Lloyd's Maritime and Commercial Law Quarterly
AUSTRALIAN MARITIME LAW DECISIONS 1994
Martin Davies*
A. Carriage of goods by sea
1. The Hamburg Rules: Carriage of Goods by Sea Act 1991 (Cth), Part 3 and Sched. 2
To the relief of many (but not all) in the Australian shipping community, the Hamburg Rules did not come into force in Australia during 1994. Their commencement has merely been postponed: they will come into force automatically at midnight on 19 October 1997 unless both Houses of the Commonwealth Parliament resolve before then that they should be repealed or that consideration of their repeal should be postponed a further three years, until the year 2000. The Carriage of Goods by Sea Act 1991 (Cth), Part 3 and Sched. 2 gives the force of law to the Rules. They would have come into force automatically on 31 October 1994 if Parliament had not resolved before then that they should be repealed, or that consideration of their repeal should be postponed until 1997. On 17 October 1994 the House of Representatives resolved that the question of the repeal of Part 3 and Sched. 2 should be reconsidered after a further three years and no later than 31 October 1997; the Senate followed suit on 19 October 1994. If Parliament does wait until 31 October 1997 to reconsider the question of the Hamburg Rules (as the October 1994 resolutions suggest that it might), it will find that it has left matters too late, for the Rules will have come into force some two weeks previously (on the assumption that they are not proclaimed before then). Section 2(5) of the Act provides that the “trigger” provision (s. 2(3)) should now be read so that Part 3 and Sched. 2 shall come into force three years after the date the resolution was passed by the Senate, 19 October 1994 (again, unless they are repealed before that date, or consideration of their repeal is postponed a further three years). In other words, and contrary to the opinion of some, Australia is still in the limbo that it inhabited between 1991 and 1994 so far as the Hamburg Rules are concerned.
2. George Fethers & Co. Trading Pty. Ltd. v. Yangming Marine Transport Corp.1
This case is chiefly of interest for the arguments advanced by the plaintiff, rather than for the result, which turned upon findings of fact. Australian courts continue to adhere to the proposition that the mere fact that damage to cargo is caused by a storm that is reasonably foreseeable does not, in itself, preclude a finding that the damage was caused by perils of
* Harrison Moore Professor of Law, University of Melbourne. I am grateful to Lee Poh York of the Monash Law Library, and to the Maritime and Air Law Group of Mallesons Stephen Jaques, Melbourne, for their assistance in preparing this article.
1. (1994) Unreported (F.C.A.).
385