The plaintiff was the consignee named in a bill of lading issued on behalf of the master of the Caspian Harmony on 24 May 2020. The bill of lading named the defendant as carrier and noted that 10,000 mt of ammonium nitrate in 8,000 bags of 1,250 kgs each had been loaded on the ship, freight prepaid. The shipper was Enaex SA, a Chilean company, and the cargo was loaded in Puerto Angamos, Chile, for delivery to Kwinana in Western Australia. The bill of lading was on the 1994 CONGENBILL form. However, there was no evidence of the actual charterparty, and no suggestion that the plaintiff was a party to it. Enaex SA time chartered the Caspian Harmony from the defendant as owner or disponent owner.

The plaintiff presented one of the original bills of lading in a set of three to obtain discharge of the charterparty, and arranged for stevedores to assist in the discharge operation. The plaintiff claimed that the bill of lading contained a clause paramount on its reverse side incorporating the corresponding legislation of the country of destination, namely Australia, where no enactment of any version of the Hague Rules was in force in the country of shipment, as is the case in Chile. Thus, the amended Hague Rules in Sch 1A to the Carriage of Goods by Sea Act 1991 (Cth) apply. The relevant Rules include arts 3.1 and 3.2. The plaintiff sought damages for breach of the contract constituted by the bill of lading. Its principal claim was for demurrage that it incurred in respect of other ships, that were waiting to berth, or would be delayed in berthing during the unloading operations of the ammonium nitrate, which were protracted due to ship crane defects. The plaintiff applied to serve the defendant out of the jurisdiction in Germany.

Held: Leave is granted to the plaintiff to serve its originating application and concise statement on the defendant in Germany in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done in the Hague on 15 November 1965 (the Hague Convention).

This case is similar to Mount Isa Mines Ltd v The Ship 'Thor Commander' [2018] FCA 1326, (2018) 263 FCR 181 [104]-[117] (CMI235), where the contract relied on by the consignee of the cargo was a bill of lading for carriage from Chile to Australia, to which the amended Hague Rules applied. It was found that the prima facie inference to be drawn, where the ship required presentation of a bill of lading against which the cargo could be discharged, was that the bill was a document of title, the presentation of which created a contractual relationship between the carrier and the presenting party. The Court is satisfied that the plaintiff has a prima facie claim against the defendant under the contract constituted by the master's acceptance of the plaintiff's presentation of the bill of lading, as the basis on which the ship discharged the cargo at the plaintiff's direction. There is a prima facie case that the cranes on the Caspian Harmony were not in a condition in which they could properly discharge the goods carried, amounting to an apparent breach of art 3.2 of the amended Hague Rules at the time of the vessel's arrival in Kwinana. In addition, the evidence about the condition of the cranes supports the prima facie inference that there was a substantial delay in completing discharge beyond the anticipated normal discharge rate of 2,000 mt per day. That delay was caused by the cranes not being in a condition to properly and carefully discharge the goods carried, and the ship was not properly equipped - a state of affairs that is likely to have existed prior to the commencement of the voyage in breach of art 3.1 of the amended Hague Rules.

The defendant's registered address is in Leer, Germany. Germany is a party to the Hague Convention. For the purposes of r 10.43(4) of the Federal Court Rules 2011 (Cth), the Court has jurisdiction in the proceeding, the proceeding is of the kind mentioned in the table in r 10.42 in item 2, being based on a breach of contract in Australia, item 3(c), being in relation to a contract that is governed by the law of the Commonwealth, namely the Carriage of Goods by Sea Act 1991 (Cth), in which the plaintiff seeks an order for damages as relief in relation to a breach of that contract and, item 15, being in which the plaintiff seeks relief or a remedy under that Act. The plaintiff also has a prima facie case for relief, based on the increased costs of discharge in the cargo attributable to the apparently poor state of the cranes and their inability to discharge at the rate of 2,000 mt per day.