This case concerned the identity of the contractual carrier. Ixom Operations Pty Ltd (Ixom) was the consignee of an allegedly contaminated cargo of sulphuric acid carried on the MV CS Onsan. Ixom sued Blue One Shipping SA (Blue One) the registered owner of the vessel, for claims in contract based on the bill of lading, and in bailment and negligence. The claims could not therefore succeed unless Blue One was the contractual carrier (in the case of the claim on the bill of lading contract) or the person in possession and control of the vessel (in the case of the bailment and negligence claims).

Blue One filed a defence on 2 February 2021 in which it denied that it was the carrier under the bill of lading and named CS Marine Co Ltd (CS Marine), the demise charterer, as the carrier. Although Ixom thereafter joined CS Marine as third defendant, that was long after the last extension of time had expired, giving CS Marine a complete defence to the claim against it.

Ixom pleaded a series of estoppels generated by the defendants' conduct, and also argued that Blue One and CS Marine engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law (ACL). The issues at the initial trial were whether the facts gave rise to:

1. an estoppel preventing Blue One from denying that it was a party to the bill of lading contract;
2. an estoppel preventing CS Marine from arguing that the time bar in art 3.6 of the Australian version of the Hague-Visby Rules in Sch 1A to the Carriage of Goods by Sea Act 1991 (Cth) applied to any claim under the bill of lading; or
3. liability to compensate Ixom by reason of Blue One having engaged in misleading or deceptive conduct.

The primary judge answered each of those questions in the negative: see Ixom Operations Pty Ltd v Blue One Shipping SA [2022] FCA 1101 (CMI2016). Ixom appealed to the Full Court of the Federal Court of Australia.

Held: Appeal dismissed.

The problem at the heart of Ixom's case is its reliance on the subjective understanding, and recollection, of the solicitors involved as informing the construction and nature of what was represented by the relevant emails. That approach is incorrect.

A representation must be clear and unambiguous in order to found an estoppel: see Legione v Hateley [1983] HCA 11, 152 CLR 406, 435-6. That requires that the representation be of such a nature that it would have misled any reasonable person in the position of the person to whom it is addressed and that the representee was in fact misled by it: Western Australian Insurance Co Ltd v Dayton [1924] HCA 58, 35 CLR 355, 375 (citing Low v Bouverie [1891] UKLawRpCh 106, [1891] 3 Ch 82).

Identifying the content of a representation is an objective task that is informed by the context in which the alleged representation takes place as well as the 'known characteristics of the actual representee': MCI WorldCom International Inc v Primus Telecommunications Inc [2004] EWCA Civ 957, [2004] 2 All ER (Comm) 833 [30]. The representee’s subjective state of mind goes to the question of whether they were misled, not to the content of the representation. It is therefore not to the point what the solicitors actually understood or remembered in determining what, if any, representation was made by the exchange of emails separate from the terms of the contract that was thereby concluded.

There is therefore no sense in which the exchange of correspondence between the solicitors by which an extension of time was agreed, judged objectively according to the impact that what was said may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee, could be reasonably understood to say that the registered owner, Blue One, was the contractual carrier.

Indeed, as found by the primary judge, the extension of time was sought and granted in order to preserve the status quo and avoid the need at that time to identify the carrier. There was no assertion or reliance on any right by Blue One in granting the extension, and in doing so it did not mislead; for a prospective defendant to agree to extend time is not to assert or rely on a right, it is to disclaim any such reliance for the agreed period of time.

There is the contention by Ixom that by both Blue One and CS Marine granting the extension they represented that they were both carriers under the bill of lading. That contention fails for the same reason as already dealt with on the hypothesis that the extension was given only for the registered owner. Further, just because it is theoretically possible to have two contractual carriers on the same contract of carriage does not mean that that representation was made in the present case. It is such an unusual, and only really a theoretical, possibility that there could have been no representation to that effect. Aside from anything else, there is no evidence of reliance on it.

Finally, there is the misleading and deceptive conduct claim. It rests on the contention that the emails represented that the registered owner was the carrier. That has already been disposed of. The primary judge was correct to dismiss that claim.