The facts were somewhat complicated but, reduced to their minimum, involved the issue of two bills of lading: a house bill of lading by the freight forwarder, Pacific Austral, and an ocean bill by the time charterer, Simsmetal, on behalf of Shardana, the owner of the vessel Cape Comorin. The stevedores who discharged the cargo of two diesel engines and caused one to be damaged sought the protection of the Himalaya clause in either or both bills of lading. At first instance, Rogers, J., held that the stevedore was entitled to the protection of the Himalaya clause under the freight forwarder’s bill of lading. This was seen to be a somewhat artificial situation, since of course the freight forwarder had taken no steps to have the cargo discharged from the ship and had no relationship with the stevedores. Rogers, C.J., had not been able to accept that the bill of lading issued on behalf of the owners, which only passed through the hands of the consignee’s customs agents momentarily, could be used for that purpose. He was particularly influenced by the fact that he had held that the freight forwarder was acting as a principal in the transaction, having issued its own bill of lading as a carrier, and was not authorized to engage the services of another.

Handley, J.A., who delivered the main judgment in the Court of Appeal, overcame those difficulties by, in effect, holding that, vis-à-vis its client, the consignee, the freight forwarder was acting as a principal; but that in carrying out its client’s instruction to ship the goods, it had acted as an agent and, as part of its duties in carrying out its mandate from its client, had obtained the issue of the bill of lading from the actual carrier. The great advantage of this decision to carriers is that, whereas previously there was a very real risk that carriers could not obtain any contractual benefit from their own bills of lading as against consignees (because of the interposition of another “carrier”, namely the freight forwarder), the carrier can now do so, provided it can be established that the freight forwarder had a mandate from its client to ship the goods and as part of that mandate could obtain a bill of lading from the actual carrier. As Handley, J.A., stated, the consignee “had authorized Pacific to negotiate space for its benefit, to make arrangements for carriage of the goods on its behalf, and to obtain a bill of lading to enable the goods to be cleared from the wharf in Sydney”.

Handley, J.A., went on to consider whether or not the freight forwarder’s bill of lading was a bill of lading at all. He noted that a document is not a bill of lading merely because that is what the parties have called it.2 After reference to the des