IXOM Operations Pty Ltd (IXOM) claimed that it received a cargo of contaminated sulphuric acid in breach of obligations owed to it by the carrier of the cargo on the MV CS Onsan. The primary issue was whether Blue One Shipping SA (Blue), which was the registered owner of the CS Onsan, and CS Marine Co Ltd (CS), which was the demise charterer of the vessel, were estopped from advancing defences that the claims were time-barred by art 3.6 of the Australian Amended Hague-Visby Rules (the Australian Rules) in Sch 1A to the Carriage of Goods by Sea Act 1991 (Cth) (the Act).

IXOM was the purchaser and consignee of the sulphuric acid shipped in bulk from Korea to Australia. The vendor and consignor was Trammo Pty Ltd (Trammo). Trammo arranged for the carriage of the consignment on the CS Onsan under a tanker voyage charterparty. Upon arrival on 6 June 2017 at Gladstone, Queensland, discolouration of the cargo was observed.

On the approach of the first anniversary of the discharge of the cargo, IXOM sought an extension of the limitation period. On 25 November 2020, IXOM commenced proceedings against the first defendant, Blue. Somewhat later, IXOM joined the third defendant, CS. IXOM added a further claim against both defendants, namely that they had engaged in misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth) (the ACL) in emails from Thynne + Macartney solicitors (T&M) in response to IXOM's seeking an extension of the limitation period. IXOM contended that T&M, as agent for Blue and/or CS, had misrepresented that Blue was the vessel owner and/or a party to the contract of carriage, and that the consent of Blue was sufficient to provide an extension to the Rules. As a result, IXOM did not seek an extension from CS, with the consequence that IXOM suffered the loss of its causes of action against CS.

Upon being joined, CS admitted that it was the carrier. However, it contended that IXOM failed to commence proceedings against it within the limitation period under art 3.6. It also denied that the consignment was damaged and denied liability under any of the causes of action pleaded.

IXOM submitted that ordinarily only a party to the contract of carriage, or its subcontractor, can agree to extend or waive the time limitation defence. The availability of extensions is necessarily limited to the carrier: see art 3.6. Limitation extensions are strictly construed and an extension by owners does not ordinarily extend to charterers. IXOM contended that the bill of lading reasonably appeared to be one where the owner of the CS Onsan was the party to the contract of carriage and the contractual carrier. It was signed by the ship's master, and the presence of the 'CS Marine' stamp on it would indicate no more than a manager or agent. There was no indication that CS was either the carrier or employed the master. Nor did the charterparty make clear, for example through an identity of carrier clause or demise clause, that there was a demise charter.

IXOM submitted that the first critical finding must be to identify who were the parties to the extension contract. IXOM relied on the decisions in The 'Stolt Loyalty' [1995] 1 Lloyd's Rep 598 (CA) and Tritton Resources Pty Ltd v Ever Rock Navigation SA [2019] FCA 276, 369 ALR 205 (CMI484) as demonstrating, on facts analogous to the present, that the correct legal approach is to ascertain the meaning of words used by the parties to an agreement by considering them in a business-like manner in the context in which they are used. IXOM submitted the result is that the word 'owners' in T&M's emails had its ordinary meaning, being the registered owners of the ship and not, as the defendants contended, 'vessel interests'. Accordingly, the parties to the agreement for the extension were the owners (Blue) on the one hand, and IXOM on the other.

IXOM contended that the defendants knew that it was operating under an incorrect assumption as to the identity of the carrier but, rather than correct that assumption, simply agreed to the extension request from owners who were not a party to the contract of carriage. IXOM submitted that it would be unconscionable for the defendants to depart from the assumption which their emails perpetuated. IXOM further submitted that the same facts gave rise to a conclusion that the defendants have, by the email of 25 May 2018 and subsequent extension emails, engaged in conduct in breach of s 18 of the ACL.

The defendants contended that there were no express representations to the effect alleged and that none should be implied from the text of the emails, particularly having regard to the parties' previous communications and the knowledge of IXOM of the role of CS. The defendants submitted that it was clear that the carrier was CS, and that the circumstances of the demise charter displaced both the usual assumption that a bill of lading signed by the master of a vessel is the agent for the registered owner, and any suggestion that the reference to 'CS Marine' on the bill of lading indicated no more than that CS was a manager or agent. T&M made clear that it acted for 'vessel interests', meaning both Blue as registered owner and CS as bareboat charterer.

The defendants denied that the emails induced any belief in IXOM or its solicitor that Blue was the carrier or could reasonably have induced that belief. Any misapprehension could only have been based on a misapprehension as to the identity of the carrier, which was not induced by any earlier communication by the defendants, but due to a lack of reasonable care taken by IXOM and its solicitors in considering the available material, which clearly indicated that CS was the carrier. Furthermore, the defendants submitted that if IXOM or its solicitors were under any such misapprehension, the defendants were not aware of that fact, and were under no obligation to correct it.

Held: IXOM's application is dismissed.

(1) Blue is not estopped from denying that it was, and is, a party to the contract of carriage evidenced by the bill of lading;

(2) CS is not estopped from relying on art 3.6 of the Australian Rules in response to IXOM's claim against CS;

(3) Blue and/or CS did not engage in conduct in contravention of s 18 of the ACL; and

(4) It is not necessary to decide whether Blue and CS's allegations of contributory negligence and concurrent wrongdoers apply to reduce any damages that IXOM may be entitled to by reason of Blue and/or CS's alleged contravention of s 18 of the ACL.

There is no dispute that at all material times CS was the 'carrier' pursuant to the contract of carriage as evidenced by the bill of lading. There is also no dispute in the present case that all of IXOM's claims are subject to the limitation period applicable by the operation of the Australian Rules, which are given force of law by s 8 of the Act, and set out in Sch 1A of the Act.

In this regard, art 1 of the Rules defines 'carrier' to include the owner or charterer who enters into a contract of carriage with a shipper, and 'contract of carriage' as:

a contract of carriage covered by a sea carriage document (to the extent that the document relates to the carriage of goods by sea), and includes a negotiable sea carriage document issued under a charterparty from the moment at which that document regulates the relations between its holder and the carrier concerned.

Article 3.6 provides that notice of any loss or damage must be given in writing to the carrier or its agent at the port of discharge before or at the time of discharge into the custody of the person entitled to delivery under the contract of carriage and that:

the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen.

Mr Tulloch for IXOM formed a preliminary view on 15 June 2017 that CS was likely to be the carrier. He noted that the charterparty identified CS as 'owner' and considered that this was to be understood to be the disponent owner. Nevertheless, this was only a preliminary view, and he did not consider that a final opinion on the subject would be necessary until proceedings were commenced. He considered that admissions might be required to clarify the position. He understood that his role was to protect IXOM's position vis-à-vis any claim it may have against the carrier, whoever that may be. Mr Tulloch's position is not surprising. Identifying the person who is the carrier under a contract evidenced by a bill of lading is not straightforward. The meaning of a particular reference to 'owner' will be context-driven, and can mean the registered owner or a demise charterer.

To this end, in his initial email Mr Tulloch sought security from 'owners/demise charterers'. T&M responded on 16 June 2017, confirming that it acted for 'owners' and, in a further email that day, said that it acted for 'vessel interests'. On 17 June 2017, T&M informed Mr Tulloch by email that security would be provided by 'vessel interests'. It is apparent that both parties understood that the terms 'owners', 'vessel interests' and 'owners/demise charterers' indicated that T&M acted for both the registered owner of the vessel and also for the bareboat charterer.

On 20 June 2017 T&M informed Mr Tulloch in terms that the letter of undertaking was provided by CS as 'the demise charterers of the vessel'. The attached undertaking muddied the waters somewhat by stating that the undertaking was given by CS 'on behalf of the owners and demise charterers'. That involved ambiguity because there was little point in CS acting on behalf of Blue while it was the demise charterer. Even so, from this point in time at least it must have been apparent to Mr Tulloch (and thereby IXOM) that T&M represented the registered owner and also CS as demise charterer.

Objectively viewing the email communications as a whole, there can be little doubt that T&M was communicating that the extension sought from Blue and CS was being granted.

IXOM contends that the emails are misleading because they represented that Blue as owner was a party to the contract of carriage evidenced by the bill of lading. That is not correct. To a reasonable reader, in context, the emails do no more than represent that whichever of T&M's clients was legally able to grant an extension of the time bar had done so. Mr Tulloch did not seek to disentangle which of T&M's clients was in fact the carrier (which was able to grant the extension), he simply wanted the assurance that whichever of the two was able to do so would grant the extension. The defendants acceded to that request.

IXOM relies on the facts in The Stolt Loyalty to support its case; however, that case is relevantly different. In the present case, the defendants agreed to the request for an extension on behalf of both Blue and CS, thereby avoiding any debate as to which was the contractual carrier under the bill of lading. An effective extension was granted by CS, such that had IXOM commenced proceedings against CS within the extended period, the claim would not have been the subject of the time bar. These facts distinguish The Stolt Loyalty.

[For the unsuccessful appeal to the Full Court of the Federal Court, see Ixom Operations Pty Ltd v Blue One Shipping SA [2023] FCAFC 25 (CMI2114).]