53. Gilbert Stokes & Kerr Proprietary Limited v Dalgety & Co. Ltd [1947 / 48] Vol 81 Lll Rep 337

Bill of lading – goods damaged while being off loaded at port of discharge – stevedores entitled to package limitation

The facts

Two cases of machinery were shipped from Liverpool to Sydney under a bill of lading incorporating the Hague Rules.

During the contractual voyage and while the goods were still on board they were damaged by the stevedores, independent contractors, at the port of discharge.

The stevedores claimed entitled to the package limitation in the bill of lading.

Findings

Mr Justice Owen considered the point raised by the cargo owners that the stevedores were not party to the contract evidenced by the bill of lading.

In much the same way as the House of Lords in Elder Dempster, the court found that it was not open to the cargo owners to circumvent the package limitation applying to the carrier to sue in tort the independent contractor employed by the carrier to carry out part of its contractual obligations.

The court referred to Vita Food Products v Unus Shipping Company as authority for the proposition that the actual transactions between the parties cannot be ignored even in an action in tort (volenti non fit iniuria – the shippers agree in advance not to hold the stevedores liable)

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