UK Standard Conditions for Towage and s74(3) TPA: PNSL Berhad v Dalrymple Marine Services Pty Ltd; PNSL Berhad v The Owners of the Ship ?Koumala' [2007] QSC (19 April 2007)

• Author: Kate Lewins
• Position: Senior Lecturer, Murdoch University School of Law
• Pages: 101-105

UK Standard Conditions for Towage and s74(3) TPA:

PNSL Berhad v Dalrymple Marine Se rvic e s Pty Ltd; PNSL Be rhad v

The Owners of the Ship ‘Koumala’ [2007] QSC

(Helman J, 19 April 2007)

Ka te Le wins∗

Intro duction

This case1concerns damage done to the ship Pernas Arang (the Ship) as a result of a collision between

it and the tug Koumala (the Tug) whilst the Tug was readying itself to tow the Ship. The case deals

with the important question as to whether the warranty to exercise due care and skill imposed by s74 of

the Trade Practices Act 1974 (Cth) (TPA) applies to a towage contract, or whether such a towage

contract can be said to fall within the exception contained within ss3, which reads:

S74 Warranties in Relation to the Supply of Services

(3) A reference in this section to services does not include a reference to services that

are, or are to be, provided, granted or conferred under:

(a) a contract for or in relation to the transportation or storage of goods for the

purposes of a business, trade, profession or occupation carried on or

engaged in by the person for whom the goods are transported or stored.

The case also considers whether the collision occurred ‘whilst towing’ within the meaning of that

phrase in the contract.

The facts

The towage was the subject of a contract between Dalrymple Marine Services Pty Ltd (the Defendant)

and the owner of the Ship, PNSL Berhad (the Plaintiff). The terms of the towage contract were the UK

Standard Conditions for Towage and Other Services (1974 revision) (UK Standard Conditions), and

the fee for the service to the Ship was agreed at A$12,500.2

The collision occurred on 28 February 1995. The Ship, a dry bulk carrier, was approaching the

Dalrymple Bay Coal Terminal (the Terminal) at the port of Hay Point, Queensland in order to load a

cargo of coal. The Tug and another tug, the Kungurri, were preparing to tow the Ship to the Terminal.

A pilot was on board the Ship and had ordered the tugs, then on the port side of the Ship, to ‘make fast’

at points on the starboard side. The Tug crossed ahead of the Ship, but once on the starboard side it

turned quickly to starboard and was seen to be blowing black smoke.3 It lost steering due to a blocked

air filter element in the starboard generator which provided power for steering. Within a minute or so, 4

the Tug collided with the Ship, causing damage sufficient to abort the planned loading of cargo and

require repairs to be effected in Brisbane.5

The finding - neg ligence

Helman J found as fact that the Master of the Tug and its engineer had been negligent on several

grounds (many other grounds alleged were not made out). His Honour found that the engineer should

have promptly switched power from the failed starboard generator to the port generator, rather than

∗ Senior Lecturer, Murdoch University School of Law.

1 PNSL Berhad v Dalrymple Marine Services Pty Ltd; PNSL Berhad v The Owners of the Ship ‘Koumala’ [2007] QSC [29].

2 Ibid, [28].

3 Above n 1, [4].

4 The exact time between loss of steering and collision was not certain, but the judge found it was between one and a half and two

minutes – par [11]. It was another 5 -7 minutes before the steering control was restored.

5 Above n I, [4].

(2007) 21 A&NZ Mar LJ