mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Comandate Marine v Pan Australia Shipping Pty Limited [2006] FCAFC 192 ; (2006) 157 FCR 45
Outcome: cited
I should apply The 'Antonis P Lemos' in this regard. All the reasoning of Lord Brandon is equally applicable to s 4(3)(f). I would only add the following remarks. Given the need for the 1952 Convention to apply to a wide variety of legal systems and given the capacity of maritime claims to arise by reference to chartering and carriage arrangements often of some complexity, it would make little practical sense to limit the types of claims to which this paragraph was directed to contractual claims between parties to the agreement. Secondly, the provision is one in which jurisdiction is given to a court. It should be read liberally: The 'Shin Kobe Maru' 181 CLR at 421. Thirdly, The 'Antonis P Lemos' was recently applied by a Full Court of this Court, though in a different context: that of construing an arbitration clause containing the phrase "arising out of", in Comandate Marine v Pan Australia Shipping Pty Limited [2006] FCAFC 192 ; (2006) 157 FCR 45 at 89 [171] . The Full Court, though in that different context, gave the same wide meaning to the phrase "arising out of"': Comandate Marine v Pan Australia 157 FCR at 87-91 [162]-[176]. 41 Thus, for these reasons, the fact that the plaintiff's claim is in tort and bailment does not mean that it cannot arise out of an agreement of the character described in s 4(3)(f). 42 Lord Brandon then went on to reject the second contention of the owners propounded by Mr Saville QC, that even if claims in tort were covered, only those which were "directly connected" with an agreement covered by the provision (that is one that related to the carriage of goods in a ship) and that such agreement was one between the plaintiff and defendant. His Lordship rejected this argument for the reasons Parker LJ had rejected it in the Court of Appeal: see, in the Court of Appeal, [1985] AC at 715-720, and in the House of Lords, [1985] AC at 732. That reasoning and Lord Brandon's reasoning and conclusions on both contentions permit the following to be stated: the claim which may be non-contractual need only arise out of, in the sense of be connected with, some agreement having the relevant relationship with the carriage of goods in a ship (or other relational fact in s 4(3)(f)) even if that agreement is one to which the plaintiff is not a party. Thus, in The 'Antonis P Lemos' the claim in tort could be seen to arise out of, that is be connected with any and all of the sub-sub-voyage charter, the sub-time charter and the head time charter.
Case: Elbe Shipping SA v The Ship 'Global Peace' [2006] FCA 954 ; (2006) 154 FCR 439
Outcome: referred to
Jurisdiction is conferred upon the Court in respect of proceedings commenced (as this one was) as actions in personam on a maritime claim: s 9(1)(a) of the Act. As to the maritime jurisdiction conferred on the Court by the Act, see Elbe Shipping SA v The Ship 'Global Peace' [2006] FCA 954 ; (2006) 154 FCR 439 at 451-460 [53] - [76] . The fact that the events took place in the United Kingdom does not affect the question of jurisdiction. The Act confers jurisdiction irrespective of the place where events took place: s 5 of the Act, " all maritime claims, wherever arising" ; see this respect The 'Global Peace' 154 FCR at 454 [58].
Case: Hewlett Packard Australia Pty Limited v G E Capital Finance Pty Limited (2003) 135 FCR 200 
Outcome: cited
The second consideration is that provisions conferring jurisdiction or granting powers to courts should be interpreted liberally and without imposing limitations not found in the express words: The 'Shin Kobe Maru' 181 CLR at 421 and see the numerous other High Court authorities to like effect referred to in Hewlett Packard Australia Pty Limited v G E Capital Finance Pty Limited (2003) 135 FCR 200 at 264 [187].
Case: Hines Exports Pty Limited v Mediterranean Shipping Co [2000] SADC 71
Outcome: cited
The Planetwide bill was expressed to be negotiable. If it had been negotiated (which it does not appear to have been) it may be that its terms evidenced the contract of multimodal transportation between Planetwide and the third party. Here, there is no satisfactory evidence as to the terms of any contract between Planetwide and Mr Seymour (or the plaintiff) at the time the car was delivered to the defendant and damaged: cf Pyrene Company Ltd v Scindia Steam Navigation Company Ltd [1954] 2 QB 402 at 413-414; Teys Bros (Beenleigh) Pty Limited v ANL Cargo Operations Pty Limited [1990] 2 Qd R 288 at 295; Hines Exports Pty Limited v Mediterranean Shipping Co [2000] SADC 71 ; and see generally Davies M and Dickey A Shipping Law (3 rd Ed) at 195-196.
Case: Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287
Outcome: followed
It is, of course, necessary to deal with jurisdiction first: Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287 at 289-90 [13] - [14] . Before coming to s 4(3) of the Act it is necessary to set out what the evidence discloses of the facts. It should be said at the outset that the issues have been canvassed without a trial and on interlocutory evidence (some of which was unsatisfactory and inadmissible). 6 The jurisdiction of the Court is conferred by laws of the Commonwealth Parliament. The Court only has jurisdiction here if the plaintiff's claim is a general maritime claim under the Act, such that the claim for damages in bailment and tort can be seen as a claim in federal jurisdiction, in the exercise of the Court's Admiralty and maritime jurisdiction, having its source in s 76(iii) of the Australian Constitution . 7 The evidence is sufficient for me to conclude that the Court has jurisdiction on the basis that the plaintiff's claim is a general maritime claim of the legal character set out in s 4(3)(f) of the Act, being a claim " arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise ".
Case: Mathew Short &amp; Associates Pty Limited v Riviera Marine (International) Pty Limited [2001] NSWCA 281 
Outcome: cited
There would be a number of difficult questions that would arise if one could be clear about what terms governed the relationship between Planetwide and the defendant. It is unclear in Australia whether The 'Pioneer Container' is applicable to quasi-bailment as distinct from true sub-bailment where the bailee, sub-bailor obtains possession, before the sub-bailment: cf Mathew Short &amp; Associates Pty Limited v Riviera Marine (International) Pty Limited [2001] NSWCA 281. Secondly, it is unclear on the evidence that the plaintiff consented to the terms of the sub-bailment. It is certainly not possible on the evidence to conclude that any terms of the defendant directly bound the plaintiff from anything that passed to or from him, or Mr Seymour.
Case: Norfolk Southern Railway Co v James N Kirby Pty Limited 545 US 114 (2004)
Outcome: discussed
The above conclusion is even stronger once one appreciates that the agreement was in fact Planetwide's method of performance of its obligations undertaken in the house bill (though issued in August) to transport, as carrier, the goods to Australia (including a leg by sea) from the defendant's premises in North Weald (being the place of receipt on the bill). There are difficulties and some controversy about the status of the so-called house bills issued by freight forwarders or non-vessel owning contractual carriers (NVOCCs): compare Carrington Slipways Pty Limited v Patrick Operations Pty Limited (1991) 24 NSWLR 745 at 751-753 and Comalco Aluminium Ltd v Mogal Freight Services Pty Limited (1993) 113 ALR 677 as to the different views of Handley JA and Sheppard J, respectively, as to the characterisation of house bills of freight forwarders. As to the role of such bills, see Norfolk Southern Railway Co v James N Kirby Pty Limited 545 US 14 (2004) and the discussion in Treitel G and Reynolds F Carver on Bills of Lading (2 nd Ed) at 548-49 [9-103] and the other cases and articles there cited. Notwithstanding those difficulties, there can be little doubt that a freight forwarder can agree with a shipper or consignor to perform the duties of a carrier, including a sea carrier, even though it will not be in possession of the goods while they are on the water. The Planetwide bill here made clear that Planetwide was issuing the bill as principal. Although issued after the events, it reveals that the defendant was carrying out duties that were in fact undertaken by Planetwide as part of a multimodal carriage. 55 Whilst there was no argument about the reach of s 76(iii) of the Constitution before me (as there could not have been without the issue of notices under the Judiciary Act 1903 (Cth), s 78B) , I am fortified in my conclusion that the circumstances here fell within s 4(3)(f) and thereby necessarily within the reach of s 76(iii) by reference to Norfolk Southern Railway Co v James N Kirby Pty Limited 543 US 14. There the Supreme Court was under no doubt that a dispute arising from a freight forwarder's contract for combined land and sea transportation (the accident happening during railroad carriage in the United States) was part of maritime jurisdiction for Art 3 sec 2 of the United States Constitution (in identical terms to s 76(iii)). See in particular at 543 US at 26 for a discussion and rejection of the lower federal courts decisions spatially dividing multimodal transport. 56 The claims for summary dismissal and stay are both based on the asserted clear incorporation into the relationship between the plaintiff and the defendant of terms that provide for a time bar period that has been exceeded, or an exclusive jurisdiction clause nominating the courts of England as the only forum.
Case: Owners of MV 'Iran Amanat' v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130 
Outcome: discussed
The third consideration is a particular aspect of the importance of the context provided by the ALRC Report. In Owners of MV 'Iran Amanat' v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130 at 138 the High Court in a joint judgment (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) stressed the importance of the background of English legislation and authority and any settled international construction: The Australian legislation having been enacted against the background of English legislation and authority set out above, the definition of "relevant person" should be understood as having the same meaning as the courts had given to the corresponding words in the English statute. When the Parliament has enacted legislation, affecting the subject of international shipping, and followed a statutory precedent from overseas which has by then received a settled construction, there is every reason to construe the statutory language in the same way in this country unless such construction is unreasonable or inapplicable to Australian circumstances. ...
Case: Owners of Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404
Outcome: applied
The relevant question to address is whether the assertions of right or interest recognised by law and carrying an entitlement to relief made by the plaintiff in the application and statement of claim (being the claim of the plaintiff) have (and has) the legal character of that which is set out in s 4(3)(f): Owners of Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 422 and 426; and The 'Global Peace' 154 FCR at 459-60 [73]-[76]. 23 This task is to be undertaken with the meaning and content of s 4(3)(f) understood. 24 Mr Cutler for the defendant submitted, in a careful and clear argument, that the claim of the plaintiff did not "arise out of an agreement that relates to the carriage of goods by a ship". First, he stressed that the events in question concerned the loading of the container prior to the land leg of the transportation the carriage to Tilbury. The liability was not said to arise from any contract under which sea carriage would occur. The defendant was merely the sub-contractor of Planetwide, which caused damage to the goods while loading the container 30-40 kilometres from the port.
Case: Port of Geelong Authority v The 'Bass Reefer' (1992) 37 FCR 374
Outcome: followed
Mr Cutler argued that the correct approach to the interpretation of s 4(3)(f) could be found in Port of Geelong Authority v The 'Bass Reefer' (1992) 37 FCR 374 at 380-82 in which case Foster J adopted the approach of Lord Keith of Kinkel in Gatoil International Inc v Arkwright-Boston Manufacturers Mutual Insurance Co [1985] AC 255 at 270-71 and said that the relationship connoted by the words "that relates to" in s 4(3)(f) must be "some reasonably direct connection". The same passage from Lord Keith's speech in Gatoil [1985] AC at 270-71 was cited with apparent approval by Gummow J in Empire Shipping Company Inc v Owners of the Ship 'Shin Kobe Maru' (1991) 32 FCR 78 at 95 (at first instance). 26 Mr Cutler submitted that the claim did not arise out of an agreement, since the claim was pleaded only in bailment and tort. He also submitted that there was an insufficiently direct connection between any relevant agreement (if there were one) out of which the claim arose and the carriage of goods by a ship to satisfy the test laid down in The 'Bass Reefer' 37 FCR 374. 35 Thus, both Gatoil and The 'Antonis P Lemos' can be seen as unanimous decisions of the final court of appeal in the United Kingdom interpreting domestic legislation having its origins in an international convention, one aim of which was to bring uniformity of approach among different legal systems. The existence of those decisions, the desirability of international uniformity, or at least broad consistency, and an expressed suggestion by the ALRC (which was heeded) that Parliament follow the wording of the 1981 UK Act, which had been (recently) interpreted (as well as the antecedent provision in the 1956 UK Act) by the House of Lords in Gatoil and The 'Antonis P Lemos' necessarily constrain the interpretation of s 4(3)(f), certainly at first instance. Further, two judges, of this Court (Foster J in The 'Bass Reefer' and Gummow J in The 'Shin Kobe Maru' ) at first instance have applied Gatoil.
Case: Pyrene Company Ltd v Scindia Steam Navigation Company Ltd [1954] 2 QB 402
Outcome: cited
The Planetwide bill was expressed to be negotiable. If it had been negotiated (which it does not appear to have been) it may be that its terms evidenced the contract of multimodal transportation between Planetwide and the third party. Here, there is no satisfactory evidence as to the terms of any contract between Planetwide and Mr Seymour (or the plaintiff) at the time the car was delivered to the defendant and damaged: cf Pyrene Company Ltd v Scindia Steam Navigation Company Ltd [1954] 2 QB 402 at 413-414; Teys Bros (Beenleigh) Pty Limited v ANL Cargo Operations Pty Limited [1990] 2 Qd R 288 at 295; Hines Exports Pty Limited v Mediterranean Shipping Co [2000] SADC 71 ; and see generally Davies M and Dickey A Shipping Law (3 rd Ed) at 195-196.
Case: Samick Lines Co Ltd v Owners of the 'Antonis P Lemos' [1985] AC 711 
Outcome: applied
These submission are answered by the proper application not only of Gatoil [1985] AC 255, but also of Samick Lines Co Ltd v Owners of the 'Antonis P Lemos' [1985] AC 711. Two phrases in s 4(3)(f) are central to understanding the reach of the provision in the circumstances here: " a claim arising out of an agreement" and " that relates to the carriage of goods... by a ship ". The former was the subject of consideration in The 'Antonis P Lemos' [1985] AC 711, the latter in Gatoil [1985] AC 255.
Case: Teys Bros (Beenleigh) Pty Limited v ANL Cargo Operations Pty Limited [1990] 2 Qd R 288
Outcome: cited
The Planetwide bill was expressed to be negotiable. If it had been negotiated (which it does not appear to have been) it may be that its terms evidenced the contract of multimodal transportation between Planetwide and the third party. Here, there is no satisfactory evidence as to the terms of any contract between Planetwide and Mr Seymour (or the plaintiff) at the time the car was delivered to the defendant and damaged: cf Pyrene Company Ltd v Scindia Steam Navigation Company Ltd [1954] 2 QB 402 at 413-414; Teys Bros (Beenleigh) Pty Limited v ANL Cargo Operations Pty Limited [1990] 2 Qd R 288 at 295; Hines Exports Pty Limited v Mediterranean Shipping Co [2000] SADC 71 ; and see generally Davies M and Dickey A Shipping Law (3 rd Ed) at 195-196.
Case: The 'Aifanourios' [1980] SC 346 
Outcome: cited
It is to be noted that Lord Keith said there was "much force" in the comments of Lord Wylie in The 'Aifanourios' [1980] SC 346, which Lord Keith quoted extensively and which can be seen as influential in his reasoning. There, Lord Wylie thought that s 47(2)(d) and (e) should not be construed broadly because to do so would encompass what fell within other provisions of s 47(2). This argument was put by Mr Saville QC to the House in The 'Antonis P Lemos' [1985] AC at 726 (the second point at 726 G). The argument was rejected by Lord Brandon at [1985] AC at 727, who said that having regard to the clear policy of the 1952 Convention and the enacting legislation, to provide a full and complete list of specific maritime claims or kinds of them, rather than a few general formulations comprehending them all "some degree of overlap" was only "natural and inevitable". 48 It is also be noted that in The 'Antonis P Lemos' at 730 Lord Brandon expressed the view that what " tilted the balance in favour of giving a narrow meaning to the expression 'relating to '" was the existence of two authorities, The 'Zeus' (1888) 13 PD 188 and The 'Aifanourios' [1980] SC 346 (the reasoning in which latter case can be seen as contrary to some of the comments of Lord Brandon about the natural and inevitable overlap in the list of maritime claims). Lord Brandon said (at [1985] AC at 730 G-H) that in the absence of these authorities it might not be right to give the expression "relating to" (in s 4(3)(f) "relates to") a narrow meaning as given by the House in Gatoil .
Case: The 'Eschersheim' [1976] 1 WLR 430 
Outcome: cited
It is also important for the application of the principles attending construction of the Act to which I have referred to understand that the provisions in the 1956 UK Act (and, through it the 1981 UK Act) were passed to enable the United Kingdom to ratify and to comply with its international obligations under the 1952 Convention: The 'Eschersheim' [1976] 1 WLR 430 at 434 (per Lord Diplock) and Gatoil [1985] AC at 266 (per Lord Keith). Article 1(1) of the 1952 Convention contained the following as part of the list of "maritime claims": "Maritime claim" means a claim arising out of one or more of the following: ... (d) agreement relating to the use or hire of any ship whether by charterparty or otherwise; (e) agreement relating to the carriage of goods in any ship whether by charterparty or otherwise; ...
Case: The 'Pioneer Container' [1994] 2 AC 324 
Outcome: referred to
There are two main bases for these assertions. First, it is said that the United Kingdom Warehouseman's Association (UKWA) terms were part of the arrangement between Planetwide and the defendant. It was argued initially that these terms bound the plaintiff through the application of the principles in The 'Pioneer Container' [1994] 2 AC 324. This argument was abandoned in oral address. 58 There would be a number of difficult questions that would arise if one could be clear about what terms governed the relationship between Planetwide and the defendant. It is unclear in Australia whether The 'Pioneer Container' is applicable to quasi-bailment as distinct from true sub-bailment where the bailee, sub-bailor obtains possession, before the sub-bailment: cf Mathew Short &amp; Associates Pty Limited v Riviera Marine (International) Pty Limited [2001] NSWCA 281. Secondly, it is unclear on the evidence that the plaintiff consented to the terms of the sub-bailment. It is certainly not possible on the evidence to conclude that any terms of the defendant directly bound the plaintiff from anything that passed to or from him, or Mr Seymour. 61 In any event, the argument based on The 'Pioneer Container' was not pressed. 62 The second basis of attribution of terms with a time bar and exclusive foreign jurisdiction clause to the plaintiff was the Planetwide bill. If the terms of that bill reflected a binding contract between the plaintiff and Planetwide, binding on the plaintiff by being entered into on his behalf by his agent, Mr Seymour, difficult questions of construction and interpretation would arise. It is unnecessary to set out the clauses in full, but issues as to the reading of the "Himalaya clause" would arise. It is not clear that one would read a number of the clauses as protecting any sub-contractors as if the protections were read for their express benefit. 63 These questions need not be addressed because there is no evidence upon which one could conclude that the terms of the bill issued in August 2003 were evidence of a contract entered with the consignor (Mr Seymour) as at July 2003, and thus through him, with the plaintiff as at July 2003.
Case: The 'Sennar' [1981] 1 Lloyd's Rep 295 
Outcome: cited
Lord Brandon was of the view that the wider construction was to be preferred and the first contention argued for by Mr Saville QC should be rejected because (a) the words were the implementation of an international convention and should, in general, be given a broad and liberal construction; (b) the text and structure of the words in Article 1 of the 1952 Convention in introducing all the listed maritime claims tended to a broad construction; (c) the rearrangement of the words from Article 1 to those in s 20(2) was not to be taken as intending a narrowing of the meaning found in the 1952 Convention; and (d) the existing English authorities, The 'St Elefterio' [1957] P 179 and the The 'Sennar' [1981] 1 Lloyd's Rep 295, supported the capacity to bring a claim in tort under the antecedent to s 20(2)(h).
Case: The 'St Elefterio' [1957] P 179
Outcome: cited
Lord Brandon was of the view that the wider construction was to be preferred and the first contention argued for by Mr Saville QC should be rejected because (a) the words were the implementation of an international convention and should, in general, be given a broad and liberal construction; (b) the text and structure of the words in Article 1 of the 1952 Convention in introducing all the listed maritime claims tended to a broad construction; (c) the rearrangement of the words from Article 1 to those in s 20(2) was not to be taken as intending a narrowing of the meaning found in the 1952 Convention; and (d) the existing English authorities, The 'St Elefterio' [1957] P 179 and the The 'Sennar' [1981] 1 Lloyd's Rep 295, supported the capacity to bring a claim in tort under the antecedent to s 20(2)(h).
Case: The 'Zeus' (1888) 13 PD 188 
Outcome: cited
It is also be noted that in The 'Antonis P Lemos' at 730 Lord Brandon expressed the view that what " tilted the balance in favour of giving a narrow meaning to the expression 'relating to '" was the existence of two authorities, The 'Zeus' (1888) 13 PD 188 and The 'Aifanourios' [1980] SC 346 (the reasoning in which latter case can be seen as contrary to some of the comments of Lord Brandon about the natural and inevitable overlap in the list of maritime claims). Lord Brandon said (at [1985] AC at 730 G-H) that in the absence of these authorities it might not be right to give the expression "relating to" (in s 4(3)(f) "relates to") a narrow meaning as given by the House in Gatoil .