All at Sea: Can You Contract Out of the Extended Period of Responsibility Under the Australian Hague-Visby Rules?

Abstract

Prior to 1998, the Hague-Visby Rules (HVRs) applied under Australian law to what is commonly referred to as the “ship’s rail to ship’s rail” period, meaning that the protections, rights and immunities provided for by the HVRs applied from the time that goods were loaded onto a ship to the time of their discharge from that ship. In the 1990s, Australia gave serious consideration to implementing an updated regime for the carriage of goods by sea, the Hamburg Rules. Rather than adopt the Hamburg Rules, Australia amended the HVRs to create the hybrid and unique Australian amended Hague-Visby Rules (AHVRs). These amendments sought to enact some of the perceived benefits of the Hamburg Rules, including the extended period of responsibility. Notionally, this extended the period during which the carrier has obligations for the safekeeping of cargo to be from “container yard to container yard” (CY to CY) rather than the traditional “rail to rail” period. Article 7 of the unamended HVRs allows a shipper or carrier to enter into an agreement which limits the carrier’s liability outside of the “rail-to-rail” period. This resonates in the context of the unamended HVRs, which apply from “rail-to-rail”. Curiously however, Article 7 remains in the AHVRs today, having been left untouched by the 1998 amendments. As a result of the retention of Article 7 in the AHVRs, shippers and carriers appear free to contract out of liability for the period outside of “rail-to-rail”, notwithstanding the introduction of duties to care for cargo from CY to CY. That almost every contract for the carriage of goods by sea already contains an exclusion clause of the kind contemplated by Article 7 has resulted in concerns that, by retaining Article 7, the reforms introducing the extended period of responsibility are of little or no effect. This article explores the interpretive difficulties created by the retention of Article 7 alongside the extended period of responsibility, and examines three possible constructions of those provisions. Ultimately, the authors favour a construction which gives effect to both Article 7 and the extended period of responsibility and which is consistent with other important facets of maritime law.