Sumitomo Corporation v CV Scheepvaartonderneming Emmagracht [2009] FCA 1127

Sumitomo Corporation v CV Scheepvaartonderneming Emmagracht [2009] FCA 1127

Because a stevedore's reliance on a Himalaya clause was a commonplace issue that should have been promptly identified and supported by the necessary facts, and because both the plaintiffs and the stevedore bore responsibility for failing to bring that true issue forward early, the stevedore was entitled to only 75% of its costs of the motion incurred up to and including 8 September 2009 rather than full costs.

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Admiralty Cargo Damage Proceeding; Costs Application on Stevedore's Motion Based on Himalaya Clause / Reasons and Orders on Costs After the Second Respondent's Motion and Consent Orders Dismissing Proceedings Against It
Outcome
The second respondent stevedore was awarded 75% of its costs of its motion incurred up to and including 8 September 2009.
Legal Topics
['himalaya Clause' 'bill of Lading' 'stevedore Liability' 'cargo Damage' 'identification of Issues in Commercial Litigation' 'costs of Motion']
['admiralty and Maritime Law' 'civil Procedure' 'costs' 'contract Law'] ['himalaya Clause' 'bill of Lading' 'stevedore Liability' 'cargo Damage' 'identification of Issues in Commercial Litigation' 'costs of Motion']

Case Brief

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Procedural Posture

Admiralty Cargo Damage Proceeding; Costs Application on Stevedore's Motion Based on Himalaya Clause / Reasons and Orders on Costs After the Second Respondent's Motion and Consent Orders Dismissing Proceedings Against It

Legal Issues

  1. 1 ['Whether the second respondent stevedore should recover its costs of the motion where it obtained consent orders based on a Himalaya clause but did not provide critical evidence or information until after the motion was filed.' 'Whether the parties cooperated sufficiently to identify and resolve the real issue in dispute at an early stage of the proceeding.']

Ratio Decidendi

Because a stevedore's reliance on a Himalaya clause was a commonplace issue that should have been promptly identified and supported by the necessary facts, and because both the plaintiffs and the stevedore bore responsibility for failing to bring that true issue forward early, the stevedore was entitled to only 75% of its costs of the motion incurred up to and including 8 September 2009 rather than full costs.

Court Disposition

The second respondent stevedore was awarded 75% of its costs of its motion incurred up to and including 8 September 2009.

Orders

  • ["The plaintiffs pay 75% of the second defendant's costs of its motion incurred up to and including 8 September 2009." 'The second defendant in default of agreement between the parties concerned may tax the costs to which it is entitled under Orders 3 and 5 forthwith notwithstanding that the proceeding is not...