Poralu Marine Australia

FEDERAL COURT OF AUSTRALIA
Poralu Marine Australia Pty Ltd v MV Dijksgracht [2023] FCAFC 147
Appeal from: Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022]
FCA 1038; [2023] 2 Lloyd’s Rep 18
File number(s): NSD 849 of 2022
NSD 852 of 2022
Judgment of: RARES, SARAH C DERRINGTON AND
FEUTRILL JJ
Date of judgment: 8 September 2023
Catchwords: CONTRACTS – contract of carriage of goods by sea –
formation – whether contract was concluded by way of
fixture recap email – construction of recap emails – where
recap provided that terms were otherwise as per carrier’s
standard form booking note and bill of lading including
rider clauses but with English law and London arbitration –
whether parties intended further terms to be agreed –
whether contract was concluded by later return of
completed booking note – where sea waybill was issued but
not bill of lading.
SHIPPING AND NAVIGATION – contract of carriage –
whether contract of carriage covered by and or evidenced in
a bill of lading – whether shipper demanded or needed to
demand issue of a bill of lading – where sea waybill issued
– function of document issued.
SHIPPING AND NAVIGATION – bills of lading –
whether Art 10 of Hague-Visby Rules applied – whether
port of loading place of issue for purposes of Art 10(a) –
whether Art 10(c) requires a bill of lading to have been
issued – where clause paramount in bill of lading
incorporated Hague Rules “as enacted in country of
shipment” – whether Hague-Visby Rules or Hague Rules
incorporated by clause paramount.
SHIPPING AND NAVIGATION – bills of lading –
clause paramount – whether contract of carriage
compulsorily incorporated Hague-Visby Rules within
meaning of Art 10(c).
ADMIRALTY – action in rem – liability of shipowner –
Himalaya clauses – whether shipowner takes benefit of
carrier’s contractual limitations – whether carrier had

authority to act as agent for shipowner – where carrier acted
as pool manager and time charterer – where pool
management agreement provided for carrier to use all
reasonable endeavours to protect and promote interests of
shipowner – where pool management agreement subject to
charterparty – where particular time charterparty not in
evidence – where later version of time charterparty included
specific agency clause – whether agency clause was included
in the earlier version of the charterparty as agreed at the
relevant time.
Legislation: Admiralty Act 1988 (Cth) s 3(1)
Carriage of Goods by Sea Act 1991 (Cth) Sch 1 and 1A
Carriage of Goods by Sea Amendment Act 1997 (Cth)
Carriage of Goods by Sea Regulations 1998 (Cth)
Federal Court Rules 2011 r 36.03(a)(ii)
Carriage of Goods by Sea Act 1971 (UK) s 1
Merchant Shipping (Liability of Shipowners and Others)
Act 1996 (IRE) ss 30 and 31, Sch 3
International Convention for the Unification of Certain
Rules of Law relating to Bills of Lading, opened for
signature 25 August 1924 (entered into force 2 June 1931)
Protocol amending the International Convention for the
Unification of Certain Rules of Law relating to Bills of
Lading, 25 August 1924, as amended by the Protocol of 23
February 1968, opened for signature 21 December 1979,
1412 UNTS 146 (entered into force 14 February 1984)
Protocol to amend the International Convention for the
Unification of Certain Rules of Law Relating to Bills of
Lading, signed at Brussels on 25 August 1924, opened for
signature 23 February 1968, 1412 UNTS 128 (entered into
force 23 June 1977)
United Nations Convention on Contracts for the
International Carriage of Goods Wholly or Partly by Sea,
opened for signature 11 December 2008, UN Doc
A/RES/63/122; 48 ILM 659 (not yet in force)
United Nations Convention on the Carriage of Goods by
Sea, 1978, opened for signature 31 March 1978, 1695
UNTS 3 (entered into force 1 November 1992)
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Australian Broadcasting Commission v Australasian
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CLR 99; 47 ALJR 526
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Pty Ltd (1986) 40 NSWLR 622; 4 BPR 9315
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[2010] WASCA 78; 41 WAR 23
Electricity Generation Corporation v Woodside Energy Ltd
[2014] HCA 7; 251 CLR 640; 306 ALR 25; 88 ALJR 447
FAI General Insurance Co Ltd v Ocean Marine Mutual
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117; 9 ANZ Ins Cas 61-373
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Bulker) [1989] 1 Lloyd’s Rep 103
Fitzgerald v Masters [1956] HCA 53; 95 CLR 420; 30
ALJR 412
Godina v Patrick Operations Pty Ltd [1984] 1 Lloyd’s Rep
333
GR Securities Pty Ltd v Baulkham Hills Private Hospital
Pty Ltd (1986) 40 NSWLR 631; 4 BPR 9315
Gullischen v Stewart Brothers (1884) 13 QBD 317; 53
LJQB 173; 32 WR 763; 50 LT 47
Hellenic Steel Co v Svolamar Shipping Co Ltd (The
Komninos S) [1991] 1 Lloyd’s Rep 370
Homburg Houtimport BV v Agrosin Private Ltd (The
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WLR 711; [2003] 1 Lloyd's Rep 571; [2003] 2 All ER 785;
[2003] 1 All ER (Comm) 625
Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd
[2015] FCA 1453; 331 ALR 108
JCB Sales Ltd v Wallenius Lines 124 F 3d 132 (1997); 1997
AMC 2705
JI MacWilliam Co Inc v Mediterranean Shipping Co SA
(The Rafaela S) [2003] EWCA Civ 556; [2004] QB 702;
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ER 369; [2003] 2 CLC 94
JI MacWilliam Co Inc v Mediterranean Shipping Co SA
(The Rafaela S) [2005] UKHL 11; [2005] 2 AC 423; [2005]

2 WLR 554; [2005] 1 Lloyd's Rep 347; [2005] 2 All ER 86;
[2005] 1 All ER (Comm) 393; [2005] 1 CLC 172
K Line Pte Ltd v Priminds Shipping (HK) Co Ltd (The
Eternal Bliss) [2021] EWCA Civ 1712; [2022] 1 Lloyd's
Rep 12; [2022] 3 All ER 396; [2022] 2 All ER (Comm)
1044; [2022] Bus LR 67; [2021] WLR(D) 588
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‘Maersk Line’) (The Maersk Tangier) [2018] EWCA Civ
778; [2018] 2 Lloyd's Rep 59; [2018] 3 All ER 1009;
[2018] 2 All ER (Comm) 503; [2018] Bus LR 1481; [2018]
4 WLUK 208; [2018] 1 CLC 715
L Schuler A v Wickman Machine Tool Sales Ltd [1974] AC
235; [1973] 2 WLR 683; [1973] 2 Lloyd’s Rep 53; [1973] 2
All ER 39
Masters v Cameron [1954] HCA 72; 91 CLR 353; 28
ALJR 438
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009]
NSWCA 234; 261 ALR 382
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd
[2015] HCA 37; 256 CLR 104; 325 ALR 188; 89 ALJR
990
Mount Isa Mines Ltd v The Ship Thor Commander [2018]
FCA 1326; 263 FCR 181; 365 ALR 519
Neilson v Overseas Projects Corporation of Victoria Ltd
[2005] HCA 54; (2005) 223 CLR 331
New Zealand Shipping Co Ltd v AM Satterthwaite & Co
Ltd (The Eurymedon) [1975] AC 154; [1974] 2 WLR 865;
[1974] 1 Lloyd's Rep 534; [1974] 1 All ER 1015
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218
CLR 451; 208 ALR 213; 78 ALJR 1045
Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601
Papas Olio JSC v Grains & Fourrages SA [2009] EWCA
Civ 1401; [2010] 2 Lloyd’s Rep 152; [2010] 2 All ER
(Comm) 1151
Parsons Corporation v CV Scheepvaartonderneming (The
Happy Ranger) [2001] 2 Lloyd's Rep 530; [2002] 1 All ER
(Comm) 176
Parsons Corporation v CV Scheepvaartonderneming (The
Happy Ranger) [2002] EWCA Civ 694; [2002] 2 Lloyd’s
Rep 357; [2002] All ER (Comm) 24; [2003] 1 CLC 122
Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982]
AC 724; [1981] 3 WLR 292; [1981] 2 Lloyd’s Rep 239;
[1981] 2 All ER 1030
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon
(Australia) Pty Ltd [1980] UKPCHCA 1; 144 CLR 300; 30
ALR 588; 54 ALJR 552

Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB
402; [1954] 2 WLR 1005; [1954] 1 Lloyd’s Rep 321;
[1954] 2 All ER 158
Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39;
406 ALR 678; 170 IPR 1
Reardon Smith Line Ltd v Hansen-Tangen; Hansen-Tangen
v Sanko Steamship Co [1976] 1 WLR 989; [1976] 2 Lloyd's
Rep 62; [1976] 3 All ER 570
RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH &
Co KG (UK Production) [2010] UKSC 14; [2010] 1 WLR
753; [2010] 3 All ER 1; [2010] 2 All ER (Comm) 97;
[2010] Bus LR 776; [2010] WLR (D) 75
RW Miller & Co Pty Limited v Australian Oil Refining Pty
Limited [1967] HCA 50; 117 CLR 288; 41 ALJR 280
Sinclair, Scott & Co v Naughton [1929] HCA 34; 43 CLR
310
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA
52; 219 CLR 165; 211 ALR 342; 79 ALJR 129
Total Transport Corporation v Arcadia Petroleum Ltd (The
Eurus) [1998] 1 Lloyd's Rep 351; [1998] CLC 90
Trafigura Beheer BV v Mediterranean Shipping Co SA (The
MSC Amsterdam) [2007] EWCA Civ 794; [2007] 2 Lloyd's
Rep 622; [2008] 1 All ER (Comm) 385
Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCAFC
6; 247 FCR 1; 344 ALR 278
Turner v Haji Goolam Mahomed Azam [1904] AC 826; 74
LJPC 17; 20 TLR 599; 91 LT 216
TW Thomas & Co Ltd v Portsea Steamship Company Ltd
[1912] AC 1
Warren v Coombes [1979] HCA 9; 142 CLR 531; 23 ALR
405; 53 ALJR 293
Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR
522; 214 ALR 410; 79 ALJR 872; 13 ANZ Ins Cas 61-641
Yemgas FZCO v Superior Pescadores SA (The Superior
Pescadores) [2014] EWHC 971 (Comm); [2014] 1 Lloyd's
Rep 660; [2014] CN 832
Yemgas FZCO v Superior Pescadores SA (The Superior
Pescadores) [2016] EWCA Civ 101; [2016] WLR 97;
[2016] 1 Lloyd's Rep 561; [2016] 2 All ER (Comm) 104;
[2016] Bus LR 1033
Zhu v Treasurer of New South Wales (2004) 218 CLR 530

Debattista, C, “Straight bills of lading: a continuing saga in
the English Courts: Questions Resolved, Untouched and
Mooted by the Rafaela S” (paper delivered at International
Congress of Maritime Arbitrators XV, London, April 2004)
Heydon, JD, Heydon on Contract (Lawbook Co., 2019)
Derrington, SC, “JI MacWilliam Company Inc v
Mediterranean Shipping Company SA ‘The Rafaela S’”
(2005) 24(1) University of Queensland Law Journal 191
Foxton, D, et al, Scrutton on Charterparties and Bills of
Lading (Sweet & Maxwell, 24th
ed, 2021)
Division: General Division
Registry: New South Wales
National Practice Area: Admiralty and Maritime
Number of paragraphs: 225
Date of last submissions: 28 February 2023
Date of hearing: 22-24 February 2023
Counsel for the appellant: Mr E Cox SC and Mr M Swanson
Solicitor for the appellant: Henry William Lawyers
Counsel for the respondents: Mr J Emmett SC and Mr C Street
Solicitor for the respondents: Holding Redlich

Poralu Marine Australia Pty Ltd v MV Dijksgracht [2023] FCAFC 147 i
ORDERS
NSD 849 of 2022
BETWEEN: PORALU MARINE AUSTRALIA PTY LTD ACN 092 650 658
Appellant
AND: SPLIETHOFF TRANSPORT BV
First Respondent
REDERIJ DIJKSGRACHT
Second Respondent
ORDER MADE BY: RARES, SARAH C DERRINGTON AND FEUTRILL JJ
DATE OF ORDER: 8 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. The appeal be allowed in part.
2. The amended notice of contention be dismissed.
3. The cross-appeal be dismissed.
4. The answers to the separate questions in order 1 made on 6 September 2022 be set aside
and in lieu thereof it be ordered that:
Question 1: With regard to the limitation of liability regime applicable to the
plaintiff’s claim in all the circumstances:
(a) Is any liability of the carrier limited to £100 per package?
Answer: No.
(b) Is any liability of the carrier limited to the present value of £100 of gold in 1924
per package?
Answer: No.
(c) Is any liability of the carrier limited to 666.67 units of account per package or 2
units of account per kilogramme of gross weight of the goods (whichever the
higher)?

Poralu Marine Australia Pty Ltd v MV Dijksgracht [2023] FCAFC 147 ii
Answer: Yes, unless Art 4(5)(e) of the Hague-Visby Rules (being as set out in
the Third Schedule to the Merchant Shipping (Liability of Shipowners and
Others) Act 1996 (IRE)) is found to apply.
Question 2: Does the answer to Question 1 apply equally to the plaintiff’s claims in
bailment and negligence?
Answer: Yes.
5. Unless any party files and serves written submissions limited to three pages and any
evidence in support on or before 15 September 2023:
(a) Order 1 made on 5 October 2022 be set aside and in lieu thereof it be ordered
that:
1. The defendants pay the plaintiff’s costs of the hearing and determination
of question 1.
2. The plaintiff pay the defendants’ costs of the hearing and determination
of question 2.
(b) the respondents pay the appellant’s costs of the appeal in respect of question 1
and the appellant pay the respondents’ costs in respect of question 2.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Poralu Marine Australia Pty Ltd v MV Dijksgracht [2023] FCAFC 147 iii
ORDERS
NSD 852 of 2022
BETWEEN: PORALU MARINE AUSTRALIA PTY LTD ACN 092 650 658
Appellant
AND: THE SHIP "MV DIJKSGRACHT"
Respondent
ORDER MADE BY: RARES, SARAH C DERRINGTON AND FEUTRILL JJ
DATE OF ORDER: 8 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. The appeal be allowed in part.
2. The amended notice of contention be dismissed.
3. The cross-appeal be dismissed.
4. The answers to the separate questions in order 1 made on 6 September 2022 be set aside
and in lieu thereof it be ordered that:
Question 1: With regard to the limitation of liability regime applicable to the
plaintiff’s claim in all the circumstances:
Answer: No.
(b) Is any liability of the carrier limited to the present value of £100 of gold in 1924
per package?
Answer: No.
(c) Is any liability of the carrier limited to 666.67 units of account per package or 2
units of account per kilogramme of gross weight of the goods (whichever the
higher)?
Answer: Yes, unless Art 4(5)(e) of the Hague-Visby Rules (being as set out in
the Third Schedule to the Merchant Shipping (Liability of Shipowners and
Others) Act 1996 (IRE)) is found to apply.

Poralu Marine Australia Pty Ltd v MV Dijksgracht [2023] FCAFC 147 iv
bailment and negligence?
Answer: Yes.
5. Unless either party files and serves written submissions limited to three pages and any
evidence in support on or before 15 September 2023:
(a) Order 1 made on 5 October 2022 be set aside and in lieu thereof it be ordered
that:
1. The defendant pay the plaintiff’s costs of the hearing and determination
of question 1.
2. The plaintiff pay the defendant’s costs of the hearing and determination
of question 2.
(b) the respondent pay the appellant’s costs of the appeal in respect of question 1
and the appellant pay the respondents’ costs in respect of question 2.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Poralu Marine Australia Pty Ltd v MV Dijksgracht [2023] FCAFC 147 1
REASONS FOR JUDGMENT
RARES AND SARAH C DERRINGTON JJ:
INTRODUCTION [1]
THE PRIMARY JUDGE’S DECISION [7]
Summary of issues [15]
The amended notice of contention and the cross-appeal [16]
SUMMARY OF OUTCOME [18]
THE ISSUES THAT DO NOT ARISE [19]
WHAT WAS THE CONTRACT OF CARRIAGE AND WHERE WERE ITS
TERMS RECORDED? [20]
Factual background [20]
The terms of the first recap [22]
The terms of the second recap [25]
The terms of the booking note [42]
Did the primary judge consider Poralu’s case that the second recap was the
contract of carriage? [45]
Principles applicable to formation of a contract [50]
What was the contract of carriage? [57]
DOES ART 10 OF THE HAGUE-VISBY RULES APPLY? [75]
What is the place of issue of a bill of lading? [77]
Can Art 10(c) apply when no bill of lading is in fact issued? [81]
Was the contract of carriage “covered by” a bill of lading? [93]
What were the terms of the bill of lading that the parties agreed would
issue? [99]
Is it necessary to determine whether the contract of carriage is a
charterparty? [101]
Would the bill of lading regulate the relations between the carrier and a
holder of it as also required by Art 1(b)? [108]
Did cl 3(a) of the contract of carriage contractually incorporate the Hague-
Visby Rules within the meaning of Art 10(c)? [110]
Did cl 3(a) of the booking note displace cl 3(a) of the bill of lading? [113]

Which regime is incorporated by cl 3(a) of Spliethoff’s standard form bill of
lading? [124]
What was the function of the sea waybill that the carrier issued? [141]
Article 10(c) applies [143]
DID SPLIETHOFF HAVE AUTHORITY TO ENTER INTO THE
CONTRACT OF CARRIAGE AS REDERIJ DIJKSGRACHT’S AGENT? [148]
DISPOSITION [159]
INTRODUCTION
1 It will be a century next year since the first attempt at achieving some level of universal
uniformity in respect of a cargo liability regime for the international carriage of goods by sea.
On 25 August 1924, the International Convention for the Unification of Certain Rules of Law
relating to Bills of Lading (Hague Rules) opened for signature. Those Rules were amended
by the Protocol to amend the International Convention for the Unification of Certain Rules of
Law relating to Bills of Lading, opened for signature on 23 February 1968 (Visby Protocol),
and then again by the Protocol amending the International Convention for the Unification of
Certain Rules of Law relating to Bills of Lading, 25 August 1924, as amended by the Protocol
of 23 February 1968, opened for signature on 21 December 1979 (SDR Protocol). Together
these three international instruments are known as the Hague-Visby Rules.
2 Two subsequent attempts have been made to modernise the cargo liability regime for
international sea carriage, namely the United Nations Convention on the Carriage of Goods by
Sea, 1978, opened for signature 31 March 1978, 1695 UNTS 3 (entered into force 1 November
1992), known as the Hamburg Rules, and the United Nations Convention on Contracts for the
International Carriage of Goods Wholly or Partly by Sea, opened for signature 11 December
2008, UN Doc A/RES/63/122; 48 ILM 659 (not yet in force), known as the Rotterdam Rules,
but these have not been met with international acceptance and are not presently relevant.
3 Australia has taken a bespoke approach to modernising its marine cargo liability regime.
Having originally acceded to the Hague Rules, and the subsequent Visby and SDR protocols,
it enacted the Hague-Visby Rules by Schedule 1 to the Carriage of Goods by Sea Act 1991
(Cth) (COGSA 91). By instrument of denunciation deposited on 16 July 1992, Australia
denounced the Hague Rules. Following a review conducted in 1995-1996, under the auspices
of the Department of Transport and Regional Development, the Carriage of Goods by Sea

Amendment Act 1997 (Cth) was passed. That Act provided for regulations to amend COGSA
91 to add a schedule of modifications that would modify the text of the Hague-Visby Rules set
out in Schedule 1. Schedule 1A to COGSA 91 was inserted by the Carriage of Goods by Sea
Regulations 1998 (Cth), which were proclaimed on 30 June 1998. Although the modified
Rules in Schedule 1A continue to be referred to as the “amended Hague Rules”, they are
referred to throughout these reasons as the Australian Rules.
4 All of this is to explain the somewhat surprising feature of this appeal: that, in 2023, there
remains uncertainty as to whether the almost 100-year-old Hague Rules apply to a contract of
carriage negotiated in late 2019 by a French ship and chartering broker with a Dutch carrier.
The contract involved a shipment from Ireland, a country that has not ratified the Hague-Visby
Rules (but has enacted them by domestic statute), to Australia, which has enacted a version of
the Hague-Visby Rules modified by domestic statute (despite having denounced the Hague
Rules), and to which the consignee asserts English law applies.
5 These appeals concern the identification of the terms, and the construction, of a contract of
carriage between the appellant, Poralu Marine Australia Pty Ltd as consignee, and the second
respondent, Spliethoff Transport BV as carrier, for a shipment of a cargo of 23 pontoons from
the port of Cork, Ireland, to the port of Geelong, Australia, on board MV Dijksgracht. The
cargo was discharged on 13 February 2020 at Geelong. Poralu alleges that cargo was loaded
on board in sound condition but that on discharge, three pontoons were found to be damaged.
6 Poralu commenced an action in rem against the vessel, by which it alleged that her owner was
Scheepvaartonderneming Dijksgracht CV, and so was the relevant person, within the
meaning of s 3(1) of the Admiralty Act 1988 (Cth), which was liable for damages in bailment
and negligence. Poralu also commenced another proceeding in personam against Spliethoff
(as first defendant) and Scheepvaartonderneming Dijksgracht (as second defendant). The latter
was substituted by Rederij Dijksgracht, a Dutch company that claims to be the ship owner.
We will refer, where necessary, to the three respondents in the appeals collectively as the
carrier.
THE PRIMARY JUDGE’S DECISION
7 The primary judge ordered that a number of separate questions be determined before any others
in the two proceedings. The questions, as amended by his Honour, and the primary judge’s
answers, are as follows:

Question 1: With regard to the limitation of liability regime applicable to the plaintiff’s
claim in all the circumstances:
Answer: Yes
(b) Is any liability of the carrier limited to the present value of £100 of gold
in 1924 per package?
Answer: No
(c) Is any liability of the carrier limited to 666.67 units of account per package
or 2 units of account per kilogramme of gross weight of the goods (whichever
is higher)?
Answer: No
bailment and negligence against the vessel’s owner?
Answer: Yes
8 Question 1 turned on which cargo liability regime, out of the Hague Rules, the Hague-Visby
Rules and the Australian Rules, governed the carriage of the pontoons by sea. If the Hague
Rules apply, Arts 4(5) and 9 provide that the carrier and the ship are entitled to limit their
liability to the value of the quantity of gold that GBP100 could purchase in 1924: see Brown
Boveri (Australia) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448 at 460 per Kirby P and
471 per Hope JA (McHugh JA agreeing). In this event, the answer to question 1(b) will be
“Yes”. However if, as Poralu contended, the Hague-Visby Rules apply, the carrier and ship
are only entitled to limit their liability to 666.67 Special Drawing Rights per package or unit or
two Special Drawing Rights per kilogramme of gross weight of the goods lost or damaged,
whichever is the higher, and the answer to question 1(c) will be “Yes”. If, as the carrier
contended and the primary judge found, the carrier had a contractual right to limit their liability
per package to GBP100 without reference to its gold value at any time, then the answer to
question 1(a) will be, as his Honour held, “Yes”.
9 Question 2 concerned whether the answer to question 1 also affected the quantification of the
liability of Rederij Dijksgracht in bailment and negligence, as the carrier contended and his
Honour held.
10 The primary judge’s answers to the separate questions flowed primarily from his Honour’s
conclusions on how the contract of carriage was formed and what were its terms.
11 The primary judge held that the booking note in the form sent on 8 November 2019 by Mr
Pierre Gires (who represented Helmgale Sàrl, a ship and chartering broker that was authorised

to fix the booking on Poralu’s behalf) to Mr Thomas Zuijderduin (on behalf of Spliethoff) and
which Mr Patrick Schweinsbergen accepted on behalf of Spliethoff on 20 November 2019,
formed the contract of carriage. The primary judge termed this the booking note contract.
The primary judge also held that the sea waybill, signed and stamped by Doyle Shipping Group
(Spliethoff’s agent in the Irish port of Cork) on 31 December 2019 and accepted by Poralu, did
not amount to or evidence any new or varied contract of carriage between the parties, but served
only as a receipt for the cargo. Based on that conclusion, the primary judge went on to find
that although it was a term of the contract of carriage that the shipper had a right to demand a
bill of lading, Poralu never made such a demand.
12 Next, in concluding that the booking note was governed by Dutch law, his Honour held that
the Hague-Visby Rules were not compulsorily applicable to the contract of carriage. Under
Dutch Law, both its “formal” and “material” requirements must be satisfied for the Hague-
Visby Rules to apply compulsorily. The primary judge held that the “formal” requirement was
not satisfied because Ireland is not a Contracting State. His Honour found that, therefore, it
was unnecessary to decide whether the “material” requirement was satisfied, viz, whether the
contract of carriage was covered by a bill of lading or similar document of title.
13 Further, the primary judge held that, although the Australian Rules were provisionally
applicable, since the contract was for the carriage of goods by sea from a port outside Australia
to a port in Australia (and because none of the relevant Conventions was otherwise applicable
by agreement or law), the Australian Rules did not apply to the contract of carriage because it
was a charterparty within the meaning of Art 10(6). In addition, the primary judge held that
the sea waybill issued in respect of the cargo was not a “sea carriage document” within the
meaning of Art 1(1)(g).
14 Consequently, his Honour held that because of the operation of the Himalaya clause in cl 11 of
the booking note contract for which Spliethoff had its authority to contract, first, in the in rem
proceeding, the ship and Rederij Dijksgracht (as the relevant person), and secondly, in the in
personam proceeding, Spliethoff and Rederij Dijksgracht as owner, were all able to rely on the
limitation of liability of GBP100 for each pontoon, based on the limited incorporation of the
Hague Rules in cl 3(a) of the booking note contract (which did not include any use of gold
value).

Summary of issues
15 By an amended notice of appeal, filed by leave on 22 February 2023 during the hearing of the
appeal, Poralu advanced eight principal grounds of appeal. Those grounds can be distilled to
the following issues, namely that the primary judged erred in:
(1) failing to consider Poralu’s case that the second recap email that Mr Gires sent to Mr
Jack Oostrum (on behalf of Spliethoff) on 7 November 2019 at 17:08 constituted
acceptance of Spliethoff’s counteroffer and amounted to the conclusion of the contract
of carriage of the pontoons (ground 1(a));
(2) finding that the contract of carriage was on the terms of the booking note contract and
failing to find that the contract of carriage was on the terms of the second recap (grounds
1(b) and (c));
(3) finding that the proper law of the contract of carriage was Dutch, and not English, law
(ground 1(d));
(4) finding that the contract of carriage did not include a term that a bill of lading governed
by English law would be issued or, alternatively, that Poralu had not demanded a bill
of lading (grounds 1(e) and 2);
(5) finding that Art 10(a) of the Hague-Visby Rules requires that a bill of lading actually
be issued and that its place of issue is where it is stamped and signed (ground 3);
(6) finding that cl 3(a) of the contract of carriage did not incorporate the Hague-Visby Rules
contractually within the meaning of Art 10(c) of the Hague-Visby Rules (ground 4);
(7) finding that:
 first, any bill of lading would have only served the purpose of a receipt and
would not evidence the contract of carriage that, accordingly, it did not attract
the operation of the Hague-Visby Rules; and
 secondly, the booking note contract, by providing that its terms overrode any
inconsistent provisions in any other documents, including a bill of lading, had
the effect of precluding the operation of any terms of the bill of lading that were
inconsistent with the standard terms of the booking note contract,
(ground 4A);

(8) finding that the contract of carriage between Poralu and Spliethoff was a charterparty
within the meaning of Art 10(6) of the Australian Rules and consequently, that the
Australian Rules did not apply compulsorily to the contract of carriage (ground 5);
(9) not finding that the bill of lading which ought to have been issued was a sea carriage
document within the meaning of Arts 1(1)(g)(i) or (iii), and consequently Art 10(6) of
the Australian Rules (ground 5A); and
(10) finding that Spliethoff and Rederij Dijksgracht had proved that Spliethoff had actual
authority to enter into the contract of carriage as agent for Rederij Dijksgracht (ground
6).
The amended notice of contention and the cross-appeal
16 By an amended notice of contention filed by leave on 22 February 2023, Spliethoff and MV
Dijksgracht contended that the primary judge’s answer to question 1(a) (that the carrier could
limit their liability to GBP100 per package) should be affirmed on the further grounds that:
a. The contractual incorporation of Art 1-8 of the Hague Rules meant that the
Hague Rules “have effect in relation to the carriage” within the meaning of Art
10 r 2 of the Australian Hague-Visby Rules.
b. The requirements of Art 10 rr 6 and 7 must be read together and are not made
out so as to re-apply the Australian Hague-Visby Rules in that:
i. no “negotiable sea carriage document” was issued as required by Art
10 r 7; and
ii. no such document if it were issued (denied) “regulates the relationship
between the holder of it and the carrier of the relevant goods” as
required by Art 10 r 7.
17 In the event that the appeal were to be allowed and question 1(a) answered “No”, Spliethoff
and MV Dijksgracht cross-appealed contending that the primary judge ought to have answered
question 1(b) “Yes”, so that their liability was limited to the present gold value of GBP100 in
1924, on the grounds that:
a. if the contractual incorporation of Art 1-8 of the Hague Rules with a quantum
limitation of £100 in present value would be unenforceable according to the
law of the place of delivery (i.e. Australia), then the contractual incorporation
of Arts 1-8 should be interpreted as including the definitional provision in Art
9 (i.e. the monetary amount is taken to be gold value in 1924); and
b. as a result, the Hague Rules “have effect in relation to the carriage” within the
meaning of Art 10 r2 of the Australian Hague-Visby Rules, with the quantum
limitation of £100 in 1924 gold value per package or unit.

SUMMARY OF OUTCOME
18 For the reasons that follow, the appeal must be allowed in part, and both the amended notice
of contention and cross-appeal must be dismissed. This is because, in summary:
(a) the contract of carriage between Spliethoff and Poralu was constituted by the second
recap;
(b) the second recap incorporated only those terms of Spliethoff’s standard forms of bill of
lading (that would be issued and evidence the contract of carriage) and booking note
that were not inconsistent with the terms of the second recap, including its agreed rider
clauses that provided that the second recap was governed by English law and required
disputes to be referred to London arbitration;
(c) Spliethoff’s standard form bill of lading that was to be issued pursuant to the second
reap provided in the general clause paramount in cl 3(a) that, relevantly, “The Hague
Rules … as enacted in the country of shipment shall apply to this bill of lading” and,
interpreted in accordance with English law, the Hague-Visby Rules as enacted in
Ireland, in Schedule 3 of the Merchant Shipping (Liability of Shipowners and Others)
Act 1996 (IRE) (MSA), as the country of shipment, would apply to the contract of
carriage because:
(i) by virtue of the reasoning in Kyokuyo Co Ltd v AP Møller-Maersk A/S (trading
as ‘Maersk Line’) (The Maersk Tangier) [2018] 2 Lloyd’s Rep 59, the second
recap, as the contract of carriage, was covered by a bill of lading within the
meaning of Art 1(b) and the chapeau to Art 10 of the Hague-Visby Rules;
(ii) the Carriage of Goods by Sea Act 1971 (UK) (COGSA 71) s 1(2) gave force of
law to the Hague-Visby Rules and, in consequence, cl 3(a) of the bill of lading
that would be issued pursuant to the second recap fell within Art 10(c) of those
Rules;
(iii) consequently, the Australian Rules do not apply because of Art 10(2) thereof.
(d) any liability of the ship and Spliethoff is limited by force of the Hague-Visby Rules as
amended by the SDR Protocol (as enacted in Ireland as the country of shipment) to
666.67 units of account per package or 2 units of account per kilogramme of gross
weight of the goods (whichever is higher), subject to any determination in relation to
breaking the limit under Art 4(5)(e) of the Hague-Visby Rules;

(e) Rederij Dijksgracht is entitled to rely on the same limitation of liability as the ship and
Spliethoff because of the operation of the Himalaya clause in cl 11 of Spliethoff’s
standard form bill of lading.
THE ISSUES THAT DO NOT ARISE
19 Given these conclusions, it is unnecessary to consider whether or not:
(a) the contract of carriage between Poralu and Spliethoff ought properly be characterised
as a charterparty (issue 8). That is because, however that contract be characterised, it
incorporated the terms of the bill of lading which, as is explained below, resulted in the
Hague-Visby Rules as enacted in Ireland being compulsorily applicable under English
law (as explained at [0] to [0] below); and
(b) the bill of lading which ought to have been issued was a sea carriage document within
the meaning of Arts 1(1)(g)(i) or (iii), and consequently Art 10(6) of the Australian
Rules (issue 9) (as explained at [0] to [0] below).
WHAT WAS THE CONTRACT OF CARRIAGE AND WHERE WERE ITS TERMS
RECORDED?
Factual background
20 The legal effect of the second recap is at the centre of the issue of when the contract of carriage
of the pontoons was formed. The negotiations relevant to the formation of the contract were
conducted between Helmgale, an experienced French ship and chartering broker acting on
behalf of Poralu, and Spliethoff, an experienced Dutch carrier. However, the only evidence of
those negotiations before the primary judge consisted of emails between officers of Helmgale
and Spliethoff, that commenced with the first recap sent by Mr Gires, on behalf of Helmgale,
to Mr Oostrum, on behalf of Spliethoff, on 7 November 2019 at 16:04. As can be seen below,
there must have been detailed discussions before the first recap was sent.
21 Commercial imperatives were central to the negotiations, as evidenced by the correspondence
between the parties both immediately prior to the conclusion of the contract asserted by each
side and, to the extent that it is permissible to refer to post-contractual communications, the
subsequent email correspondence. An example is found in an email from Mr Gires to Mr
Zuijderduin on 9 December 2019 referring to “commercial discussion prior this booking” in
relation to the preferred anchorage location.

The terms of the first recap
22 As we have noted above, the evidence of contractual formation only began when Mr Gires sent
the first recap to Mr Oostrum at 16:04 on 7 November 2019, which was clearly well after their
negotiations had commenced.
23 The first recap was in the following terms:
Jack/Pierre
confirm having fixed sfoar=
-intended vsl mv Dynamogracht – final performing vsl to be nominated latest 15th
November
FOR ACNT TPI, FRANCE
part cargo of 23 pontoons as described – total 3580 cbm Pontoons to be stackabke 2
tiers max
PL =
9Nr. 15m x 6.1m x 1.61m each weighing 80T 3Nr. 16.5m x 6.1m x 1.61m each
weighing 85T 6Nr.22m x 5.1m x 1.41m each weighing 80t 5Nr. 22m x 5.3m x 1.41m
each weighing 80T
-on/under deck in owners option. Deckcargo at chrtrs risk and expense
-POL: Cork Ringaskiddy Terminal
-POD: Geelong anchorage where max draft is 7.5m if allowed by harbourmaster or
Geelong port, in charterers option
-discharge into water
-laycan 10/15th December 2019
-freight: Eur 130,-- per frtton
-Terms and conditions:
-Liner in hook / Liner-out hook
-Hooking on /off for Merchant’s / Receivers account -Loading Discharging as fast as
vessel can
-detention euro 13.500,-- pdpr
-transit time max 50 days agw/wp/wog
–latest arrival 31st
January - penalties for late arrival applicable if vsl exceeds 50
days transit, weather permitting and force majeure excepted Penalties 0.5pct of freight
upto max 5pct of the total freight.
-cargo to be fumigated, if required, by merchant’s at their risk and account and valid

certificates to be provided to owners.
– intended rotation to be supplied prior firm fixture
-Terms and conditions :
-Time lost due to swell, port congestion and/or in waiting for berth to count as time for
which damages for detention are due irrespective whether the Carrier or the Merchant
selected the berth, -if discharge at anchorage any time lost due to swell to count as time
on detention.
- Carrier’s Agents at both ends (pls adv details )
-Taxes/dues/duties levied on or over the performing vessel to be for Carrier’s account-
Taxes/dues/duties calculated on or over the freight and/or cargo to be for Merchant’s
account -UK Dock dues or Irish equivalent on cargo (if any) for merchants account -
Tonnage dues are charged on vessel and are for carrier’s account
-Otherwise as per Carrier’s WWBN including rider clauses / BL including
English law and London Arbitration => to be provided
- Commission = 2.5pct to helmgale on fdd
-Sub shipper reconfirmation to be lifted max 24 hrs after fixing main terms
-Subject Carrier’s approval of transport drawings/technical details.
END
pls confirm
thanks sofar
Pierre GIRES
Helmgale Sàrl
(Emphasis added.)
24 Mr Oostrum, on behalf of Spliethoff, sought a single correction to the first recap in his email
to Mr Gires sent at 16:16 on 7 November 2019, in the following terms:
Pierre / Jack
Gd day
Nearly correct..
Please delete “vsl to arrive latest 31st
January”, because we agreed a max 50 days
transit and then penalties apply
Otherwise fine with me.
Thanks fixture so far and awaiting subs tomorrow
regards
Jack Oostrum
(Emphasis added.)

The terms of the second recap
25 Mr Gires replied with the second recap on 7 November 2019 at 17:08 that incorporated the
single and only change that Mr Oostrum had sought, being Poralu’s acceptance of Spliethoff’s
requested correction. Poralu contended that the second recap concluded the contract of
carriage.
26 The primary judge set out the second recap in his reasons, helpfully numbering the lines “for
ease of reference”. His Honour inserted in square brackets descriptions or explanations of
chartering abbreviations or his understanding of short-hand used by the parties. We have set
out below the relevant portions of the second recap using the primary judge’s numbering and
annotations (in italics), together with our own explanations. Lines 1 to 5 provide:
1 Subject: RE: recap Cork/Geelong
2 Date: 07/11/2019 17:08:52
3 …
4 Jack/Pierre [ie, to Jack from Pierre]
5 sorry for this omission, revised recap asf = [ie, agreed so far]
(Bold emphasis added; italicised words added by the primary judge.)
27 As explained below at [0], lines 6 and 7 were requests for documents that the recap intended
be used later in accordance with lines 46, 53, and 54. Lines 6 and 7 provide:
6 can you pls provide agency details both ends ?
7 pls also provide your BN, riders and BL
28 Lines 8 and 58 referred to the carrier’s need to have the technical details and transport drawings
to understand the nature of the cargo so that it could both nominate a performing vessel, if
MV Dynamogracht were not to be used, and work on what it needed to do to ensure that it
could be in a position to load, carry and discharge the special cargo in the same good order and
condition as loaded. Lines 8 to 10 provide:
8 will most probably have the tech drawings tomorrow morning and chrtrs
9 subs shall follow
10 -intended vsl mv Dynamogracht – final performing vsl to be nominated
(Emphasis added.)
29 Lines 11 to 20 provided that the carrier was free to nominate a vessel by 15 November 2019 to
carry the cargo (described in lines 13 to 19) wherever, on or under deck at its option and, if the

carrier put all or any of the cargo on deck, the charterer accepted that it bore the risk and
expense of that choice by the carrier. Lines 11 to 20 are:
11 latest 15th November
12 FOR ACNT TPI, FRANCE
13 part cargo of 23 pontoons as described – total 3580 cbm Pontoons to be
14 stackabke 2 tiers max
15 PL = [ie, packing list]
16 9Nr. 15m x 6.1m x 1.61m each weighing 80T
17 3Nr. 16.5m x 6.1m x 1.61m each weighing 85T
18 6Nr.22m x 5.1m x 1.41m each weighing 80T
19 5Nr. 22m x 5.3m x 1.41m each weighing 80T
20 -on/under deck in owners option. Deckcargo at chrtrs risk and expense
30 Lines 21 and 22 identify Cork as the port of loading and Geelong as the port of discharge. Line
22 also described the maximum draft at Geelong (7.5 metres), being a matter relevant to the
nomination of the performing vessel, and lines 23 and 24 gave the charterer the option of
discharging the pontoons into the water if the harbourmaster or the port permitted this to occur.
Lines 21 to 24 provide:
21 -POL [ie, port of loading] : Cork Ringaskiddy Terminal
22 -POD [ie, port of discharge] : Geelong anchorage where max draft is 7.5m
23 if allowed by harbourmaster or Geelong port, in charterers option
24 discharge into water
31 The vessel could arrive at Cork between 10 and 15 December 2019. The freight rate was €130
per freight ton. Thus, the approximate total freight was €241,150 (1855 tons x €130). Lines
25 and 26 provide:
25 -laycan 10/15th December 2019
26 -freight: Eur 130,-- per frtton [ie, freight ton]
(Italicised words added by the primary judge.)
32 The carrier’s risk and the basis of the freight commenced and ended when the pontoons were
put on and later released off the hooks for the carriage, on either side of which the merchant or

receiver was at risk and liable for any costs. The discharge had to occur as fast as the vessel
could perform it. Lines 27 to 31 provide:
27 -Terms and conditions :
28 -Liner in hook / Liner-out hook
29 -Hooking on /off for Merchant’s / Receivers account -Loading Discharging
30 as fast as vessel can
31 -detention euro 13.500,-- pdpr [ie, per day pro rata]
33 The maximum transit time between Cork and Geelong was 50 days, all going well, weather
permitting but without a guarantee. We interpolate that lines 32 and 33 of the second recap
below accepted Mr Oostrum’s request that “vsl to arrive latest 31st
January” be deleted from
the first recap version because of their prior agreement. The carrier had to pay an agreed
penalty of 0.5% of the total freight up to a maximum of 5% (or about €12,057.50) if the vessel
arrived after the 50 days allowed for her voyage, except if the weather or a force majeure
occurred that caused the voyage to be prolonged beyond that time. Lines 32 to 36 provide:
32 -transit time max 50 days agw/wp/wog [ie, all going well / weather
33 permitting / without guarantee]
34 penalties for late arrival applicable if vsl exceeds 50 days transit, weather
35 permitting and force majeure excepted Penalties 0.5pct of freight upto
36 max 5pct of the total freight.
34 The merchant could fumigate the cargo at its own cost and risk and, if it did so, had to provide
valid certificates to the owner (carrier). Lines 37 to 38 provide:
37 -cargo to be fumigated, if required, by merchant’s at their risk and account
38 and valid certificates to be provided to owners.
(Emphasis added.)
35 The carrier had to provide information about the performing vessel’s intended rotation to the
merchant before a firm fixture. Line 39 provides:
39 – intended rotation to be supplied prior firm fixture
36 The merchant had to pay liquidated damages at the rate of €13,500 per day pro rata for time
lost due to swell, port congestion and or waiting for a berth, irrespective of whether the carrier

or merchant had chosen the berth or if swell delayed the vessel discharging at anchorage (lines
31, 40 to 45). Lines 40 to 45 provide:
40 -Terms and conditions :
41 -Time lost due to swell, port congestion and/or in waiting for berth to
42 count as time for which damages for detention are due irrespective
43 whether the Carrier or the Merchant selected the berth,
44 -if discharge at anchorage any time lost due to swell to count as time on
45 detention.
46 Carrier’s Agents at both ends (pls adv details )
(Emphasis added.)
37 The carrier would be liable for all taxes, dues, or duties, including tonnage dues that were levied
on or over the performing vessel in respect of the carriage of the pontoons, while any taxes,
dues, or duties, including Irish or United Kingdom dock dues or their equivalent, levied on the
freight payable or the cargo were the merchant’s responsibility. Lines 47 to 52 provide:
47 -Taxes/dues/duties levied on or over the performing vessel to be for
48 Carrier’s account
49 -Taxes/dues/duties calculated on or over the freight and/or cargo to be for
50 Merchant’s account
51 -UK Dock dues or Irish equivalent on cargo (if any) for merchants account
52 -Tonnage dues are charged on vessel and are for carrier’s account
(Emphasis added.)
38 The statement in lines 53 and 54 “Otherwise as per Carrier’s WWBN including rider
clauses/BL including English law and London Arbitration => to be provided” would have been
understood by a reasonable person in the trade of arranging sea cargo and charters to mean that,
first, matters not addressed in the second recap would be governed by the carrier’s standard
form of its worldwide booking note, that necessarily would include the rider clauses that had
been expressly agreed, and the carrier’s standard bill of lading which it was to provide (as lines
7 and 54 requested). Secondly, those two standard forms would be varied to specify, if they
did not already require, that English law was the governing law under both the second recap
and each form, and any disputes would be referred to arbitration in London. Lines 53 to 54
provide:
53 -Otherwise as per Carrier’s WWBN including rider clauses / BL including

54 English law and London Arbitration => to be provided
(Emphasis added.)
39 Helmgale was entitled to commission on the freight, demurrage, and any deadfreight of 2.5%
(or, based only on the freight, about €6028.75) (line 55). Lines 55 to 56 provide:
55 - Commission = 2.5pct to helmgale on fdd [ie, freight, demurrage and
56 deadfreight]
40 The second recap was subject to, first, the shipper (Inland and Coastal Marina Systems, or
ICMS) reconfirming what was to be carried no later than 24 hours after the fixing of the main
terms (i.e., agreement on the terms of the second recap) and, secondly, the carrier approving
the transport drawings and technical details (lines 57 to 58). Lines 57 to 62 provide:
57 -Sub shipper reconfirmation to be lifted max 24 hrs after fixing main terms
58 -Subject Carrier’s approval of transport drawings/technical details.
59 END
60 pls confirm
61 thanks sofar
62 Pierre GIRES
(Emphasis added.)
41 Soon after, on 7 November 2019, Mr Zuijderduin, who had been copied into the email exchange
leading to the second recap, emailed Mr Gires with details of Spliethoff’s agents in Cork (who
Helmgale then proposed as Celtic Shipping Agents) and Geelong (Asiaworld), noting that they
had not yet been officially nominated. The email also attached a blank standard form
“Worldwide Services” bill of lading. On its front side, the bill of lading had a box headed
‘Law & Jurisdiction’ which provided that the contract evidenced in the bill was governed by
the laws of the Netherlands, “except as provided elsewhere herein”, and that the jurisdiction of
the courts of Rotterdam would be exclusive for any suit by the merchant and non-exclusive for
any suit brought by the carrier, and on its reverse side, in cl 10, there was the same wording
dealing with law and jurisdiction. There was also a general clause paramount (cl 3(a)) in the
bill of lading that relevantly provided as follows:
3. GENERAL PARAMOUNT CLAUSE
(a) Except in case of US Trade, the Hague Rules contained in the International
Convention for the Unification of certain rules relating to Bills of Lading,

dated Brussels, 25th August 1924, as enacted in the country of shipment,
shall apply to this Bill of Lading. If no such enactment is in force in the
country of shipment, the articles I-VIII inclusive of the said Convention
shall apply. In trades where the International Brussels Convention 1924 as
amended by the Protocols signed at Brussels on 23 February 1968 and 21
December 1979 (the Hague- Visby Rules) apply compulsorily, the provisions
of the Hague-Visby Rules shall be considered incorporated in this Bill of
Lading. The Carrier reserves all its rights under the Hague Rules or Hague-
Visby Rules, including the period before loading and after discharging and
while the Goods are in the charge of another Carrier, and to deck cargo and
live animals. If the Hague Rules are applicable otherwise than by national
law, in determining the liability of the Carrier, the liability shall in no event
exceed £100 (GBP) sterling lawful money of the United Kingdom per package
or unit.
(Emphasis added.)
The terms of the booking note
42 On 8 November 2019, Mr Zuijderduin sent Mr Gires an email attaching a blank two-page
standard form “Worldwide Services” booking note (which appears to match the abbreviation
in line 53 of the second recap “WWBN”) and asked him to fill in the details. A box that
appeared immediately above the signature space on the front side of the booking note contained
the following term (which the parties described as the override clause):
It is hereby agreed that this Contract shall be performed subject to the terms, conditions
and exceptions contained on Page 1 and 2 hereof, including any addenda, which shall
prevail over any previous arrangements and/or the terms, conditions and
exceptions of any Bill of Lading or Sea Waybill issued hereunder.
(Emphasis added.)
43 The booking note contained the following relevant terms:
3. GENERAL PARAMOUNT CLAUSE
(a) Except in case of US Trade, articles I-VIII inclusive of the Hague Rules
contained in the International Convention for the Unification of certain rules
relating to Bills of Lading, dated Brussels, 25th August 1924, shall apply to
this Booking-Note. … In determining the liability of the Carrier, the
liability shall in no event exceed £100 (GBP) sterling lawful money of the
United Kingdom per package or unit.
10. LAW AND JURISDICTION
This Booking-Note shall be governed by and construed in accordance with the laws of
the Netherlands, except as provided elsewhere herein and except for US Trade, as to
which the US COGSA 1936 shall apply, and any dispute, claim or action under this
Booking-Note shall be decided by the Court of Rotterdam, the Netherlands, to the
exclusive jurisdiction of which the Merchant submits himself. The Court of Rotterdam
has non-exclusive jurisdiction in respect of any dispute, claim or action by the Carrier
under this Booking-Note.
(Emphasis added.)

44 On 8 November 2019, Mr Gires filled in and returned the booking note. But, he did not strike
through any of the provisions of the booking note in the box on its front page or cll 3(a) or 10
on its reverse that were inconsistent with, relevantly, lines 53 and 54 of the second recap
providing “otherwise as per Carrier’s WWBN including rider clauses / BL including English
Law and London arbitration”.
Did the primary judge consider Poralu’s case that the second recap was the contract of
carriage?
45 The primary judge held that “because the [second] recap was not itself the contract and the
booking note was, there is no possibility for the recap terms to take precedence over the
booking note terms. Indeed, the recap terms have no contractual force at all”.
46 The primary judge’s approach to the first and second recaps was as follows:
81 Mr Gires’s first recap email on 7 November 2019 (see [38] above) opens by
stating that what follows is what has been “fixed so far” and closes with a
request to “pls confirm”. Neither side of the case contends that that email
constituted the acceptance of any offer, or confirmation of the conclusion of a
contract. At most it constituted an offer, to which there was then a counter-
offer by Mr Oostrum requesting a correction (see [39] above). However, at
least because the first email recap included the provision that the “intended
rotation to be supplied prior firm fixture” and that “rider clauses”, which are
additional to the standard clauses, can vary considerably and were unknown,
the first email recap was not open to unequivocal acceptance which would then
constitute a contract. It follows that the first email recap was not an offer; it
was merely a recordal of terms agreed to that point, but with further terms still
to be agreed. The request for a correction could therefore also not have been
the acceptance of an offer, but merely a correction to the mutual record of terms
agreed thus far.
82 Turning now to Mr Gires’s response to the request for a correction, being his
second recap email on 7 November 2019 (see [40] above), there are several
indications that stand in the way of a conclusion that it was a clear and
unequivocal acceptance of the terms of the preceding offer, or that it
corresponded with the offer.
(Emphasis added.)
47 Poralu’s contention that the primary judge erred in finding it had not advanced a case that the
second recap email constituted the conclusion of the contract and failed to consider that case
(issue 1) is without merit. The primary judge observed that neither party advanced a case that
the first recap constituted the acceptance of an offer or the conclusion of the contract. But, as
demonstrated by the paragraphs above, his Honour did consider, and rejected, Poralu’s case
that the second recap was the contract.

48 Moreover, the primary judge identified four matters that, he found, stood in the way of
concluding that the second recap constituted a clear and unequivocal acceptance of the terms
of the preceding offer in the first recap. First, the primary judge interpreted the new
abbreviation “asf”, which Mr Gires used for the first time in line 5 of the second recap, to mean
“agreed so far”, which his Honour interpreted as contemplating matters were still to be agreed.
Secondly, his Honour said that, although it may have been said that agreement could be reached
on the basis that Spliethoff’s booking note and bill of lading terms were incorporated without
them having been seen because they were standard pre-printed terms, the same could not be
said of the request for any “rider clauses”, and so this left something yet to be agreed. Thirdly,
his Honour found that, read objectively, the recap did not record a concluded or firm fixture
because the intended rotation of the vessel was “to be supplied prior firm fixture”. Fourthly,
the primary judge placed reliance on the emails ending with the request, “pls confirm’ and
“thanks sofar”.
49 Accordingly, Poralu fails on issue 1.
Principles applicable to formation of a contract
50 The approach to the construction of words and documents used in the shipping industry is to
consider how those words and documents would reasonably be “understood by those involved
in the shipping business”: K Line Pte Ltd v Priminds Shipping (HK) Co Ltd (The Eternal Bliss)
[2022] 1 Lloyd’s Rep 12 at 15 [17] per Males LJ delivering judgment on behalf of Sir Geoffrey
Vos MR, Newey LJ and himself; see also Homburg Houtimport BV v Agrosin Private Ltd (The
Starsin) [2004] 1 AC 715 at 737 [10] per Lord Bingham of Cornhill and [57] per Lord Steyn;
Total Transport Corporation v Arcadia Petroleum Ltd (The Eurus) [1998] 1 Lloyd’s Rep 351
at 358. This process is informed by the approach to contractual construction that Lord
Wilberforce explained in the following oft cited passage in Reardon Smith Line Ltd v Hansen-
Tangen; Hansen-Tangen v Sanko Steamship Co [1976] 1 WLR 989 at 995-996:
No contracts are made in a vacuum: there is always a setting in which they have to be
placed. The nature of what is legitimate to have regard to is usually described as “the
surrounding circumstances” but this phrase is imprecise: it can be illustrated but hardly
defined. In a commercial contract it is certainly right that the court should know the
commercial purpose of the contract and this in turn presupposes knowledge of the
genesis of the transaction, the background, the context, the market in which the parties
are operating.
51 Dixon CJ, McTiernan and Kitto JJ explained the conventional understanding of contract
formation in Masters v Cameron (1954) 91 CLR 353 at 360, saying:

Where parties who have been in negotiation reach agreement upon terms of a
contractual nature and also agree that the matter of their negotiation shall be dealt with
by a formal contract, the case may belong to any of three classes. It may be one in
which the parties have reached finality in arranging all the terms of their bargain
and intend to be immediately bound to the performance of those terms, but at the
same time propose to have the terms restated in a form which will be fuller or
more precise but not different in effect. Or, secondly, it may be a case in which the
parties have completely agreed upon all the terms of their bargain and intend no
departure from or addition to that which their agreed terms express or imply, but
nevertheless have made performance of one or more of the terms conditional upon the
execution of a formal document. Or, thirdly, the case may be one in which the intention
of the parties is not to make a concluded bargain at all, unless and until they execute a
formal contract.
In each of the first two cases there is a binding contract: in the first case a contract
binding the parties at once to perform the agreed terms whether the contemplated
formal document comes into existence or not, and to join (if they have so agreed)
in settling and executing the formal document; and in the second case a contract
binding the parties to join in bringing the formal contract into existence and then to
carry it into execution. Of these two cases the first is the more common.
(Emphasis added.)
52 In addition, the parties may intend their agreement to be within what McLelland J identified in
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at
628E-G (affirmed in GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986)
40 NSWLR 631 per McHugh JA at 634D-635C, Kirby P and Glass JA agreeing) as a fourth
class additional to the three described in Masters 91 CLR at 360-362. McLelland J identified
the fourth class as being one in which the parties were content to be bound immediately and
exclusively by the terms which they had agreed upon whilst expecting to make a further
contract in substitution for the first contract, containing, by consent, additional terms.
53 English law continues to apply the same principles to determine whether a contract has been
concluded, as Lord Clarke of Stone-cum-Ebony JSC said in giving the judgment of Lords
Phillips of Worth Matravers PSC, Mance, Collins of Mapesbury, Kerr of Tonaghmore JJSC
and himself in RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK
Production) [2010] 1 WLR 753 at 772-773 [47]-[49]. There, Lord Clarke JSC applied six
principles (that are more expansively expressed than their exploration in Masters 91 CLR at
360) that Lloyd LJ, with whom O’Connor and Stocker LJJ agreed, synthesised in Pagnan SpA
v Feed Products Ltd [1987] 2 Lloyd’s Rep 601 at 619. Importantly, Lloyd LJ concluded,
referring to what the trial judge there, Bingham J, had said:
… [T]he parties may intend to be bound forthwith even though there are further terms
still to be agreed or some further formality to be fulfilled (see Love and Stewart v.
Instone [(1917) 33 TLR 475] per Lord Loreburn at p. 476).

…
It is sometimes said that the parties must agree on the essential terms and that it is only
matters of detail which can be left over. This may be misleading, since the word
"essential" in that context is ambiguous. If by "essential" one means a term without
which the contract cannot be enforced then the statement is true: the law cannot enforce
an incomplete contract. If by "essential" one means a term which the parties have
agreed to be essential for the formation of a binding contract, then the statement is
tautologous. If by "essential" one means only a term which the Court regards as
important as opposed to a term which the Court regards as less important or a matter
of detail, the statement is untrue. It is for the parties to decide whether they wish to
be bound and, if so, by what terms, whether important or unimportant. It is the
parties who are, in the memorable phrase coined by the Judge, "the masters of their
contractual fate". Of course the more important the term is the less likely it is that
the parties will have left it for future decision. But there is no legal obstacle which
stands in the way of the parties agreeing to be bound now while deferring important
matters to be agreed later. It happens every day when parties enter into so-called
"heads of agreement".
(Emphasis added.)
54 As Poralu submitted, the use of a traditional offer and acceptance analysis as to the formation
of a contract is not a universal mode of analysis: JD Heydon, Heydon on Contract (Lawbook
Co., 2019) at [2.100]. Contracts for the carriage of goods by sea are a category of contracts
where a certain degree of artificiality will arise in attempting to discern their formation solely
by reference to a traditional offer and acceptance analysis. Thus, Lord Wilberforce explained,
in giving the opinion of himself and Lords Hodson and Salmon in New Zealand Shipping Co
Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154 at 167C-E, how the
common law strives to achieve a legal outcome that reflects commercial reality, saying:
If the choice, and the antithesis, is between a gratuitous promise, and a promise for
consideration, as it must be in the absence of a tertium quid, there can be little doubt
which, in commercial reality, this is. The whole contract is of a commercial
character, involving service on one side, rates of payment on the other, and
qualifying stipulations as to both. The relations of all parties to each other are
commercial relations entered into for business reasons of ultimate profit. To describe
one set of promises, in this context, as gratuitous, or nudum pactum, seems paradoxical
and is prima facie implausible. It is only the precise analysis of this complex of
relations into the classical offer and acceptance, with identifiable consideration,
that seems to present difficulty, but this same difficulty exists in many situations
of daily life, e.g., sales at auction; supermarket purchases; boarding an omnibus;
purchasing a train ticket; tenders for the supply of goods; offers of rewards; acceptance
by post; warranties of authority by agents; manufacturers' guarantees; gratuitous
bailments; bankers' commercial credits. These are all examples which show that
English law, having committed itself to a rather technical and schematic doctrine of
contract, in application takes a practical approach, often at the cost of forcing the
facts to fit uneasily into the marked slots of offer, acceptance and consideration.
(Emphasis added.)

55 In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 193 [79], Gleeson CJ,
Gummow, Hayne, Callinan and Heydon JJ endorsed Lord Bingham’s description in The
Starsin [2004] 1 AC at 744-745 [34] of that technique of analysis of contractual formation as
“a deft and commercially-inspired response to technical English rules of contract, particularly
those governing privity and consideration”. It reflects his Lordship’s earlier emphasis on the
parties being “the masters” of the process for “their contractual fate”: Pagnan [1987] 2 Lloyd’s
Rep at 619.
56 Lord Justice Toulson, with whom Richards and Mummery LJJ agreed, described the typical
formation of contracts in markets, such as shipping, where parties rely on standard form
contracts, in Papas Olio JSC v Grains & Fourrages SA [2010] 2 Lloyd’s Rep 152 at 156-157
[28] as follows:
It is commonplace in commercial life, particularly in markets where the use of standard
forms of contract is common, for parties to agree on all the essential terms necessary
to bring about the conclusion of an oral contract and for the oral contract then to be
followed by a written document, often described as a confirmation or recap, which will
not only set out the essential terms but other terms common in the market. If there is
no comeback from the other party, it may be easy to infer assent. The situation
would be very different if there was no prior oral contract. Where the oral contract is
followed by a written confirmation setting out fuller terms to which the other party is
judged by the fact finder to have assented, it is of no practical importance whether the
situation is analysed as the parties having entered into a partly oral and partly written
contract. Probably the better analysis is that the written document fulfils a dual
function: it both confirms evidentially the making of the oral agreement but also
supersedes the oral agreement in that it provides a document to which the parties
hereafter look as the expression of their bargain.
(Emphasis added.)
What was the contract of carriage?
57 In our opinion, the primary judge erred in rejecting Poralu’s argument that the second recap
was the contract of carriage. That is because, in our opinion, the second recap concluded the
contract of carriage. Mr Gires’ filling out and returning of the booking note form on 8
November 2019 can only be viewed as an attempt to proceed consistently with the first category
of cases identified in Masters 91 CLR at 360 (and see too Lloyd LJ’s fourth principle in Pagnan
[1987] 2 Lloyd’s Rep at 619; RTS Flexible [2010] 1 WLR at 773 [49]), being where “the parties
have reached finality in arranging all the terms of their bargain and intend to be immediately
bound to the performance of those terms, but at the same time propose to have the terms restated
in a form which would be fuller or more precise but not different in effect”. Despite the
inaccuracies in how the agreement between the parties was recorded in the booking note, those

inaccuracies did not evidence or result from any act or intention of the parties to change the
terms already agreed in the second recap.
58 It is important to bear in mind that, as we have noted, although the first recap was the
commencing part of the documentary evidence, it was, self-evidently, the product of detailed
prior negotiations between Helmgale and Spliethoff. A recap, or recapitulation, in the shipping
industry, is one party’s attempt to distil the essential agreed terms following negotiation that
often uses terms or abbreviations that the individual negotiators know as familiar tools of their
trade, for documents that they intend to use as part of the transaction that will be more fulsome,
such as a standard form of one of the parties’ contracts, like a ship owner’s standard form bill
of lading or booking note, or well-known forms of charterparty. Here, the parties chose not to
tender in evidence what had passed between them earlier to arrive at the terms of the first recap.
However, it is clear that, by the time of the exchanges in the emails in evidence on 7 November
2019, the parties had progressed well past tentative discussions and were then engaged in
identifying where their negotiations were at so that they could proceed on the basis that
Spliethoff would cause the intended cargo of pontoons to be carried from Cork to Geelong for
Helmgale’s client.
59 With this in mind, looking as a whole at the correspondence that passed between Mr Gires and
Mr Oostrum on 7 November 2019, it is clear that the first recap was an offer. Mr Oostrum’s
response was to make a very limited counteroffer (“nearly correct … Please delete “vsl to arrive
latest 31st
January … Otherwise fine with me”) that was capable of acceptance. Mr Gires
accepted that one change and returned the second recap, with its only alteration being Mr
Oostrum’s amendment, so as to accept the counteroffer that had sought its inclusion.
60 Here, the parties intended to contract on the terms of the second recap within the first class that
Dixon CJ, McTiernan and Kitto JJ described in Masters 91 CLR at 360. That is, they intended
that the contract of carriage would provide for the matters that they had stipulated, using well-
known shipping industry shorthand language, including that Spliethoff’s standard form bill of
lading and booking note would restate those terms more fully or precisely, but to no different
effect. And they necessarily intended that the wording in those two standard forms would be
amended to conform, where they differed, to what the second recap provided. Hence, the
parties’ use of the wording in lines 53 and 54 of the second recap, namely that their agreement
would be “Otherwise as per carrier’s [booking note] including rider clauses” (emphasis

added), and bill of lading but with the substantive amendments that the governing law would
be “English law” and the parties would submit to “London arbitration”.
61 Spliethoff’s conduct, after it received the second recap, in sending Helmgale its standard form
booking note, bill of lading and sea waybill was not a next step in what Lord Denning MR
colourfully described as a “battle of forms” that results in a contract once the last form has been
sent and received without objection: Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England)
Ltd [1979] 1 WLR 401 at 404H. Rather, that conduct was engaging in performance of the
contract in the second recap.
62 It is commercially unrealistic to think, after Mr Gires and Mr Oostrum had agreed in the email
containing the second recap, line 7 of which specified that Spliethoff was to “also provide your
BN [booking note], riders and BL [bill of lading]” and in lines 53-54 provided that they were
to proceed “Otherwise as per Carrier’s WWBN [worldwide booking note] including rider
clauses / BL [bill of lading] including English Law and London Arbitration => to be
provided” (emphasis added), that the parties without further discussion simply had abandoned
their agreement and reverted to contracting on the very different standard form wording of the
jurisdiction and arbitration clauses in Spliethoff’s booking note and bill of lading. There was
no evidence that, after the second recap, any change of contractual intention had occurred or
that somehow the parties had agreed or were now proceeding on a different basis by
supplanting the earlier express agreement in the second recap, without any discussion at all. It
is inherently unlikely that they had somehow decided that, instead, they would contract on a
new basis using Spliethoff’s wording and had agreed to abandon using clauses that, first,
ensured there would be “English law and London Arbitration” and, secondly, provided that a
bill of lading, so claused, would issue and evidence the contract of carriage. Why else would
the two businessmen have put into both the first and second recaps that Spliethoff would
provide Mr Gires with its standard form of booking note and bill of lading, and any standard
form riders, unless they were ad idem that the contract would otherwise be on those terms, but,
as amended in the recaps, to include amendments to ensure that the contract of carriage and the
bill of lading would include clauses providing for “English law and London Arbitration”?
63 The primary judge relied on four contra-indications to the second recap being a contract, but
in our opinion these do not lead to that result.
64 The primary judge’s first contra-indication to the second recap being the contract of carriage
was the use of the abbreviation “asf” in line 5, which he understood to mean “agreed so far”.

No alternative meaning had apparently been suggested to the primary judge. In the first recap,
at line 2, Mr Gires used the expression “confirm having fixed sfoar [scil: this was a
typographical error for sofar]”. He also wrote in line 61 “Thanks sofar”, thus indicating Mr
Gires’ use of “so far” as one word. This expression is consistent with there being matters yet
to agree. It would seem unusual for Mr Gires to switch in line 2 in the second recap to the
different abbreviation of “asf” and to remove the statement “confirm having fixed” if he
intended to convey the same meaning of “agreed so far”, especially when he reiterated in line
61 “thanks sofar” (emphasis added). Moreover, in the second recap, Mr Gires made only one
change to the substantive text of the first recap, namely to incorporate the single amendment
that Mr Oostrum requested after writing “Nearly correct”. The change of Mr Gires’ language
between the two introductory expressions in the first and second recap again points to
agreement. In the first recap, he sought Mr Oostrum to “confirm having fixed [so far]”,
whereas, in the second, he adopted the one change that Mr Oostrum required and described the
result as “revised recap asf”. Thus, “asf” is likely to mean “as follows”. Restating or
recapitulating the precise agreed terms, as Mr Gires did in the second recap, points directly to
finality.
65 In any event, the fact that other, perhaps even important, matters may need later discussion and
agreement does not necessarily negate the capacity of the second recap to be a concluded
contract. Such a situation is the fourth class of contract recognised in GR Securities 40 NSWLR
at 628E-G per McLelland J and 634D-635E per McHugh JA and by Lloyd LJ in Pagnan [1987]
2 Lloyd’s Rep at 619 citing Bingham J’s precept that the parties are “the masters of their own
contractual fate”.
66 His Honour’s second contra-indication was, accepting that agreement could be reached on the
basis that Spliethoff’s booking note and bill of lading terms were incorporated without them
having been seen, that was not the case with respect to the rider clauses. Contrary to the
primary judge’s conclusion, the rider clauses were not something that had yet to be agreed.
Line 53 was to be read as an acceptance of Spliethoff’s standard form booking note, which was
to include the rider clauses that had been agreed. Those riders included that the subsequent
shipping documents, being the booking note and bill of lading, that the parties would need to
use to carry out the carriage on the terms agreed in the second recap would be claused with
English law as the proper law, provide for London arbitration and that the contract would
enable the issue of a bill of lading so claused. There was no evidence that, leaving the terms
of the standard form booking note and bill of lading to one side, the parties later negotiated any

additional rider clauses. This suggests that the parties had no other rider clauses in mind and
thus the wording in line 53 was not necessarily a contra-indication, as opposed to being, as we
infer, definitive of the agreed wording. Critically, the second recap did not define the nature
of the bill of lading to be prepared so that, as Spliethoff’s standard form wording provided, it
would be issued in the form as a negotiable bill if the merchant so demanded. The possibility
that there might have been any further rider clauses to Spliethoff’s standard form documents
(of which there was no evidence at all) did not contradict the objective evidence of the parties’
intention to be bound forthwith on the terms of the second recap.
67 His Honour’s third contra-indication was that the second recap did not record a concluded or
firm fixture because the intended rotation of the vessel was “to be supplied prior firm fixture”.
However, the parties understood that, at that time, there was only an intended vessel,
MV Dynamogracht, but had agreed that Spliethoff was yet to nominate the performing vessel
and had to do so, if it were not to be MV Dynamogracht, by 15 November 2019. However, as
was apparent from the terms of the second recap, the detail about the rotation was not an
essential term. The parties had agreed the laycan, the maximum transit time, and the penalties
for delay and detention. Indeed, as the primary judge found, line 39 of the second recap meant
no more than that the carrier had to inform the merchant of the order of port calls that the
performing vessel would make before she reached Cork. This was a requirement to provide
information to the merchant when available so that it could make arrangements in anticipation
of being ready for loading the cargo when the vessel arrived.
68 Further, there was nothing in the second recap that could be described as “comeback”. Mr
Gires’ return of the second recap that he had amended to include Mr Oostrum’s correction was
an acceptance of the provisions as amended of the first recap that Mr Oostrum said was
“Otherwise fine with me”, and demonstrated that the parties were ad idem.
69 In circumstances where, objectively, the parties had reached and recorded their agreement,
nothing turns on his Honour’s fourth contra-indication in the second recap, being Mr Gires’
sign off “pls confirm, thanks sofar” after the word “END”. That is because, by incorporating
Mr Oostrum’s change and returning it to him, Mr Gires had accepted the counteroffer and made
the contract. His request “pls confirm” was a courtesy or request, not a further counteroffer.
70 Consequently, the stage of the negotiations between him and Mr Oostrum when Mr Gires sent
the second recap made it apparent that the parties had agreed all the necessary terms and
conditions of a contract of carriage. Mr Gires’ request in lines 6 and 46 for agency details at

both ports for the carriage sought information necessary to fill in boxes on the standard forms
but was not a matter that required any agreement by Poralu other than, as the request indicated,
that Spliethoff unilaterally could, and would, identify its agents.
71 As we have explained at [0] above, the second recap was subject to two conditions subsequent,
namely, the shipper (ICMS) reconfirming what was to be carried no later than 24 hours after
the fixing of the main terms and the carrier approving the transport drawings and technical
details (lines 57 to 58). Those were conditions subsequent to performance under the second
recap but did not affect its formation as a binding contract. There was no suggestion that ICMS
failed to reconfirm. The primary judge found that after Mr Gires requested Spliethoff on 12
November 2019 to “lift” its entitlement to approve the transport drawings and technical details,
Spliethoff did so by email on 13 November 2019. On 14 November 2019, Spliethoff formally
notified the merchant that it had nominated MV Dijksgracht as the performing vessel, giving 5
December 2019 as her estimated time of arrival at Cork, all going well and weather permitting.
72 The acts of Spliethoff, on and before 14 November 2019, in sending Helmgale, as the
merchant’s agent, details of its port agents, its standard form booking note and bill of lading,
approving the technical details and transport drawings and nominating MV Dijksgracht had the
character that the parties to the second recap were proceeding as if those were acts of
performance under a contract as recorded in the second recap, rather than steps in an incomplete
negotiation from which both parties were free to withdraw.
73 Importantly, at the time of the second recap, the identity of the intended consignee was not
apparent or known to Spliethoff. On 7 November 2019, Mr Zuijderduin sent an email to Mr
Gires that attached Spliethoff’s “Original Bill of Lading format” and its sea waybill format.
Mr Zuijderduin made the suggestion that “if the consignee is known we suggest to issue Sea
waybills as these are easier to issue” (emphasis added) and offered possibly greater efficiency.
That does not detract from the underlying agreement of the parties that a bill of lading to
evidence the contract of carriage was to be issued and claused so that English law was to govern
the contract of carriage and that there would be London arbitration of disputes.
74 It follows that Poralu succeeds on issues 2 and 3.
DOES ART 10 OF THE HAGUE-VISBY RULES APPLY?
75 Article 10 of the Hague-Visby Rules provides:
The provisions of this Convention shall apply to every Bill of Lading relating to the

carriage of goods between ports in two different States if:
(a) the Bill of Lading is issued in a Contracting State; or
(b) the carriage is from a port in a Contracting State; or
(c) the contract contained in or evidenced by the Bill of Lading provides that
the rules of this Convention or legislation of any State giving effect to them
are to govern the contract
whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or
any other interested person.
(Emphasis added.)
76 The parties, leaving no stone unturned, debated whether Art 10(a) or (b) could apply to
whatever the contract of carriage was. It is not necessary for us to engage in that debate because
of our conclusion, which we explain below, that, under English law as the proper law,
Spliethoff’s standard form bill of lading (that the parties agreed that the carrier was bound to
issue and would evidence the contract of carriage), amended to include the English law and
London arbitration riders, provided that the Hague-Visby Rules were to govern the contract
and therefore Art 10(c) applied.
What is the place of issue of a bill of lading?
77 As the primary judge held, neither Art 10(a) nor 10(b) was applicable in the present
circumstances. That was because Ireland, being the country of shipment, is not a Contracting
State.
78 Moreover, Poralu’s challenge to the primary judge’s conclusion that the place of issue of a bill
of lading is where the document is stamped and signed (issue 5) is without substance. As the
primary judge correctly held:
154 The learned authors of Aikens express the view that “issued” refers to the place
where signature or authentication of the carrier occurs: at [11.26]. I agree. The
issue of a bill of lading is a unilateral, not a bilateral act. Thus, the place of
issue of a bill of lading may be a different place to where the bill of lading is
given to the shipper: see Treitel, Sir Guenter and Reynolds FMB, Carver on
Bills of Lading (4th ed, Sweet & Maxwell, 2017) at [9-080]. Given that
modern commerce is principally conducted by electronic communication in
circumstances where the individuals concerned might, at any particular time,
be just about anywhere, it would lead to intolerable uncertainty if the place of
issue of a bill of lading depended on where a particular person was at any given
time when they sent or received an email. In my view, the relevant document
must be regarded as issued where it is stated in it to have been issued, and
in the absence of such a statement then where it was in fact signed or
authenticated.
(Emphasis added.)

79 Shipping documents, such as bills of lading, ordinarily pass into the hands or, in the case of
negotiable bills of lading, possession of third parties who will not have and cannot be expected
to have any knowledge about where or how the document was issued other than as appears on
its face. Those engaged in maritime commerce should be entitled to rely on what shipping
documents, such as bills of lading and sea waybills, state on their face. Commercial
documentation of transactions in international trade requires as much certainty as possible
about the rights and obligations of the immediate parties and any third parties, such as assignees
or holders of negotiable instruments.
80 Given our finding above, it is unnecessary to deal with Poralu’s challenge under issue 5 to the
primary judge’s finding that “if no bill of lading is issued then Art 10(a) cannot be satisfied. To
hold otherwise is too artificial a result”.
Can Art 10(c) apply when no bill of lading is in fact issued?
81 Relevantly here, based on our finding that the bill of lading was to be issued under the second
recap and was governed by English law, the next question is whether, under English law, the
Hague-Visby Rules applied to that bill of lading by force of Art 10(c). The primary judge did
not need to decide this question because of his conclusion that Dutch law applied to the booking
note contract that he found. However, his Honour helpfully, and with his typical incision,
discussed the principles that apply where no bill of lading is in fact issued despite the parties’
agreement that one would issue evidencing the contract of carriage.
82 The primary judge explained:
150 There is nothing artificial in the principal reasoning of Pyrene v Scindia, The
Happy Ranger EWCA and The Maersk Tangier that the wording “contract of
carriage covered by a bill of lading” includes a contract of carriage where no
bill of lading is in fact issued but in respect of which the issue of a bill of lading
was contemplated, or in respect of which the shipper had a right to demand a
bill of lading.
83 As his Honour observed, the reasoning of the English Courts in The Maersk Tangier [2018] 2
Lloyd’s Rep 59, Pyrene Co Ltd v Scindia Steam Navigation Co Ltd [1954] 2 QB 402 and
Parsons Corporation v CV Scheepvaartonderneming (The Happy Ranger) [2002] 2 Lloyd’s
Rep 357 was concerned with the chapeau to Art 10 and its interaction with Art 10(b). In
particular, those cases considered whether the expression “contract of carriage covered by a
bill of lading” includes a contract of carriage where no bill of lading is in fact issued but in
respect of which the shipper had the right to demand one.

84 In our opinion, this reasoning is equally apposite to assist in the determination of whether Art
10(c) applies in the present circumstances, where, as we explain below, the second recap
provided that a bill of lading would evidence the contract of carriage.
85 The Maersk Tangier [2018] 2 Lloyd’s Rep 59 concerned damage to frozen tuna shipped in
three containers from Spain to Japan. Following a variation to the destination of two
containers, no bill of lading was ever issued in respect of any of the three containers, but sea
waybills were issued to avoid further delay in delivery. One of the issues at trial was whether
liability was limited pursuant to Art 4(5) of either the Hague Rules or the Hague-Visby Rules,
if either were applicable compulsorily or contractually. On appeal, it was argued that the
primary judge had been wrong to conclude that the liability was limited by Art 4(5) of the
Hague-Visby Rules and to hold that they had the force of law pursuant to s 1(2) of COGSA 71
because, so it was argued, the contract was not “covered by a bill of lading” within Art 1(b) of
the Hague-Visby Rules and the requirements of s 1(4) could not be met in circumstances where
sea waybills had been issued rather than bills of lading. Section 1(4) of COGSA 71 relevantly
provided:
(4) … nothing in this section shall be taken as applying anything in the Rules to
any contract for the carriage of goods by sea, unless the contract expressly or
by implication provides for the issue of a bill of lading or any similar
document of title.
(Emphasis added.)
86 Flaux LJ, with whom Gloster LJ agreed, held (at 70-71 [48]-[49]):
[48] In my judgment, where, as in the present case, the contract of carriage at its
inception provides for the issue of a bill of lading on demand, the contract
of carriage is ‘covered by a bill of lading’ within the meaning of art I(b) of
the Hague-Visby Rules. Furthermore, since, as is common ground, the
contract provided by implication for the issue of such a bill of lading on
demand, the requirements of s 1(4) of the 1971 Act are clearly satisfied.
[49] It is no answer that no bill of lading was ever in fact issued. Devlin J in
Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 All ER 158, [1954] 2 QB
402, where, because the fire tender was damaged during loading and never
carried on the ship, it was deleted from the bill of lading, rejected any
suggestion that the Hague Rules would only be incorporated in the contract of
carriage if a bill of lading was issued. He said ([1954] 2 All ER 158 at 164,
[1954] 2 QB 402 at 419-420):
‘The next contention on behalf of the plaintiffs is that the rules are
incorporated in the contract of carriage only if a bill of lading is issued.
The basis for this is in the definition of art I(b) of “contract of
carriage”. I have already quoted it, and it “applies only to contracts of
carriage covered by a bill of lading”. The use of the word “covered”
recognises the fact that the contract of carriage is always

concluded before the bill of lading, which evidences its terms, is
actually issued. When parties enter into a contract of carriage in the
expectation that a bill of lading will be issued to cover it they enter
into it on those terms which they know, or expect, the bill of lading
to contain. Those terms must be in force from inception of the
contract; if it were otherwise the bill of lading would not evidence the
contract but would be a variation of it. Moreover, it would be absurd
to suppose that the parties intend the terms of the contract to be
changed when the bill of lading is issued, for the issue of the bill of
lading does not necessarily mark any stage in the development of the
contract; often it is not issued till after the ship has sailed, and if
there is pressure of office work on the ship’s agent it may be delayed
several days. In my judgment, whenever a contract of carriage is
concluded and it is contemplated that a bill of lading will in due
course be issued in respect of it, that contract is from its creation
“covered” by a bill of lading and is, therefore, from its inception,
a contract of carriage within the meaning of the rules and to which
the rules apply. There is no English decision on this point: but I
accept and follow without hesitation the reasoning of the Lord
President, Lord Clyde in Harland & Wolff Ltd v Burns & Laird Lines
Ltd (1931) 40 Ll L Rep 286, 1931 SC 722’.
(Emphasis added.)
87 There is no doubt that the England and Wales Court of Appeal’s reasoning in both cases was
directed at the chapeau to Art 10. Thus, the chapeau must be read as applying the Hague-Visby
Rules by force of the definition of contract of carriage in Art 1(b) to:
every contract of carriage covered by a bill of lading or any similar document of title
… including any bill of lading … issued under or pursuant to a charterparty from the
moment at which such bill of lading … regulates the relations between the carrier and
a holder of the same.
88 Once it is accepted that, under English law, Art 10(b) will apply if the contract of carriage is
covered by a bill of lading within the meaning of Art 1(b), even if no bill of lading is in fact
issued, the same conclusion in respect of Art 10(c) is compelling. Indeed, Art 10(c), read with
Art 3(3), and in light of Pyrene [1954] 2 QB 402 and the authorities applying what Devlin J
held, which we have discussed above, expressly applies to the “contract [of carriage] contained
in or evidenced by the bill of lading” referred to in the chapeau to Art 10.
89 In our opinion, the reasoning in The Maersk Tangier [2018] 2 Lloyd’s Rep 59 should be applied
to the interaction of the chapeau in Art 10 with Art 10(c) equally as with Art 10(b). Indeed,
such a reading would avoid anomalous results. The chapeau covers all of the following sub-
rules and the balance of Art 10. Justice Devlin’s reasoning in Pyrene [1954] 2 QB 402
anticipated why Art 10(c) (which was later inserted by the Visby Protocol) would be engaged

even where no bill of lading is, in fact, “issued” in the extract that Flaux LJ set out in The
Maersk Tangier [2018] 2 Lloyd’s Rep 59 at 71 [49], namely:
Moreover, it would be absurd to suppose that the parties intend the terms of the contract
to be changed when the bill of lading is issued, for the issue of the bill of lading does
not necessarily mark any stage in the development of the contract; often it is not issued
till after the ship has sailed, and if there is pressure of office work on the ship’s agent
it may be delayed several days.
90 Indeed, as the primary judge correctly observed, the provision of a right to demand the issue of
a bill of lading pursuant to Art 3(3) could have no operation if the Rules only could apply once
a bill of lading had already been issued. This demonstrates the appropriateness of the purposive
approach to the meaning of Art 10 that Flaux LJ endorsed in The Maersk Tangier [2018] 2
Lloyd’s Rep 59 at 74 [70] when he held:
In my judgment, the solution to any apparent conundrum is that these Articles should
be given a purposive construction, so as to give effect to the clear intention that the
Hague-Visby Rules apply compulsorily to the contract of carriage. Specifically,
references in art X to ‘bill of lading’ should be read as ‘contract of carriage which
is covered by a bill of lading or similar document of title’, giving effect to the case
law on the meaning of ‘covered by a bill of lading’ in art I(b).
(Emphasis added.)
91 Whatever weight Flaux LJ gave to s 1(4) of COGSA 71, that provision merely reinforced
Devlin J’s interpretation in Pyrene [1954] 2 QB 402, which predated the enactment of s 1(4),
and the purposive approach to the construction of the Hague Rules (as predecessor of the
Hague-Visby Rules) that Viscount Simonds adopted in Anglo-Saxon Petroleum Co Ltd v
Adamastos Shipping Co [1959] AC 133 at 153-154.
92 It follows that if parties enter into a contract of carriage that expressly or by implication
provides that a bill of lading will be issued, claused so as to conform with the requirements of
Art 10(c) as evidencing the contract of carriage, then the Hague or Hague-Visby Rules will
apply even if no bill of lading is ever issued.
Was the contract of carriage “covered by” a bill of lading?
93 Poralu challenged the primary judge’s findings that, first, it did not demand the issue of a bill
of lading, and, secondly, the contract of carriage did not provide that a bill of lading would be
issued. It is uncontroversial that Poralu ultimately agreed to accept a sea waybill as a matter
of commercial convenience because or once the consignee was known. What remains
controversial is whether that circumstance changes the underlying legal consequences as
between Spliethoff and Poralu.

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