Lloyd's Maritime and Commercial Law Quarterly

Australian Maritime Law

Martin Davies *


1. Beluga Shipping GmbH v. Headway Shipping Ltd (No 1)1

Carriage of goods by sea—straight bill of lading—delivery without presentation of original bill of lading
A valuable cargo of wind turbine generating equipment was carried from India to Port Kembla on Beluga Fantastic. The ship’s master prepared “straight”, non-negotiable, freight pre-paid bills of lading but did not release them to the shipper in India, Suzlon Energy Ltd, because it had not paid freight to the ship’s time charterer, Headway Shipping. When the ship arrived in Port Kembla, the shipowner instituted proceedings in the Federal Court of Australia seeking to interplead by discharging the cargo to be held by the court pending resolution of a dispute between Suzlon and Headway about payment of freight. By order of the court, the Admiralty Marshal took custody of the cargo. The court then made an order reflecting the parties’ agreement that the cargo should be released by the Marshal to the receiver, Suzlon Energy Australia Pty Ltd, in return for the original bills of lading if the Suzlon companies paid $6.5m to Headway and $7m into court. Suzlon and Headway then sought a variation of that order, allowing delivery of the cargo without presentation of the original bills of lading.
Decision: The application to vary the existing order was refused.
Held: (1) The straight bills of lading all contained the traditional “surrender clause”, which stated that three original bills had been signed, “any one of which being accomplished the others shall be void”. It is not appropriate to require the Marshal, as an officer of the Court, to deliver goods or to act on some basis other than that expressly provided in the bills of lading.
(2) An original straight bill of lading must be presented to obtain delivery of the cargo, just as in the case of a negotiable bill (see The Rafaela S 2 and the decisions there cited, and a dictum in an earlier decision of the Federal Court of Australia3).



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