Burns Philp and Company Limited v Gillespie Brothers Pty Ltd [1947] HCA 3

Burns Philp and Company Limited v Gillespie Brothers Pty Ltd [1947] HCA 3

The majority of the High Court held that the voyage back from Batavia was not undertaken for the purpose of preserving the cargo in the respondent’s interest, but was a measure taken for the joint safety of ship and cargo as one adventure during wartime. Therefore, the owner was not entitled to back freight for the return journey, and the plaintiff was entitled to recover the payment made under protest. No right to back freight arose under the bill of lading or maritime law in these circumstances.

Parties
Appellant; Defendant: Burns Philp and Company Limited; Respondent; Plaintiff: Gillespie Brothers Proprietary Limited
Jurisdiction
Australia
Procedural Posture
Appeal (civil) / High Court of Australia: Appeal From Decision of the Supreme Court of New South Wales (full Court)
Outcome
Appeal dismissed
Legal Topics
Bill of Lading, Agency of Necessity, Back Freight, War Risks, General Average, Frustration of Contract
Shipping Law Contract Law Bill of Lading Agency of Necessity Back Freight War Risks General Average Frustration of Contract

Case Brief

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Parties

Burns Philp and Company Limited

Appellant; Defendant

Gillespie Brothers Proprietary Limited

Respondent; Plaintiff

Procedural Posture

Appeal (civil) / High Court of Australia: Appeal From Decision of the Supreme Court of New South Wales (full Court)

Legal Issues

  1. 1 Whether the shipowner was entitled to claim back freight for return of goods to Australia after contractual voyage was abandoned due to war conditions.
  2. 2 Whether the master of the ship acted as an agent of necessity on behalf of the cargo owner.
  3. 3 Whether the terms of the bill of lading provided expressly or by implication a right to back freight in these circumstances.

Ratio Decidendi

The majority of the High Court held that the voyage back from Batavia was not undertaken for the purpose of preserving the cargo in the respondent’s interest, but was a measure taken for the joint safety of ship and cargo as one adventure during wartime. Therefore, the owner was not entitled to back freight for the return journey, and the plaintiff was entitled to recover the payment made under protest. No right to back freight arose under the bill of lading or maritime law in these circumstances.

Court Disposition

Appeal dismissed

Orders

  • Plaintiff (Gillespie Brothers Pty. Ltd.) entitled to judgment for the amount of £795 3s. 7d. paid under protest.
  • Defendant (Burns Philp & Co. Ltd.) not entitled to recover back freight for return voyage.