Lloyd's Maritime and Commercial Law Quarterly
AUSTRALIAN MARITIME LAW DECISIONS 1998
Martin Davies*
A. Carriage of goods by sea
1. Australia’s modifications of the Hague-Visby Rules come into force
On 1 July 1998, the Carriage of Goods by Sea Regulations 1998 (Cth) came into force, amending the operation of the Carriage of Goods by Sea Act 1991 (Cth) and the Hague- Visby Rules.1 Last year’s Review outlined the substance of the proposed “reform package”, which was implemented by the 1998 regulations.2 The final form of the changes has been described in a comment in an earlier issue of this year’s Quarterly.3
Last year’s Review questioned whether the Australian hybrid regime will be applied in other countries unless the sea-carriage document (bill of lading or sea waybill) chooses Australian law or incorporates the Hague-Visby Rules as enacted in Australia.4 Another reason for doubt may be added to those set out last year.5 The modified version of the Hague-Visby Rules is given the force of Australian law in sea-carriage contracts for outward-bound carriage from Australia.6 If, however, that carriage is to a country that gives the force of law to the original version of the Hague-Visby Rules (such as the UK, New Zealand, Japan, etc.), the courts of that country may well apply the original version of the rules even if the carriage contract is governed by Australian law. In The Hollandia,7 the House of Lords held that, because the Carriage of Goods by Sea Act 1971 (UK) gives the force of law to the Hague-Visby Rules, they apply by force of English law to all of the contracts that are mentioned in Art. 10, regardless of the operative law in the country of shipment. Australia is still a “Contracting State” to the Conventions making up the Hague-Visby Rules, so any bill of lading issued in Australia or for carriage from a port in Australia will still fall within the operational provisions of Art. 10 of the original rules. Any country taking the approach suggested in The Hollandia should therefore apply the original rules to such bills of lading by force of its own law, without even considering the Australian modifications to the rules. Thus, it seems likely that the Australian hybrid regime may only be applied in other Hague-Visby countries if it is incorporated by reference into the contract.
* Harrison Moore Professor of Law, The University of Melbourne.
1. Last year’s Review described how the Carriage of Goods by Sea Amendment Act 1997 (Cth) prevented the Hamburg Rules from coming into force for Australia, making provision instead for Hamburg-like modifications to the Hague-Visby Rules to be made by regulation: see [1998] LMCLQ 394, 394–396.
2. [1998] LMCLQ 394, 394–395.
3. Hetherington, “Australian hybrid cargo liability regime” [1999] LMCLQ 12.
4. [1998] LMCLQ 394, 395-396.
5. I am grateful to Tom Broadmore of the Wellington Bar, President of the Maritime Law Association of Australia and New Zealand (M.L.A.A.N.Z.), for bringing this point to my attention.
6. Carriage of Goods by Sea Act 1991 (Cth), ss 8, 10, Sched. 1A, Art 10.
7. [1983] 1 A.C. 565.
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