Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation, Berhad [1989] HCA 32

Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation, Berhad [1989] HCA 32

Clause 8(2)(d), construed in context, exempted the carrier from liability for loss resulting from non-delivery of the whole shipment. The words "loss in connection with Goods" covered indirect, consequential or financial loss arising from loss of the goods. The term "Carrier" in cl. 8(2)(d) referred to the respondent carrier itself and not to its stevedore, agent or sub-contractor; on the facts found, reasonable diligence failure was not attributable to the carrier itself. The respondent was therefore entitled to the protection of cl. 8(2)(d), and the appeal was dismissed.

Jurisdiction
Australia
Procedural Posture
Appeal by Special Leave Concerning Liability Under a Bill of Lading for Non Delivery of Goods / High Court Appeal From the Court of Appeal of New South Wales
Outcome
Appeal dismissed with costs.
Legal Topics
['bill of Lading' 'exclusion Clauses' 'non Delivery of Goods' 'carriage of Goods by Sea' 'construction of Contract' 'sub Contractors and Stevedores' 'corporate Attribution']
['admiralty and Maritime Law' 'contract Law'] ['bill of Lading' 'exclusion Clauses' 'non Delivery of Goods' 'carriage of Goods by Sea' 'construction of Contract' 'sub Contractors and Stevedores' 'corporate Attribution']

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Procedural Posture

Appeal by Special Leave Concerning Liability Under a Bill of Lading for Non Delivery of Goods / High Court Appeal From the Court of Appeal of New South Wales

Legal Issues

  1. 1 ['Whether cl. 8(2) of the bill of lading protected the carrier against liability for loss arising from non-delivery of the goods.' 'Whether, on the facts found, the carrier was exempted from liability by cl. 8(2)(d) of the bill of lading.' 'Whether the word "Carrier" in cl. 8(2)(d) included agents, sub-contractors or employees for the purpose of reasonable diligence.' 'Whether cl. 8(2)(a) applied because the goods had been delivered or made available at the place of delivery.']

Ratio Decidendi

Clause 8(2)(d), construed in context, exempted the carrier from liability for loss resulting from non-delivery of the whole shipment. The words "loss in connection with Goods" covered indirect, consequential or financial loss arising from loss of the goods. The term "Carrier" in cl. 8(2)(d) referred to the respondent carrier itself and not to its stevedore, agent or sub-contractor; on the facts found, reasonable diligence failure was not attributable to the carrier itself. The respondent was therefore entitled to the protection of cl. 8(2)(d), and the appeal was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']