'''Full Court, Federal Court of Australia: Mansfield, Rares and Buchanan JJ: [2013] FCFCA 107, 18 September 2013'''

Counsel for Appellant: G.J. Nell SC and J.A. Soars, instructed by James Neill

This definition applied when the phrase was used in the amended Hague Rules but was not expressly said to apply to the provisions or application of COGSA itself.

At first instance, Foster J upheld the Respondent’s submission that the arbitration clause was invalid under s.11 and any award made pursuant to that clause was thereby unenforceable. In doing so, his Honour found that the legislature had intended by the various amendments made to COGSA in 1997 and 1998 to broaden the class of documents covered by ss.11(1)(a) and 11(2)(b) from the narrower class described by the terms of s.11 as originally enacted. Further, his Honour concluded that assistance could be obtained in ascertaining the meaning of the amended terms of ss. 11(1)(a) and 11(2)(b) – in particular to the extent that they refer to a “sea carriage document relating to the carriage of goods” – from the definition in Article 1(1)(g)(iv) of the amended Hague Rules (although his Honour concluded that recourse could not be had to other provisions of the amended Rules for that purpose). But in construing this definition, Foster J adopted “a meaning reflective of ordinary English usage” and concluded that because the charterparty in which the arbitration clause was found “is a contract of carriage of goods by sea it “contains or evidences” such a contract” and is “therefore a “sea carriage document” within the meaning of section 11(1)(a)”. According to his Honour “the same result would be arrived at by simply construing the phrase “sea carriage document” in section 11(1)(a), without recourse to Art 1 (1)(g)(iv) of the amended Hague Rules”.