Case: Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd [1993] FCA 133 ; (1993) 117 ALR 507
Outcome: considered
to the first respondent's submissions, Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd [1993] FCA 133 ; (1993) 117 ALR 507 ('Hunter Grain') does not support the first respondent's position. Hunter Grain was a decision of Sheppard J in a matter in which the Court had jurisdiction under the Admiralty Act 1988 (Cth). There were two defendants, the second being a company identified by the abbreviation 'Malaysian' and the first was Hyundai Merchant Marine Co Ltd ('Hyundai'). The second defendant owned the ship known as the 'Bunga Kenanga' and the first defendant was the charterer of that ship. The ship was also the subject of a voyage charter made between the first defendant and PS International Ltd of Indiana in the United States of America. The case concerned the shipment of 3,352 tonnes of soyabean meal in bulk from Portland, Oregon, in the United States, to Brisbane. When the soyabean meal was loaded on to the ship it became contaminated by the introduction of a substantial quantity of soda ash (sodium carbonate) into the hold. The problem arose because there was a residue of soda ash in the loading equipment used to load the ship. The shipper, PS International Ltd, was the vendor of the soyabean meal. A clean bill of lading was signed by a person designated at 'Authorised Rep of Carrier or Master'. Under the heading 'Consignee' were typed the words 'To Shippers Order'. The plaintiff, Hunter Grain Pty Limited, was the party to be notified of the arrival of the ship. The bill of lading was endorsed to the plaintiff. Accordingly, it had transferred to it and vested in it all rights of action in respect of the goods as if the contract contained in the bill of lading had been made with it. Sheppard J held that the trade practices cause of action must fail because relevantly, the conduct of the first defendant and its agent concluded when the 'Authorised Rep of Carrier or Master' signed the bill of lading on behalf of the first defendant and sent it to the vendor, PS International Limited's forwarding agents in the United States. The conduct said to be misleading or deceptive of which the plaintiff complained, so far as it concerned each of the defendants, was undertaken entirely in the United States. PS International Ltd was not a defendant. Whilst it was open to the Court to impute to Hyundai knowledge that the bill of lading would be used by the shipper to obtain payment for the cargo and Hyundai's employees and agents knew that it was important that the bill contain a clean receipt, otherwise the bank would not pay under the letter of credit, Sheppard J held that the relevant wrongful act in relation to the bill of lading was committed by PS International Ltd when it proffered the bill of lading to the plaintiff and its bank, which events did occur in Australia. The present case is not one where the entirety of Fujitsu Limited's wrongful conduct, assuming it to be wrongful, occurred in Japan or other places in the world outside Australia. It was in Australia that Fujitsu Limited made its brochures, whether printed in the United States of America or Japan, available for proliferation amongst potential purchasers of Fujitsu MPG3 hard disk drives. The final submission of the first respondent was to the effect that conduct engaged in by Mr Rixon in providing brochures about Fujitsu MPG3 hard disk drives and the making of representations in relation to them could not be said to be conduct engaged in on behalf of Fujitsu Limited. Even if this were correct, it would not assist the first respondent given that it made the brochures about Fujitsu MPG3 hard disk drives available in Australia to Fujitsu Australia Limited for proliferation amongst potential purchasers of its MPG3 hard disk drives.