Lloyd's Maritime and Commercial Law Quarterly
AUSTRALIAN MARITIME LAW DECISIONS 1991
Martin Davies*
A. Legislative developments
1. Carriage of Goods by Sea Act 1991
The Visby amendments to the Hague Rules (plus the SDR Protocol) came into force in Australia on 31 October 1991, with the passage of the Carriage of Goods by Sea Act 1991 (Cth). By s. 8, the Hague-Visby Rules have the force of law in Australia. Section 10(1)(b)(i) gives effect to Art. X of the amended Rules, so that the Hague-Visby Rules now apply if (i) the bill of lading is issued in a Contracting State; or (ii) the carriage is from a port in a Contracting State; or (iii) the bill of lading provides that the Rules, or any legislation giving effect to them, are to govern the contract. Also, the effect of ss. 10(1)(b)(ii) and (2) is to apply the Hague-Visby Rules to bills of lading for carriage from one Australian state to another. By contrast, the old Sea-Carriage of Goods Act 1924 (Cth) (which is repealed by s. 20(1) of the new Act) merely incorporated the unamended Hague Rules into bills of lading for carriage from a port in Australia to a port outside Australia, and to bills of lading for interstate carriage by sea. Thus, the operation of the Rules is wider under the new Act, and it is no longer confined to the contractual relationship between the parties; the Rules will govern their relationship even if the carrier is deprived of the benefit of contractual exclusions because it has deviated from the agreed course of the contract.1
By s. 10(1)(b)(iii), the Rules also apply to contracts contained in or evidenced by non-negotiable documents (such as sea waybills),2 if such a contract expressly provides that the Rules are to govern the contract as if it were a bill of lading. This provision adds nothing of substance, as the parties to a non-negotiable document such as a sea waybill would be free to provide that their contract should be governed by the Hague-Visby Rules, even in the absence of s. 10(1)(b)(iii). The provision seems to have been included merely to indicate the Commonwealth Government’s preference that carriage under sea waybills should be governed by the Hague-Visby Rules.
Further evidence of Commonwealth Government policy is to be found in the inclusion of Part 3 and Sched. 2 of the Act, which relate to the Hamburg Rules. The Act does not give immediate effect to the Rules, but s. 2 contains provisions to give
* Senior Lecturer, Faculty of Law, Monash University. I am grateful to Lee Poh York of the Monash Law Library and to the Maritime and Air Law Group of Mallesons Stephen Jaques, Melbourne, for their assistance in preparing this article.
1. See infra, Case 4 and fn. 23.
2. By s. 4(2), a reference to a non-negotiable document includes a reference to a sea waybill.
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