FEDERAL COURT OF AUSTRALIA

Ferguson Seacabs Pty Limited v APC Logistics (Thai) Co Ltd
[2012] FCA 547 

Citation:	Ferguson Seacabs Pty Limited v APC Logistics (Thai) Co Ltd [2012] FCA 547	
		
Parties:	FERGUSON SEACABS PTY LIMITED (ACN 123 176 401), FERGUSON SEACABS LIMITED, SURETANK (EXPORT) LIMITED and INTERNATIONAL FABRICATION SERVICES CO. LTD v APC LOGISTICS (THAI) CO. LTD, WESTLINK SHIPPING PTY LIMITED ACN 115 268 749 and RIJN TRADER BEHEER B.V.	
		
File number:	NSD 264 of 2012	
		
Judge:	RARES J	
		
Date of judgment:	27 April 2012	
		
Legislation:	Federal Court Rules 1979 (Cth) O 8 r 3 
Federal Court Rules 2011 (Cth) Div 10.4 rr 10.42, 10.43 
Carriage of Goods by Sea Act 1991 (Cth) Sch 1A, s 8
 
Hague Convention (Convention on the Service Abroad of Judicial and extra judicial Documents in Court or Commercial matters done at Hague on 15 November 1965) Arts 3(6), 3(8), 10(2)   	
		
Cases cited:	Beluga Shipping GmbH & Co KS “Beluga Fantastic” v Headway Shipping Ltd (No 2) (2008) 251 ALR 620 applied 	
		
Date of hearing:	27 April 2012	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	No catchwords	
		
Number of paragraphs:	14	
		
Counsel for the First Plaintiff:	Mr E Cox	
		
Solicitor for the First Plaintiff:	Hicksons Lawyers	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 264 of 2012	
 
BETWEEN:	FERGUSON SEACABS PTY LIMITED (ACN 123 176 401)
First Plaintiff

FERGUSON SEACABS LIMITED
Second Plaintiff

SURETANK (EXPORT) LIMITED
Third Plaintiff

INTERNATIONAL FABRICATION SERVICES CO. LTD
Fourth Plaintiff
	
AND:	APC LOGISTICS (THAI) CO. LTD
First Defendant

WESTLINK SHIPPING PTY LIMITED ACN 115 268 749
Second Defendant

RIJN TRADER BEHEER B.V.
Third Defendant

JUDGE:	RARES J	
DATE OF ORDER:	27 APRIL 2012	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	Leave be granted to the plaintiffs to serve the originating process, statement of claim and genuine steps statement on the first defendant in Thailand through the diplomatic channel in accordance with the law of Thailand.  

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 264 of 2012	
 
BETWEEN:	FERGUSON SEACABS PTY LIMITED (ACN 123 176 401)
First Plaintiff

FERGUSON SEACABS LIMITED
Second Plaintiff

SURETANK (EXPORT) LIMITED
Third Plaintiff

INTERNATIONAL FABRICATION SERVICES CO. LTD
Fourth Plaintiff
	
AND:	APC LOGISTICS (THAI) CO. LTD
First Defendant

WESTLINK SHIPPING PTY LIMITED ACN 115 268 749
Second Defendant

RIJN TRADER BEHEER B.V.
Third Defendant

JUDGE:	RARES J	
DATE:	27 APRIL 2012	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
1		The four plaintiffs commenced these proceedings in personam against the three defendants on 21 February 2012 seeking damages in respect of a cargo of containers, waste skips, container slings and other equipment.  The cargo was carried on Christina Scan from Thailand to Australia.  The first defendant, APC Logistics (Thai) Co Ltd, a Thai company, was named carrier under two multi-modal transport, negotiable bills of lading that also named the fourth plaintiff, International Fabrication Services Co Ltd as consignor, and “Ferguson Seacabs” as consignee.  That consignee appears to have been the first plaintiff, Ferguson Seacabs Pty Ltd or its Scottish parent and second plaintiff, Ferguson Seacabs Ltd.  The plaintiffs seek an order for service of the originating process on APC Logistics (Thai) in Thailand through the diplomatic channel.
BACKGROUND
2		The plaintiffs’ cargo was shipped on board Christina Scan, in Laem Chabang, Thailand on 9 February 2011 for shipment to the Port of Dampier in Western Australia.    Tropical cyclone Dianne developed during the course of the voyage.  According to survey reports in evidence the ship appears to have encountered heavy weather and seas occasioned by the cyclone.
3		Verifact conducted one survey after the cargo was discharged at Fremantle, following Christina Scan’s diversion there due to the cyclone.  Verifact’s survey report noted that 29 containers valued at €132,808 were damaged beyond repair, 20 sling sets valued at £3,508 were missing and that other items in the plaintiffs’ cargo sustained extensive damage.  The total damage sustained by the plaintiffs’ cargo was estimated by the survey at over AUD340,000.  The surveyor noted that the cargo hold of the ship was also damaged due to heavy weather caused by the cyclone.  He observed that the master of the vessel would have been fully aware, well in advance, of the expected weather conditions and that the cyclone had developed during the cyclone season.  The surveyor was not aware of what action, if any, the master had taken to avoid the cyclone as it developed.
4		Another survey report was prepared for Woodside Energy by Quay Maritime Consulting.  It recorded damage to its client’s pipes, mini-containers and waste skips that were also carried on Christina Scan.  That surveyor, Captain Chris Keys, opined that no serious attempt had been made to lash Woodside Energy’s cargo and that the cyclonic conditions were responsible for damage to it.  Captain Keys opined that the ship had made no serious attempt to avoid the cyclone.
5		The plaintiffs argued that one or more of them was the owner of the cargo at the time of loss.  The Australian Ferguson Seacabs was the owner of the cargo at the time that the repairs to it were effected.  The bills of lading contained a clause paramount providing that the Hague Rules applied to the carriage.
THE CLAIM FOR SERVICE OUTSIDE THE JURISDICTION
6		The plaintiffs had originally sought an order for substituted service based on the fact that they had arranged for the cargo to be transported with a company in Perth bearing a similar name to APC Logistics (Thai).  However, they no longer seek such order.  The difficulty which the plaintiffs perceived was that Thailand is not a party to any convention providing for service outside the jurisdiction of the State whose courts are resorted to for relief and so, any process must be served according to Thai law.  The evidence is that such service is effected through the diplomatic channel.
7		There is some evidence of a commercial connection between the Australian company, APC Logistics Pty Ltd, and the similarly, but not identically, named one in Thailand.  However, that evidence is not sufficient to demonstrate that substituted service on the Australian company would be accepted as effectual service on APC Logistics (Thai) under the principles of Australian private international law.  An order authorising service outside the jurisdiction implicitly conveys that once service is effected in accordance with its terms, the Court will exercise its authority over the person served.  It was therefore appropriate that the plaintiffs sought service in this case through the diplomatic channel.
8		The use of the Court’s long-arm jurisdiction should be carefully invoked.  Division 10.4 of the Federal Court Rules 2011 (Cth) crafts a principled and internationally transparent approach as to when, in ordinary circumstances, the Court will exercise that aspect of the judicial power of the Commonwealth over a foreigner who has no presence or property in this jurisdiction.  First, the controversy involving a foreigner must include at least one of the kinds of proceedings mentioned in the table to r 10.42.  Secondly, the conditions in r 10.43 authorising service must also be satisfied.  Thus, r 10.43(3)(c) requires an affidavit that must state that the proposed method of service is permitted by an international convention to which the foreign State is party, whether a bilateral one or the multi-lateral Hague Convention (Convention on the Service Abroad of Judicial and extra judicial Documents in Court or Commercial matters done at Hague on 15 November 1965), or otherwise by the law of that foreign State.  In order to establish a case for service out of the jurisdiction the plaintiff must satisfy the requirements of r 10.43(4).  That is in materially similar terms to the earlier O 8 r 3 of the repealed Federal Court Rules 1979 (Cth). 
9		The plaintiffs argued that the Court has jurisdiction under items 5, 14 or 15 of the table to r 10.42.  First, they claimed, that the proceeding is based on, or seeks the recovery of, damage suffered partly in Australia caused by a tortuous act or omission wherever occurring in accordance with item 5.  Item 14 provides that a proceeding in relation to the construction, effect, or enforcement of an Act can found jurisdiction in this Court.  Item 15 provides that a proceeding that seeks any relief or remedy under an Act will also found such jurisdiction.  
10		As to Item 5:  The plaintiffs rely on having incurred the cost of repair of the containers that were damaged that has now been effected in Australia.  The plaintiffs also rely on the loss of the missing slings that were not delivered here in accordance with the terms of the bills of lading.  I am satisfied that the claim falls within item 5.
11		As to Item 14:  The plaintiffs rely on their right to proceed here, conferred by Art 10(2) of the amended Hague Rules in Sch 1A to the Carriage of Goods by Sea Act 1991 (Cth).  Those Rules have the force of law in Australia, by dint of s 8 of the Act.  Article 10(2) provides that the Rules apply to carriage of goods by sea from ports outside Australia to ports in Australia (subject to a number of exceptions, none of which on the material before me, appears to apply).  Clause 18 of the bills of lading contains a nine month time bar.  In those circumstances, the plaintiffs are likely to rely on the one year time bar provided for in Art 3(6) of the amended Hague Rules as having force of law in respect of the damage and the concomitant avoidance of any contrary contractual provision provided for in Art 3(8).  I am satisfied that the proceedings are in relation to construction, effect or enforcement of the Carriage of Goods by Sea Act so as to satisfy item 14.
12		As to Item 15:  The plaintiffs seek damages by reason of their claim that APC Logistics (Thai), as carrier under the bills of lading, failed to comply with Art 3(2) of the amended Hague Rules because it did not discharge some of the goods at all and discharged other goods in a damaged condition different from that in the clean bills.  Because that claim asserts rights under the amended Hague Rules, it falls within item 15 of the table to r 10.42.
13		I am satisfied that the plaintiffs have established a prima facie case for relief, at least, in respect of containers that were repaired here and the loss of the cargo that was either damaged beyond repair or not delivered.  Accordingly, for the purposes of r 10.43, I am satisfied that the court has jurisdiction in these proceedings: Beluga Shipping GmbH & Co KS “Beluga Fantastic” v Headway Shipping Ltd (No 2) (2008) 251 ALR 620 at 628 [32]-[33].  The proceedings are of a kind mentioned in r 10.42.  The plaintiffs have a prima facie case for at least some of the relief they claim in the proceedings:  Beluga 251 ALR at 628 [33].  Thus, the requirements of r 10.43(4) have been satisfied.
CONCLUSION
14		I am therefore satisfied that this is an appropriate case in which service out of the jurisdiction should be ordered on the first defendant, APC Logistics (Thai).  That should be effected through the diplomatic channel in accordance with the law of Thailand.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.	

Associate:

Dated:	28 May 2012