Tritton Resources Pty Ltd v Ever Rock Navigation S.A.

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 06 March 2019
• Neutral Citation: [2019] FCA 276
• Date: 06 March 2019

FEDERAL COURT OF AUSTRALIA

Tritton Resources Pty Ltd v Ever Rock Navigation S.A. [2019] FCA 276

File number(s):	NSD 1190 of 2017
Judge(s):	DERRINGTON J
Date of judgment:	6 March 2019
Catchwords:	ADMIRALTY – bills of lading and carriage of goods by sea – actions for loss or injury in transit – who may bring action – rights as between successive holders of bills of lading – effect of transfer of bill of lading ; ADMIRALTY – whether prior holder of bill of lading retains right to bring an action in negligence against ship owner – whether action one for pure economic loss
Legislation:	Carriage of Goods by Sea Act 1991 (Cth), Sch 1A, Amended Hague Visby Rules Sea-Carriage Documents Act 1997 (NSW) Carriage of Goods by Sea Act 1992 (UK) Federal Court Rules 2011 (Cth)
Cases cited:	Aegean Sea Traders Corporation v Repsol Petroleo SA (The “Aegean Sea”) [1998] 2 Lloyds Rep 39 Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299 Amaya v Everest Property Holdings Pty Ltd [2010] NSWCA 315 Anglo Irish Beef Processors International v Federated Stevedores Geelong [1997] 2 VR 676 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Castle Insurance Co Ltd v Hong Kong Islands Shipping Co Ltd [1984] 1 AC 226 China Ocean Shipping Co Ltd v P S Chellaram & Co Ltd (1990) 28 NSWLR 354 CIA Continental Hispanica SA v Westgate Shipping Co Ltd [1978] AMC 1560 Colgate-Palmolive Co v Cussons Pty Ltd (1933) 46 FCR 225 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Craine v Colonial Mutual Fire Insurance Company Ltd (1920) 28 CLR 305 Cro Travel Pty Ltd v Australian Capital Financial Management Pty Ltd [2018] NSWCA 153 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509 Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] 1 AC 785 Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500 MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141 Onley v Caitlin Syndicate Ltd as the Underwriting Member of Lloyd’s Syndicate 2003 (2018) 360 ALR 92 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Qenos Pty Ltd v Ship “APL Sydney” (2009) 187 FCR 282 Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66 Sarat Chunder Dey v Gopal Chunder Laha (1892) LR 19 Ind App 203 Standard Chartered Bank v Dorchester LNG (2) Ltd (The “Erin Schulte”) [2013] 2 Lloyds Rep 338 The “Breydon Merchant” [1992] 1 Lloyds Rep 373 The “Stolt Loyalty” [1995] 1 Lloyds Rep 598 (CA) The Henrik Sif [1982] 1 Lloyds Rep 456 The Sanix Ace [1987] 1 Lloyds Rep 465 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Trident General Insurance Co Ltd v McNiece Brothers Pty Ltd (1988) 165 CLR 107
Date of hearing:	6 and 7 September 2018
Date of last submissions:	21 September 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Admiralty and Maritime
Category:	Catchwords
Number of paragraphs:	177
Counsel for the First, Second and Third Plaintiffs:	Mr E Cox and Mr M Swanson
Solicitor for the First, Second and Third Plaintiffs:	Hicksons Lawyers
Counsel for the Defendant:	Mr AM Stewart SC, with Ms CO Gleeson
Solicitor for the Defendant:	Holman Fenwick Willan

ORDERS

		NSD 1190 of 2017
BETWEEN:	TRITTON RESOURCES PTY LIMITED First Plaintiff ; STERLITE INDUSTRIES (INDIA) LIMITED Second Plaintiff ; FREEPOINT METALS & CONCENTRATES LLC Third Plaintiff
AND:	EVER ROCK NAVIGATION S.A. Defendant

JUDGE:	DERRINGTON J
DATE OF ORDER:	6 MARCH 2019

THE COURT ORDERS THAT:

1. The separate questions be answered as follows:

   1. Question 1: “Has the defendant granted an extension of the limitation period under Art III r 6 of the Amended Hague Visby Rules to the plaintiffs to commence these proceedings?”

Answer: “Yes.”

2. Question 2: “Does the limitation period provided for in Art III r 6 of the Amended Hague Visby Rules apply by extension of time to these proceedings?”

Answer: “The time bar in Art III r 6 of the Amended Hague Visby Rules does not afford the defendant any defence to the plaintiffs’ claims in this action. The time bar was extended by the defendant in favour of all plaintiffs and the action was commenced within that extended period.”

3. Question 3: “If any limitation applies to these proceedings, is the defendant estopped from relying on that defence?”

Answer: “It is not necessary to answer question 3, but if an answer was required an estoppel would exist to prevent the defendant from relying on a defence under Art III r 6 of the Amended Hague Visby Rules.”

4. Question 4: “What are each of the plaintiffs’ interests in the cargo and do any of the plaintiffs have title to sue?”

Answer: “(i) Sterlite has title to sue under the BOL.

(ii) JP Morgan is entitled to pursue its independent claim in tort, if any, where such cause of action arose when it had title to the cargo.

(iii) Tritton has no identifiable cause of action against Ever Rock in relation to the cargo.”

5. Question 5: “Are the plaintiffs entitled to claim a loss in respect of the salvage agreement with Fukada?”

Answer: “Yes, to the extent that Sterlite and JP Morgan are entitled to sue in respect of any such loss. Tritton has no entitlement to make a claim in respect of it.”

2. The plaintiffs’ application that the defendant pay the costs of its application for service out on an indemnity basis is refused.

3. The costs of the application for service out be each parties’ costs in the cause.

4. The plaintiffs have leave to amend the statement of claim to include a cause of action in negligence against the defendant in terms substantially in accordance with the terms of Exhibit 1.

5. The parties will be heard on the question of the appropriate costs order to make on the hearing of the separate questions.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1. This a determination under r 30.01 of the Federal Court Rules 2011 (Cth) of a number of separate questions isolated from the remaining issues in the litigation. Generally, the questions concern the entitlement of the plaintiffs, or one of them, as consecutive owners of cargo under a bill of lading, to claim against the owner of the...