Interpreting the Intentions of Contracting Parties: Tritton Resources Pty Ltd v Ever Rock Navigation S.A. [2019] FCA 276

Author:Sophie Priebbenow
Position:LLB Student, TC Beirne School of Law, University of Queensland
Pages:25-28
 
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(2019) 33 A&NZ Mar LJ 25
INTERPRETING THE INTENTIONS OF CONTRACTING PARTIES: Tritton
Resources Pty Ltd v Ever Rock Navigation SA [2019] FCA 276
Sophie Priebbenow*
Introduction
There were five core issues in contention in Tritton Resour ces Pty Ltd v Ever Rock Navigation SA.1 Of these, the
issue that the Court considered in the greatest depth was whether, on an objective reading of the evidence and the
conduct of the parties, extensions of the limitation period under Article 3(6) o f the Amended Hague-Visby Rules
(Rules) applied to all plaintiffs. The Rules are set out in Schedule 1A of the Carria ge of Goods by Sea Act 1991
(Cth) (‘Act’). The answer to this q uestion connected with the inquiry as to which parties, if all were within time,
still retained title to sue. The grounds on which the various plaintiff s could or could not claim turned on other
considerations, focusing especially on the rights of successive holders of bills of lading and the impact of
transferring a bill of lading (BOL) on the original holder’s right to sue for loss and damage to cargo.
Facts
The issues in this case stemmed from the grounding of the MV Ikan Jaha n on 18 December 2011 on Manuk Island,
Indonesia on a journey between Newcastle, Australia and Tuticorin, India. The ship was grounded for four weeks
and was required to enlist the aid of a salvor before it could proceed. The salvor, Fukada Salvage and Marine
Works Co Ltd (Fukada) d rew up the salvage agreement with Ever Rock Navigation SA (Ever Rock) on 19
December 2012. In 2014, Ever Rock, Fukada, and SAH & Co (representing the own ers and underwriters of the
cargo on board the ship) established a tripartite ‘settlement agreement’. By this agreement the parties decided
what was due to Fukada and what portion of the salvage renumeration was to come from the cargo owners.
The cargo aboard MV Ikan Ja han had been shipped pursuant to a BOL naming Tritton Resources Pty Ltd (Tritton)
as the shipper and stating that it was ‘to order of JP Morgan Metals and Concentrates LLC’ (JP Morgan). The
owner of the vessel, Ever Rock, had agreed a time charterparty with PCL (Shipping) Pte Ltd (PCL), whom
subsequently agreed a voyage charterparty in 2011 with Tritton. Both Tritton and JP Morgan were plaintiffs in
this case on account of their cargo interests, as well as Sterlite Industries (India) Ltd (Sterlite).
The competing interests in this action arose out of successive contracts of sale involving the plaintiffs in both
2007 and 2011.2 The former was between Tritton (as seller) and JP Morgan (as purchaser). In that agreement, title
over the goods and responsibility for loss or damage were treated as transferring to the purchaser from the moment
that the cargo passed the ship’s rail at the end of the voyage.
The second cargo sale (in 2011) was between JP Morgan as seller and Sterlite as purchaser. When the MV Ikan
Jaha n grounded, Sterlite had been transferred the risk of loss or damage to the cargo, but not actual title over the
goods.
The arrangement for the transferral of risk in the latter sale differed from the former in that risk passed once the
ship reached the port of loading at the conclusion of the voyage, and JP Morgan was obliged to purchase insurance
for Sterlite. On 14 February 2012, consistent with the agreement between itself and JP Morgan, Sterlite ( on the
day after the MV Ikan Johan arrived in the agreed port) paid 90% of its invoice to JP Morgan. The lead insurer
for the policy that JP Morgan acquired on Sterlite’s behal f was AEGIS Electric and Gas International Services
Ltd (AEGIS). AEGIS was regarded as acting for all other cargo insurers. The policy addressed both salvage and
general average costs. The policy that JP Morgan obtained also encom passed JP Morgan as an insured.3
In November 2015, Ever Rock declared general average following the grounding of the ship, an d after engaging
Asai & Ichikawa of Japan as general average adjusters, requested that the plaintiffs pay a total of US$719,817.88
in respect of the copper cargo. The plaintiffs refused and themselves sought an order for indemnity against general
average. They also pursued damages based on Ever Rock’s breach of the plaintiffs’ contracts of car riage, and the
subsequent loss and damage to them resulting from that breach.4
* LLB Student, TC Beirne School of Law, University of Queensland.
1 [2019] FCA 276 (‘Tritton Resources).
2 Ibid [16][17] (Derrington J).
3 Ibid [18][22] (Derrington J).
4 Ibid [34] (Derrington J).

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