This Act modernises Australia’s sea‑carriage law by replacing the 1924 regime with the amended Hague Rules as domestic law, extending coverage to electronic and broader non‑negotiable transport documents, and adding a statutory cause of action for loss by delay. It sets carrier duties, defences and monetary caps while allowing shippers to alter carrier exposure by declaring value.
The Minister and regulations can modify coverage and—after review—switch the regime to the Hamburg Rules, concentrating significant implementation discretion in the executive.
This Act gives domestic force to the amended Hague Rules as set out in Schedule 1A, and creates a statutory architecture for replacing that regime with the Hamburg Rules if the Minister so decides after review. Mechanically, the Act:
Declares its object to introduce an up‑to‑date marine cargo liability regime compatible with major trading partners and UN developments (s 3). The object is to be achieved first by replacing the Sea‑Carriage of Goods Act 1924 with provisions giving effect to the Brussels Convention as amended by the Visby Protocol and the SDR Protocol, as modified by regulation (s 3(2)(a); s 7). As a second step, the Minister may, after review, replace those provisions with the Hamburg Convention (s 3(2)(b); s 4 definition of Hamburg Convention).
Gives the amended Hague Rules the force of law in Australia, subject to the Act’s application rules (s 8; Schedule 1A reproduces the amended Hague Rules, as modified by the Schedule of modifications in regulations under s 7).
Sets the temporal and territorial application rules for the amended Hague Rules: they apply to contracts made on or after commencement of Schedule 1A and before commencement of Part 3, and only to certain classes of contracts (s 10). There are specific exclusions for purely intra‑State carriage within a single State or Territory (s 10(2)).
Prescribes definitions and scope matters in s 4 and in Schedule 1A (Article 1), including express statutory treatment of electronic sea carriage documents as data messages (Article 1A).
Confers specific powers and processes on the executive and regulators: the regulations may create a Schedule of modifications to the Hague text for a set list of purposes (s 7(2)); the Minister must consult industry groups before making regulations under s 7(4); a Ministerial determination of port or wharf limits for Article 1(4) is a legislative instrument (s 9A).
Current sections
Direct links to the current provisions in Carriage of Goods by Sea Act 1991.
22
Part 1
Preliminary
Part 1—Preliminary
1
Short title
1 Short title
This Act may be cited as the Carriage of Goods by Sea Act 1991.
2
Commencement
2 Commencement
(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.
(2) Subject to subsection (3), Part 3 and Schedule 2 commence as provided in section 2A.
(3) If, within 10 years of the commencement of this section, the Minister has not tabled a statement in accordance with subsection 2A(4) setting out a decision that the amended Hague Rules should be replaced by the Hamburg Rules, Part 3 and Schedule 2, and section 2A, are repealed on the first day after the end of that 10 years.
3
Object of Act
3 Object of Act
(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.
(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 as modified in accordance with regulations under section 7; and
(b) as a second step—replacing those provisions with provisions that give effect to the Hamburg Convention, if the Minister decides, after conducting a review, that those provisions should be so replaced.
4
Interpretation
4 Interpretation
(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.
marine insurers means insurers who provide marine insurance, whether or not they also provide other kinds of insurance, and includes Australian representatives of member Associations of the International Group of Protection and Indemnity Associations.
maritime law associations means law associations with an interest in maritime law, whether or not they are also interested in other areas of law.
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.
5
Act to bind Crown
5 Act to bind Crown
This Act binds the Crown in each of its capacities.
6
Extension to external Territories
6 Extension to external Territories
This Act extends to all the external Territories.
Part 2
Application of the amended Hague Rules etc.
Part 2—Application of the amended Hague Rules etc.
7
The amended Hague Rules
7 The amended Hague Rules
(1) The amended Hague Rules consists of the text set out in Schedule 1, as modified in accordance with the Schedule of modifications referred to in subsection (2). The text set out in Schedule 1 (in its unmodified form) is the English translation of Articles 1 to 10 of the Brussels Convention, as amended by Articles 1 to 5 of the Visby Protocol and Article II of the SDR Protocol.
(2) The regulations may amend this Act to add a Schedule (the Schedule of modifications) that modifies the text set out in Schedule 1 for the following purposes:
(a) to provide for the coverage of a wider range of sea carriage documents (including documents in electronic form);
(b) to provide for the coverage of contracts for the carriage of goods by sea from places in countries outside Australia to places in Australia in situations where the contracts do not incorporate, or do not otherwise have effect subject to, a relevant international convention (see subsection (6));
(c) to provide for increased coverage of deck cargo;
(d) to extend the period during which carriers may incur liability;
(e) to provide for carriers to be liable for loss due to delay in circumstances identified as being inexcusable.
The modifications do not actually amend the text set out in Schedule 1, however the text has effect for the purposes of this Act as if it were modified in accordance with the Schedule of modifications.
(3) The regulations may:
(a) amend the Schedule of modifications, but only in connection with the purposes set out in subsection (2); and
(b) amend the provisions of this Part to the extent necessary or appropriate, having regard to the modifications set out in the Schedule of modifications as in force from time to time.
Note: For example, regulations extending the range of sea carriage documents to be covered by the text in Schedule 1 may create a need for associated amendments of sections 10 and 11.
(4) Before regulations are made for the purposes of this section, the Minister must consult with representatives of shippers, ship owners, carriers, cargo owners, marine insurers and maritime law associations about the regulations that are proposed to be made.
(6) In this section:
relevant international convention means:
(a) the Brussels Convention; or
(b) the Brussels Convention as amended by either or both of the Visby Protocol and the SDR Protocol; or
(c) the Hamburg Convention.
8
The amended Hague Rules to have the force of law
8 The amended Hague Rules to have the force of law
Subject to section 10, the amended Hague Rules have the force of law in Australia.
9
Interpretation
9 Interpretation
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.
9A
Determination of limits of a port or wharf
9A Determination of limits of a port or wharf
A determination by the Minister, for paragraph 4 of Article 1 of the amended Hague Rules, of the limits of a port or wharf in Australia is a legislative instrument.
Note 1: The amended Hague Rules are set out in Schedule 1A—see ss 4(1) and 7(1).
Note 2: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination: see regulations made for the purposes of paragraph 54(2)(b) of that Act.
10
Application of the amended Hague Rules
10 Application of the amended Hague Rules
(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 Schedule 1A and before the commencement of Part 3; and
(b) is a contract:
(i) to which, under Article 10 of the amended Hague Rules, those Rules apply; or
(ii) subject to subsections (1A) and (2)—for the carriage of goods by sea from a port in Australia to another port in Australia; 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.
Note: The amended Hague Rules are set out in Schedule 1A—see ss 4(1) and 7(1).
(1A) If a contract for the carriage of goods by sea referred to in subparagraph 10(1)(b)(ii) is contained only in, or evidenced only by, a consignment note, the amended Hague Rules apply to the contract only if paragraph 5 of Article 10 of those Rules so requires.
(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.
11
Construction and jurisdiction
11 Construction and jurisdiction
(1) All parties to:
(a) a sea carriage document 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 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 sea carriage document 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.
(3) An agreement, or a provision of an agreement, that provides for the resolution of a dispute by arbitration is not made ineffective by subsection (2) (despite the fact that it may preclude or limit the jurisdiction of a court) if, under the agreement or provision, the arbitration must be conducted in Australia.
Part 4
Miscellaneous
Part 4—Miscellaneous
17
Absolute undertaking to provide a seaworthy ship not implied
17 Absolute undertaking to provide a seaworthy ship not implied
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.
18
Act prevails over certain provisions of the Competition and Consumer Act 2010
18 Act prevails over certain provisions of the Competition and Consumer Act 2010
The provisions of this Act prevail over the provisions of Division 1 of Part 3‑2 of Schedule 2 to the Competition and Consumer Act 2010, as that Division applies as a law of the Commonwealth, to the extent of any inconsistency.
19
Act not to affect operation of certain provisions
19 Act not to affect operation of certain provisions
Nothing in this Act affects the operation of:
(a) Part 4 of Chapter 3 of the Navigation Act 2012; or
(b) the Limitation of Liability for Maritime Claims Act 1989.
20
Repeal of the Sea‑Carriage of Goods Act 1924 etc.
20 Repeal of the Sea‑Carriage of Goods Act 1924 etc.
(1) The Sea‑Carriage of Goods Act 1924 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 of subsection (1).
21
Repeal of section 2C of the International Arbitration Act 1974 and substitution of new section
21 Repeal of section 2C of the International Arbitration Act 1974 and substitution of new section
Section 2C of the International Arbitration Act 1974 is repealed and the following section is substituted:
“2C Carriage of goods by sea
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.”
22
Regulations
22 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
1. Modifications
1. Modifications
1. Modifications
1.1 The modifications of the text in Schedule 1 are:
(a) the omission from the text (reproduced below) of the portions shown there in light type‑face and struck through; and
(b) the insertion of the portions shown there in italic type.
THE AMENDED HAGUE RULES
ARTICLE 1
In this convention these Rules, 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.
(aa) “Consignment note” means a non‑negotiable document that:
(i) contains or evidences a contract of carriage by sea in connection with which no bill of lading or similar document of title has been issued; and
(ii) clearly states that no liability for any loss of, damage to or delay of the goods will be accepted by the carrier of the goods; and
(iii) is clearly marked as being non‑negotiable.
(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.
(b) “Contract of carriage” means a contract of carriage covered by a sea carriage document (to the extent that the document relates to the carriage of goods by sea), and includes a negotiable sea carriage document issued under a charterparty from the moment at which that document regulates the relations between its holder and the carrier concerned.
(ba) “Data message” means information generated, stored or communicated by electronic, optical or analogous means (including electronic data interchange, electronic mail, telegram, telex or telecopy) even if the information is never reproduced in printed form.
(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 by sea” covers the period during which a carrier is in charge of the goods, according to paragraph 3 of this Article from the time when the goods are loaded on to the time they are discharged from the ship.
(f) “Negotiable sea carriage document” means:
(i) a bill of lading (other than a bill of lading that, by law, is not negotiable); or
(ii) a negotiable document of title that is similar to a negotiable bill of lading and that contains or evidences a contract of carriage of goods by sea.
(g) “Sea carriage document” means:
(i) a bill of lading; or
(ii) a negotiable document of title that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea; or
(iii) a bill of lading that, by law, is not negotiable; or
(iv) a non‑negotiable document (including a consignment note and a document of the kind known as a sea waybill or the kind known as a ship’s delivery order) that either contains or evidences a contract of carriage of goods by sea.
[NOTE: These Rules do not apply to all sea carriage documents—see Article 10.]
(h) “Writing” includes electronic mail, electronic data interchange, facsimile transmission, and entry in a database maintained on a computer system.
For these Rules, goods are taken to be delivered to the consignee when they are delivered to, or placed at the disposal of:
(a) the consignee; or
(b) an authority to which the goods are required by law to be delivered; or
(c) a person authorised by the consignee to take delivery of the goods.
For these Rules:
(a) a carrier begins to be in charge of goods at the time the goods are delivered to the carrier (or an agent or servant of the carrier) within the limits of a port or wharf; and
(b) the carrier ceases to be in charge of the goods at the time the goods are delivered to, or placed at the disposal of, the consignee within the limits of the port or wharf that is the intended destination of the goods.
For these Rules, the limits of a port or wharf in Australia are the limits of:
(a) the area within the limits fixed for the port or wharf by the Comptroller‑General of Customs under paragraph 15 (1) (a) or (2) (a) of the Customs Act 1901; and
(b) any terminal area used for cargo handling that has a common boundary with the area within the limits mentioned in paragraph (a).
However, if the Minister is satisfied that, for a particular port or wharf, the limits worked out as set out in paragraph 4 of this Article may produce an anomalous result, the Minister may by instrument determine the limits of the port or wharf for these Rules.
For these Rules, the limits of a port or wharf outside Australia are the limits fixed by any local law (including any terminal area used for cargo handling that has a common boundary with the area within those limits).
ARTICLE 1A
These Rules apply, with any necessary changes, to a sea carriage document in the form of a data message in the same way as they apply to such a document in printed form.
Without limiting paragraph 1, for these Rules in their application to such sea carriage documents:
(a) a sea carriage document is issued when a data message is generated in a way that constitutes issue of such a document within the system being used by the parties to the relevant contract of carriage; and
(b) a sea carriage document is transferred when a data message is generated in a way that constitutes transfer of the sea carriage document within the system being used by the parties to the relevant contract of carriage.
ARTICLE 2
Subject to the provisions of this Article and Articles 6 and 6A, 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, set out in these Rules.
For paragraph 1 of this Article, “goods” includes goods (except live animals) carried on or above deck.
However, if the shipper has specific stowage requirements for goods carried on or above deck, then, for paragraph 1 of this Article to apply, the shipper must tell the carrier in writing of those requirements at or before the time of booking the cargo.
Despite Article 4bis, if a carrier carries goods on or above deck contrary to an express agreement with the shipper of the goods made at or before the time of booking the cargo, then, for any loss or damage to the goods that results solely from the goods being carried on or above deck, the carrier is not entitled:
(a) to any exception or exemption under these Rules; or
(b) to any limit provided by these Rules to its liability for the loss or damage.
[NOTE: Article 6A allows a shipper and a carrier to agree that these Rules do not apply to certain kinds of cargo that must be carried on deck—see that Article.]
ARTICLE 3
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.
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.
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 abill of lading sea carriage document 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 sea carriage document 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.
Such a bill of lading sea carriage document 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 in the case of a negotiable sea carriage document that has been transferred to a third party acting in good faith.
The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, 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.
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 ladingsea carriage document.
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 6bis 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.
After the goods are loaded the sea‑carriage document 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” negotiable sea carriage documentbill of lading, provided that if the shipper shall have previously taken up any sea carriage document for document of title to such goods, he shall surrender the same as against the issue of the “shipped” negotiable sea carriage documentbill of lading, but at the option of the carrier a negotiable sea carriage document such document of title may be noted at the port of shipment by the carrier, master, or agent with the name or names of the ship or ships upon which the goods have been shipped and the date or dates of shipment, and when so noted, if it shows the particulars mentioned in paragraph 3 of Article 3, shall for the purpose of this article be deemed to constitute a “shipped” negotiable sea carriage documentbill of lading.
Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connexion with, goods arising from negligence, fault, or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these Rulesthis convention, shall be null and void and of no effect. A benefit of insurance in favour of the carrier or similar clause shall be deemed to be a clause relieving the carrier from liability.
ARTICLE 4
Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to 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 in accordance with the provisions of paragraph 1 of Article 3. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.
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.
(b) Fire, unless caused by the actual fault or privity of the carrier.
(c) Perils, dangers and accidents of the sea or other navigable waters.
(d) Act of God.
(e) Act of war.
(f) Act of public enemies.
(g) Arrest or restraint of princes, rulers or people, or seizure under legal process.
(h) Quarantine restrictions.
(i) Act or omission of the shipper or owner of the goods, his agent or representative.
(j) Strikes or lock‑outs or stoppage or restraint of labour from whatever cause, whether partial or general.
(k) Riots and civil commotions.
(l) Saving or attempting to save life or property at sea.
(m) Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods.
(n) Insufficiency of packing.
(o) Insufficiency or inadequacy of marks.
(p) Latent defects not discoverable by due diligence.
(q) Any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.
Note: [NOTE: For the liability of a carrier for loss caused by delay, see Article 4A.]
The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants.
Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach ofthis convention these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom.
(a) Unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading, sea carriage document, neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 units of account per package or unit or 2 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher.
(b) The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged.
The value of the goods shall be fixed according to the commodity exchange price, or, if there be no such price, according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.
(c) Where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the Bill of Lading sea carriage document as packed in such article of transport shall be deemed the number of packages or units for the purpose of this paragraph as far as these packages or units are concerned. Except as aforesaid such article of transport shall be considered the package or unit.
(d) The unit of account mentioned in this Article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in sub‑paragraph (a) of this paragraph shall be converted into national currency on the basis of the value of that currency on a date to be determined by the law of the court seized of the case.
The value of the national currency, in terms of the Special Drawing Right, of a State which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State.
Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of the preceding sentences may, at the time of ratification of the Protocol of 1979 or accession thereto or at any time thereafter, declare that the limits of liability provided for in this Convention these Rules to be applied in its territory shall be fixed as follows:
(i) in respect of the amount of 666.67 units of account mentioned in sub‑paragraph (a) of paragraph 5 of this Article, 10,000 monetary units;
(ii) in respect of the amount of 2 units of account mentioned in sub‑paragraph (a) of paragraph 5 of this Article, 30 monetary units.
The monetary unit referred to in the preceding sentence corresponds to 65.5 milligrammes of gold of millesimal fineness 900’. The conversion of the amounts specified in that sentence into the national currency shall be made according to the law of the State concerned.
The calculation and the conversion mentioned in the preceding sentences shall be made in such a manner as to express in the national currency of the State as far as possible the same real value for the amounts in sub‑paragraph (a) of paragraph 5 of this Article as is expressed there in units of account.
States shall communicate to the depositary the manner of calculation or the result of the conversion as the case may be, when depositing an instrument of ratification of the Protocol of 1979 or of accession thereto and whenever there is a change in either.
(e) Neither the carrier nor the ship shall be entitled to the benefit of the limitation of liability provided for in this paragraph if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result.
(f) The declaration mentioned in sub‑paragraph (a) of this paragraph, if embodied in the Bill of Lading, sea carriage document, shall be prima facie evidence, but shall not be binding or conclusive on the carrier.
(g) By agreement between the carrier, master or agent of the carrier and the shipper other maximum amounts than those mentioned in sub‑paragraph (a) of this paragraph may be fixed, provided that no maximum amount so fixed shall be less than the appropriate maximum mentioned in that sub‑paragraph.
(h) Neither the carrier nor the ship shall be responsible in any event for loss or damage to, or in connection with, goods if the nature or value thereof has been knowingly mis‑stated by the shipper in theBill of Lading sea carriage document .
6. Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier has not consented with knowledge of their nature and character, may at any time before discharge be landed at any place, or destroyed or rendered innocuous by the carrier without compensation and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment. If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place, or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average, if any.
Article 4A
Despite Article 4, a carrier is liable to a shipper for loss (including but not limited to, pure economic loss, loss of markets or deterioration) caused to the shipper by the shipper’s goods being delayed while the carrier is in charge of the goods unless the carrier establishes, on the balance of probabilities, that:
(a) the delay was excusable; and
(b) the carrier (or, if at the time of the delay, the goods were under the control of servants or agents of the carrier, those servants or agents) took all measures that were reasonably required to avoid the delay and its consequences.
[NOTE: For the meaning of “in charge of the goods”, see paragraph 2 of Article 1.]
For this Article, goods have been delayed if they are not delivered at the port of discharge specified in the relevant contract for carriage of goods:
(a) within the time allowed in the contract for that purpose; or
(b) if the contract does not specify a time for that purpose—within a reasonable time for delivery, at that port, of similar goods carried by a diligent carrier (having regard to any particular circumstances of the case and the intentions of the shipper and the carrier).
[NOTE: For the meaning of “delivered”, see paragraph 1A of Article 1.]
For paragraph 1 (a) of this Article, a delay is excusable only if:
(a) it is caused by a deviation authorised by the shipper, or by a term in the contract of carriage; or
(b) it is caused by circumstances beyond the reasonable control of the carrier or its servants or agents; or
(c) it is reasonably necessary to comply with an express or implied warranty; or
(d) it is reasonably necessary for the safety of the ship or its cargo; or
(e) it is for the purposes of saving human life or aiding a ship in distress; or
(f) it is reasonably necessary for the purpose of obtaining medical or surgical aid for a person on board; or
(g) it is caused by barratrous conduct of the master or crew; or
(h) paragraph 4 of this Article applies.
For paragraph 1 (a) of this Article, a delay caused by industrial action is excusable if the industrial action was not substantially caused, or substantially contributed to, by unreasonable conduct of the carrier.
For paragraph 4, conduct of servants or agents of the carrier is not taken to be conduct of the carrier if the servants or agents engaged in the conduct without the carrier’s express or implied authority.
The quantum of the carrier’s liability for loss caused by the delay is limited to whichever is the lesser of:
(a) the actual amount of the loss; or
(b) two and a half times the sea freight payable for the goods delayed; or
(c) the total amount payable as sea freight for all of the goods shipped by the shipper concerned under the contract of carriage concerned.
To avoid doubt, nothing in Article 4 or this Article prevents a carrier being liable to a shipper under both Article 4 and this Article.
ARTICLE 4bis
The defences and limits of liability provided for in this Convention these Rules shall apply in any action against the carrier in respect of loss or damage to goods covered by a contract of carriage whether the action be founded in contract or in tort.
If such an action is brought against a servant or agent of the carrier (such servant or agent not being an independent contractor), such servant or agent shall be entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under this Convention these Rules.
The aggregate of the amounts recoverable from the carrier, and such servants and agents, shall in no case exceed the limit provided for in this Convention these Rules.
Nevertheless, a servant or agent of the carrier shall not be entitled to avail himself of the provisions of this Article, if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.
ARTICLE 5
A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and obligations under this conventionthese Rules, provided such surrender or increase shall be embodied in the Bill of Lading sea carriage document issued to the shipper. The provisions of this convention these Rules shall not be applicable to charter parties, but if negotiable sea carriage documents bills of lading are issued in the case of a ship under a charter party they shall comply with the terms of this convention these Rules. Nothing in these rules shall be held to prevent the insertion in a Bill of Lading sea carriage document of any lawful provision regarding general average.
ARTICLE 6
Notwithstanding the provisions of the preceding articles, a carrier, master or agent of the carrier and a shipper shall in regard to any particular goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or his obligation as to seaworthiness, so far as this stipulation is not contrary to public policy, or the care or diligence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care and discharge of the goods carried by sea provided that in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a non‑negotiable document and shall be marked as such.
However:
(a) the terms so agreed must be set out in a receipt or consignment note; and
(b) the receipt or consignment note must be, and must be marked as being, non‑negotiable; and
(c) the receipt or note must state that no other sea carriage document has been, or will be, issued for the carriage.
Any agreement so entered into shall have full legal effect.
Provided that this article shall not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments where the character or condition of the property to be carried or the circumstances, terms and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement.
ARTICLE 6A
A shipper of goods and the carrier of the goods may agree in writing, at or before the time the cargo is booked, that these Rules do not apply to the carriage of the goods if:
(a) the goods must be carried on deck; and
(b) the character or condition of the goods reasonably justifies a special agreement regarding the carriage of the goods on deck.
In paragraph 1, goods:
(a) does not include containerised goods (that is, goods that are carried in or on cellular equipment that is capable, after the goods are loaded into or onto it, of being carried in the standard cell guides of a cellular container ship, whether or not the equipment in or on which the goods are loaded is carried within such cell guides during its carriage by sea); and
(b) includes breakbulk cargo (including breakbulk cargo that is too large to fit into the standard cell guides of a cellular container ship even if cellular equipment of some kind is used to carry it).
Note: [NOTE: The standard cell guides of a cellular container ship are designed primarily to hold containers measuring either 20 feet by 8 feet by 8 feet 6 inches, or 40 feet by 8 feet by 8 feet 6 inches (although they may be able to accommodate other kinds of standard cellular equipment).
An agreement under this Article has effect only if the sea carriage document for the carriage of the goods bears a statement endorsed on its face that the shipper and the carrier have entered into it.
This Article applies to all shipments of goods referred to in paragraph 1, including ordinary commercial shipments made in the ordinary course of trade.
ARTICLE 7
Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to, or in connexion with, the custody and care and handling of goods prior to the loading on, and subsequent to the discharge from the ship on which the goods are carried by sea.
ARTICLE 8
The provisions of this convention These Rules shall not affect the rights and obligations of the carrier under any statute for the time being in force relating to the limitation of the liability of owners of sea‑going vessels.
ARTICLE 9
This ConventionThese Rules shall not affect the provisions of any international Convention or national law governing liability for nuclear damage.
ARTICLE 10
The provisions of this Convention shall Subject to paragraph 6, these Rules apply toevery sea carriage documents Bill of Lading relating to the carriage of goods from ports in Australia to ports outside Australia two different States, regardless of the form in which the sea carriage document is issued.if:
(a) the Bill of Lading is issued in a Contracting State, or
(b) the carriage is from a port in a Contracting State., or
(c) the contract contained in or evidenced by the Bill of Lading provides that the rules of this Convention or legislation of any State giving effect to them are to govern the contract;
whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or any other interested person.
Note: [NOTE: For the meaning of “sea carriage document”, see paragraph 1 (g) of Article 1.]
Subject to paragraph 6, these Rules apply to the carriage of goods by sea from ports outside Australia to ports in Australia, unless one of the Conventions mentioned in paragraph 3 (or a modification of such a Convention by the law of a contracting State) applies, by agreement or by law, to the carriage, or otherwise has effect in relation to the carriage.
The Conventions are:
(a) the Brussels Convention;
(b) the Brussels Convention as amended by either the Visby Protocol or the SDR Protocol or both;
(c) the Hamburg Convention.
Subject to paragraphs 5 and 6, these Rules apply to a sea carriage document that contains or evidences a contract for the carriage of goods by sea from a port in a State or Territory in Australia to a port in another State or Territory in Australia.
If a contract for the carriage of goods by sea from a port in a State or Territory in Australia to a port in another State or Territory in Australia is contained only in or evidenced only by a consignment note, these Rules apply only if the goods:
(a) are to be carried onwards by sea to, or are being carried onwards by sea from, a port outside Australia; and
(b) have been declared to the carrier in writing to be international cargo.
These Rules do not apply to the carriage of goods by sea under a charterparty unless a sea carriage document is issued for the carriage.
These Rules apply to a sea carriage document issued under a charterparty only if the sea carriage document is a negotiable sea carriage document, and only while the document regulates the relationship between the holder of it and the carrier of the relevant goods.
Each Contracting State shall apply the provisions of this Convention to the Bills of Lading mentioned above.
This Article shall not prevent a Contracting State from applying the rules of this Convention to Bills of Lading not included in the preceding paragraphs.
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1—Preliminary
1 Short title
1 Short title
This Act may be cited as the Carriage of Goods by Sea Act 1991.
2 Commencement
2 Commencement
(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.
(2) Subject to subsection (3), Part 3 and Schedule 2 commence as provided in section 2A.
(3) If, within 10 years of the commencement of this section, the Minister has not tabled a statement in accordance with subsection 2A(4) setting out a decision that the amended Hague Rules should be replaced by the Hamburg Rules, Part 3 and Schedule 2, and section 2A, are repealed on the first day after the end of that 10 years.
3 Object of Act
3 Object of Act
(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.
(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 as modified in accordance with regulations under section 7; and
(b) as a second step—replacing those provisions with provisions that give effect to the Hamburg Convention, if the Minister decides, after conducting a review, that those provisions should be so replaced.
4 Interpretation
4 Interpretation
(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.
Preserves certain other laws and alters interaction with competition law: the Act prevails over Division 1 of Part 3‑2 of Schedule 2 to the Competition and Consumer Act 2010 to the extent of inconsistency (s 18), and it does not affect the operation of the Navigation Act 2012 Part 4 of Chapter 3 or the Limitation of Liability for Maritime Claims Act 1989 (s 19).
Repeals the Sea‑Carriage of Goods Act 1924, but preserves its application to contracts made before repeal where it would have applied (s 20).
Operationally, the Schedule reproduces the amended Hague Rules with targeted Australian modifications: expanded definitions of "contract of carriage" and "sea carriage document" to include a broader set of sea carriage documents and electronic forms (Article 1, Article 1A), special treatment of consignment notes (Article 1(aa); Article 10 conditions), a statutory rule that data messages are a valid form of sea carriage document (Article 1A), and an express delay liability provision (Article 4A). The Schedule also sets procedural duties such as particulars to be shown in the bill of lading and time limits for suit (Article 3).
Who decides whether the Hamburg Rules will replace the amended Hague Rules is the Minister, after a review and a statement (s 2, s 3). There is an automatic sunset/backstop: if the Minister does not table a statement adopting the Hamburg Rules within 10 years, Part 3 and Schedule 2 and s 2A (the procedural provisions) are repealed (s 2(3)). The Act therefore creates a two‑stage statutory regime and delegates modification of the Hague text to regulation, with mandatory consultation.
The immediate practical effect is to shift Australian marine cargo liability onto the amended Hague text, as modified by regulations, with defined coverage of electronic documents, consignment notes, deck cargo, delay liability and limits of liability, and to leave open a Ministerial option to adopt the Hamburg Convention later.
Main concepts
The Act centres on a few tightly specified concepts that determine who bears risk, who can contract out, how liability is limited, and how documents are treated.
Amended Hague Rules made statute: The amended Hague Rules, reproduced in Schedule 1A, are the primary substantive source of carriers’ duties, defences, and limits of liability (s 7(1); s 8). The Schedule contains the full text of the Rules as modified.
Sea carriage documents and electronic documents: The Schedule expands the concept of sea carriage document beyond the traditional negotiable bill of lading to include negotiable and non‑negotiable documents, consignment notes, sea waybills and other non‑negotiable documents that contain or evidence the contract of carriage (Article 1(g)). Article 1A expressly treats sea carriage documents in the form of data messages as equivalent to printed documents, and sets rules for when a document is “issued” or “transferred” electronically.
Contract of carriage redefined: Article 1(b) of Schedule 1A broadens "contract of carriage" to mean a contract covered by a sea carriage document, and explicitly includes negotiable sea carriage documents issued under a charterparty from the moment they govern relations between holder and carrier. This changes the moment at which the bill of lading determines parties’ relations.
Consignment note: The Schedule inserts a definition of consignment note (Article 1(aa)), a non‑negotiable document which must include an express statement that the carrier will accept no liability for loss, damage or delay, and be clearly marked as non‑negotiable. The application rules for consignment notes are limited (Article 10(5); see s 10(1A) in the Act), so consignment notes attract specific treatment.
Limits of liability and declared value: Article 4(5) re‑states the familiar per package or per kilogram limitations, subject to declared value which, if provided and inserted in the sea carriage document, increases recovery. Article 4(5)(e) removes the limit if damage results from carrier intent or reckless conduct.
Due diligence and seaworthiness: Article 3 imposes an obligation to exercise due diligence “before and at the beginning of the voyage” to make the ship seaworthy and to properly equip, man and fit relevant spaces. The Act also separately provides that no absolute undertaking to provide a seaworthy ship is to be implied (s 17).
Delay liability: Article 4A is a substantive addition: carriers are liable for loss caused by delay unless they prove excusable delay and that they took all reasonably required measures. Article 4A defines excusable delay, provides for industrial action carve‑outs, and caps delay liability by reference to freight (Article 4A(6)).
Application rules and territorial limits: Section 10 of the Act and Article 10 of the Schedule control when the Rules apply. They govern timing (contracts made between Schedule 1A commencement and Part 3 commencement), the direction of carriage (international legs, specified inter‑State legs, and certain domestic legs when the sea carriage document provides for Hague application), and exclusions such as intra‑State carriage within the same State or Territory (s 10(2); Article 10(4) and (5)).
Ministerial and regulatory modification: The regulations may introduce a Schedule of modifications to the Hague text limited to specific purposes listed in s 7(2) (e.g., coverage of electronic documents, extension of liability periods, coverage of deck cargo, and liability for delay). The Minister must consult specified industry stakeholders before those regulations are made (s 7(4)).
These concepts determine the allocation of commercial risk between shippers and carriers, the scope for contractual variation (Article 5 and Article 6), the evidentiary role of sea carriage documents (Article 3(4)), and the procedural constraints such as the one‑year limitation for suit in Article 3(6).
Who it affects
The Act’s immediate network of affected parties is specific and defined by the Schedule’s text, the Act’s application provisions, and the regulations power.
Carriers and shipowners: The Act directly regulates carriers’ duties, liabilities and defences through the amended Hague Rules in Schedule 1A. Carriers must exercise due diligence to make the ship seaworthy and to properly handle goods (Article 3); they have specified exceptions and limits under Article 4 and Article 4bis. The carrier’s ability to contractually increase liability, surrender defences, or waive limits is regulated by Article 5 and Article 6.
Shippers and consignees: Shippers bear duties that include guaranteeing particulars furnished for bills of lading (Article 3(5)), giving written notice of specific stowage requirements for deck cargo at or before booking (Article 2(3)), and declaring value where they wish to avoid package limits (Article 4(5)(a)). Consignees’ rights to delivery and their interaction with sea carriage documents are governed by Article 1 and Article 3.
Holders of negotiable sea carriage documents: The Schedule alters evidentiary rules and protections for holders in good faith, for example Article 3(4) which precludes proof to contrary against a negotiable sea carriage document that has been transferred to a third party acting in good faith.
Marine insurers and P&I clubs: The Act’s definition of "marine insurers" in s 4 includes Australian representatives of International Group P&I Associations, signalling their regulatory relevance. Insurers will be affected by changes to limits of liability (Article 4(5)), delay liability (Article 4A), and the capacity of carriers to insure particular risks or limit liability by contract (Article 5).
Agents, servants and contractors: Article 4bis extends the defences and liability limits to carriers’ servants or agents, subject to criminal or reckless conduct exceptions. The Act therefore affects the liability exposure of terminal operators, stevedores and other agents who are not independent contractors under the Schedule’s text.
Maritime lawyers, maritime law associations and industry stakeholders: The Act requires the Minister to consult representatives of shippers, ship owners, carriers, cargo owners, marine insurers and maritime law associations before making regulations that modify the Hague text (s 7(4)). That consultative requirement recognises the direct regulatory impact on these groups and assigns them a formal consultative role in regulatory modification.
Ports, terminal operators and Customs: The Act treats port or wharf limits in a way that ties them to Customs Act determinations (Article 1(4) in Schedule 1A) and makes the Minister’s alternative determination of port limits a legislative instrument (s 9A). Where terminal areas share common boundaries with Customs‑defined port limits, the shipper/carrier timing of “in charge of the goods” can be affected.
Government and regulators: The Minister and Governor‑General have decision rights under the Act. The Governor‑General can make regulations (s 22); the Minister makes determinations of port limits as legislative instruments (s 9A); and the Minister must consult before exercising delegated regulation powers under s 7(4). The Act also binds the Crown (s 5) and extends to external Territories (s 6).
Who pays and who bears enforcement burdens depends on facts and the Rules’ allocation. Carriers pay liability for loss, damage and delay subject to exceptions and limits (Article 4; Article 4A); shippers may bear compensation or indemnity obligations when they misstate particulars (Article 3(5)) or when they use consignment notes marked to disclaim liability (Article 1(aa); Article 10 limitations). Insurers will be exposed to altered quantum and definitional risk because of the amendments, particularly the delay liability cap in Article 4A(6).
The Act produces concentrated decision rights in the Minister and regulatory authority; it produces dispersed compliance burdens across carriers, shippers, agents and insurers; and it formalises consultative participation by maritime law associations and industry groups for regulatory modifications (s 7(4)).
Key duties and rights
The Schedule’s Articles and the Act establish a structured set of duties, exceptions, rights of parties and formal powers.
Duties of carriers
Due diligence to make ship seaworthy, man, equip and supply the ship appropriately, and to make holds and other cargo spaces fit for carriage (Article 3(1)).
Proper and careful loading, handling, stowage, carriage, custody, care and discharge of goods, subject to defences (Article 3(2); Article 4(1)).
Issue of sea carriage documents: upon demand of the shipper after receiving goods, the carrier or master must issue a bill of lading or sea carriage document stating requisite particulars (Article 3(3)). The bill of lading or sea carriage document is prima facie evidence of receipt (Article 3(4)), with an exception for transfers to third parties acting in good faith.
For deck cargo, carriers must accept written stowage instructions from the shipper at or before booking; if carrier carries goods on deck contrary to an express agreement with the shipper made at or before booking, then the carrier loses any exception or liability limit for losses resulting solely from on‑deck carriage (Article 2(3) and Article 2(4)).
Duties of shippers
Provide accurate leading marks, number of packages or weight and the apparent order and condition of goods for bill of lading particulars (Article 3(3)); the shipper is deemed to guarantee those particulars and indemnify the carrier for inaccuracies, subject to the carrier’s ongoing liability to others (Article 3(5)).
If the shipper has specific stowage requirements for on‑deck carriage, they must give those to the carrier in writing at or before booking (Article 2(3)).
Declare nature and value of goods if they seek to avoid the per package per kilogram limitation in Article 4(5) and have the declared value inserted in the sea carriage document.
Rights, immunities and exceptions
Carrier defences from liability are listed in Article 4(2), covering navigation errors by master and crew, fire absent carrier fault, perils of the sea, acts of God, war, quarantine, strikes, inherent vice, insufficiency of packing, latent defects, and other causes absent carrier fault or privity. The party claiming a defence bears the burden to show absence of carrier fault (Article 4(1) and Article 4(2)(q)).
Limits of liability: Article 4(5) sets limits at 666.67 SDR per package or 2 SDR per kilogram, whichever is higher, unless the nature and value are declared and inserted in the sea carriage document. These amounts are convertible into national currency by court law as set out in Article 4(5)(d).
No benefit of limitation if damage resulted from act or omission of carrier done with intent to cause damage or recklessly knowing damage would probably result (Article 4(5)(e)).
Article 4bis extends defences and limits to servants and agents (non independent contractors), with the same exception for intentional or reckless acts by the servant or agent (Article 4bis(4)).
Parties may increase carrier responsibility or surrender immunities by explicit provision in the bill of lading or sea carriage document (Article 5) subject to Article 6/6A constraints for non‑negotiable receipts and consignment notes.
Party autonomy on deck cargo: Article 6A allows a shipper and carrier to agree in writing before booking that the Rules do not apply to goods that must be carried on deck, provided the sea carriage document bears an endorsement stating that agreement (Article 6A(1), (3)).
Delay liability
Article 4A creates a substantive duty of carriers to shippers for loss caused by delay while the carrier is in charge, unless the carrier proves excusable delay and that all reasonable measures were taken (Article 4A(1)). It defines when goods are delayed, lists excusable delay categories (Article 4A(3)), provides an industrial action carve‑out (Article 4A(4) and (5)), and caps delay damages at the lesser of actual loss, 2.5 times the sea freight payable for the goods delayed, or the total freight payable for all goods shipped under the contract (Article 4A(6)).
Article 4A(7) confirms potential concurrent liability under Article 4 and Article 4A.
Procedural and evidentiary rights
The bill of lading or sea carriage document is prima facie evidence of receipt particulars (Article 3(4)). For negotiable sea carriage documents transferred to third parties in good faith, proof to the contrary is not admissible (Article 3(4) second sentence).
Time limit for suit: suit must be brought within one year of delivery or the date when delivery should have occurred, subject to extension by agreement after cause of action arises, and limited exceptions for indemnity actions as in Article 3(6) and Article 3(6bis).
Regulatory and ministerial rights
The regulations may create a Schedule of modifications to adapt the Hague text for Australian circumstances, on specified matters such as electronic documents and deck cargo (s 7(2)). The Minister must consult interest groups before making those regulations (s 7(4)). The Minister may determine port limits by legislative instrument where statutory defaults produce anomalous results (s 9A).
Contracting out and receipts
Article 6 allows parties to agree different terms for the carrier’s responsibilities so long as no bill of lading has been issued and the terms are embodied in a receipt or consignment note that is non‑negotiable and marked as such. Article 6 sets conditions for such special agreements to be effective.
These duties and rights frame commercial allocations that carriers, shippers and insurers must operationalise through documentation practices, operational procedures for cargo handling and stowage, and risk management arrangements such as declarations of value and insurance placement.
Penalties and enforcement
The Act and the Schedule focus on civil liability rather than criminal penalties. Enforcement occurs predominantly through private legal action, regulated procedural limits and statutory defences.
Civil remedies and time limits
Private actions are the primary enforcement mechanism. Article 3(6) imposes a one‑year time bar for suit, running from delivery or the date when delivery should have occurred; parties may extend this period by agreement after the cause of action has arisen, but typical practice will require attention to preserve rights early. Article 3(6bis) allows an action for indemnity against a third person even after the one‑year period if commenced within the time allowed by the law of the court seized of the case, with a minimum of three months from settlement or service of process.
Article 4 and Article 4A set the substantive contours of carrier liability; enforcement will be by claim for damages subject to the exceptions and caps the Articles provide. Article 4(5)(a) and (b) limit recoverable amounts unless value is declared and inserted in the sea carriage document.
Burden of proof and exceptions
The Schedule places burdens on parties seeking exceptions: Article 4(1) and Article 4(4) make the carrier prove due diligence to make the ship seaworthy where unseaworthiness is alleged; Article 4(2)(q) requires the person claiming an exception to show neither carrier privity nor fault contributed to the loss; Article 4(5)(e) removes limitation benefits where the carrier intended damage or acted recklessly, which the claimant must prove.
Article 4bis extends the carrier’s defences and limits to servants and agents, but the party asserting immunity must satisfy the necessary evidentiary standard.
Judicial and arbitral jurisdiction
Section 11 addresses construction and jurisdiction. It deems parties to sea carriage documents relating to carriage from Australia to outside Australia to have intended to contract according to law at the place of shipment (s 11(1)). Agreements attempting to preclude or limit this choice of law or to preclude court jurisdiction in favour of foreign courts are ineffective to that extent (s 11(2)(a) and (b)). Arbitration clauses remain effective where arbitration is to be conducted in Australia (s 11(3)).
The International Arbitration Act 1974 is amended as substituted by s 21: the new s 2C states that nothing in that Act affects operation of s 11 or s 16 of this Act, preserving the domestic jurisdictional regime.
Regulatory enforcement and legislative instruments
The Act gives power to make regulations (s 22) and to modify the Hague text through a Schedule of modifications (s 7). Those regulations are subject to consultation (s 7(4)). The Minister’s determination of port limits for Article 1(4) is expressly made a legislative instrument (s 9A), attracting Parliamentary oversight procedures applicable to legislative instruments, except that Part 4 of Chapter 3 of the Legislation Act 2003 does not apply to that determination (note to s 9A).
There is no criminal sanction or administrative penalty regime contained in the text provided; enforcement is via common law and statutory civil claims, the limitation and defences in the Schedule, regulation and administrative instruments.
Interaction with competition law and other statutes
The Act prevails over Division 1 of Part 3‑2 of Schedule 2 to the Competition and Consumer Act 2010 to the extent of inconsistency (s 18). This creates a statutory supremacy for the Rules where they conflict with those competition provisions, affecting how competition regulators might interact with contractual clauses or carrier conduct that is otherwise caught by the Competition and Consumer Act.
The Act preserves the operation of certain maritime statutes (s 19), indicating those statutory enforcement schemes remain available and may interact with claims under the Rules.
Practical enforcement implications
Claimants and respondents must attend to procedural compliance: bills of lading must be drafted to reflect agreed terms, declarations of value must be inserted to avoid statutory limits, and documentation for consignment notes must meet the definition in Article 1(aa) to operate as intended.
Given the one‑year limitation and the fit with transnational shipping practices, timely preservation of evidence, early survey and notice of damage are key enforcement‑related behaviours (Article 3(6) and the requirement to give notice of loss or damage at port of discharge before or at removal, or within three days if not apparent).
The Act creates no new criminal route for enforcement and does not itself create an administrative penalty schedule, concentrating enforcement through civil litigation, arbitration (subject to s 11(3)), and regulatory amendment powers.
How it interacts with other laws
The Act explicitly frames its relationship with a limited set of statutes and international instruments, and ties certain definitional points to other Australian statutory mechanisms.
Competition law
Section 18 provides that the Act prevails over Division 1 of Part 3‑2 of Schedule 2 to the Competition and Consumer Act 2010 where there is inconsistency. That statutory primacy shields certain contractual allocations or carrier defences under the amended Hague Rules from being overridden by those competition provisions, and concentrates any regulatory friction on interpretation of inconsistency.
Navigation Act and limitation regime
Section 19 states the Act does not affect operation of Part 4 of Chapter 3 of the Navigation Act 2012 or the Limitation of Liability for Maritime Claims Act 1989. Practically, limitation regimes for shipowners’ liability and navigation‑related statutory controls will coexist with the Rules, and claimants may run concurrent claims under different statutory heads where facts permit.
Customs Act and port limits
Article 1(4) in Schedule 1A ties the limits of a port or wharf in Australia to areas fixed by the Comptroller‑General of Customs under paragraph 15(1)(a) or (2)(a) of the Customs Act 1901, and to terminal areas with a common boundary with that area. Therefore, administrative determinations under the Customs Act are consequential to carrier timing of “in charge of goods” under Article 1(3). The Minister can override anomalous results by legislative instrument under Article 1(5) and s 9A.
International conventions and choice of law
The amended Hague Rules themselves are international in origin and the Act embeds them domestically. Article 10 of Schedule 1A regulates choice of law and application to various carriage directions: it applies to bills of lading relating to carriage from ports in Australia to ports outside Australia, and to carriage to Australian ports unless Brussels/Visby/SDR or Hamburg Conventions (or modifications) otherwise apply (Article 10(2) and (3)). Section 4 defines Brussels, Visby, SDR, and Hamburg Conventions for the Act. Section 11(1) and (2) set rules on intended law at place of shipment and invalidate agreements that purport to avoid that effect.
The Act establishes a two‑step adoption policy: first adopt amended Hague Rules as modified by regulation (s 3(2)(a); s 7), then possibly replace them with the Hamburg Convention if the Minister so decides after review (s 3(2)(b)). The Minister must table a statement in accordance with s 2A; if no statement is tabled within 10 years, Part 3 and Schedule 2 and s 2A are repealed (s 2(3)). This creates a statutory interface with international law choices that is managed by executive decision.
Arbitration law
Section 11 preserves arbitration agreements that require arbitration to be conducted in Australia, so far as they might otherwise be rendered ineffective by attempts to avoid jurisdiction of Australian courts (s 11(3)). Section 21 amends the International Arbitration Act 1974 s 2C (substituted text in the Act) to make clear nothing in that Act affects the continued operation of section 9 of the old Sea‑Carriage Act under s 20(2) or s 11 or s 16 of this Act. This positions arbitration as available in certain circumstances and preserves aspects of domestic jurisdiction.
Legislation Act and parliamentary oversight
Section 9A makes a Ministerial determination of port or wharf limits a legislative instrument, and a note states Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to that determination. Thus, while the determination will be a legislative instrument amenable to parliamentary procedures, the usual sunsetting provisions do not apply.
Regulatory modification and consultation
Section 7 authorises the regulations to add a Schedule of modifications that may modify the Hague text only for enumerated purposes (s 7(2)). Before making those regulations, the Minister must consult representatives of shippers, ship owners, carriers, cargo owners, marine insurers and maritime law associations (s 7(4)). This interaction assigns a regulated path for domestic adaptations of the international text.
Caveat about other laws
The Act binds the Crown (s 5) and extends to external Territories (s 6), and it repeals the Sea‑Carriage of Goods Act 1924 but preserves that 1924 Act for contracts made before repeal (s 20). The Act therefore overlays existing domestic statute law with the amended Hague text while preserving certain other statutory regimes as noted.
Readers should therefore approach the Act knowing it integrates international convention rules with domestic administrative sources such as the Customs Act, limits the interaction with competition law by statutory primacy, and structures executive discretion for further modification and potential adoption of the Hamburg Convention.
Amendment history
The text provided records a small number of enacted changes and built‑in transition mechanisms rather than a long history of amendments.
Repeal of the Sea‑Carriage of Goods Act 1924: Section 20(1) repeals the Sea‑Carriage of Goods Act 1924. Section 20(2) preserves that 1924 Act’s application to any contract of carriage made before the commencement of section 20 and to which that earlier Act would have applied. This provides a transitional continuity for pre‑existing contracts.
International Arbitration Act amendment: Section 21 repeals and substitutes section 2C of the International Arbitration Act 1974 to clarify interactions between that Act and this Act’s sections. The substituted s 2C states that nothing in the International Arbitration Act affects the continued operation of section 9 of the Sea‑Carriage of Goods Act 1924 under s 20(2) or the operation of sections 11 or 16 of this Act. This is an express statutory amendment in the text provided.
Commencement and conditional repeal provisions: Section 2 contains commencement provisions and a conditional repeal mechanism: subject to subsection (2), the Act commences on Royal Assent (s 2(1)); Part 3 and Schedule 2 commence as provided in s 2A (s 2(2)); and if, within 10 years of commencement, the Minister has not tabled a statement under s 2A(4) deciding to replace the amended Hague Rules with the Hamburg Rules, Part 3 and Schedule 2 and s 2A are repealed at the end of that 10 years (s 2(3)). This is a legislative design feature that preserves an executive choice window for international conversion to the Hamburg Convention.
Incorporation and modification powers: Section 7 authorises regulations to add a Schedule of modifications and to amend that Schedule for a tightly circumscribed list of purposes (s 7(2) and (3)). The Act therefore empowers future regulatory amendment rather than providing a long list of legislative amendments in the Act itself; those delegated modifications are subject to the statutory consultative requirement in s 7(4).
Schedule modifications: The Schedule itself sets out how the text of the amended Hague Rules is to be modified for Australian application. It prescribes deletions and insertions and contains the full revised Articles such as Article 1, Article 1A, Article 3, Article 4, Article 4A and Article 10. These textual insertions are the operative amendments to the Hague Rules for domestic law.
The Act therefore embodies immediate, explicit changes (repeal of the 1924 Act; substitution in the International Arbitration Act; adoption of amended Hague Rules in Schedule 1A) and creates delegated pathways for further technical modification by regulation, with a ministerial decision process and a 10‑year window for a potential switch to the Hamburg Convention. The consultative requirement for regulations under s 7(4) is a fixed procedural constraint on regulatory amendment.
Litigation history
The material supplied contains no reported cases or litigation outcomes. The Schedule and Act themselves do not list judicial decisions. In the absence of case law in the source text, one must observe the likely litigation focal points that the Act and Schedule create; these are potential areas for litigation rather than recorded litigation history.
Likely litigation focal points under the Act and Schedule include
Interpretation of "sea carriage document" and "contract of carriage": Article 1(b) and Article 1(g) broaden the class of documents and when a negotiable sea carriage document governs relations under a charterparty. Disputes are likely to arise about whether a particular document is a negotiable sea carriage document, whether a consignment note satisfies Article 1(aa), and about the effect of electronic data messages under Article 1A.
Application timing and territorial scope: Section 10 of the Act and Article 10 in the Schedule set complex temporal and territorial application rules. Litigation could arise over whether a given contract falls between the commencement and assumed later Part 3 commencement windows, whether carriage is intra‑State and so excluded by s 10(2) and Article 10(4)‑(5), and whether a consignment note contract is subject to the Rules only in the limited circumstances Article 10(5) prescribes.
Proof of due diligence and seaworthiness: Article 3 and Article 4 place the burden on the carrier to prove due diligence to make the ship seaworthy when unseaworthiness is alleged. Litigation over whether the carrier complied with Article 3(1) and whether the carrier can demonstrate due diligence is likely.
Defences under Article 4 and burden allocation: Article 4(2)(q) requires the person claiming a defence to show that neither carrier privity nor fault of agents contributed to loss. Disputes about the sufficiency of evidence to invoke exceptions, and whether the exceptions operate in particular events such as strikes, riots, or barratrous conduct, are likely.
Delay liability under Article 4A: The new statutory cause of action for delay and its excusable delay categories will invite litigation on whether particular delays were excusable, whether the carrier took all measures reasonably required to avoid delay and its consequences, and on the quantum cap in Article 4A(6).
Limits of liability and declared value: Article 4(5) sets out per package/per kilogram limits unless value is declared. Litigation may challenge the sufficiency of a declaration of value and whether the declared value was correctly inserted in the sea carriage document, and contest whether limits are displaced by carrier intent or recklessness under Article 4(5)(e).
Electronic document issuance and transfer: Article 1A treats data messages as sea carriage documents when issued or transferred within the system used by the parties. Litigation may arise over whether a data message was generated in a way that constituted issuance or transfer within the relevant system, and whether good faith acquisition rules for negotiable documents apply to electronic transfers.
Port limits and ministerial determination: Article 1(4) ties port limits to Customs Act determinations, but Article 1(5) and s 9A permit the Minister to determine limits by legislative instrument where anomalies would otherwise arise. Disputes may arise about whether ministerial determinations are validly exercised, and about the effect of those determinations on delivery timing and carrier responsibility.
Because the supplied text includes no reported litigation, practitioners should anticipate that many of these interpretive questions will be litigated and that early decisions will be influential in shaping application. The Act’s provisions on jurisdiction and arbitration (s 11 and s 21 substitution) will shape procedural strategies: parties cannot contract out of certain jurisdictional effects, but arbitration in Australia remains effective (s 11(3)). Counsel should therefore watch for early judicial treatments of definition issues such as "sea carriage document", "consignment note", the electronic issuance test in Article 1A, and the substantive standards in Article 3 and Article 4A.
Gotchas
The Act and Schedule contain a number of technical traps for carriers, shippers, insurers and advisers that can produce costly surprises if overlooked.
Consignment note strictness: Article 1(aa) defines a consignment note narrowly as a non‑negotiable document that must contain or evidence the contract of carriage in circumstances where no bill of lading has been issued, and it must clearly state that the carrier accepts no liability and be clearly marked as non‑negotiable. If a party attempts to use a consignment note that omits any of these elements, the intended exclusionary effect may fail and the Rules may apply. See also s 10(1A) and Article 10(5) which restrict the application of the Rules to consignment note situations.
Electronic issuance and transfer evidentiary thresholds: Article 1A treats data messages as sea carriage documents, but the operative test for issuance and transfer depends on whether the data message is generated in a way that constitutes issuance or transfer "within the system being used by the parties". That formulation makes the validity of an electronic bill of lading dependent on evidence about the functioning and governance of the parties’ electronic system, rather than a uniform statutory format. Parties who rely on electronic records must be able to show how their system satisfies issuance and transfer criteria.
Timing of "in charge of goods" and port limits: Article 1(3) defines when a carrier is in charge of goods by reference to delivery within the limits of a port or wharf. Article 1(4) ties Australian port limits to Customs Act determinations and any terminal area with a common boundary. Carriers and shippers who assume shore‑side responsibility begins at a customary terminal may be surprised if legal port limits differ from operational perceptions. The Minister’s power to determine port limits by legislative instrument (s 9A) introduces potential change points.
Deck cargo and written stowage requirements: Article 2(3) requires the shipper to provide written stowage requirements for on‑deck cargo at or before booking; if absent, Article 2(4) risks carriers invoking exceptions and limits. Conversely, Article 6A allows parties to agree that the Rules do not apply to deck cargo, but that agreement only has effect if the sea carriage document bears an endorsed statement. Failure to obtain and record such an endorsement will leave the Rules in play.
Declared value formalities: Article 4(5) allows higher recovery where the shipper has declared value and that declaration is inserted in the sea carriage document. The burden of ensuring the value declaration is correctly worded and inserted rests on the shipper; correspondingly, carriers and their insurers must check for declarations and ensure insurance and liability calculations reflect declared values.
Delay liability cap: Article 4A establishes delay liability and caps damages at the lesser of actual loss, 2.5 times the sea freight payable for the goods delayed, or the total sea freight for all goods shipped under the contract. Carriers and shippers need to understand how freight is calculated and invoiced; disputes can arise where freight apportionment is unclear or where the cap produces counter‑intuitive results relative to actual losses.
Time bar and extensions: Article 3(6) prescribes a one‑year limitation for suit subject to extension by agreement only after the cause of action arises. This creates a narrow window for bringing claims. Article 3(6bis) offers a limited asymmetry for indemnity actions against third parties, but with a minimum three‑month period tied to settlement or service of process. Parties should be cautious about relying on informal extensions or delay.
Contracting out traps: Article 6 permits special agreements that displace the Rules only where no bill of lading has been issued and the terms are embodied in a non‑negotiable receipt or consignment note marked as such. Attempting to contract out by inserting clauses in a negotiable bill of lading will be null and void under Article 3(8) and Article 6 interplay. Article 5 allows surrendering immunities in a bill of lading, but parties must ensure the bill of lading language is precise.
Burden of proof pitfalls: Article 4 places initial burdens on the carrier to prove due diligence for seaworthiness and on the person asserting an exception to show absence of carrier privity or fault. Parties unfamiliar with these burdens may misplace documentary burdens at trial; preserving contemporaneous evidence of inspection, maintenance, crew training, and operational choices is essential.
Interaction with competition law: Section 18 gives the Act primacy over Division 1 of Part 3‑2 of Schedule 2 to the Competition and Consumer Act 2010 where inconsistent. Parties relying on competition provisions should be alert to potential preclusion where the Rules govern.
These technicalities are not abstract: they change transactional documentation (what must appear in sea carriage documents, consignment notes and electronic systems), operational practice (how and when shippers provide stowage instructions and value declarations), and litigation strategy (preserving evidence to meet burden allocations, complying with strict limitation periods). Practical risk allocation requires proactive change to standard forms, electronic platforms and insurance documentation.
How to comply
Practical steps carriers, shippers, insurers and advisers should take to align with the Act and Schedule are concrete and document‑focused. The following checklist draws directly from the Act and the Schedule’s Articles.
Documentation and contract form
Revise sea carriage documents: Ensure bills of lading, sea waybills, consignment notes and non‑negotiable receipts explicitly comply with Schedule 1A definitions. If a document is intended to be non‑negotiable and to exclude liability (a consignment note), ensure it meets Article 1(aa): it must state that the carrier accepts no liability for loss, damage or delay, and be clearly marked as non‑negotiable.
Insert declared value where required: If shippers want to avoid Article 4(5) per package/per kilogram limits, obtain a clear declaration of value and ensure it is inserted into the sea carriage document. Maintain standard wording templates for declared value clauses and ensure carrier and insurer acknowledgment.
Endorsements for deck agreements: For carriage that must be on deck and where parties agree the Rules should not apply, ensure the sea carriage document bears the required endorsement under Article 6A(3) stating the written agreement exists. If the shipper has specific stowage instructions for goods carried on or above deck, obtain those instructions in writing at or before booking (Article 2(3)).
Preserve negotiation and transfer evidence for electronic documents: If using data messages or electronic bills of lading, document the system’s issuance and transfer mechanisms. Article 1A makes issuance and transfer depend on the system used by the parties, so keep records showing the generation, authentication and transfer of data messages in accordance with the parties’ intended workflow.
Check bills of lading for surrender clauses: Where parties intend to increase carrier responsibility or surrender immunities, reflect that explicitly in the bill of lading as Article 5 contemplates. Conversely, avoid attempting to contract out in negotiable bills of lading where Article 3(8) and Article 6 would render such clauses ineffective.
Operational and evidence preservation
Maintain due diligence records: Carriers must be able to prove due diligence to make the ship seaworthy and to properly man, equip and prepare holds and refrigerated spaces (Article 3(1); Article 4(1)). Keep maintenance logs, crew records, inspection reports and provisioning documentation to establish diligence in litigation.
Create processes for notice of damage: Article 3(6) requires notice of loss or damage in writing at port of discharge before or at removal, or within three days if loss is not apparent. Establish terminal procedures for survey, joint inspections and prompt written notices to preserve rights.
Freight and delay calculations: For the delay cap in Article 4A(6), standardise freight invoicing and apportionment rules so the “sea freight payable” can be calculated without dispute. Keep freight invoices, contracts and freight rate tables to support cap calculations.
Coordination with terminals and customs: Because Article 1(4) ties port limits to Customs Act determinations, coordinate with terminals to identify whether terminal areas are within Customs‑fixed port limits or whether a Ministerial determination applies. Where anomalies may arise, consider seeking clarification or reference to the Ministerial legislative instrument mechanism (s 9A).
Insurance and risk transfer
Review P&I and hull policies: Insurers should reassess cover terms and limits in light of Article 4(5) limits and Article 4A delay liability. Explicitly address whether declared value in sea carriage documents affects insured limits and whether delay liability is within cover scope.
Address indemnity and misstatement risks: Ensure policies and reinsurance treat shipper guarantees in Article 3(5) appropriately; carriers should require shippers to indemnify for inaccuracies in particulars and insurers should reflect the risk of misstatement.
Regulatory and consultative engagement
Participate in statutory consultation: The Act mandates Ministerial consultation with shippers, ship owners, carriers, cargo owners, marine insurers and maritime law associations before regulations are made to modify the Hague text (s 7(4)). Interested stakeholders should monitor and participate in consultation processes to influence modifications concerning electronic documents, deck cargo, liability for delay and other enumerated topics.
Monitor regulatory changes and Ministerial decisions: Because the regulations may add a Schedule of modifications (s 7(2)) and the Minister has a 10‑year window to decide on adopting the Hamburg Convention (s 2(3); s 3(2)(b)), monitor Federal Gazette notices, legislative instruments and parliamentary disallowance periods for changes.
Litigation preparedness
Preserve electronic system records: If documents are issued electronically, preserve logs, timestamps, chain of custody and system governance documents to demonstrate how a data message was generated and transferred (Article 1A).
Early survey and expert evidence: For claims alleging unseaworthiness or breach of due diligence, secure early expert evidence on maintenance standards, stowage and handling to meet or rebut Article 3 burdens.
Address jurisdiction and arbitration clauses: Given s 11, ensure arbitration clauses specify arbitration in Australia if parties wish to preserve an arbitral forum that will not be rendered ineffective by jurisdiction provisions. Update arbitration provisions in standard contracts accordingly.
Practical checklist for immediate implementation
Audit standard bills of lading and sea carriage documents for compliance with Schedule 1A language on declared value, endorsements, consignment notes and electronic issuance.
Implement a written booking and stowage instruction process that captures shippers’ deck carriage instructions at or before booking.
Update electronic document systems to capture issuance and transfer events with evidentiary metadata and provide party access to system logs.
Train operations staff and terminals to deliver timely written notices of loss or damage and to conduct joint surveys at port of discharge.
Review insurance placements and notify insurers of the Act’s delay liability provision and liability cap mechanics.
Register to receive notices of proposed regulations and legislative instruments under s 7 and s 9A and nominate industry representatives for consultation.
Following these steps will align contractual practice and operational processes with the Act’s formal requirements, reduce disputes over formality pitfalls such as consignment note wording and electronic issuance, and preserve rights given the one‑year limitation rules and burden allocations in the Schedule.
marine insurers means insurers who provide marine insurance, whether or not they also provide other kinds of insurance, and includes Australian representatives of member Associations of the International Group of Protection and Indemnity Associations.
maritime law associations means law associations with an interest in maritime law, whether or not they are also interested in other areas of law.
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.
5 Act to bind Crown
5 Act to bind Crown
This Act binds the Crown in each of its capacities.
6 Extension to external Territories
6 Extension to external Territories
This Act extends to all the external Territories.
Part 2 Application of the amended Hague Rules etc.
Part 2—Application of the amended Hague Rules etc.
7 The amended Hague Rules
7 The amended Hague Rules
(1) The amended Hague Rules consists of the text set out in Schedule 1, as modified in accordance with the Schedule of modifications referred to in subsection (2). The text set out in Schedule 1 (in its unmodified form) is the English translation of Articles 1 to 10 of the Brussels Convention, as amended by Articles 1 to 5 of the Visby Protocol and Article II of the SDR Protocol.
(2) The regulations may amend this Act to add a Schedule (the Schedule of modifications) that modifies the text set out in Schedule 1 for the following purposes:
(a) to provide for the coverage of a wider range of sea carriage documents (including documents in electronic form);
(b) to provide for the coverage of contracts for the carriage of goods by sea from places in countries outside Australia to places in Australia in situations where the contracts do not incorporate, or do not otherwise have effect subject to, a relevant international convention (see subsection (6));
(c) to provide for increased coverage of deck cargo;
(d) to extend the period during which carriers may incur liability;
(e) to provide for carriers to be liable for loss due to delay in circumstances identified as being inexcusable.
The modifications do not actually amend the text set out in Schedule 1, however the text has effect for the purposes of this Act as if it were modified in accordance with the Schedule of modifications.
(3) The regulations may:
(a) amend the Schedule of modifications, but only in connection with the purposes set out in subsection (2); and
(b) amend the provisions of this Part to the extent necessary or appropriate, having regard to the modifications set out in the Schedule of modifications as in force from time to time.
Note: For example, regulations extending the range of sea carriage documents to be covered by the text in Schedule 1 may create a need for associated amendments of sections 10 and 11.
(4) Before regulations are made for the purposes of this section, the Minister must consult with representatives of shippers, ship owners, carriers, cargo owners, marine insurers and maritime law associations about the regulations that are proposed to be made.
(6) In this section:
relevant international convention means:
(a) the Brussels Convention; or
(b) the Brussels Convention as amended by either or both of the Visby Protocol and the SDR Protocol; or
(c) the Hamburg Convention.
8 The amended Hague Rules to have the force of law
8 The amended Hague Rules to have the force of law
Subject to section 10, the amended Hague Rules have the force of law in Australia.
9 Interpretation
9 Interpretation
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.
9A Determination of limits of a port or wharf
9A Determination of limits of a port or wharf
A determination by the Minister, for paragraph 4 of Article 1 of the amended Hague Rules, of the limits of a port or wharf in Australia is a legislative instrument.
Note 1: The amended Hague Rules are set out in Schedule 1A—see ss 4(1) and 7(1).
Note 2: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination: see regulations made for the purposes of paragraph 54(2)(b) of that Act.
10 Application of the amended Hague Rules
10 Application of the amended Hague Rules
(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 Schedule 1A and before the commencement of Part 3; and
(b) is a contract:
(i) to which, under Article 10 of the amended Hague Rules, those Rules apply; or
(ii) subject to subsections (1A) and (2)—for the carriage of goods by sea from a port in Australia to another port in Australia; 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.
Note: The amended Hague Rules are set out in Schedule 1A—see ss 4(1) and 7(1).
(1A) If a contract for the carriage of goods by sea referred to in subparagraph 10(1)(b)(ii) is contained only in, or evidenced only by, a consignment note, the amended Hague Rules apply to the contract only if paragraph 5 of Article 10 of those Rules so requires.
(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.
11 Construction and jurisdiction
11 Construction and jurisdiction
(1) All parties to:
(a) a sea carriage document 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 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 sea carriage document 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.
(3) An agreement, or a provision of an agreement, that provides for the resolution of a dispute by arbitration is not made ineffective by subsection (2) (despite the fact that it may preclude or limit the jurisdiction of a court) if, under the agreement or provision, the arbitration must be conducted in Australia.
Part 4 Miscellaneous
Part 4—Miscellaneous
17 Absolute undertaking to provide a seaworthy ship not implied
17 Absolute undertaking to provide a seaworthy ship not implied
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.
18 Act prevails over certain provisions of the Competition and Consumer Act 2010
18 Act prevails over certain provisions of the Competition and Consumer Act 2010
The provisions of this Act prevail over the provisions of Division 1 of Part 3‑2 of Schedule 2 to the Competition and Consumer Act 2010, as that Division applies as a law of the Commonwealth, to the extent of any inconsistency.
19 Act not to affect operation of certain provisions
19 Act not to affect operation of certain provisions
Nothing in this Act affects the operation of:
(a) Part 4 of Chapter 3 of the Navigation Act 2012; or
(b) the Limitation of Liability for Maritime Claims Act 1989.
20 Repeal of the Sea‑Carriage of Goods Act 1924 etc.
20 Repeal of the Sea‑Carriage of Goods Act 1924 etc.
(1) The Sea‑Carriage of Goods Act 1924 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 of subsection (1).
21 Repeal of section 2C of the International Arbitration Act 1974 and substitution of new section
21 Repeal of section 2C of the International Arbitration Act 1974 and substitution of new section
Section 2C of the International Arbitration Act 1974 is repealed and the following section is substituted:
“2C Carriage of goods by sea
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.”
22 Regulations
22 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
1. Modifications 1. Modifications
1. Modifications
1.1 The modifications of the text in Schedule 1 are:
(a) the omission from the text (reproduced below) of the portions shown there in light type‑face and struck through; and
(b) the insertion of the portions shown there in italic type.
THE AMENDED HAGUE RULES
ARTICLE 1
In this convention these Rules, 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.
(aa) “Consignment note” means a non‑negotiable document that:
(i) contains or evidences a contract of carriage by sea in connection with which no bill of lading or similar document of title has been issued; and
(ii) clearly states that no liability for any loss of, damage to or delay of the goods will be accepted by the carrier of the goods; and
(iii) is clearly marked as being non‑negotiable.
(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.
(b) “Contract of carriage” means a contract of carriage covered by a sea carriage document (to the extent that the document relates to the carriage of goods by sea), and includes a negotiable sea carriage document issued under a charterparty from the moment at which that document regulates the relations between its holder and the carrier concerned.
(ba) “Data message” means information generated, stored or communicated by electronic, optical or analogous means (including electronic data interchange, electronic mail, telegram, telex or telecopy) even if the information is never reproduced in printed form.
(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 by sea” covers the period during which a carrier is in charge of the goods, according to paragraph 3 of this Article from the time when the goods are loaded on to the time they are discharged from the ship.
(f) “Negotiable sea carriage document” means:
(i) a bill of lading (other than a bill of lading that, by law, is not negotiable); or
(ii) a negotiable document of title that is similar to a negotiable bill of lading and that contains or evidences a contract of carriage of goods by sea.
(g) “Sea carriage document” means:
(i) a bill of lading; or
(ii) a negotiable document of title that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea; or
(iii) a bill of lading that, by law, is not negotiable; or
(iv) a non‑negotiable document (including a consignment note and a document of the kind known as a sea waybill or the kind known as a ship’s delivery order) that either contains or evidences a contract of carriage of goods by sea.
[NOTE: These Rules do not apply to all sea carriage documents—see Article 10.]
(h) “Writing” includes electronic mail, electronic data interchange, facsimile transmission, and entry in a database maintained on a computer system.
For these Rules, goods are taken to be delivered to the consignee when they are delivered to, or placed at the disposal of:
(a) the consignee; or
(b) an authority
This is an opening excerpt, not the complete document.