The four plaintiffs, Ferguson Seacabs Pty Ltd, Ferguson Seacabs Ltd, Suretank (Export) Ltd, and International Fabrication Services Co Ltd, commenced proceedings in personam against the three defendants, APC Logistics (Thai) Co Ltd (APC), Westlink Shipping Pty Ltd, and Rijn Trader Beheer BV. The claim related to an affected cargo of containers, waste skips, container slings, and other assorted equipment, that had been delivered from Thailand to Australia by the carrier APC on the Christina Scan. During the journey the vessel was beset by tropical cyclone Dianne, and much of the plaintiffs' cargo was either lost or damaged beyond repair due to the resulting heavy weather and rough seas. The shipment was performed subject to two multimodal transport negotiable bills of lading, naming International Fabrication Services Co Ltd as consignor and either Ferguson Seacabs Ltd or Ferguson Seacabs Pty Ltd as consignee.

The four plaintiffs sought an order for service of the originating process on APC in Thailand.

Held: Leave was granted to the plaintiffs to serve the originating process, statement of claim and genuine steps statement on the first defendant, APC, through the diplomatic channel in accordance with the law of Thailand.

The plaintiffs argued that one or more of them owned the cargo in question when it was damaged. Ferguson Seacabs Pty Ltd owned the cargo when repairs were undertaken. Also relevant was that the bill of lading contained a clause paramount, specifying that the Hague Rules would apply to the arrangement.

In order to complete service outside of the jurisdiction, it was necessary for the plaintiffs to prove that the dispute involving APC included at least one kind of proceeding mentioned in the table under r 10.42 of the Federal Court Rules 2011 (Cth). The conditions in r 10.43 authorising service outside the jurisdiction would also need to be satisfied, including the production of an affidavit stating the proposed method of service was permitted by an international Convention to which Thailand was a party, or by a domestic Thai law.

In terms of r 10.42, the plaintiffs identified items 5, 14, or 15 from the table as relevant types of proceedings in this case, and which could enable service outside the jurisdiction. In respect of item 5, the plaintiffs argued the proceeding was based on or sought the recovery of damage suffered partly in Australia and caused by a tortious act or omission. This damage was the cost of repairing the containers damaged on board the Christina Scan, and the loss of a cargo of slings. Rares J agreed that the claim fell within item 5.

Item 14 provides that a proceeding in relation to the construction, effect, or enforcement of an Act can found jurisdiction in the Federal Court. In respect of item 14 the plaintiffs looked to art 10.2 of the Amended Hague-Visby Rules, as included under Sch 1A to the Carriage of Goods by Sea Act 1991 (Cth). Article 10.2 states that the Amended Hague-Visby Rules apply to the carriage of goods by sea from ports outside of Australia to ports within Australia. The plaintiffs were likely to rely on art 3.6 of the Amended Hague-Visby Rules, which gives a one-year time bar the force of law in respect of the damage, as well as art 3.8. The Court agreed that the proceedings related to and satisfied item 14 because they related to the construction, effect, or enforcement of the Carriage of Goods by Sea Act 1991 (Cth).

Finally, item 15 provides that a proceeding seeking any relief or remedy under an Act will also found such jurisdiction. The plaintiffs looked at art 3.2 of the Amended Hague-Visby Rules, arguing that APC failed to comply with this article by improperly discharging the goods it was carrying. Because a remedy was being sought and rights were being asserted under the Amended Hague-Visby Rules, and by extension the Carriage of Goods by Sea Act 1991 (Cth), the plaintiffs' claim also fell within the parameters of item 15 of the table to r 10.42.

The Court's findings in respect of each of these items and therefore r 10.42 established that the plaintiffs had a prima facie case for relief in regard to their lost or damaged cargo. Rares J also found that the Court had jurisdiction in these proceedings for the purposes of r 10.43, because the proceedings were of a kind mentioned under r 10.42. This satisfied r 10.43(4), and it was appropriate to order service out of the jurisdiction on APC.