Compilation #11 | Effective 2017-08-23
FRBR Work URI: /akn/au/act/1991/160
This Act may be cited as the Carriage of Goods by Sea Act 1991.
Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.
Subject to subsection (3), Part 3 and Schedule 2 commence as provided in section 2A.
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that the amended Hague Rules should be replaced by the Hamburg Rules, Part 3 and Schedule 2, and section 2A, are repealed on the first day after the end of that 10 years.
The object of this Act is to introduce a regime of marine cargo liability that:
is up-to-date, equitable and efficient; and
is compatible with arrangements existing in countries that are major trading partners of ; and
takes into account developments within the United Nations in relation to marine cargo liability arrangements.
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
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.
In this Act:
amended Hague Rules has the meaning given in section 7.
, 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 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 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 on 21 December 1979.
Visby Protocol means the Protocol amending the Brussels Convention, done at on 23 February 1968.
A reference in this Act to a non-negotiable document includes a reference to a sea waybill.
This Act binds the Crown in each of its capacities.
This Act extends to all the external Territories.
(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:
to provide for the coverage of a wider range of sea carriage documents (including documents in electronic form);
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));
to provide for increased coverage of deck cargo;
to extend the period during which carriers may incur liability;
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.
The regulations may:
amend the Schedule of modifications, but only in connection with the purposes set out in subsection (2); and
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.
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.
In this section:
relevant international convention means:
the Convention; or
the Brussels Convention as amended by either or both of the Visby Protocol and the SDR Protocol; or
the Convention.
Subject to section 10, the amended Hague Rules have the force of law in .
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.
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 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: Legislation Act 2003 does not apply to the determination: see regulations made for the purposes of paragraph 54(2)(b) of that Act.Part 4 of Chapter 3 (sunsetting) of the
The amended Hague Rules only apply to a contract of carriage of goods by sea that:
is made on or after the commencement of Schedule 1A and before the commencement of Part 3; and
is a contract:
to which, under Article 10 of the amended Hague Rules, those Rules apply; or
subject to subsections (1A) and (2)—for the carriage of goods by sea from a port in to another port in ; or
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.
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 to any other port in that State or Territory.
All parties to:
a sea carriage document relating to the carriage of goods from any place in to any place outside ; or
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.
An agreement (whether made in or elsewhere) has no effect so far as it purports to:
preclude or limit the effect of subsection (1) in respect of a bill of lading or a document mentioned in that subsection; or
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
preclude or limit the jurisdiction of a court of the Commonwealth or of a State or Territory in respect of:
a sea carriage document relating to the carriage of goods from any place outside to any place in ; or
a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods.
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.
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.
The provisions of this Act prevail over the provisions of Competition and Consumer Act 2010, as that Division applies as a law of the Commonwealth, to the extent of any inconsistency.Division 1 of Part 3-2 of Schedule 2 to the
Nothing in this Act affects the operation of:
(a) Navigation Act 2012; orPart 4 of Chapter 3 of the
(b) the Limitation of Liability for Maritime Claims Act 1989.
(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:
the contract was made before that commencement; and
that Act would have applied but for the operation of subsection (1).
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 Sea-Carriage of Goods Act 1924 under subsection 20(2) of the Carriage of Goods by Sea Act 1991; orsection 9 of the
(b) the operation of Carriage of Goods by Sea Act 1991.”section 11 or 16 of the
The Governor-General may make regulations prescribing matters:
required or permitted by this Act to be prescribed; or
necessary or convenient to be prescribed for carrying out or giving effect to this Act.