CARRIAGE OF GOODS BY SEA ACT 1991 No. 160, 1991
CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - TABLE OF PROVISIONS
TABLE OF PROVISIONS PART 1 - PRELIMINARYSection 1. Short title 2. Commencement 3. Object of Act 4. Interpretation 5. Act to bind Crown 6. Extension to external Territories PART 2 - APPLICATION OF THE AMENDED HAGUE RULES ETC. 7. The amended Hague Rules 8. The amended Hague Rules to have the force of law 9. Interpretation 10. Application of the amended Hague Rules 11. Construction and jurisdiction PART 3 - APPLICATION OF THE HAMBURG RULES ETC. 12. The Hamburg Rules 13. The Hamburg Rules to have the force of law 14. Interpretation 15. Application of the Hamburg Rules 16. Construction PART 4 - MISCELLANEOUS 17. Absolute undertaking to provide a seaworthy ship not implied 18. Act prevails over certain provisions of the Trade Practices Act 1974 19. Act not to affect operation of certain provisions 20. Repeal of the Sea-Carriage of Goods Act 1924 etc. 21. Repeal of section 2C of the International Arbitration Act 1974 and substitution of new section: 2C. Carriage of goods by sea SCHEDULE 1 THE AMENDED HAGUE RULES SCHEDULE 2 THE HAMBURG RULES CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - LONG TITLE
An Act relating to the carriage of goods by sea, and for related purposes CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - PART 1 PART 1 - PRELIMINARY
CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 1 Short title
(Assented to 31 October 1991) 1. This Act may be cited as the Carriage of Goods by Sea Act 1991. (Minister's second reading speech made in- House of Representatives 14 August 1991 Senate 15 October 1991) CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 2 Commencement
2.(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent. (2) Subject to this section, Part 3 and Schedule 2 commence on a day to be fixed by Proclamation, being a day not sooner than the day on which the Hamburg Convention enters into force in respect of Australia. (3) If a Proclamation under subsection (2) is not made within 3 years after the day on which this Act receives the Royal Assent, Part 3 and Schedule 2 commence at the expiration of those 3 years, unless, before that expiration, each House of the Parliament passes a resolution: (a) that Part 3 and Schedule 2 be repealed; or (b) that the question of the repeal of Part 3 and Schedule 2 be reconsidered, in accordance with this section, after a further period of 3 years. (4) If a resolution is passed in accordance with paragraph (3)(a), Part 3 and Schedule 2 are taken to be repealed on the day on which the resolution is passed by the second of the Houses to pass it. (5) If a resolution is passed in accordance with paragraph (3)(b), the period of 3 years first referred to in subsection (3) is taken to commence on the day on which the resolution is passed by the second of the Houses to pass it. (6) A Proclamation must not be made under subsection (2) unless the Minister has consulted with, and given due consideration to the views expressed by, representatives nominated by shippers, cargo owners, carriers and ship owners. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 3 Object of Act
3.(1) The object of this Act is to introduce a regime of marine cargo liability that: (a) is up-to-date, equitable and efficient; and (b) is compatible with arrangements existing in countries that are major trading partners of Australia; and (c) takes into account developments within the United Nations in relation to marine cargo liability arrangements.
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(2) The object of the Act is to be achieved by: (a) as a first step - replacing the Sea-Carriage of Goods Act 1924 with provisions that give effect to the Brussels Convention as amended by the Visby Protocol and the SDR Protocol; and (b) as a second step - replacing those provisions with provisions that give effect to the Hamburg Convention. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 4 Interpretation
4.(1) In this Act: "amended Hague Rules" has the meaning given in section 7; "Australia", when used in a geographical sense, includes the external Territories; "Brussels Convention" means the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, done at Brussels on 25 August 1924; "Hamburg Convention" means the United Nations Convention on the Carriage of Goods by Sea, being Annex I of the Final Act of the United Nations Conference on the Carriage of Goods by Sea done at Hamburg on 31 March 1978; "Hamburg Rules" has the meaning given in section 12; "SDR Protocol" means the Protocol amending the Brussels Convention, as amended by the Visby Protocol, done at Brussels on 21 December 1979; "Visby Protocol" means the Protocol amending the Brussels Convention, done at Brussels on 23 February 1968. (2) A reference in this Act to a non-negotiable document includes a reference to a sea waybill. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 5 Act to bind Crown
5. This Act binds the Crown in each of its capacities. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 6 Extension to external Territories
6. This Act extends to all the external Territories. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - PART 2 PART 2 - APPLICATION OF THE AMENDED HAGUE RULES ETC.
CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 7 The amended Hague Rules
7. A reference in this Act to the amended Hague Rules is a reference to the English translation of Articles 1 to 10 (inclusive) of the Brussels Convention, incorporating the English text of the amendments made to that Convention by Articles 1 to 5 (inclusive) of the Visby Protocol and Article II of the SDR Protocol, as set out in Schedule 1. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 8 The amended Hague Rules to have the force of law
8. Subject to section 10, the amended Hague Rules have the force of law in Australia. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 9 Interpretation
9. In this Part and the amended Hague Rules, unless the contrary intention appears, a word or expression has the same meaning as it has in the Brussels Convention as amended by the Visby Protocol and the SDR Protocol. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 10 Application of the amended Hague Rules
10.(1) The amended Hague Rules only apply to a contract of carriage of goods by sea that: (a) is made on or after the commencement of this Part and before the commencement of Part 3; and (b) is a contract: (i) of a kind referred to in Article 10 of the amended Hague Rules; or (ii) subject to subsection (2), for the carriage of goods by sea from a port in Australia to another port in Australia, being a contract that is contained in or evidenced by a bill of lading or similar document of title; or (iii) contained in or evidenced by a non-negotiable document (other than a bill of lading or similar document of title), being a contract that contains express provision to the effect that the amended Hague Rules are to govern the contract as if the document were a bill of lading. (2) The amended Hague Rules do not apply in relation to the carriage of goods by sea from a port in any State or Territory in Australia to any other port in that State or Territory. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 11 Construction and jurisdiction
11.(1) All parties to: (a) a bill of lading, or a similar document of title, relating to the carriage of goods from any place in Australia to any place outside Australia; or (b) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii), relating to such a carriage of goods; are taken to have intended to contract according to the laws in force at the place of shipment. (2) An agreement (whether made in Australia or elsewhere) has no effect so
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far as it purports to: (a) preclude or limit the effect of subsection (1) in respect of a bill of lading or a document mentioned in that subsection; or (b) preclude or limit the jurisdiction of a court of the Commonwealth or of a State or Territory in respect of a bill of lading or a document mentioned in subsection (1); or (c) preclude or limit the jurisdiction of a court of the Commonwealth or of a State or Territory in respect of: (i) a bill of lading, or a similar document of title, relating to the carriage of goods from any place outside Australia to any place in Australia; or (ii) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - PART 3 PART 3 - APPLICATION OF THE HAMBURG RULES ETC.
CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 12 The Hamburg Rules
12. A reference in this Act to the Hamburg Rules is a reference to the English text of: (a) Articles 1 to 26 (inclusive) of the Hamburg Convention; and (b) Annex II of the Final Act of the United Nations Conference on the Carriage of Goods by Sea done at Hamburg on 31 March 1978; as set out in Schedule 2. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 13 The Hamburg Rules to have the force of law
13. Subject to section 15, the Hamburg Rules have the force of law in Australia. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 14 Interpretation
14. In this Part and the Hamburg Rules, unless the contrary intention appears, a word or expression has the same meaning as it has in the Hamburg Convention. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 15 Application of the Hamburg Rules
15.(1) The Hamburg Rules apply to a contract of carriage by sea that: (a) is made on or after the commencement of this Part; and (b) is a contract: (i) of a kind referred to in Article 2 of the Hamburg Rules; or (ii) subject to subsection (2), for the carriage by sea from a port in Australia to another port in Australia. (2) The Hamburg Rules do not apply to any contract of carriage by sea from a port in any State or Territory in Australia to any other port in that State or Territory. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 16 Construction
16.(1) All parties to a contract of carriage by sea relating to the carriage of goods from any place in Australia to any place outside Australia are taken to have intended to contract according to the provisions of this Act. (2) An agreement (whether made in Australia or elsewhere) has no effect so far as it purports to preclude or limit the effect of subsection (1) in respect of such a contract. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - PART 4 PART 4 - MISCELLANEOUS
CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 17 Absolute undertaking to provide a seaworthy ship not implied
17. There is not to be implied in any contract for the carriage of goods by sea to which Part 2 or 3 of this Act applies any absolute undertaking by the carrier of the goods to provide a seaworthy ship. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 18 Act prevails over certain provisions of the Trade Practices Act 1974
18. The provisions of this Act prevail over the provisions of Division 2 of Part V of the Trade Practices Act 1974 to the extent of any inconsistency. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 19 Act not to affect operation of certain provisions
19. Nothing in this Act affects the operation of: (a) Division 10 of Part IV or Division 2 of Part VIII of the Navigation Act 1912; or (b) the Limitation of Liability for Maritime Claims Act 1989. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 20 Repeal of the Sea-Carriage of Goods Act 1924 etc.
20.(1) The Sea-Carriage of Goods Act 1924*1* is repealed. (2) The Sea-Carriage of Goods Act 1924, as in force immediately before the commencement of this section, continues to apply to a contract of carriage of goods by sea after that commencement if: (a) the contract was made before that commencement; and (b) that Act would have applied but for the operation ofsubsection (1). *1* No. 22, 1924, as amended. For previous amendments, see No. 216, 1973; No. 37, 1976; and No. 101, 1979. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SECT 21
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Repeal of section 2C of the International Arbitration Act 1974 and substitution of new section
21. Section 2C of the International Arbitration Act 1974*2* is repealed and the following section is substituted: Carriage of goods by sea "2C. Nothing in this Act affects: (a) the continued operation of section 9 of the Sea-Carriage of Goods Act 1924 under subsection 20(2) of the Carriage of Goods by Sea Act 1991; or (b) the operation of section 11 or 16 of the Carriage of Goods by Sea Act 1991.". *2* No. 136, 1974, as amended. For previous amendments, see No. 19, 1979; No. 141, 1987; and No. 25, 1989. CARRIAGE OF GOODS BY SEA ACT 1991 No. 160 of 1991 - SCHEDULE 1
SCHEDULE 1 Section 7 THE AMENDED HAGUE RULES ARTICLE 1 In this convention the following words are employed, with the meanings set out below: - (a) "Carrier" includes the owner or the charterer who enters into a contract of carriage with a shipper. (b) "Contract of carriage" applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same. (c) "Goods" includes goods, wares, merchandise, and articles of every kind whatsoever except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried. (d) "Ship" means any vessel used for the carriage of goods by sea. (e) "Carriage of goods" covers the period from the time when the goods are loaded on to the time they are discharged from the ship. ARTICLE 2 Subject to the provisions of Article 6, under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth. ARTICLE 3 1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to - (a) Make the ship seaworthy. (b) Properly man, equip and supply the ship. (c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. 2. Subject to the provisions of Article 4, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. 3. After receiving the goods into his charge the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things - (a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage. (b) Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper. (c) The apparent order and condition of the goods. Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking. 4. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3(a), (b) and (c). However, proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith. 5. The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks,
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number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper. 6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection. Subject to paragraph 6b is the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen. In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods. 6bis. An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought within the time allowed by the law of the court seized of the case. However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself. 7. After the goods are loaded the bill of lading to be issued by the carrier, master, or agent of the carrier, to the shipper shall, if the shipper so demands, be a "shipped" bill of lading, provided that if the shipper shall have previously taken up any document of title to such goods, he shall surrender the