but not on that point: Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1980] UKPCHCA 1; 144 CLR 300; [1980] 2 Lloyd's Rep 317. The Judicial Committee (at CLR 305; Lloyd's Rep 321) approved what had been said by Barwick CJ about Lord Reid's four requirements. The expression of those requirements is accordingly the law binding on me, as the NSW Court of Appeal has held that it is binding on it: Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1988) 12 NSWLR 730 at 737 per Kirby P (Hope and Clarke JJA agreeing); Carrington Slipways Pty Ltd v Patrick Operations Pty Ltd (1991) 24 NSWLR 745 at 754 per Handley JA (Kirby P and Samuels JA agreeing). 257 There are many other Australian decisions that have followed the principles adopted by a majority of the High Court in The New York Star and affirmed by the Privy Council, including in relation to contracts other than bills of lading and to the benefit of servants, agents or sub-contractors other than stevedores: see, eg, Sidney Cooke Ltd v Hapag-Lloyd AG [1980] 2 NSWLR 587 at [14]-[15] and [22] per Yeldham J; Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606 at 612 per Yeldham J; Life Savers (Australasia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 at 436-437 per Hutley JA (Glass and Mahoney JJA agreeing); Godina v Patrick Operations Pty Ltd [1984] 1 Lloyd's Rep 333 (Hutley, Samuels and Mahoney JJA); Council of the Shire of Noosa v Farr & Ors [2001] QSC 60 at [123]-[127] per Chesterman J; and my decision in Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653 at [101]. 258 In Godina, it was said by Hutley JA (at 336) in relation to the application of a Himalaya clause that "narrow distinctions are not to be drawn". Justice Samuels said (at 338) that "the necessary authority must be deduced in each case from particular evidence" and that "slight evidence will suffice". The defendants submit that that is the approach that I should take.

B. The facts of the present case and conclusion 259 It is common ground that of the four requirements identified by Lord Reid, only the satisfaction of the third requirement is in dispute in this case - Poralu does not press its pleaded point that the Himalaya clause fails for want of consideration. That is to say, Poralu only disputes that Spliethoff Transport was authorised by Rederij Dijksgracht to contract for and on its behalf to protect its interests. The defendants expressly disavow any reliance on ratification which is usually a readily available means of satisfying the authority requirement. Instead, they submit that the contractual arrangements between Rederij Dijksgracht as owners and Spliethoff Transport as pool managers under a pool management agreement and as time charterers under a time charterparty both evidence the requisite authority. Poralu submits that the evidence of the contractual arrangements is too general to provide a firm enough foundation for any positive finding with regard to authority. 260 Ms Hosken-Serpa stated in her third affidavit that the charter arrangements between the Rederijen (ie, the shipowning companies including Rederij Dijksgracht) and Spliethoff Transport are recurring. She explained that each vessel is chartered by the respective owners to Spliethoff Transport on a recurring rolling basis that commences on 1 January each year. She explained that a pro forma copy of a GENTIME time charterparty is kept on Spliethoff Transport's computer system, updated from time to time and accessed there as and when required. 261 She explained that, in accordance with usual practice, when, in 2021, a copy of the applicable charterparty was sought in the preparation of this case, she printed a copy of the relevant form as it was at that time available to her on the system, filled in the relevant details specific to the year in question (2019) and the Dijksgracht, and produced it in evidence. However, that was two years after the relevant year so the form that she produced in evidence is not the applicable form - it includes terms that could only have been included in subsequent years. The existence of the form, and that it had been updated in such a way as to keep it current, nevertheless supports her evidence of there being a system in place within the company for the maintenance of the current charterparty form from time to time. However, it leaves open just what the terms of the form were at the relevant time. 262 Ms Hosken-Serpa also explained that a BIMCO POOLCON Standard Pooling Agreement is maintained on Spliethoff Transport's computer system and that it forms the basis of recurring pool arrangements between the Rederijen and Spliethoff Transport. She produced a version of that agreement dated 1 January 2013 between Rederij Dijksgracht as owners and Spliethoff Transport as pool managers. The agreement refers to the "participating charter" as "GENTIME '94". As there is no GENTIME 1994 form, the only GENTIME form being that first published by BIMCO in 1999, that is clearly enough an error of reference; it was intended to refer to the GENTIME form charter that was maintained by the company on its system. The POOLCON therefore also supports there having been a charter on the GENTIME form at the relevant time. 263 Ms Hosken-Serpa's evidence with regard to the charterparty is supported by Mr Nietzman's evidence. He explained that four times a year, once in each quarter, he and others attend what he described as "the GENTIME meeting" on behalf of Spliethoff Beheer as authorised representative of Rederij Dijksgracht and, I infer, the other Rederijen. At the meeting in December 2018, in accordance with the usual practice, it was agreed that in the following year the vessel would continue to be chartered on the amended GENTIME form that was available on Spliethoff Transport's computer system at that time. The form on the system at that time was not accessed for the purpose of the meeting, although it was available had it been needed. However, it was not needed because the discussion was a general discussion about continuing the arrangement on the GENTIME form. Two arrangements were discussed: one was the chartering of the vessel on the GENTIME form and the other was the management arrangement on the POOLCON form with the former being a "participating charter" in the latter. I understand that it was discussed that both arrangements were to continue the following year. 264 Mr Nietzman explained that the GENTIME charters with the shipowning companies had been in place for years and that that arrangement was accepted by the auditors of the shipowning companies and Spliethoff Transport on a continuing basis. 265 Mr Nietzman produced the minutes of a pool meeting for the 2019 year that was held on 6 February 2020. The meeting was attended by about 20 participating members and a further 30 or more "audience" members. The participating members included members of the independent supervisory board who represent the interests of the independent investors in the many vessels in the pool. The minutes record that in respect of the "D" series ships, of which the Dijksgracht was one, there were eight vessels. Details of the performance of the "D" series ships are recorded. The minutes record the performance of the total pool, and the division of profits for each of the 10 distinct series of ships. 266 The minutes constitute independent corroboration of the fact of the pool arrangement being in place at the relevant time. The presence of shipowning interests independent of the Spliethoff group itself demonstrates that the pooling and chartering arrangements explained in general terms by Ms Hosken-Serpa and Mr Nietzman are not merely some sort of convenient point of reference or charade internal to Spliethoff if and when required, but were intended to govern, and did have real legal effect in governing, the relationships between the different parties. 267 I therefore accept the evidence of Ms Hosken-Serpa and Mr Nietzman that, at the relevant time, there was a POOLCON pooling agreement and a GENTIME time charterparty in place between Rederij Dijksgracht and Spliethoff Transport with respect to the commercial operation and chartering of the Dijksgracht. 268 The witnesses were not challenged on the POOLCON being on the terms as produced by Mr Hosken-Serpa in evidence. I accordingly accept that those were the applicable terms at the relevant time. 269 Although cl 2(d) of the POOLCON provides that the Pool Managers (ie, Spliethoff Transport) shall under no circumstances be considered as if, and the agreement shall not be construed to the effect that the Pool Managers are, the agents of the Participants (ie, the owning companies participating in the pool), it also provides that the Pool Managers shall act as time-chartered Owners (ie, disponent owners) of the Pool Vessels (ie, the vessels participating in the pool). The relevant charterparty is referred to as the Participating Charter identified in Box 5 to the pool agreement as amended in the form of Annex B. In fact, there is no Annex B to the pool agreement that is in evidence, but, as mentioned, the charterparty is identified in Box 5 as "GENTIME 94" which, for the reasons already given, is the amended standard form GENTIME time charterparty maintained on Spliethoff Transport's computer system. I will return to its terms, but for present purposes the point to note is that the prohibition of any general agency contained in cl 2(d) is not only subject to the other terms of the pool agreement, but is also subject to the identified Participating Charter. 270 In any event, the question of authority to contract for the owners' interests is made clearer elsewhere in the pool agreement. Clause 6 provides that the Pool Managers shall, in their own name, enter into various transportation contracts as deemed fit by them and otherwise as set out in cl 8. Clause 8(b) provides that the Pool Managers may enter into any contracts required for the commercial operation, promotion and marketing of the Pool, and cl 8(e) provides that the Pool Managers shall "use all reasonable endeavours to protect and promote the interests of the Pool". 271 It is thus clear that on the terms of the pool agreement, Spliethoff Transport had not only the authority of Rederij Dijksgracht, but also the obligation, to "use all reasonable endeavours to protect and promote the interests of the Pool", which would obviously include contracting for the protection of the Pool Participants. I accordingly find that the pool agreement gave Spliethoff Transport the necessary authority to contract on the terms of the Himalaya clause in the booking note contract (cl 11) to protect the interests of Rederij Dijksgracht so as to enable it to rely on "every exemption, limitation, condition and liberty contained [in the booking note contract] and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Carrier". 272 Turning now to the GENTIME charterparty as an alternative source of authority, the difficulty that Poralu points to is that because its terms were updated, or varied, from time to time and the only version available in evidence is from a few years after the relevant year, there is no certainty as to what the terms were at the relevant time. However, in my assessment Poralu overstates the uncertainty. The relevant clause is cl 18(e) which provides as follows: Agency - The Owners authorise and empower the Charterers to act as the Owners' agents solely to ensure that, as against third parties, the Owners will have the benefit of any immunities, exemptions or liberties regarding the cargo or its carriage. 273 That clause is part of the original clauses in the GENTIME form. It is not deleted in the 2021 version produced by Ms Hosken-Serpa. Poralu's position proceeds on the hypothesis that that original clause might have been deleted in the form of the charterparty as it applied in 2019 but was later un-deleted, or reintroduced, so that it appeared in the 2021 version. I find that to be wholly improbable. The clause is plainly advantageous to the vessel owners, and places no burden on Spliethoff Transport. There is no conceivable reason why it might have been deleted, let alone deleted and then reintroduced. The fact of it being present in the 2021 version is strongly indicative of it having been present in all earlier versions. 274 In any event, cl 21 in the 2021 version produced by Ms Hosken-Serpa itself shows how a clause that has previously been deleted and later reintroduced is produced in the form. Paragraphs (a) and subparagraph (i) thereof appear to have been deleted and reintroduced verbatim and they appear in the form in the following way: (a) For the purpose of this Clause, the words: (i) "Owners" shall include the shipowners, bareboat charterers, disponent owners, managers, or other operators who are charged with the management of the Vessel, and the Master; and … (a) For the purpose of this Clause, the words: (i) "Owners" shall include the shipowners, bareboat charterers, disponent owners, managers or other operators who are charged with the management of the Vessel, and the Master; and If cl 18(e) had, for some reason that entirely escapes commercial sense, been deleted at some time and then later reintroduced as hypothesised by Poralu, one would expect the form produced by Ms Hosken-Serpa to have similar evidence of such editing, of which there is none. 275 In the circumstances, I find that cl 18(e) of the GENTIME form applied as between Rederij Dijksgracht and Spliethoff Transport at all relevant times. It accordingly gave Spliethoff Transport the requisite authority to contract in the interests, and for the protection, of Rederij Dijksgracht. 276 For those reasons, the owners of the vessel are entitled to rely on any limitation available to Spliethoff Transport under the booking note. That limitation is available to the owners in defence of the claims against them in bailment and negligence.

X. SUMMARY AND CONCLUSION 277 To summarise, I have found the following: (1) The contract of carriage as between Spliethoff Transport and Poralu is on the terms of the booking note as sent by Mr Gires to Mr Zuijderduin on 8 November 2019 and accepted by Mr Schweinsbergen to Mr Gires on 20 November 2019. (2) The contract of carriage is subject to Dutch law. (3) Under Dutch law, the Hague-Visby Rules are not compulsorily applicable to the contract of carriage because the "formal" requirement for such applicability under Art 10 is not satisfied, in particular because Ireland is not a Contracting State to the Hague-Visby Rules. It is therefore unnecessary to decide whether the "material" requirement is satisfied, ie, that the contract of carriage was covered by a bill of lading or similar document of title. (4) Notwithstanding the provisional applicability of the Australian Hague Rules under AHR Art 10(2) because none of the relevant conventions are otherwise applicable, the AHR do not apply by operation of Art 10(6) because the contract of carriage is a charterparty and the sea waybill is not a "sea carriage document" within the meaning of Art 1(1)(g). (5) The result is that Spliethoff Transport can rely on the limitation of liability that it contracted for in cl 3(a) of the booking note contract. (6) The owner of the Dijksgracht, Rederij Dijksgracht, can also rely on that limitation of liability because of the operation of the Himalaya clause (cl 11) in the contract of carriage for which Spliethoff Transport had its authority to contract. 278 In circumstances where no submissions or evidence were directed to the question of how many "packages" are the subject of the claim, the form of question 1 is duplicative, and not all the potential bases for liability depend on the contractual limitation clause, I propose to slightly amend the separate questions and answer them as follows: (1) With regard to the limitation of liability regime applicable to the plaintiff's claim in all the circumstances: (a) Is any liability of the carrier limited to £100 per package? - Yes (b) Is any liability of the carrier limited to the present value of £100 of gold in 1924 per package? - No (c) Is any liability of the carrier limited to 666.67 units of account per package or 2 units of account per kilogramme of gross weight of the goods (whichever is the higher)? - No (2) Does the answer to (1) apply equally to the plaintiff's claims in bailment and negligence against the vessel's owner? - Yes. I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.

Sea Act 1991(Cth)s 10(1)(b)(i), Sch

Sea Amendment Act 1997(Cth)

Sea Regulations 1998(Cth)

(Admiralty Act 1988(Cth)

Sea Carriage Documents Act 1997(NSW)

Cases cited: A Meredith Jones & Co Ltd v Vangemar Shipping Co Ltd (No 2) (The Apostolis) [2000] 2 Lloyd's Rep 337 Ahmad v Mitsui Osk Lines [2005] FCA 731; 222 ALR 338 Appleby v Johnson (1874) LR 9 CP 158 Ballas v Theophilis (No 2) [1957] HCA 90; 98 CLR 193 Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396; 82 NSWLR 665 Brown Boveri (Australia) QI Ltd v Baltic Shipping Co (The Nadezhda Krupskaya) (1989) 15 NSWLR 448; [1989] 1 Lloyd's Rep 518 Butt v Long [1953] HCA 76; 88 CLR 476 Carrington Slipways Pty Ltd v Patrick Operations Pty Ltd (1991) 24 NSWLR 745 Carter v Hyde [1923] HCA 36; 33 CLR 115 Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606 Chiswell Shipping Ltd v National Iranian Tanker Co (The World Symphony and World Renown) [1991] 2 Lloyd's Rep 251 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 Commissioner of Taxation v Murray [1990] FCA 83; 21 FCR 436 Council of the Shire of Noosa v Farr & Ors [2001] QSC 60 Dairy Containers Ltd v Tasman Orient Line CV (The Tasman Discoverer) [2004] UKPC 22; [2004] 2 Lloyd's Rep 647 Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013] FCAFC 107; 216 FCR 469 Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Maratha Envoy) [1978] AC 1; [1977] 2 Lloyd's Rep 301 Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159; 102 FCR 464 G Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25 Gardner Smith Pty Ltd v Ship "Tomoe 8" (1990) 19 NSWLR 588 Gibson v Manchester City Council [1979] 1 WLR 294 Godina v Patrick Operations Pty Ltd [1984] 1 Lloyd's Rep 333 International Marine Underwriters v MV Patricia S (SD NY, No 06 Civ 6273 (JFK), 11 January 2007) Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453; 331 ALR 108 Jones v Daniel [1894] 2 Ch 332 Kyokuyo Co Ltd v AP Møller-Maersk A/S (The Maersk Tangier) [2018] EWCA Civ 778; [2018] 2 Lloyd's Rep 59 Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55; 190 CLR 181 Lauritzen Reefers v Ocean Reef Transport Ltd SA (The Bukhta Russkaya) [1997] 2 Lloyd's Rep 744 Life Savers (Australasia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 Love and Stewart Ltd v Rowtor Steamship Co Ltd [1916] 2 AC 527 Metvale Ltd v Monsanto International Sarl (The MSC Napoli) [2008] EWHC 3002 (Admlty); [2009] 1 Lloyd's Rep 246 New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154; [1974] 1 Lloyd's Rep 534 Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1988) 12 NSWLR 730 North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Merits) [1969] ICJ Rep 3 Northern Endeavour Shipping Pte Ltd v Owners of the MV NYK Isabel [2016] ZASCA 89; 2017 (1) SA 25 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 Parsons Corporation v CV Scheepvaartonderneming "Happy Ranger" [2002] EWCA Civ 694; [2002] 2 Lloyd's Rep 357 Parsons Corporation v CV Scheepvaartonderneming Happy Ranger [2001] 2 Lloyd's Rep 530; [2002] 1 All ER (Comm) 176 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1978] HCA 8; 139 CLR 231 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1980] UKPCHCA 1; 144 CLR 300; [1980] 2 Lloyd's Rep 317 Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402; [1954] 1 Lloyd's Rep 321 Quadling v Robinson [1976] HCA 31; 137 CLR 192 Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653 Scruttons Ltd v Midland Silicones Ltd [1962] AC 446; [1961] 2 Lloyd's Rep 365 Sidney Cooke Ltd v Hapag-Lloyd AG [1980] 2 NSWLR 587 T Co Metals LLC v The Federal Ems, 2012 FCA 284; [2014] 1 FCR 836 The President of India v Metcalfe Co Ltd (The Dunelmia) [1970] 1 QB 289; [1969] 2 Lloyd's Rep 476 The Rosa S [1989] QB 419; [1988] 2 Lloyd's Rep 574 The Tychy [1999] 2 Lloyd's Rep 11 Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; 247 FCR 1 US Shipping Limited v Leisure Freight and Import Pty Ltd (in liq) [2015] FCA 347 Yemgas FZCO v Superior Pescadores SA (The Superior Pescadores) [2016] EWCA Civ 101; [2016] 1 Lloyd's Rep 561 Aikens, Sir Richard et al, Bills of Lading (3rd ed, informa law, 2021) Aust A, Modern Treaty Law and Practice (3rd ed, Cambridge University Press, 2013) Bennett H (ed), Carver on Charterparties (2nd ed, Sweet & Maxwell, 2021) Cooke J et al, Voyage Charters (4th ed, informa law, 2014) Foxton D et al, Scrutton on Charterparties and Bills of Lading (24th ed, Sweet & Maxwell, 2020) Korontzis G, "Making the Treaty" in Hollis DB (ed), The Oxford Guide to Treaties (Oxford University Press, 2012) Report of the Marine Cargo Liability Working Group (Marine Cargo Liability Working Group, September 1995) The Travaux Préparatoires of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading of 25 August 1924, the Hague Rules, and of the Protocols of 23 February 1968 and 21 December 1979, the Hague-Visby Rules (Comité Maritime International, 1997) Treaty Section of the Office of Legal Affairs, United Nations, Final Clauses of Multilateral Treaties: Handbook (2003) pp 32-35 Treitel, Sir Guenter and Reynolds FMB, Carver on Bills of Lading (4th ed, Sweet & Maxwell, 2017) Wilford M et al, Time Charters (4th ed, Lloyd's of London Press, 1995) Wilson JF, Carriage of Good by Sea (6th ed, Pearson Education, 2008)

V. WHAT IS THE CONTRACT? 78 It is now settled that the proper law to determine the question of whether a contract was concluded is the law of the forum: Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453; 331 ALR 108 at [106] per Edelman J; Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; 247 FCR 1 at [45]-[46], [83] per Greenwood J and [128] per Beach J (Dowsett J agreeing). 79 Although it is not the exclusive analysis appropriate to determining the formation of a contract, given that whatever the contract was in this case, it was concluded by the consecutive exchange of correspondence, the analysis of offer and acceptance is particularly apt to determine when the contract was struck: Gibson v Manchester City Council [1979] 1 WLR 294 at 297 per Lord Diplock. As Steyn LJ observed in G Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25 at 27, the coincidence of offer and acceptance represents the mechanism of contract formation in the vast majority of cases. That was accepted by Beaumont J in Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159; 102 FCR 464 at [131]. I adopt that analysis. 80 The objective theory of contract requires that the determination of the existence and terms of an offer requires that the words or conduct in question are construed from the perspective of a reasonable person in the putative offeree's position: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [20] and [22]. Once there is an offer that has been communicated to the offeree, acceptance of the offer (or counter-offer) must be a clear and unequivocal acceptance of the terms of the offer or counter-offer: Ballas v Theophilis (No 2) [1957] HCA 90; 98 CLR 193 at 196 per Dixon CJ (in the context of exercising an option); Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396; 82 NSWLR 665 at [69] and [72] per Campbell JA (in the context of exercising an option), and must correspond to the terms of the offer: Carter v Hyde [1923] HCA 36; 33 CLR 115 at 126 per Isaacs J and 133 per Higgins J; Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 at [66] per Tobias JA (dissenting) and [130] per Bryson JA (Spigelman CJ agreeing). If a new term is included or a term is varied in a purported acceptance, there is no contract: Quadling v Robinson [1976] HCA 31; 137 CLR 192 at 201 per Gibbs J. Such a purported acceptance will amount to a counter-offer.

Article 10(a) 141 This element of the formal requirements requires that the bill of lading was "issued in a Contracting State". Poralu contends that the sea waybill was issued by Spliethoff Transport in the Netherlands by email on 6 January 2020, that the electronic signature and nominated place of issue (ie, Cork) are not conclusive of its place of issue and that the issue of the sea waybill was the step of issuing the contemplated bill of lading. On that basis, it says that Art 10(a) is satisfied because, notionally, the bill of lading was issued in the Netherlands. 142 An obvious difficulty arises in trying to determine where a bill of lading was issued when, in respect of the carriage in question, no bill of lading was in fact issued. As mentioned, the absence of any bill of lading having been issued was found not to have defeated the "material" requirement of Art 1(b) that the carriage in question be carriage "covered by a bill of lading" in The Maersk Tangier. That was on the basis that Devlin J had held in Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402 at 419-420; [1954] 1 Lloyd's Rep 321 at 329 (Pyrene v Scindia) that the use of the word "covered" in Art 1(b) recognises the fact that the contract of carriage is always concluded before the bill of lading, which evidences its terms, is actually issued. In that case, the damage had occurred on loading prior to the issue of a bill of lading, and it was held that the carriage was nevertheless "covered" by a bill of lading because the parties had entered into the contract of carriage in the expectation that a bill of lading would be issued to cover it. 143 Similarly, in Parsons Corporation v CV Scheepvaartonderneming "Happy Ranger" [2002] EWCA Civ 694; [2002] 2 Lloyd's Rep 357 (The Happy Ranger EWCA), the contract of carriage incorporated a specimen bill of lading but at the time the damage occurred no bill had been issued. Lord Justice Tuckey (Aldous LJ agreeing) held (at [24]) that it is the fact that the bill of lading is issued or that its issue is contemplated which matters. 144 Returning to The Maersk Tangier, an argument was advanced that even though the carriage was from Spain which was a Contracting Party to the Hague-Visby Rules, Art 10(b) could not be satisfied because no bill of lading was actually issued and, by the chapeau to Art 10, it is provided that the provisions of the Rules shall apply to every bill of lading, ie, in the absence of a bill of lading they could not apply. It was also argued that the reference in Art 4(5)(c) to "the number of packages or units enumerated in the bill of lading" supported the proposition that a bill of lading in fact, as opposed to merely contemplated, was required in order for the Rules to apply. See [65]-[66]. 145 Lord Justice Flaux (Gloster LJ agreeing) rejected these arguments (at [68]ff). His Lordship did so with reference to s 1(4) of the UK Act. Section 1(2) gives the Hague-Visby Rules the force of law. Section 1(4) provides that "nothing in this section shall be taken as applying anything in the Rules to any contract for the carriage of goods by sea, unless the contract expressly or by implication provides for the issue of a bill of lading or any similar document of title". It was held that the clear intention is that where the contract of carriage "expressly or by implication provides for the issue of a bill of lading or any similar document of title", the Rules will apply to that contract and will have the force of law pursuant to s 1(2). It was reasoned that s 1(4) would be superfluous if the issue of a bill of lading were a prerequisite to the application of the Rules. 146 On that basis, it was reasoned (at [69]) that one has to approach the provisions of the Rules themselves on the basis that, because the requirements of s 1(4) (and for that matter Art 1(b)) are satisfied, it is intended that the Rules should have the force of law in a case such as The Maersk Tangier, ie, where it was contemplated that a bill of lading would be issued but in fact none was. It was reasoned that if Art 10(b) and Art 4(5)(c) were interpreted literally as contended, that would clearly frustrate that intention and achieve a result flatly contrary to the decision of the Court of Appeal in The Happy Ranger EWCA. The following was then said: 70 In my judgment, the solution to any apparent conundrum is that these Articles should be given a purposive construction, so as to give effect to the clear intention that the Hague-Visby Rules apply compulsorily to the contract of carriage. Specifically, the references in article X to 'bill of lading' should be read as 'contract of carriage which is covered by a bill of lading or similar document of title', giving effect to the case law on the meaning of 'covered by a bill of lading' in article I(b). Some support for this purposive approach to article X is to be found in the article The Hague-Visby Rules by Mr Anthony Diamond QC in [1978] LMCLQ 225 at page 261 and in the textbooks Scrutton on Charterparties, 23rd Edition (paras 14-010 to 14-012) and Aikens, Bills of Lading 2nd Edition (2015) (para 10.23). 71 Likewise, in my judgment, where, as here, the requirements of article I(b) and section 1(4) of the 1971 Act are satisfied, the reference to enumeration in the bill of lading in article IV rule 5(c) must be read as encompassing any other document which contains the enumeration which would have been in the bill of lading if such a bill had been issued, here the sea waybills. 147 In short, it was held that Art 10(b) can be satisfied even where no bill of lading is issued, and that the reference to "enumeration in the bill of lading" in Art 4(5)(c) can be read as encompassing some other document where no bill of lading is issued. On that basis, it might be said that Art 10(a) can be satisfied even where no bill of lading is issued, and that the reference to "bill of lading" in that paragraph must be read as encompassing some other document, logically the sea waybill in the present case. 148 The first observation is that the Court of Appeal's reasoning that "bill of lading" in Art 10 should be read as "contract covered by a bill of lading", although stated more broadly, in truth can only have been intended to apply to the chapeau to Art 10. That is what the Court was addressing, and such a substitution of words can make no sense in the context of paragraph (a) of Art 10, ie, "the 'contract covered by a bill of lading' is issued in a Contracting State". A further substitution would be required, namely that "issued" was substituted with "concluded". 149 The second observation is that the reasoning of the Court of Appeal turns heavily on giving s 1(4) of the domestic statute that was applicable in that case a purposive construction, which statute is not applicable in the present case. There is also no apparent equivalent in the DCC. The reasoning is distinguishable on that basis. 150 There is nothing artificial in the principal reasoning of Pyrene v Scindia, The Happy Ranger EWCA and The Maersk Tangier that the wording "contract of carriage covered by a bill of lading" includes a contract of carriage where no bill of lading is in fact issued but in respect of which the issue of a bill of lading was contemplated, or in respect of which the shipper had a right to demand a bill of lading. That cannot, however, be said of any reasoning in support of the proposition that Art 10(a) can apply even when no bill of lading is issued. That arises, principally, from the word "issued" in that provision, and its obvious contrast with "covered" in Art 1(b) and Art 3(3) - the provision of a right to demand the issue of a bill of lading could have no operation if the Rules could only apply once a bill of lading had already been issued. 151 It is highly artificial, and indeed an exercise in unrestrained speculation, to identify the place where a bill of lading would have been issued had a bill of lading been issued. The bill of lading was traditionally issued by the master at the load port, although in modern trading it may be issued at the place of business of the carrier or its agents but can be issued anywhere in the absence of any contractual terms to the contrary: see Aikens at [3.37]. 152 In my view, if no bill of lading is issued then Art 10(a) cannot be satisfied. To hold otherwise is too artificial a result. 153 If I am wrong in that conclusion, it becomes relevant to consider where the bill of lading in this case should be regarded as having been issued, even though no bill of lading was issued. My first answer to that question would be that any contemplated bill of lading would most likely be issued in Ireland, being the country of shipment. That is the most obvious and usual place for a bill of lading to be issued. 154 A second answer, if the first answer is wrong, is that, on the reasoning in The Maersk Tangier in relation to Art 4(5)(c), the only obvious existing proxy to the fictitious bill of lading is the sea waybill. That records on its face that it was issued in Cork, Ireland, and the evidence is that it was signed by Doyle on behalf of Spliethoff Transport in Ireland. Notwithstanding that, the plaintiff submits that it was issued to it by being transmitted by email from Mr Zuijderduin in Amsterdam to Mr Vidal in Montpellier on 6 January 2020 (see [75] above). As the Netherlands (with effect from 26 July 1982) and France (with effect from 23 June 1977) both ratified the Visby Protocol, both are Contracting States to the Hague-Visby Rules. On that basis, whether one approaches the matter from the perspective of the bill of lading being issued where it was transmitted from or from the perspective of where it was received on behalf of the shipper, Art 10(a) would be satisfied. 155 However, I am not persuaded that a bill of lading can be regarded as having been issued with reference to from or to where it was transmitted by email. The learned authors of Aikens express the view that "issued" refers to the place where signature or authentication of the carrier occurs: at [11.26]. I agree. The issue of a bill of lading is a unilateral, not a bilateral act. Thus, the place of issue of a bill of lading may be a different place to where the bill of lading is given to the shipper: see Treitel, Sir Guenter and Reynolds FMB, Carver on Bills of Lading (4th ed, Sweet & Maxwell, 2017) at [9-080]. Given that modern commerce is principally conducted by electronic communication in circumstances where the individuals concerned might, at any particular time, be just about anywhere, it would lead to intolerable uncertainty if the place of issue of a bill of lading depended on where a particular person was at any given time when they sent or received an email. In my view, the relevant document must be regarded as issued where it is stated in it to have been issued, and in the absence of such a statement then where it was in fact signed or authenticated. 156 The plaintiff contends that such an approach should be avoided because it would enable a carrier to evade the application of the Rules by deliberately issuing the bill of lading in a non-Contracting State. The first observation is that that would only be effective if neither Art 10(b) nor (c) applied, which rather reduces the possibility of the mischief that the plaintiff identifies. 157 Secondly, Art 10 of the Hague Rules contains only the equivalent of what is Art 10(a) of the Hague-Visby Rules, ie, Art 10 was amended to include (b) and (c). Article 10 of the Hague Rules was not enacted in English law because, in that form, it was understood that the Rules could be evaded on a shipment out of a Contracting State by the expedient of issuing the bill of lading in a non-Contracting State: Carver on Bills of Lading at [9-080]. In other words, avoidance of the very risk that the plaintiff identifies as a reason to construe "issued" in Art 10(a) in the Hague-Visby Rules as a bilateral act is the risk identified in relation to Art 10 of the Hague Rules when it was given force in English law, and which risk was limited by the Visby amendments. 158 Also, there is nothing in the debates on Art 5 of the Visby Protocol which amended Art 10 of the Hague Rules that suggests that any delegation regarded or understood "issued" in this context to refer to anything other than the unilateral act of the carrier signing the bill of lading: see The Travaux Préparatoires of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading of 25 August 1924, the Hague Rules, and of the Protocols of 23 February 1968 and 21 December 1979, the Hague-Visby Rules (Comité Maritime International, 1997) pp 684-741. The plaintiff's construction is thus contrary to what would appear to be the common international understanding, and I reject it. 159 In the result, however I approach the matter, my conclusion is that Art 10(a) is not satisfied.

B. The Australian Hague Rules 185 The Australian Hague Rules were introduced into COGSA by the Carriage of Goods by Sea Amendment Act 1997 (Cth) and the Carriage of Goods by Sea Regulations 1998 (Cth), and amended - in irrelevant respects for present purposes - by the Carriage of Goods by Sea Regulations 1998 (No 2) (Cth). Much of the history is canvassed by Rares J in Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013] FCAFC 107; 216 FCR 469 at [29]-[38]. 186 The Explanatory Memorandum to the Carriage of Goods by Sea Amendment Bill 1997 (Cth) explains that COGSA at that time gave effect in Australia to the Hague-Visby Rules but that the Hamburg Rules, which are more favourable to shippers, would come into force in Australia on 20 October 1997. The Bill would remove the trigger for implementing the Hamburg Rules and replace it with a mechanism for regular review of the situation regarding the international adoption of the Hamburg Rules. That was because general international practice was based on the Hague-Visby Rules and Australia's major trading partners operated under those Rules rather than the Hamburg Rules. 187 The Explanatory Memorandum further explains that there had been a vigorous debate between shipper interests proposing the implementation of the Hamburg Rules and carrier interests opposing it. The view emerged that while the existing arrangements had some deficiencies, there were also drawbacks to the Hamburg Rules. That was with regard to the drafting of the Rules themselves and because Australia's major trading partners had not adopted them. In October 1994, both Houses of Parliament passed resolutions to defer the question of acceptance or repeal of the Hamburg Rules for another three years. Discussions were to continue with industry to develop a regime providing fair and reasonable protection for both shippers and carriers. 188 The Cargo Liability Working Group was established in 1995 to examine the issues involved in the debate and make recommendations to improve the cargo liability regime for Australian shippers. The Working Group included representatives of shippers, carriers, shipowners, marine insurers and marine law groups. In October 1995, the Report of the Marine Cargo Liability Working Group (Marine Cargo Liability Working Group, September 1995) was presented to leading representatives of the industry interests concerned, which endorsed a package of measures. The industry-agreed compromise, which was the basis of the amendments, was based on the view that it was not appropriate that Australia adopt the Hamburg Rules at that time, but that various amendments should be made to COGSA to enhance the extent of the protection afforded to Australian shippers of marine cargoes. The Explanatory Memorandum explains that peak bodies representing carriers, the Australian Shipowners' Association (ASA) and the Australian Chamber of Shipping (ACOS), agreed to the industry-initiated package that gave rise to the Bill. It was provided that changes to the Hague-Visby Rules that are made applicable by COGSA would be made by way of regulations following consultation with industry in order to broaden the protection provided to Australian shippers. 189 The Report reveals that one of the issues of concern in the debate between shipper and carrier interests was the question of extending coverage of the Rules to importers. It was explained that because "COGSA is premised on the 'country of export' rule, the issue for importers was not really one of the port of loading, but of possible exposure to unfavourable regimes where no conventions exist or liability limits are very low" (p 13). The shipper interests advocated legislating that where the country of origin is not a signatory to an international convention or the bill of lading does not otherwise provide for an international convention to apply, then Australian law would apply (p 13). Marine insurer interests identified that the "essential problem with the existing regime was lack of consistency in the way in which overseas countries had incorporated the Hague or Hague-Visby Rules into their domestic legislation" which led to "great inconsistency in the amounts Australian importers could expect to receive in the event of loss or damage to his cargo" (p 14). It was said that by making imports, as well as exports, subject to COGSA, a minimum and consistent recoverable amount would be set (p 14). 190 Relevantly, the discussions were summed up as follows (p 14): [T]he group saw merit in trying to provide cover where there is none now. However, coverage of importers might be a compromise item. The same coverage as exporters receive may not be available for importers if the regime of the country of origin was less protective of shippers than was Australia's, but a gap could be filled where that country was party to no regime. Appropriate drafting would be crucial if this avenue were to be pursued. 191 The recommendation of the Working Group was as follows (p 41): If Australian importers can be provided with greater protection, this should be done. The Carriage of Goods by Sea Act should specify that, where the contract of carriage does not incorporate one of the international conventions, importers' contracts of carriage are covered by the international convention in force in the Act. Appropriate drafting would be crucial if this avenue were to be pursued. 192 From that synopsis, it is apparent that the underlying objective of the Working Group with regard to the issue presently under consideration was to achieve for Australian importers the application of the Australian Hague Rules where no international liability regime otherwise applied. That was in order to prevent carriers from excluding or lessening their liability beyond that allowed by one or other of the international conventions when the terms of such a convention did not otherwise apply. That is the quality of "uniformity" that was proposed. 193 The Report also reveals that one of the points of discussion was whether the arrangements affecting charterparties needed to be changed (p 6). However, there is nothing in the Report with regard to the concerns underlying that issue, any proposals that were made by different interests or any recommendations by the Working Group. The Report thus appears not to say anything of particular relevance with regard to charterparties. 194 As mentioned, after the amendments to COGSA by the Amendment Act there were industry consultations which led to the Regulations which contained the Australian modifications to the Hague-Visby Rules. The Explanatory Statement to the Regulations explains that drafts of the Regulations were circulated to industry interests for comment and subsequent modification. Representatives of those interests, encompassing shippers, carriers, marine insurers and marine law groups, were involved in the development of the industry package. Responses received from the industry interests indicated that there was general agreement that the text of the final draft was appropriate. (See the Explanatory Statement at p 2.) 195 Specifically with regard to Art 10 of the Australian Hague Rules, the Explanatory Statement relevantly states as follows (pp 6-7): Rule 2 applies the amended Hague Rules (as modified) to a limited category of import cargoes. Where an international convention listed in Rule 3, or a national modification of such a convention, does not apply, the COGSA will cover such cargo. … Rule 6 exempt goods carried under a charterparty from the amended Hague Rules (as now modified), unless a sea carriage document, as defined in Article 1, is issued. 196 Further, under the heading "Impact analysis" of the Regulatory Impact Statement attached to the Explanatory Statement, the following is stated (at pp 8-9): The industry-agreed compromise will maintain the Hague Rules basis of the COGSA, thus maintaining compatibility with the regimes of our major trading partners, while broadening the protection the COGSA provides to Australian shippers, in some ways similarly to the intent of the Hamburg Rules. The Regulations will increase the range of circumstances under which carriers will be made liable for loss or damage to marine cargoes, but not the maximum liability levels. Peak bodies representing carriers, the Australian Shipowners' Association (ASA) and the Australian Chamber of Shipping (ACOS), have agreed to the industry initiated package. 197 Against that historical backdrop, I turn to the questions at hand.

C. The Art 10(2) question 198 The defendants submit that the Australian Hague Rules are not applicable under this provision because the contractual incorporation of Arts 1 to 8 of the Hague Rules amounts to giving effect by agreement to the Hague Rules, referred to as the Brussels Convention in AHR Art 10(3)(a). The defendants submit that the omission of Arts 9 to 16 of the Hague Rules from contractual incorporation and the effective modification of Art 4(5) to provide that £100 is a reference to the lawful currency of the UK and not gold value is not so significant a change to the Hague Rules so as to mean that those Rules are not "in substance" applicable. They submit that AHR Art 10(2) requires only that the Hague Rules are "in substance" applicable in order to displace the application of the AHR. 199 Articles 10 to 16 of the Hague Rules are provisions peculiar to inter-State relations, and cannot meaningfully have application between parties to a contract of carriage. There is therefore little significance in the omission of those rules from contractual incorporation. However, Art 9 is the gold clause which provides, as mentioned, that the monetary units mentioned in the Rules "are to be taken to be gold value". That includes the reference to "100 pounds sterling per package or unit" in Art 4(5). It is common ground that that refers to the gold value of £100 or the equivalent of that value in other currency in 1924: Brown Boveri (Australia) QI Ltd v Baltic Shipping Co (The Nadezhda Krupskaya) (1989) 15 NSWLR 448; [1989] 1 Lloyd's Rep 518 at NSWLR 464; Lloyd's Rep 529 per Kirby P and NSWLR 471; Lloyd's Rep 533 per Hope JA (McHugh JA agreeing); The Rosa S [1989] QB 419; [1988] 2 Lloyd's Rep 574. 200 On my rough estimate, the present value of £100 of gold in 1924 is approximately £38,167, ie, some 380 times more than the current value of £100 lawful currency of the UK. Whether or not that calculation is correct, there is no doubt that the contractually incorporated provisions are considerably more favourable to the carrier than what the position would have been if the Hague Rules had applied in an unmodified form - as the fact of the dispute in this case well illustrates. In Dairy Containers Ltd v Tasman Orient Line CV (The Tasman Discoverer) [2004] UKPC 22; [2004] 2 Lloyd's Rep 647 at [11], Lord Bingham said that the marked depreciation in the value of the pound sterling over the 80 (now 98) year period since the Hague Rules were adopted means that "the practical effect of art IX has become increasingly great" (emphasis added). 201 The question immediately to hand is accordingly whether that great difference between the contractually incorporated provisions and the Hague Rules is such as to render the contractually incorporated provisions other than what is contemplated by AHR Art 10(2). 202 The starting point in the analysis is the text of the rule in question. A modification of one of the referred to Conventions might still be regarded as applying the Convention if the modification is "by the law of a Contracting State". Spliethoff Transport's modification is not covered by that wording. There is no provision for a modification by contract. 203 Further, the apparent intent of the provision in question is to apply the Australian Hague Rules to carriage into Australia if one of the international Conventions, whether in its adopted form or as modified by the law of a Contracting State - as Australia has done by its Australian Hague Rules - does not otherwise apply. The purpose is to promote international uniformity and to avoid carriers exploiting gaps in the applicability of the Conventions by excluding or lessening their liability in ways contrary to the Conventions, which is exactly what Spliethoff Transport has sought to do in the present case. 204 I reach that conclusion even without reference to the history canvassed above, but the history makes the position particularly clear. The extrinsic material referred to is available to be considered under s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth) to confirm the meaning of the provision as the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act. The Report of the Working Group was apparently not laid before either House of Parliament, and may not have been furnished to members by the Minister, as contemplated by s 15AB(2)(b). However, the list of materials in sub-s (2) is not exhaustive. That is made explicit by the chapeau, which states that sub-s (2) does not limit the generality of sub-s (1). See also Commissioner of Taxation v Murray [1990] FCA 83; 21 FCR 436 at 448-449 per Hill J (Sheppard J agreeing). 205 The Report is referred to in the Explanatory Memorandum to the Bill and the Explanatory Statement to the Regulations, as well as in the second reading speeches. In that sense it has a special status in relation to the legislation, and logically can have a bearing on the purpose behind it. The Report explains the agreed position between different interests in the industry as to the justification for the amendments in 1997 and 1998. It is part of the admissible context to discern the mischief that the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408. In the circumstances, it is material "capable of assisting in the ascertainment of the meaning of the provision" within the meaning of s 15AB(1). 206 The defendants seek to avoid that conclusion by submitting that the wording "or otherwise has effect in relation to the carriage" in AHR Art 10(2) would have no work to do if it did not allow a partial incorporation by contract of one of the Conventions as being sufficient to displace the application of the Australian Hague Rules. They submit that it is difficult to conceive of any situation in which the whole of one of the Conventions could apply other than "by agreement or by law", so the wording in question must contemplate a different situation. They say that one such situation is where the Hague Rules have effect in relation to the carriage because they are partially incorporated into the contract. 207 I am not persuaded by that submission. The partial incorporation is still an incorporation by agreement, and it is also not giving the Hague Rules "effect in relation to the carriage" - it is only partially giving those Rules effect. Modifications are dealt with expressly, being, as mentioned, modifications made by the law of a Contracting State, which weighs against an argument that contractual modifications are allowed, either under the wording in question or otherwise. 208 The short point is that contractual modifications that lessen the liability of the carrier from that which it would be under one or other of the Conventions is what the provision seeks to avoid. If the defendants' submission were correct, then the contractual incorporation of even substantially amended provisions of a Convention - as in the present case considering the substantial difference between £100 and its gold value in 1924 - would be sufficient to exclude the application of the Australian Hague Rules. That cannot be the intention. Indeed, the intention is precisely the opposite. There is also the difficulty of where and how to draw the line - how much modification is to be regarded as within the meaning of the wording and how much modification is too much so as to take it outside the wording? 209 I am prepared to accept in the defendants' favour that a minor or insignificant modification by contract of a Convention that is otherwise incorporated will result in the Convention applying "in substance" (the defendants' terminology) with the resultant exclusion of applicability of the Australian Hague Rules. That is particularly where the modification does not lessen the liability of the carrier from what it would be under the unmodified Convention in question. However, the modification in the present case is not such a modification. It very significantly lessens the liability of the carrier. It is also not the equivalent in national currency of the limitation amount "indicated in [the] Convention … in round figures" as contemplated by Art 9. It is therefore not a modification that could be made by a Contracting State under Art 9, so there is no reason to suppose that it was contemplated that a carrier could make such a modification with the result that the Hague Rules would nevertheless be regarded as applying under AHR Art 10(2). 210 It is not apparent just what "or otherwise has effect" refers to, being other than application "by agreement or by law". There are two points of difference, namely "effect" rather than "applies" and by some mechanism other than by agreement or law. Perhaps the words have little or no effect and were included only out of an abundance of caution, or to cater for unknown or unforeseen mechanisms of effect in foreign legal systems. In any event, they do not assist the defendants. 211 My view is not shaken by the defendants' reliance on Ahmad v Mitsui Osk Lines [2005] FCA 731; 222 ALR 338 at [72]-[81]. There, Emmett J dealt with a situation where cl 5(1)(a) of the bill of lading incorporated Arts 1-8 of the Hague Rules, and cl 6(1) then provided as follows: If the Hague Rules are applicable by national law, the liability of the Carrier shall in no event exceed the limit provided in the applicable national law. If the Hague Rules are applicable otherwise than by national law, the liability of the carrier shall in no event exceed 100 pounds sterling per package or unit. 212 It was common ground that the Hague Rules were not applicable by national law. It was also apparently accepted by Emmett J that the Hague Rules by cl 5(1)(a) were applicable "otherwise than by national law", with the result that the provision of cl 6(1) that the liability of the carrier shall in no event exceed £100 per package or unit applied (at [81]). The defendants submit that that reasoning is transferable to the present case, such that the wording "or otherwise has effect in relation to the carriage" in Art 10(2) covers the contractual incorporation of part of the Hague Rules. 213 In my view, the reasoning in that case is inapplicable. First, it is clearly obiter as his Honour had already held (at [68]) that the carrier was not liable at all as the applicant had no title to sue. Consideration of limitation only arose against the possibility that that conclusion was wrong. Secondly, Emmett J did not make a finding that the Hague Rules "were applicable otherwise than by national law" notwithstanding their modified incorporation by the contract, but rather assumed or was prepared to accept that to be the case for the purpose of the argument. The real question at stake was the need to reconcile different provisions of the contract covering the same issue that employed different words, namely the provision in the incorporated Art 4(5) that neither the carrier nor the ship shall "in any event" be liable for more than £100 per package or unit and the provision in cl 6(1) that, if the Hague Rules were applicable otherwise than by national law, the liability of the carrier would "in no event" exceed £100 per package or unit. That is a markedly different situation to the present where no need for reconciliation within any one instrument arises. 214 The defendants advance an alternative submission. They say that if the effect of the omission of Art 9 of the Hague Rules from the contract and the inclusion of the provision in cl 3(a) that "liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit" would have the result that that limitation was invalid by the application of the Australian Hague Rules, in particular Art 3(8), those provisions should be given no effect. The result would be, so the submission goes, that the incorporation of Art 4(5) of the Hague Rules would have the result that the limitation amount would be "100 pounds sterling per package or unit" which, in order again to avoid invalidity, should be interpreted as being gold value. The defendant submits that that result is reached by application of the principle that a contractual provision should be construed in a manner that makes it enforceable rather than unenforceable. 215 This submission suffers from its circularity. It says that if the inclusion of certain provisions in the contract would have the effect that the AHR apply, which would in turn have the effect that those provisions would be invalid, then the provisions should be given no effect so that the AHR do not apply. But if the AHR do not apply, then there is no reason for the provisions to have no effect, and if the AHR do apply then the remaining provision with regard to the limitation amount would also be invalid as lessening the liability of the carrier relative to Art 4(5) of the AHR. This is a novel, and unworkable, application of the principle that the defendants pray in aid. 216 In any event, the principle in question, reflected in the maxim verba ita sunt intelligenda ut res magis valeat quam pereat, ie, words should be construed in such a way as to render the transaction valid rather than destroyed, only finds application if, after application of the ordinary rules of construction, there is an ambiguity: Butt v Long [1953] HCA 76; 88 CLR 476 at 487 per Dixon CJ - "a restrictive interpretation of general words is not to be adopted simply to save a covenant or agreement from invalidity". There is no relevant ambiguity in the provision in cl 3(a) that "liability shall in no event exceed £100 (GBP) sterling lawful money of the United Kingdom per package or unit" and therefore no basis for recourse to the principle. 217 For those reasons, under s 10(1)(b)(i) of COGSA and AHR Art 10(2), but subject to Art 10(6) which I will consider next, the AHR apply to the carriage in question.

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