CV Scheepvaartonderneming Ankergracht v Stemcor (A/sia) Pty Limited & Anor [2007] HCATrans 654 (8 November 2007)

Last Updated: 16 November 2007

[2007] HCATrans 654

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S329 of 2007

B e t w e e n -

CV SCHEEPVAARTONDERNEMING ANKERGRACHT

Applicant

and

STEMCOR (A/SIA) PTY LIMITED

First Respondent

TSUDA CORPORATION

Second Respondent

Office of the Registry
Sydney No S330 of 2007

B e t w e e n -

CV SCHEEPVAARTONDERNEMING ARCHANGELGRACHT

Applicant

and

STEMCOR (A/SIA) PTY LIMITED

First Respondent

TSUDA CORPORATION

Second Respondent

Applications for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 NOVEMBER 2007, AT 9.25 AM

Copyright in the High Court of Australia

__________________

HAYNE J: Each of these applications for special leave concerns the carriage by sea of steel coils from Japan to Australia. On arrival in Australia, the steel coils were found to be corroded.

At trial in the Federal Court of Australia, Emmett J gave judgment for the consignee of the cargo (the first respondent in this Court) and the shipper (the second respondent) against the carrier (the applicant in this Court). The relationships between those parties were governed by the amended Hague Rules as defined in s 7 of the Carriage of Goods by Sea Act 1991 (Cth).

Each of the carrier's appeals to the Full Court of the Federal Court (Ryan, Dowsett and Rares JJ) was dismissed. The primary judge (Emmett J) found that the vessels were not seaworthy for the purpose of carrying the coils in question at the relevant time of the year. Two members of the Full Court (Ryan and Dowsett JJ) differed from the trial judge on a question about the seaworthiness of the vessels. The third member of the Full Court (Rares J) agreed in the trial judge's conclusion about seaworthiness.

Contrary to the submissions of the applicants, no disputed point of principle would fall for consideration if special leave to appeal were granted. The decisions in the courts below turned in critically important respects on questions of fact and, in particular, whether ventilation of the holds of the ships accorded with standard practice. The concurrent finding of fact at trial and on appeal was that the carrier did not follow usual and good practice in relation to the cargoes and that there was no insufficiency in the packaging of either cargo that had caused the corrosion.

The actual orders made at trial and on appeal to the Full Court are, therefore, not attended by doubt sufficient to warrant a grant of special leave.

The respondents seek a special order for costs on an indemnity basis. There is no sufficient reason to make such an order.

In each matter, pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs. I publish that disposition.

AT 9.28 AM THE MATTER WAS CONCLUDED