This was an appeal from the decision of Stewart J in Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038 (CMI1985) in a cargo claim involving carriage of pontoons from Ireland to Australia. Stewart J ordered that a number of separate questions be determined before any others. He held as follows:

Question 1: With regard to the limitation of liability regime applicable to the plaintiff's claim in all the circumstances:

(a) Is any liability of the carrier limited to £100 per package? Answer: Yes
(b) Is any liability of the carrier limited to the present value of £100 of gold in 1924 per package?Answer: No
(c) Is any liability of the carrier limited to 666.67 units of account per package or 2 units of account per kilogramme of gross weight of the goods (whichever is higher)? Answer: No

Question 2: Does the answer to Question 1 apply equally to the plaintiff's claims in bailment and negligence against the vessel’s owner? Answer: Yes

Held: The appeal must be allowed in part, and both the amended notice of contention and cross-appeal must be dismissed. The answers to the questions in order 1 made on 6 September 2022 must be set aside and in lieu thereof it is ordered that:

Question 1: With regard to the limitation of liability regime applicable to the plaintiff’s claim in all the circumstances:

(a) Is any liability of the carrier limited to £100 per package? Answer: No.
(b) Is any liability of the carrier limited to the present value of £100 of gold in 1924 per package?Answer: No.
(c) Is any liability of the carrier limited to 666.67 units of account per package or 2 units of account per kilogramme of gross weight of the goods (whichever the higher)? Answer: Yes, unless art 4.5.e of the Hague-Visby Rules (being as set out in Sch 3 to the Merchant Shipping (Liability of Shipowners and Others) Act 1996 (Ire) (the Irish Act) is found to apply.

Question 2: Does the answer to Question 1 apply equally to the plaintiff’s claims in bailment and negligence? Answer: Yes.

Rares, Sarah C Derrington JJ: This is because:

(a) the contract of carriage between the defendant carrier and the plaintiff was constituted by the second recap;

(b) the second recap incorporated only those terms of the carrier's standard forms of bill of lading (that would be issued and evidence the contract of carriage) and booking note that were not inconsistent with the terms of the second recap, including its agreed rider clauses that provided that the second recap was governed by English law and required disputes to be referred to London arbitration;

(c) The carrier's standard form bill of lading that was to be issued pursuant to the second recap provided in the general clause paramount in cl 3(a) that 'The Hague Rules ... as enacted in the country of shipment shall apply to this bill of lading' and, interpreted in accordance with English law, the Hague-Visby Rules as enacted in Ireland in Sch 3 of the Irish Act, as the country of shipment, would apply to the contract of carriage because:

(i) by virtue of the reasoning in Kyokuyo Co Ltd v AP Møller-Maersk A/S (see CMI13 and CMI137), the second recap, as the contract of carriage, was covered by a bill of lading within the meaning of art 1.b and the chapeau to art 10 of the Hague-Visby Rules;

(ii) the Carriage of Goods by Sea Act 1971 (UK), s 1(2) gives the force of law to the Hague-Visby Rules and, in consequence, cl 3(a) of the bill of lading that would be issued pursuant to the second recap fell within art 10.c of those Rules;

(iii) consequently, the Australian Rules (the modified Hague-Visby Rules enacted in Sch 1A of the Carriage of Goods by Sea Act 1991 (Cth)) do not apply because of art 10.2 of the Australian Rules, which states that '... these Rules apply to the carriage of goods by sea from ports outside Australia to ports in Australia, unless one of the Conventions mentioned in paragraph 3 (or a modification of such a Convention by the law of a contracting State) applies, by agreement or by law, to the carriage, or otherwise has effect in relation to the carriage.';

(d) any liability of the ship and carrier is limited by force of the Hague-Visby Rules as amended by the SDR Protocol (as enacted in Ireland as the country of shipment) to 666.67 units of account per package or 2 units of account per kg of gross weight of the goods (whichever is higher), subject to any determination in relation to breaking the limit under art 4.5.e of the Hague-Visby Rules;

(e) The shipowner is entitled to rely on the same limitation of liability as the ship and carrier because of the operation of the Himalaya clause in cl 11 of the carrier's standard form bill of lading.

Feutrill J: Adopting the same approach as in the joint reasons, the appeal must be allowed and the notice of contention and cross-appeal dismissed, for the following reasons:

(a) The contract of carriage between the carrier and the plaintiff was recorded or evidenced by the exchanges of emails between the first and second recap emails.

(b) The contract of carriage incorporated by reference those terms of the booking note form and the bill of lading form that were not inconsistent with the express terms of the contract of carriage recorded in the recap emails.

(c) It was an express term of the contract of carriage that it be governed by English law and that disputes be referred to London arbitration.

(d) On the proper construction of the standard terms of the booking note and bill of lading, as incorporated into the contract of carriage, the Irish Act applied, by agreement, to the contract of carriage. The Irish Act met the description in cl 3(a) of the bill of lading standard terms of 'the Hague Rules contained in the [1924 Convention], as enacted in the country of shipment [Ireland]'. The Irish Act gave the Hague-Visby Rules the force of law, including art 3.8. As cl 3(a) of the booking note standard terms was inconsistent with art 3.8 of the Hague-Visby Rules, cl 3(a) of the booking note was not incorporated into the contract of carriage.

(e) Any liability of the carrier was limited, by agreement, applying the Irish Act (Hague-Visby Rules) to 666.67 units of account per package or 2 units of account per kg of gross weight of the goods (whichever is higher) subject to any determination in relation to breaking the limit under art 4.5.e of the Hague-Visby Rules.

(f) On the proper construction of the standard terms of the booking note and bill of lading, as incorporated into the contract of carriage, cl 11 of the booking note (which is in the same terms in the bill of lading) was a term of the contract of carriage (Himalaya clause).

(g) The shipowner was entitled to rely on the limitation of liability contained in the Hague-Visby Rules by operation of the Himalaya clause.