No time for Maritime: NSW Civil and Administrative Tribunal affirms no jurisdiction to hear maritime claims

The Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT) has recently confirmed that the Tribunal does not have jurisdiction to hear a maritime claim, which includes a claim arising out of an agreement that relates to the carriage of goods by a ship.

The various state Civil and Administrative Tribunals are generally regarded as being ‘consumer’ friendly, low-or-no costs jurisdictions, and therefore are attractive to litigants pursuing ‘consumer’ type claims. Such claims can include cargo or freight disputes against carriers, freight forwarders or logistics companies; or baggage or delay claims against airlines.

This decision should provide sufficient comfort to carriers, freight forwarders, logistics companies and their insurers that the Tribunal does not generally have the requisite jurisdiction to hear such disputes.

Facts

Mr Lemesh (Lemesh) wanted to relocate his possessions from Zagreb in Croatia to his home in Canberra. The goods were transported by sea to Sydney, via Singapore. They were then collected from Sydney, and transported by road to Canberra.

Lemesh engaged a Croatian company to, among other things, arrange export customs clearance requirements and also the documents needed to collect his good from the carrier, including a bill of lading.

A bill of lading was issued by Globelink Container Lines Limited (a related entity to freight forwarder Globelink International Pty Ltd (Globelink)) for the ocean carriage of the goods. Mr Lemesh was the named shipper and consignee, and Globelink was named as delivery agent in Australia. The goods that were shipped were less than a container load (LCL), and consequently consolidated with other cargo prior to carriage.

Without notice to Globelink, Lemesh made the unilateral decision to change the delivery agent from Globelink to ‘International Delivery Services Pty Ltd’ (IDS) on the bill of lading. Globelink was not aware of this change until it was provided a copy of the bill by IDS in Sydney.

Lemesh then requested individual quotes from Globelink and IDS to transport his goods from Sydney to Canberra. IDS provided the more competitive quote, but it included certain charges including a co-loader cost for the port services charges invoiced by Globelink.

While Lemesh accepted IDS’s quote, he later challenged Globelink’s charges. IDS claimed these amounts as part of its fees and they were paid by Lemesh under protest. IDS paid Globelink and then sought payment from Lemesh.

Lemesh commenced proceeding in the Tribunal against Globelink.

At First Instance

The Tribunal ordered Globelink to pay Lemesh the sum of $1,482.46 comprising a refund of the port service charges as Globelink were unable to substantiate on the evidence whether these fees were paid to other companies.

On Appeal

Globelink appealed the decision. Interestingly, there was no challenge to the Tribunal’s jurisdiction to hear the dispute by the parties at first instance or on Appeal.

The jurisdiction of the Tribunal was first raised by the Appeal Panel itself. The parties were invited to make submissions on jurisdiction, but neither party did so.

The Appeal Panel considered Sections 4 and 9 of the Admiralty Act 1988 (Cth) (Admiralty Act) to identify whether the Tribunal could hear the dispute:-

Section 4 Maritime claims

(1) A reference in this Act to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim…

(3) A reference in this Act to a general maritime claim is a reference to:

…

(f) a claim arising out of an agreement that relates to the carriage of goods … by a ship….

Section 9 Admiralty jurisdiction in personam

(1) Jurisdiction is conferred on the Federal Court, the Federal Circuit Court and on the courts of the Territories, and the courts of the States are invested with federal jurisdiction, in respect of proceedings commenced as actions in personam:

(a) on a maritime claim; or….

The question therefore was whether the claim was a “general maritime claim” within the meaning of the Admiralty Act.

If so, the Tribunal did not have jurisdiction as it would require the exercise of federal jurisdiction. While such jurisdiction is invested in the courts of the State, prior authority has confirmed the Tribunal is not a court of the State.

The Appeal Panel referred to authority that held that Section 4 of the Admiralty Act should not be read down, but construed according to its plain words.

It also referred to a prior similar decision in China Shipping (Australia) Agency Co v D J Kelly Pty Ltd [2010] NSWSC 1556, where it was held that the Tribunal did not have jurisdiction to hear a dispute around charges for the hire of a container which had been used to ship goods by sea to Australia, as it too was a maritime claim. That decision noted that the words “arising out of”, as used in the Admiralty Act, were of wide import.

Lemesh’s claim against Globelink concerned an allegation that the port charges invoiced by Globelink were not payable by him as he had no contract with them and, in any event they were excessive.

The Tribunal concluded that the dispute around the port charges related to and arose out of the agreement for the carriage of Lemesh’s goods by ship from Croatia to Australia, made with a Croatian company and in accordance with the terms of the bill of lading. It did not matter that the agreement for the carriage of his goods was not with Globelink.

As such, the dispute was a general maritime claim within the meaning of the Admiralty Act, the Tribunal did not have jurisdiction to determine the dispute, and the proceedings were dismissed.

This article was co-authored by Sophie Farnsworth, Paralegal at Kennedys.