Mei Ying Su v Australian Fisheries Management Authority No 2 [2008] FCA 1485 (3 October 2008) CRIMINAL – Strict liability offences – mistake of fact – whether mistake of fact or law – whether affirmative belief as to fact – whether mistaken belief reasonable
ADMIRALTY – Forfeiture of foreign fishing vessel – civil proceedings to prevent forfeiture – onus of proof and standard of proof – whether vessel being used for offence – purpose of enforcement provisions – purpose of reasonable mistake of fact defence
Elbe Shipping SA v Giant Marine Shipping SA [2008] FCA 1135 (5 August 2008) ADMIRALTY – ship under tow – liability of ship under tow for loss and damage caused by tug – imputation of liability under contract – cannot be relied upon by third party
PRACTICE AND PROCEDURE – summary judgment and judgment on admissions – entering such a judgment for the plaintiff without appropriate orders
Lampson (Australia) Pty Ltd v Australian Crane & Machinery Pty Ltd [2008] FCA 400 (6 March 2008) PRACTICE AND PROCEDURE – summary judgment – s 31A(1) Federal Court of Australia Act 1976 (Cth) – test to be applied – whether reasonable prospect of successful defence
PRACTICE AND PROCEDURE – award of interest under s 51A Federal Court of Australia Act 1976 (Cth) – adopt rates of interest applied by Supreme Court of State or Territory in which Court is sitting
CONTRACTS – contracting parties – general principles – contracting parties to be identified by consideration of objective intention of parties
2007
APS Ship Management Pty Ltd v Steven Sidney Wood [2007] FCAFC 142 (25 September 2007) ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal – calculation of worker’s compensation payments – Tribunal applied improper construction of s13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) – determination of class precedes determination of percentage increase or decrease of normal weekly earnings – remuneration wrongly assigned paramountcy when determining class
C V Sheepvaartonderneming Ankergracht v Stemcor (A/sia) Pty Limited [2007] FCAFC 77 (31 May 2007) SHIPPING AND NAVIGATION – carriage of goods by sea – liability for damage to steel coils by corrosion before or during voyage – effect of amended Hague Rules as defined in s 7 of Carriage of Goods by Sea Act1991 (Cth) – whether vessel unseaworthy for voyage from northern winter to southern hemisphere summer because not fitted with dehumidifiers – seaworthiness – cargoworthiness – whether carriers established exercise of due diligence – whether carrier failed to carry, keep and care for coils properly and carefully – effect of ventilation of non-hygroscopic cargoes during voyage – application of dew point rule – whether packaging of steel coils sufficient – effect of evidence of standard industry practice of wrapping steel coils – whether carriers established inherent defect, quality or vice
Heilbrunn v Lightwood PLC [2007] FCA 433 (28 March 2007) ADMIRALTY AND MARITIME JURISDICTION – practice and procedure – service out of the jurisdiction – damage suffered wholly or partly within Australia for item 5 in table accompanying Order 8 rule 2
Heilbrunn v Lightwood PLC [2007] FCA 1518 (3 October 2007) ADMIRALTY AND MARITIME JURISDICTION– meaning of “a claim arising out of an agreement that relates to carriage of goods by a ship” for s 4(3)(f) of the Admiralty Act 1988 – whether damage to goods caused by a warehouseman acting under an agreement with a freight forwarder who undertook to carry the goods by land and sea, loading a shipping container at its premises prior to transportation to the port for loading on board ship fell within the provision – whether the proceeding should be dismissed or stayed because of a time bar or exclusive jurisdiction clause
Hilditch Pty Ltd v Dorval Kaiun KK (No 2) [2007] FCA 2014 (14 December 2007) SHIPPING AND NAVIGATION – carriage of goods by sea – bill of lading – endorsement in blank – effect of – whether bill became a bearer bill by being endorsed in blank – whether delivery of bill of lading endorsed in blank was sufficient to vest property in cargo in the bearer of the bill – where endorsed bill was one of a set of three – whether necessary separately to endorse all three original bills of lading for the bearer to be able to claim delivery of the goods
SHIPPING AND NAVIGATION – carriage of goods by sea – contamination of cargo – point at which contamination occurred – whether carrier complied with its obligations to properly and carefully discharge the cargo under Art 3 r 2 of the amended Hague Rules
SHIPPING AND NAVIGATION – discharge of cargo – where cargo in good condition in ship’s tanks but later discharging at the ship’s manifold in a contaminated condition – where portion of cargo slopped at the direction of the owner of the goods – where cargo remained visibly contaminated at the conclusion of slopping – where owner of the goods permitted discharge to continue – whether owner of the goods was responsible for any part of its claimed loss in these circumstances – whether conduct of the owner of the goods constituted an act or omission under Art 4 r 2(i) of the amended Hague Rules – concurrent causes of a loss
SHIPPING AND NAVIGATION – contamination of cargo – whether notice of loss or damage of cargo given in writing to the carrier 'at the time of' discharge for the purposes of Art 3 r 6 of the amended Hague Rules
PRACTICE AND PROCEDURE – interest under s 51A of the Federal Court of Australia Act (1976) – method of calculating pre-judgment interest
WK Marble & Granite Pty Ltd v CASA China Limited [2007] FCA 1382 (31 August 2007)
ADMIRALTY AND MARITIME – practice and procedure – discontinuance of small claim – approach to costs
United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2007] FCAFC 115 (1 August 2007) SHIPPING – salvage – appeal from award of salvage reward – discretionary nature of award – role of appellate Court – whether primary judge erred in exercising discretion in fixing reward – whether failed to take into account degree of risk of global and of local failure – sufficiency of evidence – whether potential liability to third parties – relevance of costs and actual expenses of salvage – whether judge used actual costs and expenses as benchmark – whether value of services depends critically upon the potential losses that are avoided – whether judge took correct approach to value – encouragement of reward – proof of beneficial ownership
ASP Ship Management Pty Limited v Administrative Appeals Tribunal [2006] FCAFC 23 (10 March 2006) SHIPPING AND NAVIGATION – who is the operator of a ship – proper approach to apply the phrase "operated by" in s 10 of Navigation Act 1912
ADMINISTRATIVE LAW – incorrect question addressed in application of s 10 of the Navigation Act 1912
WORKERS COMPENSATION – proper approach to the application of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) by reference to the application of Part 2 of the Navigation Act through s 10 thereof
Austal Ships Pty Ltd (ACN 079 160 679) v Thurlow [2006] FCA 1219 (7 September 2006) PRACTICE AND PROCEDURE – preliminary discovery - to ascertain prospective respondents – to ascertain whether right to obtain relief – confidential internal research report – procured by employee of competitor – published to third parties to disparage applicant’s product – former employee of applicant now working for competitor – criteria for preliminary discovery satisfied – orders made
Cheng XI Shipyard v The Ship ‘Falcon Trident’ [2006] FCA 759 (19 June 2006) PRACTICE AND PROCEDURE– application by respondent to action for order that applicant give security for costs – Federal Court Act 1976 (Cth), s 56 – Federal Court Rules, O 28 r 3 – factors relevant to exercise of discretion – apparent strength of applicant’s case – where applicant resident outside jurisdiction and has no assets in jurisdiction – held, in circumstances, appropriate to order security for costs
Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCA 1246 (1 September 2006) PRACTICE AND PROCEDURE - stay of proceedings – application for leave to appeal against decisions granting anti-anti-suit injunction and finding foreign arbitral proceedings abandoned – conditions on grant of leave to appeal - whether Court should impose a condition requiring the discharge of restraining orders granted by foreign courts in support of foreign arbitral proceedings
Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192 (20 November 2006) ADMIRALTY AND MARITIME JURISDICTION – action in rem in Australia commenced by foreign party who had commenced London arbitration against Australian party – no statutory basis for commencing the in rem action – no election or waiver or abandonment of arbitration – nature of action in rem discussed INTERNATIONAL ARBITRATION – proceedings begun in this Court by Australian party – stay sought by foreign party under International Arbitration Act 1974 (Cth) – stay granted
Comandate Marine Corp v The Ship “Boomerang I” [2006] FCA 859 (24 June 2006) ADMIRALTY AND MARITIME JURISDICTION – arrest of vessel as surrogate ship under s 19 Admiralty Act – urgent application for release from arrest – permission to sail on conditions in the absence of release from arrest – undertaking as to damages – undertaking as to Marshal’s fees
Elbe Shipping SA v The Ship “Global Peace” [2006] FCA 954 (2 August 2006) ADMIRALTY AND MARITIME JURISDICTION – Jurisdiction to hear in rem proceeding – discussion of s 15 of the Admiralty Act (proceeding on a maritime lien), of the nature of the general maritime claim in s 4(3)(a), (b), (d), (j) and (k) of the Admiralty Act, of jurisdiction under ss 9 and 10 of the Admiralty Act, and of the associated jurisdiction in s 12 of the Admiralty Act
Hilditch Pty Ltd v Dorval Kaiun KK (No 2) [2007] FCA 2014 (14 December 2007) SHIPPING AND NAVIGATION – carriage of goods by sea – bill of lading – endorsement in blank – effect of – whether bill became a bearer bill by being endorsed in blank – whether delivery of bill of lading endorsed in blank was sufficient to vest property in cargo in the bearer of the bill – where endorsed bill was one of a set of three – whether necessary separately to endorse all three original bills of lading for the bearer to be able to claim delivery of the goods SHIPPING AND NAVIGATION – carriage of goods by sea – contamination of cargo – point at which contamination occurred – whether carrier complied with its obligations to properly and carefully discharge the cargo under Art 3 r 2 of the amended Hague Rules
SHIPPING AND NAVIGATION – discharge of cargo – where cargo in good condition in ship’s tanks but later discharging at the ship’s manifold in a contaminated condition – where portion of cargo slopped at the direction of the owner of the goods – where cargo remained visibly contaminated at the conclusion of slopping – where owner of the goods permitted discharge to continue – whether owner of the goods was responsible for any part of its claimed loss in these circumstances – whether conduct of the owner of the goods constituted an act or omission under Art 4 r 2(i) of the amended Hague Rules – concurrent causes of a loss
SHIPPING AND NAVIGATION – contamination of cargo – whether notice of loss or damage of cargo given in writing to the carrier 'at the time of' discharge for the purposes of Art 3 r 6 of the amended Hague Rules
PRACTICE AND PROCEDURE – interest under s 51A of the Federal Court of Australia Act (1976) – method of calculating pre-judgment interest
Hyundai Merchant Marine Co Ltd v Dartbrook Coal (Sales) Pty Ltd [2006] FCA 1324 (11 October 2006) ADMIRALTY & MARITIME JURISDICTION – carriage of goods by sea - contract for cargo - whether binding contract - correspondence of offer and acceptance of terms - whether charterparty conditional upon existence of cargo contract - whether wrongful repudiation of charterparty.
ADMIRALTY & MARITIME JURISDICTION - Meaning of force majeure event - Whether force majeure event existed due to non performance of a contract by another party – whether impractability of performance amounts to prevention of performance.
DAMAGES - The measure of damage - modern rule where cargo not delivered - shipowner's obligations - whether duty to mitigate loss - whether shipowner obliged to seek alternative employment for vessel - circumstances in which rule operates - onus of proof.
DAMAGES - Quantum of damages – cost of hire and voyage expenses including contingencies – cargo leg of the voyage.
COSTS - Entitlement to indemnity – whether agent personally liable – whether agent entitled to be indemnified – meaning of wilful misconduct – distribution of costs
Pan Australia Shipping Pty Ltd v The Ship ‘Comandate’ [2006] FCA 881 (22 June 2006) JURISDICTION – stay of action – anti-anti-suit injunction – quia timet relief - application for injunction to restrain defendant obtaining injunction in a foreign court which would prevent plaintiff filing statement of claim in personam pursuant to r 22 of the Admiralty Rules so as to invoke Australian jurisdiction under Trade Practices Act 1974 (Cth) – where defendant threatening to take steps in English High Court of Justice to restrain proceedings in the Federal Court of Australia.
ADMIRALTY & MARITIME – arrest of vessel – in personam claim
Pan Australia Shipping Pty Ltd v The Ship ‘Comandate’ (No 2) [2006] FCA 1112 (22 August 2006) ARBITRATION – ELECTION - stay of proceedings – anti-anti-suit injunction – where arbitral proceedings brought in England and in rem proceedings brought in Federal Court of Australia by same party - whether action in rem constituted election to litigate rather than arbitrate – abandonment of right to arbitrate – whether right to arbitrate waived - whether arbitration agreement rendered inoperative. ARBITRATION – definition of agreement in writing under International Arbitration Act 1974 (Cth) – interpretation of Art II r 2 of the New York Convention – meaning of ‘contained in an exchange of letters or telegrams’- agreement formed by provision of bank guarantee. ARBITRATION - scope of arbitration clause – whether trade practices claim falls within scope of arbitration clause – where arbitration clause governed claims ‘arising out of this contract’. PRACTICE & PROCEDURE – stay of proceedings – continuation of anti-anti-suit injunction – continuation of injunction to restrain the defendant from obtaining an injunction in a foreign court which would restrain the continuation of proceedings in the Federal Court of Australia – where defendant threatening to take steps in English High Court of Justice to restrain proceedings in the Federal Court of Australia. ADMIRALTY & MARITIME JURISDICTION – arrest of vessel – in personam claim.
Scandinavian Bunkering AS v The Bunkers on Board The Ship FV "Taruman" [2006] FCAFC 75 (24 May 2006) ADMIRALTY AND MARITIME– effect of seizure by the Australian Fisheries Management Authority ("AFMA") of a boat pursuant to s 84(1)(ga) of the Fisheries Management Act 1991 (Cth) ("the FMA") – automatic forfeiture pursuant to s 106A of the FMA of, amongst other things, a foreign boat used in an offence against s 100, s 100A, s 101 or s 101A of the FMA – whether it extends to bunker fuel on board a boat – whether forfeiture of a boat prevails over arrest of bunkers under the Admiralty Act 1988 – whether bunkers come within the meaning of ‘ship’ in s 17 of the Admiralty Act or are ‘other property’ – whether bunkers are susceptible to arrest under the Admiralty Act separately from the ship on which they are to be found.
United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 1141 (1 September 2006) SHIPPING – Salvage – Amount of Salvage Reward – factors Relevant to Assessment – liability Salvage – whether excluded from consideration – 1989 Convention on Salvage – interpretation – extrinsic aids - Vienna Convention – Travaux Preparatoires – proof of beneficial ownership
United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 1611 (23 November 2006) COSTS – Offer of Compromise made by defendants prior to hearing – application of O 23 r 11(5) – whether Offer of Compromise was defective because the sum of money was inclusive of interest and costs and/or the Offer required the plaintiffs to execute a “satisfactory deed of release” – whether “satisfactory deed of release” requirement is uncertain or would result in oppression to plaintiffs - whether defendants had engaged in disentitling conduct such that the Court should not award indemnity costs
Ahmad
v Mitsui O.S.K. Lines Limited (ARBN 008 311 831) [2005] FCA
1036 (29 July 2005) ADMIRALTY- Whether defendant entitled to
recover under the cross-claim, even if it succeeded in its
primary contention that plaintiff was not the holder in due
course or the lawful holder of the Bill of Lading - such
defence to cross-claim not raised in hearing - leave to amend
the defence to the cross-claim denied - defendant entitled to
succeed on cross-claim
Ahmad
v Mitsui O.S.K. Lines Limited (ARBN 008 311 831) [2005] FCA
731 (6 June 2005) MARITIME
JURISDICTION – Shipping – Bills of Lading – cargo shipped in
two containers –cargo in first container released without
presentation of original Bills of Lading – whether cargo in
first container was the subject of conversion because it was
released without presentation of the Bills of Lading – cargo
not converted, but released erroneously and negligently,
giving rise to breach of contract - second container held in
storage and not claimed – second container the subject of
cross-claim for storage fees. MARITIME JURISDICTION – Shipping – Sea
Carriage of Goods – Governing Rules – Bill of Lading expressly
excludes operation of Hague Rules – Limitation of liability in
Bill of Lading to apply
Braverus
Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC
256 (12 December 2005) ADMIRALTY AND MARITIME - SHIPPING AND
NAVIGATION - compulsory pilotage - construction and
interpretation of s 410B of Navigation Act 1912 (Cth)
and ss 85 and 86 of the Ports Corporatisation and
Waterways management Act 1995 (NSW) - shipowner liable
for fault of pilot, though pilot not properly licensed.
TRADE PRACTICES ACT - no reliance by master of ship on
conduct of the pilot. CONTRACT - formation - no contract
between shipowner and pilotage service provider .
TORT -
contributory negligence - no relevant causal link between
conduct of the plaintiff and the damage
GRD
Minproc Limited v Shanghai Flying Wheel Non-Ferrous Company
(No 2) [2005] FCA 180 (4 March 2005) PRACTICE AND PROCEDURE - service out of
the jurisdiction - criteria for service out - alleged
contraventions of Trade Practices Act 1974 (Cth) - allegedly
committed in Australia - respondent corporations in China -
injunction claim based on estoppel - injunction claim based on
Carriage of Goods by Sea Act 1991 (Cth) - requirements for
service out of the jurisdiction in China - requirement for
formal request by Australian courts
Humane
Society International Inc v Kyodo Senpaku Kaisha Ltd [2005]
FCA 664 (27 May 2005) SERVICE OUTSIDE JURISDICTION -
INTERNATIONAL LAW - The applicant sought leave to serve
originating process in Japan in light of the respondent’s
whaling activities in Antarctic waters - exercise of
discretion under Order 8 of the Federal Court Rules. Clear
prima facie case of contravention of Australian law. However,
Australia’s claims to sovereignty over the Australian
Antarctic Territory are only recognised by a small number of
countries, not including Japan. Views of the Executive
Government although non-justiciable, were deemed to be
relevant considerations in the exercise of the judicial
discretion. Held: An injunction would be unenforceable, while
a declaration alone would be an empty assertion of domestic
law which would likely place the Court at the centre of an
international dispute. Application dismissed
Stemcor
(A/sia) Pty Ltd v C.V. Scheepvaartonderneming Ankergracht
[2005] FCA 1808 (16 December 2005) MARITIME JURISDICTION – Shipping – Sea
Carriage of Goods - responsibility for corrosion damage to
steel coils before or during course of carriage by sea –
whether damage due to insufficiency of packaging of steel
coils or due to failure by Carrier to exercise due diligence –
method by which water entered packaging around steel coils –
whether steel coils packaged following usual industry method –
whether Carriers followed usual practice – measure of
damages
Tisand
(Pty) Ltd v The Owners of the Ship MV “Cape Moreton” (ex
“Freya”) [2005] FCAFC 68 (29 April 2005) ADMIRALTY – ARREST- meaning of the phrase
‘the owner' in Part III of the Admiralty Act 1998
(Cth) – sale of vessel – completion of sale before the
commencement of proceeding but after cause of action arose –
vendor being the ‘relevant person' remained entered as owner
on the Liberian Register – whether the phrase ‘the owner'
necessarily includes the registered owner irrespective of the
terms and state of completion of the underlying transaction –
vendor held not to be ‘the owner'
United
Salvage Pty Ltd v Louis Dreyfus Armateurs SAS [2005] FCA
1549 (2 November 2005) PRACTICE AND PROCEDURE - subpoena to produce documents -
application to set aside subpoena - whether documents sought
are relevant to an issue in the proceedings - whether
documents sought are reasonably necessary for a legitimate
purpose of the litigation - witness will only be precluded
from seeing commercially confidential documents in exceptional
circumstances
Denmeade
v Stingray Boats [2004] FCA 1503 PRACTICE AND PROCEDURE –appeals –
application for extension of time in which to file a notice of
appeal – variation of original order – retrospective effect of
slip rule – prospects of success on appeal.
El
Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA
[2004] FCAFC 202 ADMIRALTY
AND MARITIME LAW - carriage of goods by sea - Hague-Visby
Rules - Australian COGSA Art 3 Rules 3, 4 and 8 - method for
assessing value of cargo - where no 'commodity exchange price'
or 'current market price' - where 'normal value' of goods at
destination not determined.
ADMIRALTY AND MARITIME LAW - limitation
of liability - bill of lading - how to treat posters and
prints enumerated as 'pieces' - whether an enumeration of
packages or units - whether contractual limitation applies.
STATUTORY INTERPRETATION - construction
of Carriage of Goods by Sea Act 1991 (Cth), Art 4 Rule 5(c) -
meaning of 'enumeration of packages or units' - meaning of 'as
packed'.
Incitec
Ltd v Alkimos Shipping Corporation [2004] FCA 698
ADMIRALTY AND MARITIME
JURISDICTION - PRACTICE AND PROCEDURE - exclusive jurisdiction
clause - multi-party litigation - circumstances where
cross-claim will be allowed to be filed and served and not
stayed in the face of an exclusive jurisdiction clause -
importance of not fostering duplication in court proceedings -
importance of avoiding potential risk of inconvenience to
third parties
Olbers
Co Ltd v Commonwealth of Australia [2004] FCAFC
262 FISHERIES - Fisheries
Management Act 1991 (Cth)- Forfeiture of vessel under s 106A -
Whether forfeiture effective on commission of offence -
Seizure of vessel on the High Seas - Whether such seizure
lawful under the Fisheries Act - Whether such seizure involved
'repossession' - Constitutional validity of forfeiture and
seizure provisions
Port
Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA
1211 SHIPPING AND NAVIGATION
- compulsory pilotage - negligent navigation by pilot -
liability of shipowner for damage caused by collision with
berth - pilot employed by port corporation - vicarious
liability of shipowner for default of pilot - pilot deemed to
be shipowner's servant by s 410B of Navigation Act 1912
(Cth) and s 85 of the Ports Corporatisation and
Waterways Management Act 1995 (NSW) - shipowner
vicariously liable for negligence of servant - entitlement to
contribution from port corporation - no entitlement to
contribution - statutory immunities operate to defeat
contribution claim
SHIPPING AND NAVIGATION - licensing of
pilots - no valid licence issued to pilot - statutory scheme
operates despite absence of licence
TORT - vicarious liability - employers
- employee exercising independent duties - pilot employed by
port corporation but deemed by statute to be servant of
shipowner - duty imposed by statute operative to exclude
vicarious duty of employer
TORT - contributory negligence -
causation - insufficient causative link between increased risk
of damage and damage ultimately suffered - no contributory
negligence
CONTRACT - formation - alleged
existence of standing offer on the part of port corporation
for provision of pilotage services - pilotage services offered
pursuant to statutory obligation - no voluntary assumption of
duty - no contract where duty imposed by statute - imperfect
performance of statutory duty does not give rise to a contract
CONSTITUTIONAL LAW - just terms -
Navigation Act alleged to have effect of removing cause of
action and imputing incontestable liability without provision
of just terms - Navigation Act not a law with respect to the
acquisition of property - in any event, no liability or cause
of action had accrued at the relevant time
TRADE PRACTICES - misleading or
deceptive conduct - pilot carrying out statutory function -
pilotage not an activity bearing a trading or commercial
character - pilotage not 'in trade or commerce'
Safezone
Pty Ltd v The Ship “Island Sun” [2004] FCA 1797 ADMIRALTY AND MARITIME – application for
arrest of a surrogate vessel pursuant to section 19 of the
Admiralty Act 1988 (Cth) – whether it has been established
that the “relevant person” is the “owner” of the surrogate
vessel under section 19(b) of the Admiralty Act 1988 (Cth).
Stingray
Boats v Denmeade [2004] FCA 1222 ADMIRALTY AND MARITIME JURISDICTION -
ordinary rules as to priorities - agreement as to order of
priority and quantum of payments
Smith
v Caltex Australia Petroleum Pty Limited [2004] FCA 480
COMPENSATION - issue
estoppel - injury to applicant in 1985 - findings made by
Judge concerning applicant’s resultant incapacity in 1992 -
whether Administrative Appeals Tribunal bound by earlier
findings when determining alleged incapacity for period after
1998
Soufflet
Beheer v AWB Limited [2004] FCA 518 PRACTICE AND PROCEDURE - whether orders
should be made to determine certain separate and preliminary
questions - insufficiency of factual foundation - orders
refused
Stingray
Boats v Denmeade [2004] FCA 1222 ADMIRALTY AND MARITIME JURISDICTION -
ordinary rules as to priorities - agreement as to order of
priority and quantum of payments.
Tisand
Pty Ltd v MV Cape Moreton [2004] FCA 752 ADMIRALTY AND MARITIME - ADMIRALTY
PRACTICE AND PROCEDURE - release of ship under Admiralty Rules
rule 52 - costs - use of p & i club undertaking
conditional on arresting party satisfying the criteria within
ss 17, 18 or 19 of the Admiralty Act 1988 (Cth) in due
course
Tisand
Pty Ltd v The Owners of the Ship MV "Cape Moreton" (Ex
"Freya") [2004] FCA 1191 ADMIRALTY AND MARITIME JURISDICTION -
in rem proceedings under s 17 of the Admiralty
Act 1988 (Cth) - challenge to jurisdiction - security for
the claims of the plaintiffs provided by p & i club letter
conditional upon jurisdiction being established - security for
costs sought by defendant in relation to jurisdictional
challenge.
Bajpayee
& Ors v The Ship "Estancia" [2003] FCA
1640 ADMIRALTY AND MARITIME - application of proceeds
of sale of arrested vessel - lien for unpaid wages - whether a
component of wages may be given priority over other part
thereof - whether just and equitable to provide priority for
payment of ordinary wages over payment of provident fund
contributions
Denmeade
v Stingray Boats [2003] FCAFC 215 ADMIRALTY - claim in respect of construction
of a boat
CONTRACT - whether all work was performed under
the original contract - whether there was an agreement as to
amount owing for 'extras' - whether promise to pay for
'extras' was made under economic duress
El
Greco (Australia) Pty Ltd v Mediterranean Shipping Company SA
[2003] FCA 588 SHIPPING -
Carrier’s liability - whether the carrier is responsible for
loss and damage to cargo - whether the damage to the goods
occurred at sea - the applicant’s right to sue for the loss
and damage - the method for assessing loss and damage to cargo
- whether the sea-carriage document contains an enumeration of
all items of the cargo as a ‘unit’ - whether the relevant
‘package or unit’ is the container itself
Fortis
Bank (Nederland) N.V v 'MSC Sumatra' [2003] FCA 524
ADMIRALTY - arrest of ship on
time charter - whether property in bunkers retained by
charterer - whether property in reefer spare parts retained by
charterer - whether bunkers and provisions consumed subsequent
to arrest are an expense of the Marshal
Pacific
Manning Company Pty Ltd v Barton [2003] FCA 498 COMPENSATION - Seafarers Rehabilitation and
Compensation Act 1992 (Cth) - application appealing a decision
of the Administrative Appeals Tribunal - whether the
respondent failed to comply with statutory requirements for
notification of injury - whether the Administrative Appeals
Tribunal failed to consider the respondent´s capacity for work
in suitable employment - whether the Administrative Appeals
Tribunal failed to give adequate reasons for its decision -
application dismissed
Stingray
Boats v Denmeade [2003] FCA 83 ADMIRALTY - claim in respect of construction
of a ship
CONTRACT - whether there was agreement as to
amount owing for 'extras' - whether promise to pay given under
duress
Banwell
v Ship 'The Sydney Sunset' [2002] FCA 271 PRACTICE AND PROCEDURE - whether order was
interlocutory - whether Registrar erred in proceeding to
taxation - whether taxation of a bill of costs should be set
aside - whether order for costs should be amended - whether
solicitor acting for one or two parties
Christoforidis
v Cygnet Bulk Carriers SA [2002] FCA 690 ADMIRALTY - collision between two vessels -
application seeking damages - maritime safety investigation
into circumstances of collision - subpoena for production of
documents and records relating to report produced by the
Australian Transport Safety Bureau - privilege claimed on
basis that the Navigation (Marine Casualty) Regulations 1990
(Cth) generally prohibit such disclosure and on basis of
public interest immunity - privilege - disclosure - whether
regulations prevent disclosure - whether Court is a person -
public interest in administration of justice - stages of
production and tender of documents under subpoena - whether
divulging of information - whether grant of access is
authorising disclosure of information - interpretation of law
giving effect to International Code - whether provisions
ambiguous
Kent
v SS 'Maria Luisa' [2002] FCA 1207 ADMIRALTY - jurisdiction - application to set
aside principal proceedings for want of jurisdiction - vessel
'Maria Luisa' arrested as surrogate for 'Monika' and 'Boston
Bay' - whether 'owner' in s19(b) of Admiralty Act 1988
includes demise charterer
News
Maritime Co Ltd v 'Hyundai Cosmos' [2002] FCA 1164
ADMIRALTY - ship arrested by
Marshal at Port Gladstone - vessel loaded with cargo at the
port of Newcastle - further cargo of coal to be loaded at Port
Gladstone - application to move arrested vessel to enable
loading of coal cargo at Port Gladstone - application to move
and load vessel opposed - consideration of whether appropriate
to move vessel to berth and permit loading - whether Court
should permit movement and loading of vessel under
arrest
Stingray
Boats v Denmeade [2002] FCA 1446 ADMIRALTY - objection to jurisdiction -
whether claim 'is in respect of the construction of a ship' -
whether writ is properly brought in Admiralty
Watson
v Speed Boat 'Sneaky Bits' [2002] FCA 1437 ADMIRALTY - application for arrest of ship
under Admiralty Act 1988 (Cth) - where ship arrested pursuant
to Federal Court warrant - application for transfer of
proceedings to Supreme Court of Queensland where order of that
court in relation to sale of vessel already in
operation
Westrac
Equipment Pty Ltd v 'Assets Venture' [2002] FCA 440
REPORTED: (2002) 192 ALR
277
ADMIRALTY - loss of cargo - whether carrier took
reasonable care in stowage of cargo - whether breach of
implied term of contract - appropriate measure of
damages BAILMENT - sub-(or quasi) bailment - duties of
bailee and sub-bailee - liability of bailee for breach of duty
by sub-bailee
Australian
Competition & Consumer Commission v The Maritime Union of
Australia [2001] FCA 1549 Australian
Competition & Consumer Commission v The Maritime Union of
Australia [2001] FCA 1549Corrigendum REPORTED: (2001) 114 FCR 472 TRADE
PRACTICES - policy of Maritime Union of Australia that
shore-based labour be used to clean foreign vessels
discharging and taking on cargo in an Australian port - three
vessels sought to use crew to clean holds emptied in the Port
of Adelaide while at sea - each vessel plied between
Australian ports and ports overseas but loaded and/or unloaded
at Australian ports - departure of each vessel delayed by
formation of picket lines manned by members of the Maritime
Union of Australia - whether Maritime Union of Australia
contravened s 60 of Trade Practices Act 1974 (Cth) in relation
to the incidents concerning two of the three vessels - whether
the word 'undue'qualifies the word 'coercion' in s 60 -
meaning of the words 'harassment' and 'coercion' considered -
whether person engaging in harassing or coercive conduct must
be the same person as supplies the goods or services referred
to in s 60 - whether conduct complained of was 'in relation
to' international trade - whether individual respondents were
agents of the Maritime Union of Australia - whether the second
and third respondents contravened s 75B of the Trade Practices
Act 1974 (Cth) by being knowingly concerned in or party to a
contravention of s 60
TRADE PRACTICES - Maritime Union of
Australia admitted it engaged in conduct that contravened s
45DB of the Trade Practices Act 1974 (Cth) - second respondent
admitted being knowingly concerned in contravention relating
to 'Star Sea Bird' - fourth respondent admitted being
knowingly concerned in contravention relating to 'Anangel
Eagle' - course to be taken by the Court in making orders by
consent and assessing whether a pecuniary penalty suggested by
the parties is appropriate considered
TRADE PRACTICES -
standard of proof where proceedings for contravention of s 60
not instituted by way of criminal prosecution but by
application seeking declaratory and injunctive relief
WORDS & PHRASES - 'harassment', 'coercion', 'in
relation to'
Banwell
v The Ship The Sydney Sunset [2001] FCA 210 MARITIME LAW - application for the release of
a vessel from arrest - whether monies owed constituted a
'general maritime claim' - where some of the monies were paid
by the plaintiff in relation to slippage, renovations and
repairs, registration and insurance of the vessel - where some
monies paid by the plaintiff were in relation to the purchase
of the vessel
MARITIME LAW - application for the release of
a vessel from arrest - whether the debtor was the demise
charter of the vessel - where the vessel was being hired out
for short cruises by the debtor pending its sale
CGU
Insurance Ltd v Malaysia International Shipping Corp Berhad
[2001] FCA 681 PRACTICE AND
PROCEDURE - preliminary discovery - application to vary order
for preliminary discovery - issue of Notice to Produce -
whether documents should be produced under Notice to Produce
where some documents are the subject of the application to
rescind the discovery order
CGU
Insurance Limited v Malaysia International Shipping
Corporation Berhad [2001] FCA 1223 CGU
Insurance Limited v Malaysia International Shipping
Corporation Berhad [2001] FCA 1223Corrigendum REPORTED: 187 ALR 279
ORDERS - whether
discovery order should be set aside - liberty to apply -
interests of justice - discretion - preliminary discovery
order made on application in extreme urgency DISCOVERY -
preliminary discovery - whether to commence proceedings -
salvage - general average - cargo claims - vessel grounded on
Great Barrier Reef - application for inspection of vessel -
removal of documents from the vessel - application for
discovery of documents - whether all reasonable inquiries had
been made prior to application for discovery
Cook
v ASP Ship Management [2001] FCA 598 ADMINISTRATIVE LAW - Administrative Appeals
Tribunal - Practice and procedure- Directions given by the
Tribunal - Whether the Court should interfere with
interlocutory directions on matters of practice and procedure
- Undesirable for the process adopted by the Tribunal to be
fragmented by inappropriate applications for judicial review
to the Court
Smithers
v Lokys [2001] FCA 239 REPORTED:
(2001) 108 FCR 303
PRACTICE AND PROCEDURE - Maritime claim
- whether proceedings should be transferred to the Supreme
Court of New South Wales - where the Supreme Court proceedings
relate to damages for personal injury resulting from a
collision - where the plaintiff instituted separate
proceedings in the Federal Court to limit its liability
resulting from the collision
The
Ship Socofl Stream v CMC (Australia) Pty Ltd (ACN 002 007 427)
[2001] FCA 961 ADMIRALTY -
Shipping and Navigation - Bills of lading - Sea carriage of
goods - Charterparties - Vessel demised by disponent owner to
charterer - Disponent owner giving notice of default in
payment of charter hire and calling on charterer to forthwith
re-deliver the vessel at a safe port to be nominated by
disponent owner - Vessel subsequently taking on cargoes in
Singapore and Malaysia from plaintiff for which bills of
lading issued and signed 'as agents for and on behalf of
master' who was employee of charterer - Vessel later arrested
in Brisbane at instigation of disponent owner - Whether
plaintiff entitled to succeed in action in rem for breach of
bills of lading against disponent owner - Whether master had
ostensible authority to bind disponent owner to bills of
lading - Whether bills of lading contractual documents or mere
receipts - Carrier’s duty to deliver with reasonable dispatch
- Whether breached by arrest of vessel in Brisbane en route to
Sydney
Vilona
v The Ship Alnilam [2001] FCA 411 ADMIRALTY - application for the release of a
vessel from arrest - right to proceed in rem against a
surrogate ship limited to general maritime claims - whether
the plaintiffs claim should be summarily dismissed
CMC
(Australia) Pty Ltd v 'Socofl Stream' [2000] FCA 1681
ADMIRALTY - action in rem
against demise charterer of vessel brought by owner of cargo -
bills of lading - whether bills gave rise to contract of
carriage or were mere receipts - apparent or ostensible
authority - agency by estoppel - whether defendant bound under
bills of lading as carrier - whether master of vessel had
apparent or ostensible authority to bind defendant - where
master not employed by defendant - where defendant purported
to terminate charterparty with sub-demise charterer but failed
to nominate a port for redelivery of vessel - where sub-demise
charterer indicated to defendant that it proposed to continue
to trade - whether defendant breached implied term of contract
that goods would be delivered with reasonable
dispatch
Cook
v ASP Ship Management [2000] FCA 1393 ADMINISTRATIVE LAW - appeal from
Administrative Appeals Tribunal - applications for
compensation under Seafarers Rehabilitation and Compensation
Act 1992 (Cth) - directions hearing in Tribunal - allegations
of bias and failure to give natural justice
Hi-Fert
Pty Ltd v Kiukiang Maritime Carriers Inc [2000] FCA 660
REPORTED: (2000) 173 ALR
263
MARITIME LAW - Bills of lading - Contracts of carriage
- Whether bills of lading mere receipts or evidence of
contract TRADE PRACTICES - Misleading and deceptive conduct
- Misrepresentation - Breach of s 52 Trade Practices Act 1974
(Cth) CONTACT - Misrepresentation - Breach of
contract DAMAGES - Assessment - Measure of damages -
Mitigation
Kalymnian
Shipping Pte Ltd v Rose [2000] FCA 614 REPORTED: (2000) 61 ALD 668
APPLICATION FOR
AN EXTENSION OF TIME - application for an order of review made
outside time period prescribed by the Administrative Decisions
(Judicial Review) Act 1977 (Cth) - whether time for making
such application should be extended ADMINISTRATIVE LAW -
validity of an Australian Certificate for the Carriage of
Livestock ('ACCL') - express power to modify provisions of
Marine Orders Part 43 - provision for an ACCL to be valid for
a period of 5 years subject to annual endorsement - provision
purported to be modified, such that ACCL in question was
issued for a period of about three months - whether ACCL so
issued was valid - whether, if time stipulation was invalid,
it could be severed such that the resultant ACCL was for a
period of 5 years
Maritime
Union of Australia v Honourable John Anderson [2000] FCA
850 REPORTED: (2000) 100 FCR
58
MARITIME LAW - Shipping - single voyage permit -
unlicensed vessel - grant of permits to unlicensed vessels to
transport fertiliser challenged by labour organisations -
whether licensed vessel 'available for the service' under s
286(1) of Navigation Act 1912 - where licensed vessel could
not carry full cargo and could not meet shipper’s timetable -
permits not improperly granted ADMINISTRATIVE LAW -
natural justice - procedural fairness - right to be heard -
whether labour union had legitimate expectation of being heard
under Ministerial guidelines before permit granted to
unlicensed vessel - whether union’s interests directly
affected by decision - whether guidelines for granting permits
here irrelevant considerations PRACTICE & PROCEDURE -
locus standi - whether labour union has standing to challenge
decision to grant permit to unlicensed ship - where increase
in permits to unlicensed vessels said to effect union members’
employment prospects - where application filed after voyages
well under way - outcome of review nugatory - standing
denied
Den
Norske Bank (Luxembourg) SA v 'Martha II' [2000] FCA 241
ADMIRALTY - Marshal’s costs and
expenses - insurance - whether commercial insurance is a cost
and expense of the arrest -admiralty practice in relation to
insurance
PROCEDURE - jurisdiction to vary an order -
discretion - order entered three years ago - merits of the
substantive application poor
Ocean
Marine Mututal Insurance Association (Europe OV) and Jetopay
Pty Ltd [2000] FCA 1463 REPORTED: (2000) 120 FCR 146
ADMIRALTY -
marine insurance - claim in respect of damage to engine of
fishing vessel - whether policy-holder indemnified by policy
in respect of damage - whether damage caused by negligence of
repairers EVIDENCE - opinion - expert reports - whether
admissible - where no explicit evidence as to training, study
or experience of authors of reports - whether pursuant to the
Evidence Act 1995 (Cth), s 183 inferences may be drawn from
contents of report as to the specialised knowledge of its
author
Opal
Maritime Agencies Pty Ltd v 'Skulptor Konenkov' [2000] FCA 507
REPORTED: (2000) 98 FCR
519
ADMIRALTY - General maritime claim - consideration of
the requirements to claim on the proceeds of sale fund -
whether claims against the proceeds of sale must be 'in rem'
claims - whether in the circumstances of this case, agency
commission or agency fees came within a general maritime claim
- specifically consideration of agency commission or agency
fees as disbursements or in respect of goods and materials or
services - discussion of disbursements made on behalf of a
ship or on behalf of a ship’s owner - consideration of the
nature of shipping containers - what property constitutes the
'ship' - discussion of 'equipping' a ship. TRADE AND
COMMERCE - running account - set-off accounts - consideration
of the nature of the disbursement and freight account
arrangements - the effect, if any, of the appointment of a
provisional liquidator
Patrick
Stevedores No 2 Pty Ltd v Proceeds of MV 'Skulptors Konenkov'
[2000] FCA 1710 COSTS - costs of
the Admiralty Marshal - whether the Marshal’s costs should be
paid on an indemnity basis - whether Schedule 2 of the Federal
Court Rules regulates the quantum of an indemnity cost order
in favour of the Marshal
COSTS - variation of a taxation
order - whether an order that the Marshal’s costs be taxed
should be varied and replaced with an award of a gross
sum PROCEDURE - power of a single Judge to vary an order of
the Full Court - whether a single Judge has power to vary an
order of the Full Court that the Marshal’s costs be
taxed
Seereederei
Barco Liner GmbH v 'Al Aliyu' [2000] FCA 656 ADMIRALTY - motion to stay proceedings in
favour of proceedings not yet commenced in a different
jurisdiction - collision in Conakry, Guinea - sinking of barge
- vessel arrested in Australia - whether Federal Court of
Australia is a clearly inappropriate forum to determine the
dispute - relevance of criticisms of another jurisdiction’s
ability to fairly and impartially determine the dispute -
weight to be given to such criticisms made by an advocate in
that jurisdiction - witnesses to collision between vessel and
barge all reside outside Australia - where ship arrested in
Australia - possible cross-claim and action against Port
Authority and others in Guinea arising out of
collision
Bollen
v Condor of Bermuda [1999] FCA 1832 TORT - Negligence - member of crew on maxi
yacht injured in course of charity race on Sydney Harbour when
genoa block comes off its track and strikes him on inside of
right knee - whether plaintiff had been invited to be on yacht
- duty of care - whether duty required owner to have stopper
block in place to safeguard against known risk of sailing -
whether res ipsa loquitur - whether defence of volenti non fit
injuria available - whether plaintiff, an experienced sailor,
guilty of contributory negligence by standing in a position of
danger
Bremer
Landesbank Kreditanstalt Oldenburg v 'Turakina' The Ship
[1999] FCA 261 REPORTED: (1999)
161 ALR 587
ADMIRALTY - appeal against costs order made by
primary judge - costs order made in proceedings where the
Master and crew of two arrested ships sought payment of wages
since arrest and costs of repatriation as part of the
Marshal's costs of arrest - proceedings were successful in
part only - whether primary judge erred in holding that the
Master and crew were entitled to recover the whole of the
costs of their application payable from the fund created by
the sale of the ships - whether decision to depart from the
ordinary rule that costs follow the event was open to the
primary judge - whether primary judge entitled to view the
'reasonableness' of the Master and crew's application as a
relevant consideration in awarding costs - principles
governing payment of legal costs from a fund - whether leave
should be given for the Marshal to intervene in the appeal -
role of the Marshal in proceedings in the Court
Caravelle
Investments Ltd v Martaban Ltd [1999] FCA 1505 REPORTED: (1999) 95 FCR 85
ADMIRALTY -
jurisdiction - negotiations for the sale of a ship -
allegation that no contract for sale was made - action in
restitution for recovery of money paid - whether claim
'relating to' ownership of a ship PRACTICE AND PROCEDURE -
interlocutory injunction - undertaking in damages by foreign
plaintiff - whether security should be provided to support
undertaking
Chapman
Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 178
Chapman
Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 178(Corrigendum) CONTRACT - contract for carriage of goods by
sea - bill of lading to which the Carriage of Goods by Sea Act
1936 (US) applies - obligation properly and carefully to load,
handle, stow, carry, keep, care for and discharge the goods -
limitation provision -Carriage of Goods by Sea Act 1936 (US)
s4(5) - whether package limitation applies - whether a cruiser
is a 'package' or 'customary freight unit' - Himalaya clause -
whether stevedore can rely on limitation provisions in bill of
lading - whether stevedore was performing the whole or any
part of the contract - undertaking by shipper not to impose
any liability on anyone other than the carrier - whether claim
by shipper against stevedore should be stayed - Carriage of
Goods by Sea Act 1936 (US) s3(8) - deviation - whether stowage
of cargo on deck was authorised - whether cruiser a 'yacht' -
indemnity sought by carrier from stevedore - whether stevedore
negligent - whether carrier contributed to the loss
Howard
Smith Industries Pty Ltd v Richards [1999] FCA
1144 REPORTED: (1999) 95 FCR 268
WORKERS’ COMPENSATION - Seafarer - industrial hearing loss
and tinnitus - no permanent impairment - hearing loss due to
exposure to noise - exposure occurred during period of
operation of Seamen´s Compensation Act 1911 (Cth) and after
commencement of Seafarers Rehabilitation and Compensation Act
1992 (Cth) - hearing loss prior to commencement of Seafarers
Rehabilitation and Compensation Act 1992 (Cth) did not disable
seafarer from earning full wages - whether injury or disease
incurred prior to commencement of Seafarers Rehabilitation and
Compensation Act 1992 (Cth) when seafarer not disabled from
earning full wages or not incapacitated for work compensable
under Seafarers Rehabilitation and Compensation Act 1992 (Cth)
- status of rights under Seaman´s Compensation Act 1911 (Cth)
- Effect of Seafarers Rehabilitation and Compensation
(Transitional Provisions and Consequential Amendments) Act
1992 (Cth)
Jetopay
Pty Ltd v The Ocean Marine Mutual Insurance Association
(Europe) OV [1999] FCA 1773 REPORT: (1999) 95 FCR 570
MARINE INSURANCE
- whether underwriter bound to indemnify assured under policy
in respect of damages to the vessel and the cost of its repair
- question of the terms of the policy and its relationship to
a lineslip arrangement between the underwriter and a broker -
whether underwriter could cancel the policy for non-receipt of
premiums - whether broker is liable for failing to ensure that
the policy covered all the items of loss sustained - whether
assured relied on the existence of that coverage in taking up
the policy
Lloyd
Werft Bremerhaven GmbH v 'Zoya Kosmodemyanskaya' [1999] FCA
471 PRACTICE AND PROCEDURE -
last minute application for adjournment - critical witnesses
unable to obtain visas in time for hearing - not possible to
proceed to a fair and complete hearing - costs thrown away -
whether on an indemnity basis - need to make application to
Court in a timely way rather than making repeated requests for
further discovery - costs awarded on party-party
basis
Papua
New Guinea Banking Corp v 'Spartan' [1999] FCA 1829
PRACTICE AND PROCEDURE -
application for transfer of proceedings to Queensland District
Registry of the Federal Court - balance of convenience - ends
of justice - efficient administration of the Court - location
of vessel in Queensland - related issues in another action
brought in the Queensland Registry
Patrick
Stevedores No 2 Pty Ltd v The Ship 'Turakina' [1999] FCA 1463
REPORTED: (1999) 167 ALR
143
ADMIRALTY - application for payment out of fund from
sale of ship - payment out prior to determination of
priorities - retention of funds for taxation of Marshal's
costs and expenses - distinction between legal and non-legal
costs
Patrick
Stevedores No 2 Pty Ltd v The Ship 'Turakina' [1999] FCA 1615
REPORTED: (1999) 95 FCR
52
ADMIRALTY - whether plaintiff’s legal costs form part of
its costs of arrest - where costs of arrest and preservation
rank in priority over all substantive claims other than the
Admiralty Marshal’s fees and expenses - plaintiff’s opposition
to owners’ application for release of vessel from arrest -
application for sale of vessel and making orders for payment
of costs - opposing application of solicitor to be released
from undertaking given to Marshal on application for release -
whether circumstances warrant taxation of costs on an
indemnity basis - court discretion - ensure party not
penalised by its initiative in preserving the
arrest
Sun
Lucky Co Ltd v "Mu Gung Wha" [1999] FCA 220 ADMIRALTY - arrest of vessel - release -
application to strike out proceeding and for release or
reduction of security - voyage charterparty - issue of bills
of lading for discharge at additional port - whether approved
- waiver and estoppel - security - causation
PRACTICE AND
PROCEDURE - strike out application - writ based on breach of
charterparty and implied indemnity - principles relating to
strike out of proceedings and release of security - implied
terms in charterparty - effect of bills of lading issued at
request of charterer WORDS AND PHRASES - 'charterparty',
'bill of lading'
Westpac
Banking Corp v "Stone Gemini" [1999] FCA 434 REPORTED: (1999) 110 FCR 47
BANKING -
letter of credit - incorporation of Uniform Customs and
Practice for Documentary Credits 500 (UCP) - effect of
incorporation of UCP into letter of credit - discrepant
documents - time for acceptance or rejection CONVERSION -
bill of lading as a title document - bearer bill of lading -
right to delivery - discharge of cargo against letter of
indemnity - bills of lading not presented - whether bills in
possession of bearer where sent to issuing bank for
acceptance CONTRACT - letter of credit - international sale
of goods - whether negotiating bank entitled to security in
title by possession of bearer bills of lading - negotiating
bank not mere agent for collection - letter of indemnity
provided to vessel - whether Master of vessel relied on letter
of indemnity for discharge - whether liability where plaintiff
later reaches agreement with third party for payment TRADE
PRACTICES - misleading and deceptive conduct - Trade Practices
Act 1974 (Cth) s 52 - inducement
Westpac
Banking Corp v Stone Gemini [1999] FCA 595 TRADE PRACTICES - whether misleading and
deceptive conduct and misleading representations - knowingly
concerned - Trade Practices Act 1974 (Cth) ss 52, 53, 75B
Westpac
Banking Corp v 'Stone Gemini' [1999] FCA 917 PRACTICE AND PROCEDURE - currency of
prejudgment interest - purpose of prejudgment interest to
compensate plaintiff for detriment suffered in being kept out
of his money - whether to follow general rule that interest be
in the same currency as the principal judgment amount -
consideration of all the circumstances - where judgment in US
dollars - where plaintiff an Australian bank but involved in
significant US dollar transactions - whether double counting
of interest
Crayford
Freight Services Ltd v Coral Seatel Navigation Co & Ors
[1998] FCA 263 REPORTED: (1998)
82 FCR 328
PRACTICE AND PROCEDURE - summary judgment -
whether a cross claim irregularly filed out of time without
leave was a nullity - whether leave to file the cross claim
could be granted nunc pro tunc after the discontinuance of the
principal proceeding - circumstances where solicitor’s error
provided ground for a grant of leave
Esam,
Alan v ASP Management [1998] FCA 1129 REPORTED: (1998) 28 AAR 78 ; (1998) 1 AWR 598
WORKERS’ COMPENSATION - injured Seaman - application for
review of Administrative Appeals Tribunal decision - error of
law - interpretation of Seafarers´ Rehabilitation and
Compensation Act 1992 (Cth) - inability to engage in suitable
employment because of economic circumstances - whether state
of labour market is a relevant consideration when calculating
amount of compensation - beneficial construction of remedial
legislation - terms of specific compensation scheme - causal
link between injury and exposure to labour market
conditions
