GILLESPIE BROS. PROPRIETARY, LTD. v. BURNS, PHILP & CO., LTD.

(1945) 79 Ll.L.Rep. 393

AUSTRALIA.SUPREME COURT (NEW SOUTHWALES).(COMMERCIAL CAUSES.)

Before Mr. Justice Owen.

Bill of lading-Freight-Return freight-War -Abandonment of voyage-Cargo undischarged -Return of ship with cargo to port of shipment-Voyage freight prepaid -Shipowner's lien on cargo for return freight-Master as agent of necessity- Cargo of flour shipped by plaintiffs at Australian port for Singapore, etc.-Ship ordered by naval authorities to proceed in convoy to Batavia-Arrival at Batavia on Feb. 8, master being directed to anchor in roads to await orders to berth and discharge -Deterioration in war position- Approach of Japanese forces-Ship still undischarged on Feb. 19, in spite of repeated applications by master for berth -Opinion formed by master that cargo would not be discharged-Master informed on visiting naval authorities ashore that port must be cleared of all shipping immediately and that his ship must berth to take on board sufficient water to carry him to Fremantle and leave by convoy on Feb. 20-Ship unable to water in time to leave on Feb. 20-Master then directed to take his ship to rendezvous on Feb. 21 to join another convoy-No other ship found at rendezvous-Decision of master to sail alone to Fremantle-Voyage continued to Sydney - No communication made to plaintiffs-Cargo released by shipowners only upon payment of return freight by plaintiffs-Return freight paid by plaintiffs under protest - Action brought by plaintiffs to recover return freight - Whether master in returning to Australia acted as agent of necessity of plaintiffs- Onus of proof-Consideration of bill of lading terms-Express provision made for abandonment of voyage if state of war existed-No reference to return freight- Whether return to Australia to be considered part of contractual voyage.