Lloyd's Maritime and Commercial Law Quarterly
Corporate Morality and Commercial Maritime Contracts: Considering the impact of the Trade Practices Act 1974 (Australia), s 52 on carriage of goods by sea
Kate Lewins *
The Trade Practices Act 1974 (Australia), s 52 prohibits a corporation from engaging in misleading or deceptive conduct. Its reach has extended beyond consumer transactions, to commercial and even, in some circumstances, international transactions. After providing an outline of s 52, this article looks at the circumstances in which the Trade Practices Act can apply to a contract of carriage that has a nexus with Australia, even if one or both parties are not based in Australia. The article reviews the potential impact of the Trade Practices Act on carriage contracts generally and the Hague/Hague-Visby limitations in particular
.
1. INTRODUCTION
Certainty is of great importance in carriage of goods by sea and other commercial maritime contracts. A complex web of interlinking contracts, Conventions and legal fictions underpin the relationships and liabilities of the various parties involved. It is a stated aim of the courts to interpret and enforce contracts and international Conventions1
in a manner that provides certainty in commercial circles.2
So it may come as a surprise that commercial contracts such as these, built on principles of lassez faire
and interpreted by courts seeking to deliver commercial certainty, may be neutralized by an Australian statute whose aim is (in part) to encourage fair trade and develop corporate morality.
Corporate morality and commercial maritime contracts are two expressions which are not often uttered in the same breath. And yet there is, or should be, a growing realization that s 52 of the Trade Practices Act 1974 (Cth) (‘‘TPA’’) does have an impact on
* Senior Lecturer in Law, Murdoch University, Perth, Australia.
1. Eg, ‘‘It has been recognised that a national court, in the interests of uniformity, should construe rules formulated by an international convention, especially rules formulated for the purpose of governing international transactions such as carriage of goods by sea in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law or by English legal precedent, but on broad principles of general acceptation’’: Shipping Corp. of India Ltd
v. Gamlen Chemical Co (A/Asia) Pty Ltd
(1980) 147 CLR 142, 159 (Mason & Wilson JJ).
2. See eg Federal Commerce and Navigation Co Ltd
v. Tradax Export SA (The Maratha Envoy)
[1978] AC 1, 8, per
Lord Diplock.
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