Lloyd's Maritime and Commercial Law Quarterly
AUSTRALIAN MARITIME LAW DECISIONS 1993
Martin Davies*
A. Carriage of goods by sea
1. & 2. Glebe Island Terminals Pty. Ltd. v. Continental Seagram Pty. Ltd. (The Antwerpen),1 Kamil Export (Aust.) Pty. Ltd. v. N.P.L. (Aust.) Pty. Ltd.2
The heretical doctrine of fundamental breach of contract may be dead, but its spirit seems to live on. In these two cases, the courts read down bill of lading exclusion clauses so that they would not defeat the main purpose of the contract. Although the application of the exclusion clauses was considered as a matter of construction, as orthodoxy now requires,3 the process of reasoning was very similar to the old notion that exclusion clauses simply do not apply to fundamental breaches. Also, in Kamil Export, the Appeal Division of the Supreme Court of Victoria declined to follow the decision of the English Court of Appeal in The Captain Gregos (No. 1),4 holding that the one-year time-bar in the Hague Rules, Art. III, r. 6 does not apply to claims arising after discharge from the ship’s tackle.
The decision at first instance in The Antwerpen was considered in the 1990 Review,5 the decision at first instance in Kamil Export was considered in the 1992 Review.6 Although the facts of the two cases are rather different, they share the central characteristic that the goods carried under the bills of lading in question were lost after discharge from the ship’s tackle because of the deliberate actions of employees of the carriers’ agents. In The Antwerpen, the goods were stolen from the container terminal with the connivance of employees of the terminal operator; in Kamil Export, the goods were misdelivered to receivers who had not produced the bills of lading at the port of discharge. In both cases, the bills of lading contained a clause providing that the carrier would not in any circumstances be liable for loss or damage to the goods, however caused, arising after discharge from the ship. The Antwerpen bill of lading also contained a clause which provided that the
* Associate Professor, Faculty of Law, Monash University. I am grateful to Lee Poh York of the Monash Law Library and to the Maritime and Air Law Group of Mallesons Stephen Jaques, Melbourne, for their assistance in preparing this article.
2. (21 December 1993) Unreported, Vic.S.C.
3. See Photo Production Ltd. v. Securicor Transport Ltd. [1980] A.C. 827; Darlington Futures Ltd. v. Delco (Australia) Pty. Ltd. (1986) 161 C.L.R. 500; Nissho Iwai (Australia) Ltd. v. Malaysian International Shipping Corp. Berhad (1989) 167 C.L.R. 219.
4. Compania Portorafti Commerciale S.A. v. Ultramar Panama Inc. (The Captain Gregos)(No. 1)
[1990] 1 Lloyd’s Rep. 310; see Clarke [1990] LMCLQ 314.
5. [1991] LMCLQ 326, 331–332.
6. [1993] LMCLQ 253, 253–255.
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