Lloyd's Maritime and Commercial Law Quarterly
CARRIERS 2—COMMON SENSE 0
Ports of Auckland v. Southpac Trucks (The Tasman Pioneer)
The New Zealand Supreme Court recently delivered two significant judgments on the limits of carrier liability: Ports of Auckland Ltd v. Southpac Trucks Ltd
1 and Tasman Orient Line CV v. New Zealand China Clays Ltd (The Tasman Pioneer).2 Although the factual context of these two cases is very different, a broadly similar approach and ideological attitude towards limitation of carrier liability in domestic and international commercial law emerges from both judgments.3
Ports of Auckland
Southpac Trucks Ltd imported a Kenworth truck from Australia to New Zealand. The truck was carried by Australia New Zealand Direct Line, a division of CP Ships (UK) Ltd. CP Ships engaged Ports of Auckland Ltd (“POAL”) to discharge the truck and transfer it to a storage area. POAL subcontracted carriage of the truck to Southern Cross Stevedores Ltd, which in turn subcontracted actual carriage to Wallace Investments Ltd. While the truck was being driven on the wharf by an employee of Wallace, an employee of POAL driving a forkhoist on unrelated business collided with the truck, causing just over NZ$60,000-worth of damage. POAL accepted that its forkhoist driver was negligent, but argued that it was entitled to limit its liability to NZ$1,500 under the Carriage of Goods Act 1979 (NZ) (“COGA”).4
COGA applies as a mandatory near-code to all modes of domestic carriage of goods within New Zealand.5 It bars common law proceedings against certain carriers and imposes instead, subject to a few exceptions,6 a uniform statutory scheme of limited liability for contracting carriers and actual carriers as defined in COGA.
Southpac argued that COGA did not apply to POAL in these circumstances. First, POAL was neither the contracting carrier7 nor the actual carrier8 of the truck at the time
1. [2009] NZSC 112; [2010] 1 NZLR 363 (Blanchard, Tipping, McGrath, Wilson and Anderson JJ). The judgment of the court was delivered by Blanchard J.
2. [2009] NZSC 37 (Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ). The judgment of the court was delivered by Wilson J.
3. Indeed, in The Tasman Pioneer, [8] n 2 the court expressly refers back to the Ports of Auckland judgment as dealing with cognate issues of allocation of risk between carrier and cargo interests.
4. At [8–10].
5. COGA does not apply to “international carriage of goods”, which, for maritime carriage, begins when the goods are loaded and ends when they are discharged from the ship: see COGA, s 2 and Fletcher Panel Industries Ltd v. Ports of Auckland Ltd [1992] 2 NZLR 231.
6. COGA allows for limited contracting out, and does not apply where the carrier intentionally causes the loss or damage: see COGA, ss 7 and 8. COGA also does not expressly cover delay of goods or consequential losses. Common law actions should therefore be available to recover these losses in full.
7. Defined in COGA, s 2 as meaning “the carrier who, whether as a principal or as the agent of any other carrier, enters or has entered into the contract with the contracting party”.
8. Defined in COGA, s 2 as meaning “in relation to the carriage of any goods, … every carrier who, at any material time, is or was in possession of the goods, or of any container, package, pallet, item of baggage, or any other thing in or on which the goods are or were believed by him to be, for the purpose of performing the carriage or any stage of it or any incidental service; and includes the contracting carrier where he performs any part of the carriage”.
LLOYD’S MARITIME AND COMMERCIAL LAW QUARTERLY
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