Recent Cases

Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4 (14 February 2024) (Gageler CJ; Gordon, Steward, Gleeson and Jagot JJ)


Catchwords:


Statutes – Construction – Where Sch 1A of Carriage of Goods by Sea Act 1991 (Cth) contained amended Hague-Visby Rules (the “Australian Hague Rules”) – Where Art 3(8) of Australian Hague Rules provided that any clause in contract for carriage of goods by sea relieving or lessening carrier’s liability for loss or damage to goods otherwise than as provided for in Australian Hague Rules shall be void – Where arbitration clause in bill of lading provided for resolution of disputes between carrier and shipper by arbitration in London under English law – Where arbitration commenced – Where shipper commenced proceedings in Federal Court of Australia and sought to restrain arbitration – Where carrier sought stay of Federal Court proceedings in favour of arbitration – Where carrier undertook to admit in London arbitration that Australian Hague Rules as applied under Australian law were to apply in arbitration – Where Federal Court made declaration by consent to similar effect – Whether arbitration clause in bill of lading rendered inoperative by Art 3(8) – Whether conduct of arbitration would relieve or lessen carrier’s liability – Whether carrier’s undertaking and Federal Court’s declaration should be taken into account – Proper approach to standard of proof under Art 3(8).

Words and phrases – “arbitration”, “arbitration clause”, “Australian Hague Rules”, “balance of probabilities”, “burden of proof”, “carrier’s liability”, “contract of carriage of goods by sea”, “declaration”, “declaration by consent”, “foreign arbitration”, “lessen the carrier’s liability”, “liability would be relieved or lessened”, “ordinary civil standard of proof”, “standard of proof”, “undertaking”.