PNSL Berhad v Dalrymple Marine Services Pty Ltd
[2007] QCA 429
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- PNSL Berhad v Dalrymple Marine Services Pty Ltd[2007] QCA 429
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PNSL Berhad v Dalrymple Marine Services Pty Ltd[2007] QCA 429
Reported at [2008] 1 Qd R 511
PNSL Berhad v Dalrymple Marine Services Pty Ltd[2007] QCA 429
Reported at [2008] 1 Qd R 511
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 30 November 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 November 2007 |
JUDGES: | Williams and Muir JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: |
|
CATCHWORDS: | SHIPPING AND NAVIGATION – COLLISIONS AND LIMITATIONS OF LIABILITY GENERALLY – LIMITATION OF LIABILITY – collision between tugboat and ship – finding at first instance that the collision was caused by negligence of appellant – whether exemption clause in contract applied – whether collision occurred ‘whilst towing’ TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – TERMINOLOGY – OTHER WORDS AND PHRASES – collision between tugboat and ship – finding at first instance that the collision was caused by negligence of appellant – whether s 74 of the Trade Practices Act 1974 (Cth) applied – whether the towing contract was a contract for or in relation to the transportation of goods Trade Practices Act 1974 (Cth), s 4, s 68, s 74 Australian Steamships Pty Ltd v Koninklijke-Java-China Paketvaart Lynen N.V. Amsterdam [1955] VLR 108, cited Braverus Maritime Inc v Port Kembla Coal Terminal Ltd (2005) 148 FCR 68, applied Comalco Aluminium Ltd v Mogal Freight Services Pty Ltd (1993) 113 ALR 677, applied Coulton v Holcombe (1986) 162 CLR 1, cited O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, cited Partafelagid Farmur v Grangemouth and Forth Towing Company Ltd (1953) 2 Lloyd’s Rep 699, cited PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301, cited PNSL Berhad v Dalrymple Marine Services Pty Ltd; PNSL Berhad v the Owners of the Ship ‘Koumala’ [2007] QSC 101, SC 1843 of 1997 and 1844 of 1997, 19 April 2007, affirmed Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45, cited The Apollon [1971] 1 Lloyd's Rep 476, applied The Glenaffric [1948] P 159; (1947-48) 81 Lloyd’s Rep 174, distinguished The Impetus [1959] 1 Lloyd’s Rep 269, distinguished The Uranienborg [1936] P 21; [1935] 53 Lloyd’s Rep 165, cited Water Board v Moustakas (1988) 180 CLR 491, cited |
COUNSEL: | G A Thompson SC, with C Wilson, for the appellants A Crowe SC, with F D Asis, for the respondent |
SOLICITORS: | Allens Arthur Robinson for the appellants Thynne McCartney for the respondent |
[1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Muir JA in which he has set out the relevant findings made by the learned judge at first instance, the relevant extracts from the United Kingdom Standard Conditions for Towage and Other Services (Revised 1974) ("the Standard Conditions"), and extracts from the relevant applicable legislation. I agree generally with the reasoning of Muir JA but it is desirable that I state my own reasons for concluding that the appeals should be dismissed. I will not repeat unnecessarily what is set out in the reasons for judgment of Muir JA.
[2] There are two associated appeals before the Court; the issues are identical. For simplicity’s sake I will refer to the interests of the tug as the appellant and the interests of the vessel to be towed as the respondent.
[3] It was not disputed on the hearing of the appeals that, subject to the operation of s 74 of the Trade Practices Act 1974 (Cth) ("the Act"), the respondent could not recover damages against the appellant, notwithstanding the fact that the latter's negligence caused the collision, if the incident occurred "whilst towing" as that expression is defined in the Standard Conditions.
[4] Relevantly the Standard Conditions provides in Clause 1(b)(iv):
"The expression 'whilst towing' shall cover the period commencing when the tug … is in a position to receive orders direct from the Hirer's vessel to commence pushing, holding, moving, escorting, or guiding the vessel or to pick up ropes or lines, or when the tow rope has been passed to or by the tug …, whichever is the sooner, and ending when the final orders from the Hirer's vessel to cease pushing, holding, moving, escorting or guiding the vessel or to cast off ropes or lines has been carried out, or the tow rope has been finally slipped, whichever is the later, and the tug … is safely clear of the vessel."
[5] It is immediately obvious that in order to determine whether an incident occurred "whilst towing" a number of findings of fact would have to be made. Further, the ultimate question of whether or not the incident occurred "whilst towing" is in itself a question of fact which must be determined in the light of all the surrounding circumstances. Where, as here, the judge at first instance has made basic findings of fact which were clearly open on the evidence and has then found that the incident did not occur "whilst towing", it does not avail an appellant to contend that a contrary finding was also open on the evidence. In the present case, notwithstanding the careful argument of senior counsel for the appellant, I have come to the conclusion that the only finding open on the evidence was that the incident did not occur "whilst towing".
[6] The learned judge at first instance found that at "about 7.00 a.m. the Koumala was approximately one nautical mile off the port bow of the Pernas Arang when Captain Eisen received the order from Captain Roscoe to make fast forward on the starboard bow of the Pernas Arang". That finding was based on the statement of Eisen contained in paragraph 9 of his affidavit. The further finding was that the collision occurred at 7.20 am. Initially it was argued on behalf of the appellant that the order given at 7.00 am to make fast forward on the starboard bow was the relevant order for the definition of "whilst towing" and that from the time that order was given the Koumala was towing the Pernas Arang for purposes of the Standard Conditions. But that contention was then abandoned on the basis that, as the order was given when the tug was approximately one nautical mile away and approximately 20 minutes elapsed before the collision, the requirements of the definition of "whilst towing" were not then met.
[7] As the authorities cited by Muir JA establish, in order for the tug to be in a position to "receive orders direct" from the vessel to be towed the tug must be in close proximity or, as it has frequently been put, within hailing distance. That the tug must be in close proximity to the other vessel before the towing procedure commences is made clear by the fact that the definition requires the tug to be in a position to pick up ropes or lines as ordered.
[8] One cannot say that a tug must be within a certain number of metres of the vessel to be towed before the definition is satisfied. It will be a question of fact in each case as to whether or not the tug is in a position to "receive orders direct" from the vessel and whether or not it is in a position to "pick up ropes or lines" or in a position "to commence pushing … moving" the other vessel.
[9] The most recent English decision on the expression "whilst towing" in the Standard Conditions is that of Brandon J in “The Apollon" [1971] 1 Llyod’s Rep. 476, and the most recent Australian decision is that of Herring CJ in Australian Steamships Pty Ltd v Koninklijke-Java-China Paketvaart Lynen N.V. Amsterdam [1955] VLR 108. The former case involved a collision between a tug and a dock gate; if the incident occurred "whilst towing" the Standard Condition provided that the vessel being towed was liable for the damages. Critically for present purposes Brandon J said at 480:
"It seems to me that, for a tug to be in a position to receive orders direct from the hirer's vessel to pick up ropes or lines, three conditions must be fulfilled. The first condition is that the situation is such that those on board the tug can reasonably expect the ship to give the tug an order to pick up ropes or lines. The second condition is that the tug is ready to respond to such orders if given. The third condition is that the tug should be close enough to the ship for the order to be passed direct: in other words, that the tug should be within hailing distance."
[10] It was not in dispute in that case that the tug was within hailing distance at all material times. One matter that was critical to the determination in that case was the contention that the tug was not in a position to respond to the order "because she had to perform a manoeuvre before taking a line"(at 481). It appears that when the relevant order was given the tug was at right angles to the ship and had to manoeuvre into a position to pick up the lines. As Brandon J said at 480:
"It seems to me that, in most cases, when an order is given to a tug to connect to a ship, it will be necessary for the tug to carry out certain manoeuvres in order to execute the order. Those manoeuvres may involve her in turning round a right angle or 180 deg. or even more, or they may involve her in steaming round the ship’s bows or stern. There are infinite manoeuvres one can visualise a tug having to execute in such a situation when such an order is given.
… I cannot see that the fact that a tug has to manoeuvre in some way in order to carry out an order when given shows that she is not in a position to receive that order."
[11] Later he said at 481:
"I would just say that I do not think that the fact that the tug has to perform a manoeuvre of this kind shows that she is not ready to receive an order. It does, of course, indicate that she is not ready to take a line, but that is not the point."
[12] That reasoning demonstrates, to my mind, that whether or not the relevant incident occurs "whilst towing" is a question of fact. In that case the tug was in a position to receive orders direct from the other vessel, and the fact that it then had to make some manoeuvre in order to pick up the lines was irrelevant; the incident occurred "whilst towing".
[13] It should be noted that after referring to The Uranienborg [1936] P 21, The Glenaffric [1948] P 159, Partafelagid Farmur v Grangemouth and Forth Towing Company Ltd [1953] 2 Lloyd’s Rep. 699 and The Impetus [1959] P 111, Brandon J said at 480:
"It seems to me that authorities of this kind are only valuable in so far as it is possible to extract from them some general principle. In so far as they are decisions upon the facts of the particular cases, which were all different from the facts of this case, while it is helpful to see how other Judges approached the matter, it does not seem that the cases assist very greatly."
Subsequently major text books on the subject (e.g. Rainey, The Law of Tug and Tow (1996 edition) at 61) have regarded the judgment in The Apollon as correctly stating the test to be applied.
[14] The Australian case involved a collision between a tug and the vessel it was to tow. The day prior to the incident arrangements for the tow had been made. Without further order on the day in question the tug began to manoeuvre into a position to commence the tow. The following narrative of facts is taken from the judgment at 110-111:
"He [the tug-master] had come in facing north-east and had to take the tow out south-west and this meant turning around, and he proceeded without any orders at all from the 'Tjibodas' to manoeuvre his tug about. He swung to the starboard and went some 300 feet, and then he went astern with the helm hard aport, then forward again, and astern again, and on the second movement to the stern, the telegraph failed, and the tug collided with the 'Port Fairy', causing damage to that ship. … Had the tug been able to go on with a telegraph, as it could not, owing to the telegraph having broken, a couple of movements backwards and forwards would still have been necessary before the tug would have been in a position to pick up the tow line. Actually, it could not go on, of course, without the telegraph; it was quite incompetent to carry out the towing with its broken telegraph. …
The nearest the tug approached the 'Tjibodas', according to the master of the tug, was when it struck the 'Port Fairy'. It was never ready, never in a position to pick up ropes and lines from the 'Tjibodas', partly because of the distance it was from it, and partly, because of the incompleteness of its turn, it was not facing in the right direction."
[15] Herring CJ reasoned as follows in arriving at a conclusion that the incident did not occur "whilst towing"; relevantly he said at 111-2:
"I think the matter then has to be dealt with on the basis that the collision occurred when the tug was manoeuvring to get into position to take a tow-line from the 'Tjibodas', and it is on this basis that I propose to consider condition No. 1.
The question is, then, whether, on this basis, it can be said that the tug was, when it collided with the 'Port Fairy', within the meaning of condition 1, in a position to receive orders direct from the hirer's vessel to pick up ropes and lines. That it was within hailing distance was not disputed, so that it was in a position to receive orders direct from the 'Tjibodas'; but it was contended for the defendant that, in order to satisfy the condition, it had to be in a position not only to receive orders direct from the hirer's vessel to pick up ropes or lines, but also be in a position to carry these orders into effect, and this it never was. As I have said, condition 1 is concerned with defining the phrase 'whilst towing', to set the time at which the tow is to be treated as commencing. In point of fact, a tow cannot, of course, commence until both the ship and tug are ready and I think one has to bear this in mind when seeking to interpret the condition. So is being in a position to receive orders, in the sense of hearing them and recording them, when it is not ready to commence the tow by carrying those orders into effect. For a tug to be in a position to receive orders direct from the hirer's vessel, no more is required than that it should be in a certain geographical position, within hailing distance of the vessel. But the orders that a tug is to be in position to receive are orders which can only be carried out when the tug is in a state of readiness, and this means both correctly positioned so far as the vessel is concerned and with everything ready on the tug itself to pick up the necessary ropes or lines. In my view the word 'position' is not used solely with regard to matters of geography where the tug is placed vis-a-vis the vessel to be towed. This comes into the matter, of course, but there is also to be considered the question of the tug's readiness to get on with the tow. The language used in the condition, I think, justifies the taking of this view. The words 'in a position to receive orders direct from the hirer's vessel to pick up ropes or lines' are not strained by reading them in this way. After all, the condition has to be read in a document that is intended to deal with commercial realities and one would expect the parties to provide a commencing time for the tow that bore some real relation to the time at which the tug was ready to take its part in the tow by being correctly positioned and otherwise prepared."
[16] Herring CJ referred to passages in the judgment of Merriman P in The Uranienborg [1936] P 21 in arriving at the conclusion which he did. Merriman P was concerned with a situation where a tug had been ordered and in consequence it proceeded to where the other vessel was berthed. That other vessel was still discharging its cargo at the wharf when the tug approached. The tug was travelling too fast and collided with the vessel it was to tow. The question in issue was whether the incident occurred "whilst towing". Relevantly for present purposes Merriman P said at 27:
"I doubt whether the word 'position' is only used in the sense of local situation, I think it involves also the conception of the tug being herself in a condition to receive and act upon the orders. But however that may be, the orders which she is to be in a position to receive are orders to pick up ropes or lines – not orders generally, but those specific orders, and I think that that must have some reference to the intention of those on board the ship to give those orders, and to the readiness of those on board the tug to receive them."
[17] Later he said at 29:
"In my opinion the least that is involved in arriving at the moment when the period commences is that the tug herself at any rate should be able to show that she was in a position to receive, and having received, to comply with those orders in connection with ropes or lines."
[18] Herring CJ at 113 also considered that there was nothing in The Glenaffric which cast any doubt upon what was said in The Uranienborg. He said of The Glenaffric:
"In it there was no question but that the tug was ready to receive orders to pick up ropes or lines and to carry out such orders. It so happened that the ship decided that it did not want the services of the tug, but the tug, being ready and able to start the tow, was treated as entitled to the protection of the condition."
[19] In my respectful view that is an accurate summary of the decision in The Glenaffric. The arrangement for the tow had been made the day prior to the incident, and on the day in question the tug approached to within 20 or 30 feet of the vessel to be towed in accordance with the arrangements previously made. At that point those on the vessel to be towed indicated that the ship was not ready to be towed. A short time later the tug again approached the vessel but again was told that no rope would be passed. As the tug was dropping astern of the vessel to obey that order it struck the vessel and sustained damage. It was held by all the members of the Court of Appeal that the tug was in position to receive orders direct from the Hirer's vessel to pick up ropes or lines and in consequence the incident occurred "whilst towing" and the tug was entitled to the protection afforded by the Standard Conditions. In terms of the three requirements defined by Brandon J the tug was entitled to reasonably expect the ship to give the tug the order to pick up the lines.
[20] In my view if the reasoning of Brandon J and Herring CJ is applied to the facts of this case the conclusion is inevitable that the Koumala never reached a position to receive orders direct from the Pernas Arang to commence moving the Pernas Arang or to pick up ropes or lines; in other words towing as defined in the Standard Conditions had not commenced.
[21] However, counsel for the appellant relied on the decisions in Partafelagid Farmur and The Impetus as supporting a different conclusion. The former case was concerned with a collision between a tug and the vessel to be towed. It was not disputed that the tug was negligent; when the skipper signalled "full astern", the tug's engines were in error put "full ahead". The evidence accepted by Lord Hill Watson was that the order "full astern" was given in response to an order from the pilot of the vessel to be towed to the tug to "come forward and take my bow lines". That led his Lordship to conclude at 705:
"I am, accordingly of the opinion that the defender have proved their case that the tug was not only in a position to receive orders direct from the ship to take up ropes or lines, but that an order to this effect was in fact given to the tug by the pilot, and that the collision took place 'whilst towing' in terms of Condition 1…".
[22] That conclusion on the facts as found is consistent with all that is said in the other authorities to which I have referred. But counsel for the appellant here referred to an observation by Lord Hill Watson at 701; immediately after setting out the terms of the Standard Conditions he said:
"The tug has only to be in a position to receive orders direct from the ship to pick up ropes or lines and there is no necessity for the tug herself to be in a position to take up the ropes or lines."
[23] Given the findings made by his Lordship that statement must, in the circumstances, be regarded as obiter. Significantly his Lordship quoted from the judgment of Merriman P in The Uranienborg at 27 (quoted above) and does not expressly acknowledge any inconsistency between the passage from his judgment just quoted and the passage he quoted from Merriman P.
[24] In his reasons for judgment in The Impetus Karminski J said at 118:
"It is clear on the evidence that at the time of the collision the Impetus was in a position to receive the order to heave the line, but was not in a position until after the collision to carry out such an order. The fact that the Blenheim on this as on very many earlier occasions, gave no order is in a sense, irrelevant. The question is whether at the collision the Impetus was in a position to receive orders from the Blenheim to pick up ropes or lines had such orders been given."
[25] Relying on the judgment of Merriman P in the Uranienborg counsel argued that as a general principle the tug must prove, in order to bring herself within the Standard Conditions, that the ship was ready to give the order to pick up ropes or lines, that the tug was ready to receive such orders, and the tug was able and ready to act upon them. Karminski J did not accept that, saying at 119:
"I do not think that the President intended to lay down any general proposition of this kind, but was limiting his observations to the facts of that particular case…",
[26] Subsequently he said at 121:
"… I have come to the conclusion that clause 1 means what it says and that the clause attached when the tug is in a position to receive orders to pick up ropes or lines. This presupposes that the ship is ready to give such orders, if they are required. But I cannot accept Mr Naisby's submission that a tug can thereafter put herself outside the clause by getting into a position which may for a short period make it impossible for her to carry out such orders. To import such a condition when the tug is already in attendance on the ship and therefore in danger of incurring damage would … be without justification. I find that here the collision occurred while towing and there must be judgment for the defendants accordingly."
[27] There can be no doubt that Karminski J was correct in concluding that once a situation is reached where the definition "whilst towing" is engaged, the tug cannot put herself outside the protection of the conditions by making a short manoeuvre during which it would be impossible for her to carry out the orders. That is a matter expressly dealt with by Brandon J in his judgment in The Apollon. Again, on the facts as found by Karminski J, the decision in The Impetus is completely in accord with what was said by Brandon J in The Apollon and Herring CJ in the Victorian case.
[28] In my respectful view the analysis by Brandon J was correct and the law should be taken as he stated it in his reasons. Nothing in the reasoning of Lord Watson or Karminski J avails the appellant in this case.
[29] Here the Koumala was proceeding to a point where she would have been able to accept orders directly from the Pernas Arang and to pick up the necessary ropes or lines. But she never reached that point. When heading towards the starboard side of the Pernas Arang, and about 150 metres away, the steering failed on the Koumala. From that moment on until the collision occurred the Koumala was not in a position to accept orders or carry them out. It follows in my view that the learned judge at first instance was correct in concluding that towing had not commenced and the collision did not occur "whilst towing" within the protection of the Standard Conditions.
[30] It follows that the appellant is not entitled to the protection afforded by Clause 1 of the Standard Conditions, and the respondent is entitled to recover damages flowing from the appellant's negligence.
[31] In consequence it is not strictly necessary to consider the issues debated as to the operation of s 74 of the Act. But it is desirable that this aspect of the matter be dealt with.
[32] If s 74 applies there is imported into the contract between the parties a warranty that "the services will be rendered with due care and skill" and (by operation of s 68) the provisions of the Standard Conditions inconsistent with that warranty would be rendered void. On behalf of the appellant it was submitted that s 74 did not apply because the present situation was within s 74(3). That subsection provides that relevantly the term "services" as used in the section does not include a reference to "a contract for or in relation to the transportation … of goods for the purposes of a business". It was submitted that subsection (3) was engaged in one of two ways; either the towing was in relation to the transportation of the coal which the Pernas Arang was to load, or alternatively, the towing of the Pernas Arang was itself the transportation of goods, a ship being defined for purposes of the Act as goods.
[33] In my view it is critical to note that the subsection (as does the whole of s 74) focuses on the contract. The question is whether or not the contract between the parties can be categorised as a contract "for or in relation to the transportation of goods". As Sheppard J said in Comalco Aluminium Ltd v Mogal Freight Services Pty Ltd (1993) 113 ALR 677 at 689, it is essential that those words be construed "broadly and in a common sense and commercial way". In that case his Honour directed his mind to the "purpose of the contract" in question.
[34] To my mind the purpose of the contract between the appellant and respondent here was the towing of the respondent into port. The contract was to be performed by providing the towing services; that is why the Standard Conditions applied. Although the words "in relation to" are broad it would be, in my view, fanciful to conclude that this contract was in relation to the future transportation of the goods to be loaded onto the Pernas Arang.
[35] I agree with what was said by the Full Court of the Federal Court in Braverus Maritime Inc v Port Kembla Coal Terminal Ltd (2005) 148 FCR 68, especially the passage quoted by Muir JA.
[36] It follows that if the collision occurred "whilst towing" the respondent would be entitled to recover damages because by operation of s 68 of the Act the provisions of the Standard Conditions protecting the appellant would be void and the respondent would be entitled to recover for breach of the warranty implied by s 74(1) of the Act.
[37] It follows that each appeal should be dismissed with costs.
[38] MUIR JA:
Introduction
The issues for determination in these proceedings arise out of a collision on 28 February 1995 between the ship Pernas Arang owned by the respondent and the tug Koumala operated by the appellant in the seas off Hay Point, Queensland. The collision occurred when the Koumala and another tug were preparing to assist the Pernas Arang to its intended berth at a coal terminal to load coal.
[39] The respondent commenced proceedings in the Supreme Court against the appellant claiming that the collision was caused by the negligence of servants or agents of the appellant. After a trial, the negligence claim succeeded and the respondent obtained judgment against the appellant in the sum of $583,965.09. At first instance the appellant pleaded and argued that a clause in the contract governing the provision of towing services by the appellant to the respondent operated to exclude the appellant from liability for negligence. It was common ground that, subject to the application of s 74(3) of the Trade Practices Act 1974 (Cth), the clause excluded liability if the collision occurred “whilst [the Koumala was] towing” the Pernas Arang within the defined meaning of that expression. The primary judge found that it did not so occur.
[40] Another issue for determination was whether the warranties in relation to the supply of services implied by s 74(1) and (2) of the Act did not apply to the contract by operation of s 74(3). It was held that s 74(3) did not apply and that, in consequence, the appellant would not have been able to rely on the exemption clause had it applied.
[41] The primary judge’s findings of negligence are not challenged but the appellant seeks to overturn the findings in relation to the exemption clause and the application of s 74(3). Another ground of appeal, referred to later, was argued also.
[42] The foregoing narrative is in respect of proceeding SC No 1844 of 1997 and the appeal from the judgment in that proceeding, CA No 5141 of 2007. The respondent also made a claim in respect of the damages sustained by it in the collision against Dalrymple Marine Services Pty Ltd as charterer or controller of the Koumala. The trial of this proceeding was heard with that in SC 1844 of 1997. The respondent succeeded in both proceedings for essentially the same reasons. Dalrymple Marine Services Pty Ltd appealed against the judgment in SC 1843 of 1997. Both appeals were heard together and were conducted on the basis that issues in both were identical and, necessarily, the outcomes of the appeals should be the same.
The provisions of the contract
[43] Before going to the issues to be decided it is desirable to identify the relevant contractual provisions and to say a little about the relevant facts. The facts have been stated by the primary judge with his accustomed clarity and, as the challenges to the findings of fact are minimal, I propose to quote extensively from the reasons.
[44] The reasons record, and it is not disputed, that the services of the tugs were engaged by Adelaide Steamship Co Ltd as agent of the respondent and that the terms of engagement are to be found in: a letter dated 21 December 1994 to the Adelaide Steamship Co.; a letter in response from the Adelaide Steamship Co. dated 30 December 1994; and a facsimile transmission dated 24 February 1995 from the Adelaide Steamship Co. It is common ground that “the contract was to undertake towage services in accordance with the United Kingdom Standard Conditions for Towage and Other Services (Revised 1974)”.
[45] The letter of 21 December 1994 had attached a schedule of towage charges showing a charge for a tug of $12,500 per tug – per service. The schedule contained the following notations:
“A service is defined as being a Towage Service either Inwards and/or Outwards, all hours.
…
1.The above rates refer to berthing and unberthing of vessels at Dalrymple Bay Coal Terminal, in the Port of Hay Point at any time of the day. Rates for other services are available on application.
2.All work, is undertaken subject to ‘The United Kingdom Standard Conditions for Towage and Other Services (Revised 1974)’.”
The letter repeated the content of the second note, except that in the letter “1994” appeared instead of “1974”. Nothing turns on this possible discrepancy. It was common ground at first instance that the 1974 Revised Standard Conditions applied.
[46] The 24 February 1995 facsimile provided, inter alia:
“Please provide towage services to the abovemnamed (sic) vessel at the tentatively scheduled pilot boarding times for berthing on, 28/2/95 at 0700 hours and for sailing on 1/3/95 at 0630 hours.”
Evidence as to the services contemplated by the contract
[47] The berthing operation for a ship like the Pernas Arang was described by Captain Roscoe, the pilot on the Pernas Arang at the time of the accident, in a statement placed in evidence. Except in one minor respect, the primary judge accepted Captain Roscoe’s evidence. The reasons state:
“[5] The account I have given of the movements of the Pernas Arang and the tugs is drawn from the account given in an incident report compiled for the Regional Harbourmaster of the Queensland Department of Transport – Marine Operations within twenty-four hours of the incident by Captain Roscoe, a pilot of great experience who had piloted ships since 1978. … In a statement by Captain Roscoe, dated 10 November 2006 … he was, however, able to give an account of the berthing procedure adopted for a ship like the Pernas Arang. The invariable practice was, he said, to use the ship’s main engine and rudder when required while the ship was moving to a berth at the Dalrymple Bay Coal Terminal. The ship’s engine was used turning both forward and astern with the rudder to control the ship’s speed and direction during the berthing operation from a time before the tugs’ making fast to the ship through to the ship’s being brought alongside the berth. The ship’s main engine may at times have been stopped for short periods, as when the tugs were being made fast to the ship. Captain Roscoe said that he had never piloted a ‘dead’ ship to berth at the Dalrymple Bay Coal Terminal and he had never heard of its being done. The tugs assist in the berthing of a ship by easing her into the berth, pushing her into the berth when required, or holding her off when required.
[6] Referring to the question of control of a berthing, Captain Roscoe said this in paragraph 9 of exhibit 24:
9.The operation to move a ship such as the ‘Pernas Arang’ to berth at Dalrymple Bay Coal Terminal is under the control of the ship’s master on the pilot’s advice. By ‘control’ I mean that the pilot has the conduct of the ship in all respects including all orders concerning the ship’s main engine and rudder, and the placement and manoeuvres of the tugs, to effect the berthing operation. In all berthing operation [sic] I have been involved in at Dalrymple Bay Coal Terminal, the tug masters and crew have controlled only their own tug, in response to the orders they receive from the pilot in conjunction with the master. The operation has never been under the control of the tug masters.”
The circumstances surrounding the accident
[48] The following narrative in the reasons was drawn from an incident report complied by Captain Roscoe within 24 hours of the accident:
“[1]…When the collision occurred the Koumala and another tug, the Kungurri, were preparing to tow the Pernas Arang …
[3]At 7.00 a.m. on 28 February 1995 Captain Stephen Roscoe, senior marine pilot, boarded the Pernas Arang to take her from sea to port alongside the Dalrymple Bay Coal Terminal no. 2 berth. At 7.15 a.m. she was heading at 185° true making four knots. (A knot, one nautical mile per hour, is 1.852 kilometres per hour.) Her engine was stopped. The tide was flooding from north to south. There was a low to moderate south-easterly swell. … Visibility was good. The Koumala and the Kungurri were attending the Pernas Arang. They were ordered by Captain Roscoe by radio to make fast starboard shoulder and starboard quarter.
[4]…The Koumala crossed ahead of the Pernas Arang from port to starboard at approximately 90° to the Pernas Arang’s heading. Once on the starboard side of the Pernas Arang the Koumala then turned quickly to starboard and was seen to be blowing black smoke. At 7.20 a.m. the Koumala collided heavily head-on with the starboard side of the Pernas Arang. [In the collision the Pernas Arang was damaged, but the Koumala was not.]
… After the collision the Koumala lay dead in the water for a short time before she could be brought alongside the Pernas Arang, and then normal towing operations proceeded without incident. …”
[49] The order to make fast forward on the starboard bow was received by the Koumala when it was approximately one nautical mile off the port bow of the Pernas Arang. The following narrative in the reasons is mainly taken from the evidence of Captain Eisen, the Captain of the Koumala:
“[10]… Captain Eisen steered the Koumala so that she approached the Pernas Arang fine on the port bow and then crossed to the starboard side of the ship, turning the Koumala to starboard through a turn bringing her back towards the starboard side of the Pernas Arang, intending then to make a further turn to starboard to bring her alongside the Pernas Arang where a line could be secured. During the execution of those manoeuvres, as the Koumala was coming out of the first turn and was heading towards the Pernas Arang’s starboard side, the steering failed on the Koumala approximately 150 metres from the Pernas Arang. …The Koumala, moving at approximately five knots towards the Pernas Arang at approximately 95° true, then collided with her.
… approximately one and a half to two minutes elapsed between loss of steering and collision.
…
[13]Those on board the Koumala at the time of the incident, apart from Captain Eisen, were three deck hands, and the tug’s engineer, Mr John Smith.
[14]As the Koumala approached the Pernas Arang the forward mooring team on the Pernas Arang were ready to throw a heaving line down, but only one member of the Koumala’s crew was on the deck near the forward winch as she approached the Pernas Arang. Two crew members were required to carry out the procedure of taking a heaving line from the ship and then tying it to the tug’s heavy towing line which was then passed out and made fast to the ship: one crew member controlled the forward winch and the other passed the line…”
The Standard Conditions of contract
[50] The Standard Conditions, so far as they are material, provide:
“1.(a)The agreement between the Tugowner and the Hirer is and shall at all times be subject to and include each and all of the conditions hereinafter set out.
(b)For the purpose of these conditions:-
(i)‘towing’ is any operation in connection with the holding, pushing, pulling, moving, escorting or guiding of the Hirer’s vessel, and the expressions ‘to tow’, ‘being towed’ and ‘towage’ shall be defined likewise.
…
(iv)The expression ‘whilst towing’ shall cover the period commencing when the tug … is in a position to receive orders direct from the Hirer’s vessel to commence pushing, holding, moving, escorting, or guiding the vessel or to pick up ropes or lines or when the tow rope has been passed to or by the tug … whichever is the sooner …
(v)Any service of whatsoever nature to be performed by the Tugowner other than towing shall be deemed to cover the period commencing when the tug … is placed physically at the disposal of the Hirer at the place designated by the Hirer, or, if such be at a vessel, when the tug … is in a position to receive and forthwith carry out orders to come alongside and shall continue until the employment for which the tug … has been engaged is ended. …
…
3.Whilst towing or whilst at the request, express or implied, of the Hirer, rendering any service other than towing, the master and crew of the tug … shall be deemed to be the servants of the Hirer and under the control of the Hirer and/or his servants and/or his agents, and anyone on board the Hirer’s vessel who may be employed and/or paid by the Tugowner shall likewise be deemed to be the servant of the Hirer and the Hirer shall accordingly be vicariously liable for any act or omission by any such person so deemed to be the servant of the Hirer.
4.Whilst towing, or whilst at the request, either express or implied of the Hirer, rendering any service of whatsoever nature other than towing:-
(a)The Tugowner shall not be responsible for or be liable
(i)for damage of any description done by or to the tug … or done by or to the Hirer’s vessel …
... arising from any cause, including (without prejudice to the generality of the foregoing) negligence at any time of the Tugowner’s servants or agents, unseaworthiness, unfitness or breakdown of the tug …, its machinery, boilers, towing gear, equipment, lines, ropes or hawsers, lack of fuel, stores, speed or otherwise ...”
Did the exemption clause apply?
[51] Clauses 3 and 4 of the Standard Conditions apply if the collision occurred “whilst” the Koumala was “towing”.
[52] The appellant argues that this requirement was satisfied as the Koumala was “in a position to receive orders direct from the hirer’s vessel … to pick up ropes or lines” when the order to make fast was given. It is said that the Koumala received and acted on that order by steaming across the bow of the Pernas Arang and turning to come alongside. The absence of evidence that a further such order was anticipated or given before the order was carried out is said to support the appellant’s argument.
[53] In the course of the hearing senior counsel for the appellant resiled from this position in favour of a contention that the requirements of the definition were met when, acting in response to the order, the Koumala came to the location, about 150 metres from the Pernas Arang where it suffered steering failure. This shift in position appeared to result from a recognition that the requirement to be “in a position to receive orders direct” had been held consistently by the authorities to require both physical proximity of the tug to the vessel to be towed and readiness or ability on the part of the tug to act on the orders.[1]
[54] The definition of “whilst towing” plainly envisages that the defined state of affairs will commence only when the tug and the tow are in close proximity. The tug must be in a position to receive orders direct from the tow. The orders described in the definition are ones which themselves are suggestive of close proximity. The “orders direct” which are contemplated are “to commence pushing, holding ... or to pick up ropes or lines or when the tow rope has been passed to or by the tug”. The word “direct” in this context conveys the notion of physical immediacy. The correctness of these elementary observations about the effect of the definition is supported by the authorities.
[55] The authorities establish that for a tug to be “in a position to receive orders direct from the hirer’s vessel to commence pushing … or to pick up ropes or lines”:[2]
(a) The situation must be such that those on board the tug can reasonably expect the tow to give the tug an order to pick up ropes and lines;
(b) The tug must be ready to respond to such an order if given; and
(c) The tug must be in hailing distance of the tow.
The correctness of these propositions was not disputed by the appellant.
[56] The following discussion of the relevant requirements of the Standard Conditions in The Law of Tug and Tow[3] was referred to by the primary judge:[4]
“It is submitted that the statement of the law in The Apollon correctly summarises the effect of previous authorities. While certain commentators (e.g. Kovats, Law of Tugs and Towage (1980) Barry Rose Publishers, p. 43) have in the past criticised the requirement that the tug be within “hailing distance” of the tow by reference to the possibilities of VHF and R/T communication, such criticism seems misplaced. The towage service is to commence under Clause 1(b)(iv) of the U.K. Standard Conditions when the tug, in all practical respects, is alongside and at the disposal of the tow. To extend that state of disposal to the position of the tow several miles out on her approach run in to the tow is both unrealistic and fails to give the meaning of the words ‘to receive orders direct from the Hirer’s vessel’ (emphasis supplied). The epithet “direct” signifies the close proximity and immediacy of preparation between tug and tow which Brandon J. described as being within hailing distance. Such, realistically and commercially, is when the towage service in fact begins.” (emphasis added)
For present purposes it is unnecessary to decide whether the proposition stated in the words emphasised may be in need of qualification, at least in some circumstances.
[57] The primary judge found that at the time the Koumala’s steering failed it was not in a position:
“[62]… to commence pushing, holding, moving, escorting, or guiding the vessel or to pick up ropes or lines. She was manoeuvring to put herself in that position alongside the Pernas Arang but had not reached it at the time when the steering failed … – or after it failed and up to the moment the collision occurred.”
[58] Faced with the difficulty that once the Koumala’s steering failed it was not in a position to receive orders, the appellant placed reliance on the The Impetus[5] which, it was submitted, is authority for the proposition that, once in a position to receive orders, the tug does not put itself outside the definition by “getting into a position which may for a short period make it impossible for the tug to carry out the ship’s orders”.
[59] In The Impetus, Karminski J, after stating the defendant’s argument, which was the converse of the above proposition, said:
“To import such a condition when the tug is already in attendance on the ship and therefore in danger of incurring damage, would, as Scott LJ pointed out in The Glenaffric be without justification.”[6]
[60] The Glenaffric[7] was a case in which the tug, having been led by the ship to believe that she was ready to give or take a tow rope, approached the ship to take it in tow. The pilot hailed the tug to keep away. As the tug dropped back from the ship the two vessels collided. In the course of his reasons Scott LJ remarked:
“After the tug has arrived at the ship at a proper time, namely, the normal time in accordance with ordinary practice, in order to take the ship in tow, she is from then in attendance on the ship, and necessarily then begins to incur the risk of damage to herself by contact with the ship.”[8]
[61] Both of these decisions may be contrasted with the situation under consideration. Here the tug became disabled when it was approaching the ship for the first time but was still a substantial distance from it.
[62] In “The Apollon” it was argued on behalf of the tug owner that the tug was not ready to respond to the subject order because “her crew were not at stations but assembled on the after-deck chatting”. Brandon J rejected the argument on the basis that the tug was small:
“… and even if the crew were not at their stations, it would probably make no more than half a minute or one minute’s difference to the response to the order; or, if I may adopt an argument advanced by Counsel for the plaintiffs, the right view may be that, if the tug was not in a position to receive an order at the time when the order was given because it would take half a minute or a minute for her to get into a state of complete readiness, then it would follow that she was in such a position after that half-minute or minute had elapsed when she had put herself in a state of complete readiness.”[9]
[63] The primary judge held that such considerations could not apply on the facts before him “because the Koumala was never able to put herself in a position to receive an order once the steering failed”.[10]
[64] The order to the Koumala by radio to “make fast starboard shoulder and starboard quarter” was not given when the Koumala was “in a position to receive orders direct”, because of the distance between the subject vessels at that time. Before the Koumala could be in that position it had to be ready to respond to orders of the type identified in the definition and it had to be within hailing distance, or, at least, within close proximity to the Pernas Arang. Even if the order to “make fast starboard shoulder and starboard quarter” was an order of the type described in the definition, the evidence does not show that crew of the Koumala were ever in such a state of readiness. In this regard I do not consider that it assists the respondent that only one deckhand was observed on the foredeck of the Koumala as it approached the Pernas Arang; Captain Eisen had ordered the deckhands aft after the steering failure. This evidence is relevant therefore only to the Koumala’s state of unreadiness between the time of the engine failure and the collision.
[65] The appellant’s argument, to my mind, is a difficult one. If the Koumala came within hailing distance before it suffered steering failure it did so only for a matter of seconds before becoming unable to carry out any relevant orders. The appellant pointed to no evidence of the state of readiness of the crew of the Koumala in that narrow window of opportunity beyond the evidence which showed that the Koumala, in a general way, was acting on the order given by radio. Whilst that evidence is relevant to the issue to be decided it is hardly determinative.
[66] In order to determine whether the towing period commenced, it is necessary to apply the definition of “whilst towing” to the facts and to determine, in a practical commonsense way, whether the requirements of the definition have been fulfilled in substance. The appellant’s approach, necessitated by the facts, merely looks to see if for a few seconds, at best, the requirements of the definition were technically met. Regard is had only to physical proximity of the two vessels and the fact that the Koumala was proceeding to carry out the radioed order. This approach is too restrictive. All the facts must be considered including: the disposition of the Koumala’s crew, the speed of the Koumala; the manoeuvres it was required to undertake before coming alongside the Pernas Arang and the Koumala’s mechanical capacity to carry out relevant orders. On the state of the evidence there is no reason to conclude that the primary judge’s finding that the Koumala was not in a position to receive relevant orders direct was wrong.
[67] The appellant argued that when the Koumala was 150 metres from the Pernas Arang the two vessels were within hailing distance of each other. Senior counsel for the appellant invited the Court to conclude that 150 metres was within hailing distance on the basis of the finding in The Uranienborg that the subject tug was within hailing distance when 300 metres from the tow. The report does not suggest that there was an issue in The Uranienborg about whether the tug was in hailing distance. It is thus not surprising that the report makes no mention of any matters which might be expected to affect the Master of the tug’s capacity to hear commands issuing from the tow.
[68] The “hailing distance” argument was not based on the evidence of any of the persons present at the time of the accident. Nor was it advanced by reference to the physical conditions prevailing at the time, such as the noise levels on the Koumala and the velocity and direction of the wind. There was in fact evidence that a 15 to 20 knot wind was blowing and that the seas were choppy.
[69] Irrespective of any other consideration, the evidence does not permit a finding that the Koumala was in hailing distance immediately before its steering failure. Consequently it is impossible for the appellant to succeed on this ground of appeal.
Did the primary judge err in holding that the towage contract between the appellant and the respondent was not a contract “for or in relation to the transportation … of goods” within the meaning of subsection 74(3) of the Trade Practices Act 1974 (Cth)?
[70] It is common ground that the limitations on the appellant’s liability pursuant to the Standard Conditions are rendered void by s 68 of the Act, as a result of the warranty implied by s 74(1) of the Act, unless s 74(3) of the Act applies.
[71] The relevant provisions of the Trade Practices Act, as they were at the material time, were:
“4 Interpretation
(1)In this Act, unless the contrary intention appears:
…
goods includes:
(a)ships, aircraft and other vehicles;
(b)animals, including fish;
(c)minerals, trees and crops, whether on, under or attached to land or not; and
(d)gas and electricity.
4B Consumers
(1)For the purposes of this Act, unless the contrary intention appears:
…
(b)a person shall be taken to have acquired particular services as a consumer if, and only if:
(i)the price of the services did not exceed the prescribed amount; or
(ii)where that price exceeded the prescribed amount – the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.
(2)For the purposes of subsection (1):
(a)the prescribed amount is $40,000 or, if a greater amount is prescribed for the purposes of this paragraph, that greater amount;
68 Application of provisions not to be excluded or modified
(1)Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) that purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying:
(a)the application of all or any of the provisions of this Division;
(b)the exercise of a right conferred by such a provision;
(c)any liability of the corporation for breach of a condition or warranty implied by such a provision; or
(d)the application of section 75A;
is void.
(2)A term of a contract shall not be taken to exclude, restrict or modify the application of a provision of this Division or the application of section 75A unless the term does so expressly or is inconsistent with that provision or section.
74 Warranties in relation to the supply of services
(1)In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill and that any materials supplied in connexion with those services will be reasonably fit for the purpose for which they are supplied.
(2)Where a corporation supplies services (other than services of a professional nature provided by a qualified architect or engineer) to a consumer in the course of a business and the consumer, expressly or by implication, makes known to the corporation any particular purpose for which the services are required or the result that he desires the services to achieve, there is an implied warranty that the services supplied under the contract for the supply of the services and any materials supplied in connexion with those services will be reasonably fit for that purpose or are of such a nature and quality that they might reasonably be expected to achieve that result, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him to rely, on the corporation’s skill or judgment.
(3)A reference in this section to services does not include a reference to services that are, or are to be, provided, granted or conferred under:
(a)a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored; or
(b)a contract of insurance.”
[72] By operation of s 74(3) the term “services” does not include services that are or are to be provided under “a contract for or in relation to the transportation … of goods for the purposes of a business … engaged in by the person for whom the goods are transported …”
[73] The appellant submits that the warranty implied by s 74 of the Act did not apply because the contract:
“.was a contract for the transportation of goods, meaning the ship. The Act expressly defines goods to include a ship;
.in the alternative, was a contract in relation to the transportation of the ship;
.further or in the alternative, was a contract in relation to the transportation of the coal to be loaded onto the ship.”
[74] That the words “in respect of” have a very wide meaning has been remarked on in many cases.[11] For example, in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service[12] Toohey and Gummow JJ observed:
“It is apparent that the words ‘in or in relation to’ are particularly wide. We have already referred to the idea that, as a facultative provision, there is no apparent call to read down the words used, or to give them any constricted operation. Cases concerning the interpretation of this phrase in other statutory contexts are of limited assistance. However, the cases do show that the words are prima facie broad and designed to catch things which have sufficient nexus to the subject. The question of sufficiency of nexus is, of course, dependent on the statutory context.”
[75] In a literal sense, the contract is “in relation to the transportation … of goods”. There is “some discernible and rational link”[13] between the contract and the transportation of coal in the ship. The purpose of the contract is to provide for the services to be given by the tug proprietor to the ship owner so as to enable the ship to berth at Hay Point and be loaded with coal for its outward voyage. But is a nexus such as this sufficient, having regard to the wording of s 74?
[76] In considering this question the primary judge referred, with approval, to the following passage from the reasons of the court in Braverus Maritime Inc v Port Kembla Coal Terminal Ltd & Anor.[14] That case concerned a ship which collided with a bulk coal berth at a time when an unlicensed pilot provided to the ship owner by the Port Corporation, as required by law, was on duty.
[77] It was observed in the Judgment of the Court:[15]
“The pilotage services were provided (on this hypothesis) under a contract between Braverus and the Corporation. That contract was not for the transportation of goods. Was it a contract in relation to the transportation of goods for the purposes identified by the subsection? We think not. The purpose of s 74(3) was to ensure that the well-known law governing transportation of goods (by air, land or sea) and storage of goods was not to be radically amended by s 74, in particular given the well established insurance arrangements in respect thereof: Explanatory Memorandum accompanying Trade Practices Revision Bill 1986 (Cth) at para 153; see Heydon JD, Trade Practices Law, Vol 2 at [16.850]. With that purpose understood, there is no relevant relationship between the contract to provide the services and the transportation of goods. It could be no more said that a contract to provide pilotage services related to the transportation of goods because it was a necessary precondition to get the ship to the berth, than it could be said that a contract to repair the ship before sailing related to the transportation of goods because, without the repairs, the ship would not sail.”
[78] The primary judge, applying that reasoning, concluded as follows:[16]
“In my respectful view that analysis is correct, and by the same process of reasoning one must conclude that there is no relevant relationship between a contract to provide towing services and the transportation of goods. The towing contract in this case was to provide those services under the ship’s master on the pilot’s advice. The connexion between the towing contract and the transportation of goods is no less remote than that between the contract to provide the pilot’s services and the transportation of goods or that between the repairer’s contract and the transportation of goods. There is a connexion, but one lacking a relevant relationship, such as exists in the case of the courier. There is no reason to conclude that the purpose of s. 74(3) extended to removing contracts like towing contracts from the purview of s. 74(1) and (2).”
[79] Senior counsel for the appellant sought to distinguish the reasoning in Braverus Maritime Inc for the reason that, unlike a contract for pilotage, a contract for towage involves services for the provision of locomotive power and contributes to movement of goods.
[80] Like the primary judge I would not regard the contract as being for the transportation of the Pernas Arang, despite the definition in the Act which includes a ship within the meaning of “goods”.[17] The appellant did not challenge the appropriateness of the definition of transportation in the Oxford English Dictionary, (2nd ed., 1989), quoted by the primary judge. It is “The action or process of transporting; conveyance (of things or persons) from one place to another”. “Transport”, the noun, is defined as “The action of carrying or conveying a thing or person from one place to another”.
[81] The contract was not for the purpose of transporting, carrying or taking the ship from one place to another. As the primary judge pointed out, it was for the purpose of guiding or assisting it to its berth at the completion of its unladen journey under the ship’s master on the pilot’s advice. The evidence of Captain Roscoe was that “the pilot has the conduct of the ship, in all respects, including all orders concerning the ship’s main engine and rudder, and the placement and manoeuvres of the tugs, to effect the berthing operation”. The ship was not “transported” or “taken” to the berth by the tug.
[82] The appellant has a stronger argument where the coal to be carried is regarded as the “goods”. But the nexus must be between the contract and the “transportation … of goods for the purposes of a business … carried on … by the person for whom the [coal is to be] transported”. The evidence is silent as to the identity of that business and person.
[83] In the context of subsection (3) of s 74 and of its purpose identified earlier, it is difficult to conclude that the contract is in relation to the transportation of coal, let alone in relation to the transportation of coal “for the purposes of the business of the person for whom the goods are transported”. The aim of the towage contract is to ensure that the ship is properly berthed. It is true that unless that happens the coal cannot be loaded and then transported. But could it seriously be argued that if the ship had to be repaired after a collision before loading could take place or refuelled before it could sail, that the contract in respect of the repairs or refuelling would come within the subsection? Such a contract, like this one, does not relate to the transportation of goods. It concerns a service to be rendered to the ship itself without regard to whether the ship is laden or unladen and without regard to the identity, characteristics or movement of any goods. Nor can the “purposes of the business for whom the [coal is] transported” be relevant to a contract of towage. Such purposes and the identity of the relevant business are not matters of concern to the tug owner.
[84] In my view the appellant has failed to identify any error in the primary judge’s findings in respect of this ground of appeal.
If the Koumala was not “towing” within the meaning of that term in the contract at the time of the collision, was the Koumala “rendering any service of whatsoever nature other than towing” within the meaning of those words in the contract?
[85] The appellant pleaded in its defence that it “was engaged to provide towage services” and did not argue at first instance that it was engaged to provide any other service. There was thus no evidence led in relation to this issue and it could not be said that, had the point been raised, there was no evidence which the respondent could have called. This being the case the issue should not be determined by this Court.[18]
Conclusion
[86] For the above reasons I would order that the appeals be dismissed with costs.
[87] DAUBNEY J: I have had the benefit of reading the reasons for judgment of each of Williams JA and Muir JA, with which I agree, and would also order that the appeals be dismissed with costs.
Footnotes
[1] See eg., The Uranienborg [1936] P 21 at 27 and Australian Steamships Pty Ltd v Koninklijke-Java-China Paketvaart Lynen N.V. Amsterdam [1955] VLR 108 at 112.
[2] The Apollon [1971] 1 Lloyd’s Rep. 476 at 480; Australian Steamships Pty Ltd v Koninklijke-Java-China Paketvaart Lynen N.V. Amsterdam at 112.
[3]The Law of Tug and Tow, Simon Rainey, 1996, p 61.
[4] At [59] of his reasons.
[5] [1959] P 111; [1959] 1 Lloyd’s Rep 269.
[6] [1959] P 111 at 121.
[7] [1948] P 159.
[8] The Glenaffric at 165.
[9] The Apollon at 481.
[10] Para [63].
[11] PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 330, 331 and O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356.
[12] (1995) 184 CLR 301 at 330.
[13] Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45 at 47.
[14] (2005) 148 FCR 68 at 118.
[15] At 118.
[16] Para [50].
[17] Trade Practices Act 1974, s 4(1).
[18] Water Board v Moustakas (1988) 180 CLR 491 at 497 and Coulton v Holcombe (1986) 162 CLR 1 at 7-8.