The Division of Responsibility for Maritime Cargo:
1. Carefully read through and study the Module 6 PowerPoint presentation.
2.
(a) Read and study pages 187-216 (Chapter 4.5) and 224-226 (Chapter 4.9) of the prescribed text White (2014). This readingprovides a very effective introduction to the complex field of international conventions for marine cargo transport.
(b) Terms/phrases/concepts –
This module’s key focus terms/phrases/concepts are:
‘amended Hague Rules’, ‘COGSA 1991’, ‘seaworthiness’, ‘cargoworthiness’, ‘justified deviation’, ‘liberty clause’, ‘catalogue of exemptions’, ‘nautical fault defence’, ‘perils of the sea’, ‘exemptions’, ‘package limitation’, ‘limitation of action clause’ and ‘time limitation clause’.
3. Lectures – note the following are alternative options:
(a) Distance students – Study the Lecture 6 PowerPoints downloadable from MyLO. (The audio recording of the attending lecture will also be available through MyMedia Service a few days after delivery.)
OR
(b) Attending students – Attend and participate in Lecture 6.
4. Read and study the following readings.
Reading 6.1 David, P. 2010, ‘The Hague-Visby rules back on course?’ New Zealand Law Journal, pp. 189-192.
Paul David describes well an interesting New Zealand case. The case is commonly called after the vessel involved, the Tasman Pioneer. The case went through 3 levels of the New Zealand court hierarchy, through the High Court, the Court of Appeal then ultimately to the Supreme Court. It is a complicated case, as the legal representatives for the cargo owners made choices as to the legal arguments that they would pursue. Paul David’s comments in the second half of the article are of particular interest.
Return to Reading:
This reading is an extract of a piece of Australian national law, being part of legislation passed by the Commonwealth of Australia. The reading is sourced from COMLAW, the authoritative source of Australian legislation.
It is time to return to this reading, as it provides the substance of Australia’s amended Hague Rules. Read through the extract very carefully, as understanding this regime is very important.
Reading 6.2 Nair, A. 2013, ‘A note on Norden: Voyage Charterparties, the Hague/Visby rules and enforcing foreign arbitration awards’, Australian and New Zealand Maritime Law Journal, Vol. 27, pp. 90-99.
Ashwin Nair writes well on a topical Australian case, known as Norden. It was a dispute about a charterparty and the essential question was where arbitration of the dispute should lawfully occur. The case initially heard in the Federal Court wasDampskibsselskabetNorden A/S v Beach Building & Civil Group Pty Ltd [2012]292 ALR 161(‘Norden 1’). On appeal to the Full Federal Court, the case wasDampskibsselskabetNorden A/S v Gladstone Civil Pty Ltd (formerly Beach Building & Civil Group Pty Ltd)[2013] FCAFC 107(‘Norden 2’). While the case was about arbitration and what jurisdiction it should take place, the real question of whether a charterparty is a ‘sea carriage document’ pursuant to ss. 11(1)(a) and 11(2)(b) of the Carriage of Goods by Sea Act 1991 (Cth) (‘COGSA’). This is a technical matter, just spend your time with the reading.
Reading 6.3 Excerpts of Tasman Orient Line CV v. New Zealand China Clays Ltd (2010) NZSC 37.
Returning to the case referred to in David’s article above (Reading 6.1). This is a very important decision from our neighbours, New Zealand. The decision is that of the highest court in New Zealand, the Supreme Court. The matter started in the High Court, then went to the Court of Appeal, and then to the Supreme Court. There are few things to note:
1. Note the different court hierarchy in New Zealand!
2. Consider the very unusual facts!
3. Carefully note the critical distinction, at law, between the legal responsibilities and liabilities for the cargo as between the shipper and the carrier/shipowner.
4. Note the relationship between the carrier/shipowner and the ships master.
5. Consider the difficult job of the courts, and the varying approaches and conclusions reached by different courts! This isn’t an easy field!
6. Review the manifest complexities involved in interpreting the meaning of a decades-old international legal convention.
7. Consider the very extensive reach of the defences/exemptions available to the carrier with respect to cargo loss and/or damage.
Reading 6.4 Baughen, S 2012, Shipping Law, 5thedn, Routledge-Cavendish, Abington, pp. 108-129.
Baughen is an excellent text. It must be noted that Baughen is a UK-based text. It refers to domestic UK legislation (eg. COGSA 1924 and COGSA 1971). You should concentrate on Baughen’s examination of the Hague Rules and Hague-Visby Rules themselves, rather than the UK legislation. Maritime law is international, and Baughen gives an extended consideration of key principles and concepts, relevant to Australian practice.
5. CheckMyLO for any additional learning resources or other guidance that I have posted and use any such resources/guidance.
6. MODULE 6 TUTORIAL – Work through and respond to the following critical activities. All activities relate to Australia’s amended Hague Rules (‘aHR’).
Group A:
1. May a carrier surrender any of its rights and immunities with respect to cargo carriage?
2. May a carrier contract to lawfully increase/add to the exemptions existing under the regime?
Group B:
1. Does the aHR apply to electronic sea carriage documents?
2. What can the carrier do with respect to dangerous goods that it discovers on board, when the nature of those goods has not been declared by the shipper?
Group C:
1. With respect to cargo damage or loss; what is the obligation of the shipper
(a) to provide notice of loss and damage and (b) to commence legal action?
2. Do the aHR apply to the solely intrastate carriage of cargo (say, Brisbane to Gladstone)?
Groups D (answer question 1), E (answer question 2) and F(answer question 3):
(NOTE: please answer with reference to the applicable article, rule eg. A.4.2, 1.2, etc). Are the following circumstances likely to trigger an exception under the aHR? Justify your opinion.
1. A cargo ship is taken by pirates. A reefer container loses power while the pirates are on the ship. As the containers are not inspected, the reefer remains unpowered. The perishable contents of the container spoil.
2. A sound and seaworthy vessel encounters a freak 1 in a 100 year storm at sea and multiple containers are lost overboard.
3. An Australian-flagged ship enters a port of a South American country. The ship is impounded unexpectedly as part of a rapidly escalating diplomatic dispute between Australian and the South American country. Various containers on the ship carry perishable cargo which suffers damage during the extended impoundment.
Groups G (answer question 1) &H(answer question 2):
(NOTE: please answer with reference to the applicable article, rule eg. A.4.2, 1.2, etc). Are the following circumstances likely to trigger an exception under the aHR? Justify your opinion.
1. A ship is due to sail when serious engine damage is discovered. The ship’s owner disregards the damage and orders the ship to sea. The ship encounters heavy weather. The engine fails. The powerless ship is pounded by the waves and cargo is damaged.
2. A cargo ship is notified of another ship in distress. The first ship goes to the aid of the second ship and renders valuable assistance. As a consequence, the voyage is delayed and cargo on the first ship is damaged.
Group I:
FACTS:
A ship is behind schedule. The Master decides to take a different and more dangerous route in order to make up time. This route is off from the initial course which was a well-used shipping channel. As a consequence, the ship grounds in shallower waters. The Master orders the ship to full steam to release the ship. The ship is released but begins to take in water and list. The embarrassed Master does not report the grounding, and continues at full steam.
A passing vessel notes that the ship is listing and reports it to authorities. About 2 hours after the accident, the Master stops the ship and reports damage. A patrol vessel makes contact with the ship. Eventually, salvors are called and find hull damage, flooding and ancilliary damage. The ship is salved, but cargo is significantly damaged. The Master tries to cover his tracks and orders the ship’s crew to lie. The concocted story involves the ship proceeding on the initial planned route on the shipping channel and hitting an unidentified floating object. Charts and other records are altered to fit the concocted story.
TASK:
Is a court likely to find that the ‘nautical defence’ under the Hague-Visby Rules applies in the circumstances?
The defence is: Article 4, Rule 2.
Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from
(a) Act, neglect or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.’
Justify your opinion.