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Carriage of Goods by Sea Act 1991Act No. 160 of 1991 as amended

This compilation was prepared on 13 November 2001taking into account amendments up to Act No. 123 of 1997and SR 1998 No. 324

[Note: Section 2A, Part 3 (sections 12 to 16) and Schedule 2 are taken tohave been repealed on 31 October 2001, see section 2]

The text of any of those amendments not in forceon that date is appended in the Notes section

Prepared by the Office of Legislative Drafting,Attorney-General’s Department, Canberra

Carriage of Goods by Sea Act 1991 iii

ContentsPart 1—Preliminary 1

1 Short title [see Note 1] .......................................................................1

2 Commencement [see Note 1] .............................................................1

2A When Part 3 and Schedule 2 may commence.....................................1

3 Object of Act......................................................................................2

4 Interpretation......................................................................................3

5 Act to bind Crown..............................................................................4

6 Extension to external Territories ........................................................4

Part 2—Application of the amended Hague Rules etc. 5

7 The amended Hague Rules.................................................................5

8 The amended Hague Rules to have the force of law ..........................6

9 Interpretation......................................................................................6

9A Determination of limits of a port or wharf .........................................6

10 Application of the amended Hague Rules ..........................................7

11 Construction and jurisdiction .............................................................7

Part 3—Application of the Hamburg Rules etc. 9

12 The Hamburg Rules ...........................................................................9

13 The Hamburg Rules to have the force of law.....................................9

14 Interpretation......................................................................................9

15 Application of the Hamburg Rules.....................................................9

16 Construction.....................................................................................10

Part 4—Miscellaneous 11

17 Absolute undertaking to provide a seaworthy ship notimplied .............................................................................................11

18 Act prevails over certain provisions of the Trade PracticesAct 1974 ...........................................................................................11

19 Act not to affect operation of certain provisions ..............................11

20 Repeal of the Sea-Carriage of Goods Act 1924 etc..........................11

21 Repeal of section 2C of the International Arbitration Act1974 and substitution of new section ...............................................12

22 Regulations ......................................................................................12

Schedule 1—The amended Hague Rules (unmodified text) 13

Schedule 1A—Schedule of modifications 22

1. Modifications ...................................................................................22

iv Carriage of Goods by Sea Act 1991

Schedule 2—The Hamburg Rules 37

Notes 57

Carriage of Goods by Sea Act 1991 1

An Act relating to the carriage of goods by sea, andfor related purposes

Part 1—Preliminary

1 Short title [see Note 1]

This Act may be cited as the Carriage of Goods by Sea Act 1991.

2 Commencement [see Note 1]

(1) Subject to subsection (2), this Act commences on the day onwhich it receives the Royal Assent.

(2) Subject to subsection (3), Part 3 and Schedule 2 commence asprovided in section 2A.

(3) If, within 10 years of the commencement of this section, theMinister has not tabled a statement in accordance with subsection2A(4) setting out a decision that the amended Hague Rules shouldbe replaced by the Hamburg Rules, Part 3 and Schedule 2, andsection 2A, are repealed on the first day after the end of that 10years.

2A When Part 3 and Schedule 2 may commence [see Note 1]

(1) The Minister must, from time to time while Part 3 and Schedule 2have not commenced, review the question of whether the amendedHague Rules should be replaced by the Hamburg Rules.

(2) The first review must be completed within 5 years of thecommencement of this section. Subsequent reviews must becompleted within 5 years of the previous review. For this purpose,a review is completed when the tabling requirement insubsection (4) has been complied with.

(3) In conducting a review, the Minister must:(a) consider the extent to which the Hamburg Rules have been

adopted internationally, in particular by Australia’s majortrading partners; and

Part 1 Preliminary

Section 3

2 Carriage of Goods by Sea Act 1991

(b) consult with representatives of shippers, ship owners,carriers, cargo owners, marine insurers and maritime lawassociations on the question whether the amended HagueRules should be replaced by the Hamburg Rules.

The Minister must then go on to decide in writing if the amendedHague Rules should be so replaced.

(4) A statement setting out the Minister’s decision on a review, andexplaining the reasons for that decision, is to be tabled in eachHouse of the Parliament within 15 sitting days of that House afterthe making of the decision.

(5) If the Minister tables a statement in each House of the Parliamentin accordance with subsection (4) setting out a decision that theamended Hague Rules should be replaced by the Hamburg Rules,the Governor-General may, by Proclamation, fix a day (subject tosubsection (6)) for the commencement of Part 3 and Schedule 2.That Part and Schedule then commence on that day.

(6) The day fixed under subsection (5) must be at least 6 months afterthe tabling requirement in subsection (4) has been complied with.

(7) If:(a) The Minister’s decision on a review is that the amended

Hague Rules should be replaced by the Hamburg Rules; and(b) Part 3 and Schedule 2 do not commence under subsection (5)

within 12 months of the tabling requirement insubsection (4) being complied with;

Part 3 and Schedule 2 commence on the first day after the end ofthat period.

3 Object of Act

(1) The object of this Act is to introduce a regime of marine cargoliability that:

(a) is up-to-date, equitable and efficient; and(b) is compatible with arrangements existing in countries that

are major trading partners of Australia; and(c) takes into account developments within the United Nations

in relation to marine cargo liability arrangements.

Preliminary Part 1

Section 4


(2) 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 BrusselsConvention as amended by the Visby Protocol and the SDRProtocol, and as modified in accordance with regulationsunder section 7; and

(b) as a second step—replacing those provisions with provisionsthat give effect to the Hamburg Convention, if the Ministerdecides, after conducting a review, that those provisionsshould be so replaced.

4 Interpretation

(1) In this Act:

amended Hague Rules has the meaning given in section 7.

Australia, when used in a geographical sense, includes theexternal Territories.

Brussels Convention means the International Convention for theUnification of Certain Rules of Law relating to Bills of Lading,done at Brussels on 25 August 1924.

Hamburg Convention means the United Nations Convention onthe Carriage of Goods by Sea, being Annex I of the Final Act ofthe United Nations Conference on the Carriage of Goods by Seadone at Hamburg 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, andincludes Australian representatives of member Associations of theInternational Group of Protection and Indemnity Associations.

maritime law associations means law associations with an interestin maritime law, whether or not they are also interested in otherareas of law.

SDR Protocol means the Protocol amending the BrusselsConvention, as amended by the Visby Protocol, done at Brusselson 21 December 1979.

Part 1 Preliminary

Section 5


Visby Protocol means the Protocol amending the BrusselsConvention, done at Brussels on 23 February 1968.

(2) A reference in this Act to a non-negotiable document includes areference to a sea waybill.

5 Act to bind Crown

This Act binds the Crown in each of its capacities.

6 Extension to external Territories

This Act extends to all the external Territories.

Application of the amended Hague Rules etc. Part 2

Section 7


Part 2—Application of the amended Hague Rulesetc.

7 The amended Hague Rules

(1) The amended Hague Rules consists of the text set out inSchedule 1, as modified in accordance with the Schedule ofmodifications referred to in subsection (2). The text set out inSchedule 1 (in its unmodified form) is the English translation ofArticles 1 to 10 of the Brussels Convention, as amended byArticles 1 to 5 of the Visby Protocol and Article II of the SDRProtocol.

(2) The regulations may amend this Act to add a Schedule (theSchedule of modifications) that modifies the text set out inSchedule 1 for the following purposes:

(a) to provide for the coverage of a wider range of sea carriagedocuments (including documents in electronic form);

(b) to provide for the coverage of contracts for the carriage ofgoods by sea from places in countries outside Australia toplaces in Australia in situations where the contracts do notincorporate, or do not otherwise have effect subject to, arelevant international convention (see subsection (6));

(c) to provide for increased coverage of deck cargo;(d) to extend the period during which carriers may incur

liability;(e) 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 inSchedule 1, however the text has effect for the purposes of this Actas if it were modified in accordance with the Schedule ofmodifications.

(3) The regulations may:(a) amend the Schedule of modifications, but only in connection

with the purposes set out in subsection (2); and

Part 2 Application of the amended Hague Rules etc.

Section 8


(b) amend the provisions of this Part to the extent necessary orappropriate, having regard to the modifications set out in theSchedule of modifications as in force from time to time.

Note: For example, regulations extending the range of sea carriagedocuments to be covered by the text in Schedule 1 may create a needfor associated amendments of sections 10 and 11.

(4) Before regulations are made for the purposes of this section, theMinister must consult with representatives of shippers, shipowners, carriers, cargo owners, marine insurers and maritime lawassociations about the regulations that are proposed to be made.

(5) For the purposes of the Amendments Incorporation Act 1905,amendments made by regulations for the purposes of this sectionare to be treated as if they had been made by an Act.

Note: This subsection ensures that the amendments can be incorporated in areprint of the Act.

(6) In this section:

relevant international convention means:(a) the Brussels Convention; or(b) the Brussels Convention as amended by either or both of the

Visby Protocol and the SDR Protocol; or(c) the Hamburg Convention.

8 The amended Hague Rules to have the force of law

Subject to section 10, the amended Hague Rules have the force oflaw in Australia.

9 Interpretation

In this Part and the amended Hague Rules, unless the contraryintention appears, a word or expression has the same meaning as ithas in the Brussels Convention as amended by the Visby Protocoland the SDR Protocol.

9A Determination of limits of a port or wharf

A determination by the Minister, for paragraph 4 of Article 1 ofthe amended Hague Rules, of the limits of a port or wharf in

Application of the amended Hague Rules etc. Part 2

Section 10


Australia is a disallowable instrument for section 46A of the ActsInterpretation Act 1901.

Note: The amended Hague Rules are set out in Schedule 1A—see ss 4(1) and7(1).

10 Application of the amended Hague Rules

(1) The amended Hague Rules only apply to a contract of carriage ofgoods by sea that:

(a) is made on or after the commencement of Schedule 1A andbefore the commencement of Part 3; and

(b) is a contract:(i) to which, under Article 10 of the amended Hague

Rules, those Rules apply; or(ii) subject to subsections (1A) and (2)—for the carriage of

goods by sea from a port in Australia to another port inAustralia; or

(iii) contained in or evidenced by a non-negotiabledocument (other than a bill of lading or similardocument of title), being a contract that containsexpress provision to the effect that the amended HagueRules are to govern the contract as if the documentwere a bill of lading.

Note: The amended Hague Rules are set out in Schedule 1A—see ss 4(1) and7(1).

(1A) If a contract for the carriage of goods by sea referred to insubparagraph 10(1)(b)(ii) is contained only in, or evidenced onlyby, a consignment note, the amended Hague Rules apply to thecontract only if paragraph 5 of Article 10 of those Rules sorequires.

(2) The amended Hague Rules do not apply in relation to the carriageof goods by sea from a port in any State or Territory in Australiato any other port in that State or Territory.

11 Construction and jurisdiction

(1) All parties to:

Part 2 Application of the amended Hague Rules etc.

Section 11


(a) a sea carriage document relating to the carriage of goodsfrom any place in Australia to any place outside Australia; or

(b) a non-negotiable document of a kind mentioned insubparagraph 10(1)(b)(iii), relating to such a carriage ofgoods;

are taken to have intended to contract according to the laws inforce at the place of shipment.

(2) An agreement (whether made in Australia or elsewhere) has noeffect so far as it purports to:

(a) preclude or limit the effect of subsection (1) in respect of abill of lading or a document mentioned in that subsection; or

(b) preclude or limit the jurisdiction of a court of theCommonwealth or of a State or Territory in respect of a billof lading or a document mentioned in subsection (1); or

(c) preclude or limit the jurisdiction of a court of theCommonwealth or of a State or Territory in respect of:

(i) a sea carriage document relating to the carriage ofgoods from any place outside Australia to any place inAustralia; or

(ii) a non-negotiable document of a kind mentioned insubparagraph 10(1)(b)(iii) relating to such a carriage ofgoods.

(3) An agreement, or a provision of an agreement, that provides forthe resolution of a dispute by arbitration is not made ineffective bysubsection (2) (despite the fact that it may preclude or limit thejurisdiction of a court) if, under the agreement or provision, thearbitration must be conducted in Australia.

Application of the Hamburg Rules etc. Part 3

Section 12


Part 3—Application of the Hamburg Rules etc.

12 The Hamburg Rules

A reference in this Act to the Hamburg Rules is a reference to theEnglish text of:

(a) Articles 1 to 26 (inclusive) of the Hamburg Convention; and(b) Annex II of the Final Act of the United Nations Conference

on the Carriage of Goods by Sea done at Hamburg on31 March 1978;

as set out in Schedule 2.

13 The Hamburg Rules to have the force of law

Subject to section 15, the Hamburg Rules have the force of law inAustralia.

14 Interpretation

In this Part and the Hamburg Rules, unless the contrary intentionappears, a word or expression has the same meaning as it has inthe Hamburg Convention.

15 Application of the Hamburg Rules

(1) The Hamburg Rules apply to a contract of carriage by sea that:(a) is made on or after the commencement of this Part; and(b) is a contract:

(i) of a kind referred to in Article 2 of the Hamburg Rules;or

(ii) subject to subsection (2), for the carriage by sea from aport in Australia to another port in Australia.

(2) The Hamburg Rules do not apply to any contract of carriage by seafrom a port in any State or Territory in Australia to any other portin that State or Territory.

Part 3 Application of the Hamburg Rules etc.

Section 16


16 Construction

(1) All parties to a contract of carriage by sea relating to the carriageof goods from any place in Australia to any place outside Australiaare taken to have intended to contract according to the provisionsof this Act.

(2) An agreement (whether made in Australia or elsewhere) has noeffect so far as it purports to preclude or limit the effect ofsubsection (1) in respect of such a contract.

Miscellaneous Part 4

Section 17


Part 4—Miscellaneous

17 Absolute undertaking to provide a seaworthy ship not implied

There is not to be implied in any contract for the carriage of goodsby sea to which Part 2 or 3 of this Act applies any absoluteundertaking by the carrier of the goods to provide a seaworthyship.

18 Act prevails over certain provisions of the Trade Practices Act1974

The provisions of this Act prevail over the provisions ofDivision 2 of Part V of the Trade Practices Act 1974 to the extentof any inconsistency.

19 Act not to affect operation of certain provisions

Nothing in this Act affects the operation of:(a) Division 10 of Part IV or Division 2 of Part VIII of the

Navigation Act 1912; or(b) the Limitation of Liability for Maritime Claims Act 1989.

20 Repeal of the Sea-Carriage of Goods Act 1924 etc.

(1) The Sea-Carriage of Goods Act 1924 is repealed.

(2) The Sea-Carriage of Goods Act 1924, as in force immediatelybefore the commencement of this section, continues to apply to acontract of carriage of goods by sea after that commencement if:

(a) the contract was made before that commencement; and(b) that Act would have applied but for the operation of

subsection (1).

Part 4 Miscellaneous

Section 21


21 Repeal of section 2C of the International Arbitration Act 1974 andsubstitution of new section

Section 2C of the International Arbitration Act 1974 is repealedand the following section is substituted:

“2C Carriage of goods by sea

Nothing in this Act affects:(a) the continued operation of section 9 of the Sea-Carriage of

Goods Act 1924 under subsection 20(2) of the Carriage ofGoods by Sea Act 1991; or

(b) the operation of section 11 or 16 of the Carriage of Goods bySea Act 1991.”

22 Regulations

The Governor-General may make regulations prescribing matters:(a) required or permitted by this Act to be prescribed; or(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

The amended Hague Rules (unmodified text) Schedule 1—


Schedule 1—The amended Hague Rules(unmodified text)Note: See section 7. This text may be modified in accordance with

subsection 7(2).

Section 7

ARTICLE 1

In this convention the following words are employed, with the meanings setout below:—

(a) “Carrier” includes the owner or the charterer who enters into a contractof carriage with a shipper.

(b) “Contract of carriage” applies only to contracts of carriage covered bya bill of lading or any similar document of title, in so far as suchdocument relates to the carriage of goods by sea, including any bill oflading or any similar document as aforesaid issued under or pursuant toa charter party from the moment at which such bill of lading or similardocument of title regulates the relations between a carrier and a holderof the same.

(c) “Goods” includes goods, wares, merchandise, and articles of every kindwhatsoever except live animals and cargo which by the contract ofcarriage is stated as being carried on deck and is so carried.

(d) “Ship” means any vessel used for the carriage of goods by sea.

(e) “Carriage of goods” covers the period from the time when the goodsare loaded on to the time they are discharged from the ship.

ARTICLE 2

Subject to the provisions of Article 6, under every contract of carriage ofgoods by sea the carrier, in relation to the loading, handling, stowage, carriage,custody, care and discharge of such goods, shall be subject to theresponsibilities and liabilities, and entitled to the rights and immunitieshereinafter set forth.

ARTICLE 3

1. The carrier shall be bound before and at the beginning of the voyage toexercise due diligence to—

(a) Make the ship seaworthy.

(b) Properly man, equip and supply the ship.

The amended Hague Rules (unmodified text)


(c) Make the holds, refrigerating and cool chambers, and all other parts ofthe ship in which goods are carried, fit and safe for their reception,carriage and preservation.

2. Subject to the provisions of Article 4, the carrier shall properly andcarefully load, handle, stow, carry, keep, care for, and discharge the goodscarried.

3. After receiving the goods into his charge the carrier or the master oragent of the carrier shall, on demand of the shipper, issue to the shipper a bill oflading showing among other things—

(a) The leading marks necessary for identification of the goods as the sameare furnished in writing by the shipper before the loading of such goodsstarts, provided such marks are stamped or otherwise shown clearlyupon the goods if uncovered, or on the cases or coverings in whichsuch goods are contained, in such a manner as should ordinarily remainlegible until the end of the voyage.

(b) Either the number of packages or pieces, or the quantity, or weight, asthe case may be, as furnished in writing by the shipper.

(c) The apparent order and condition of the goods.

Provided that no carrier, master or agent of the carrier shall be bound tostate or show in the bill of lading any marks, number, quantity, or weight whichhe has reasonable ground for suspecting not accurately to represent the goodsactually received, or which he has had no reasonable means of checking.

4. Such a bill of lading shall be prima facie evidence of the receipt by thecarrier of the goods as therein described in accordance with paragraph 3(a), (b)and (c). However, proof to the contrary shall not be admissible when the bill oflading has been transferred to a third party acting in good faith.

5. The shipper shall be deemed to have guaranteed to the carrier theaccuracy at the time of shipment of the marks, number, quantity and weight, asfurnished by him, and the shipper shall indemnify the carrier against all loss,damages and expenses arising or resulting from inaccuracies in suchparticulars. The right of the carrier to such indemnity shall in no way limit hisresponsibility and liability under the contract of carriage to any person otherthan the shipper.

6. Unless notice of loss or damage and the general nature of such loss ordamage be given in writing to the carrier or his agent at the port of dischargebefore or at the time of the removal of the goods into the custody of the personentitled to delivery thereof under the contract of carriage, or, if the loss ordamage be not apparent, within three days, such removal shall be prima facie



evidence of the delivery by the carrier of the goods as described in the bill oflading.

The notice in writing need not be given if the state of the goods has, at thetime of their receipt, been the subject of joint survey or inspection.

Subject to paragraph 6bis the carrier and the ship shall in any event bedischarged from all liability whatsoever in respect of the goods, unless suit isbrought within one year of their delivery or of the date when they should havebeen delivered. This period may, however, be extended if the parties so agreeafter the cause of action has arisen.

In the case of any actual or apprehended loss or damage the carrier and thereceiver shall give all reasonable facilities to each other for inspecting andtallying the goods.

6bis. An action for indemnity against a third person may be brought evenafter the expiration of the year provided for in the preceding paragraph ifbrought within the time allowed by the law of the court seized of the case.However, the time allowed shall be not less than three months, commencingfrom the day when the person bringing such action for indemnity has settled theclaim or has been served with process in the action against himself.

7. After the goods are loaded the bill of lading to be issued by the carrier,master, or agent of the carrier, to the shipper shall, if the shipper so demands,be a “shipped” bill of lading, provided that if the shipper shall have previouslytaken up any document of title to such goods, he shall surrender the same asagainst the issue of the “shipped” bill of lading, but at the option of the carriersuch document of title may be noted at the port of shipment by the carrier,master, or agent with the name or names of the ship or ships upon which thegoods have been shipped and the date or dates of shipment, and when so noted,if it shows the particulars mentioned in paragraph 3 of Article 3, shall for thepurpose of this article be deemed to constitute a “shipped” bill of lading.

8. Any clause, covenant, or agreement in a contract of carriage relieving thecarrier or the ship from liability for loss or damage to, or in connexion with,goods arising from negligence, fault, or failure in the duties and obligationsprovided in this article or lessening such liability otherwise than as provided inthis convention, shall be null and void and of no effect. A benefit of insurancein favour of the carrier or similar clause shall be deemed to be a clauserelieving the carrier from liability.

ARTICLE 4

1. Neither the carrier nor the ship shall be liable for loss or damage arisingor resulting from unseaworthiness unless caused by want of due diligence on



the part of the carrier to make the ship seaworthy, and to secure that the ship isproperly manned, equipped and supplied, and to make the holds, refrigeratingand cool chambers and all other parts of the ship in which goods are carried fitand safe for their reception, carriage and preservation in accordance with theprovisions of paragraph 1 of Article 3. Whenever loss or damage has resultedfrom unseaworthiness the burden of proving the exercise of due diligence shallbe on the carrier or other person claiming exemption under this article.

2. Neither the carrier nor the ship shall be responsible for loss or damagearising or resulting from—

(a) Act, neglect or default of the master, mariner, pilot, or the servants ofthe carrier in the navigation or in the management of the ship.

(b) Fire, unless caused by the actual fault or privity of the carrier.

(c) Perils, dangers and accidents of the sea or other navigable waters.

(d) Act of God.

(e) Act of war.

(f) Act of public enemies.

(g) Arrest or restraint of princes, rulers or people, or seizure under legalprocess.

(h) Quarantine restrictions.

(i) Act or omission of the shipper or owner of the goods, his agent orrepresentative.

(j) Strikes or lock-outs or stoppage or restraint of labour from whatevercause, whether partial or general.

(k) Riots and civil commotions.

(l) Saving or attempting to save life or property at sea.

(m) Wastage in bulk or weight or any other loss or damage arising frominherent defect, quality or vice of the goods.

(n) Insufficiency of packing.

(o) Insufficiency or inadequacy of marks.

(p) Latent defects not discoverable by due diligence.

(q) Any other cause arising without the actual fault or privity of the carrier,or without the fault or neglect of the agents or servants of the carrier,but the burden of proof shall be on the person claiming the benefit ofthis exception to show that neither the actual fault or privity of thecarrier nor the fault or neglect of the agents or servants of the carriercontributed to the loss or damage.



3. The shipper shall not be responsible for loss or damage sustained by thecarrier or the ship arising or resulting from any cause without the act, fault orneglect of the shipper, his agents or his servants.

4. Any deviation in saving or attempting to save life or property at sea orany reasonable deviation shall not be deemed to be an infringement or breachof this convention or of the contract of carriage, and the carrier shall not beliable for any loss or damage resulting therefrom.

5.(a) Unless the nature and value of such goods have been declared by theshipper before shipment and inserted in the bill of lading, neither the carrier northe ship shall in any event be or become liable for any loss or damage to or inconnection with the goods in an amount exceeding 666.67 units of account perpackage or unit or 2 units of account per kilogramme of gross weight of thegoods lost or damaged, whichever is the higher.

(b) The total amount recoverable shall be calculated by reference to thevalue of such goods at the place and time at which the goods are dischargedfrom the ship in accordance with the contract or should have been sodischarged.

The value of the goods shall be fixed according to the commodity exchangeprice, or, if there be no such price, according to the current market price, or, ifthere be no commodity exchange price or current market price, by reference tothe normal value of goods of the same kind and quality.

(c) Where a container, pallet or similar article of transport is used toconsolidate goods, the number of packages or units enumerated in the Bill ofLading as packed in such article of transport shall be deemed the number ofpackages or units for the purpose of this paragraph as far as these packages orunits are concerned. Except as aforesaid such article of transport shall beconsidered the package or unit.

(d) The unit of account mentioned in this Article is the Special DrawingRight as defined by the International Monetary Fund. The amounts mentionedin sub-paragraph (a) of this paragraph shall be converted into national currencyon the basis of the value of that currency on a date to be determined by the lawof the court seized of the case.

The value of the national currency, in terms of the Special Drawing Right,of a State which is a member of the International Monetary Fund, shall becalculated in accordance with the method of valuation applied by theInternational Monetary Fund in effect at the date in question for its operationsand transactions. The value of the national currency, in terms of the SpecialDrawing Right, of a State which is not a member of the International MonetaryFund, shall be calculated in a manner determined by that State.



Nevertheless, a State which is not a member of the International MonetaryFund and whose law does not permit the application of the provisions of thepreceding sentences may, at the time of ratification of the Protocol of 1979 oraccession thereto or at any time thereafter, declare that the limits of liabilityprovided for in this Convention to be applied in its territory shall be fixed asfollows:

(i) in respect of the amount of 666.67 units of account mentioned insub-paragraph (a) of paragraph 5 of this Article, 10,000 monetary units;

(ii) in respect of the amount of 2 units of account mentioned insub-paragraph (a) of paragraph 5 of this Article, 30 monetary units.

The monetary unit referred to in the preceding sentence corresponds to 65.5milligrammes of gold of millesimal fineness 900’. The conversion of theamounts specified in that sentence into the national currency shall be madeaccording to the law of the State concerned.

The calculation and the conversion mentioned in the preceding sentencesshall be made in such a manner as to express in the national currency of theState as far as possible the same real value for the amounts in sub-paragraph (a)of paragraph 5 of this Article as is expressed there in units of account.

States shall communicate to the depositary the manner of calculation or theresult of the conversion as the case may be, when depositing an instrument ofratification of the Protocol of 1979 or of accession thereto and whenever thereis a change in either.

(e) Neither the carrier nor the ship shall be entitled to the benefit of thelimitation of liability provided for in this paragraph if it is proved that thedamage resulted from an act or omission of the carrier done with intent to causedamage, or recklessly and with knowledge that damage would probably result.

(f) The declaration mentioned in sub-paragraph (a) of this paragraph, ifembodied in the Bill of Lading, shall be prima facie evidence, but shall not bebinding or conclusive on the carrier.

(g) By agreement between the carrier, master or agent of the carrier and theshipper other maximum amounts than those mentioned in sub-paragraph (a) ofthis paragraph may be fixed, provided that no maximum amount so fixed shallbe less than the appropriate maximum mentioned in that sub-paragraph.

(h) Neither the carrier nor the ship shall be responsible in any event forloss or damage to, or in connection with, goods if the nature or value thereofhas been knowingly mis-stated by the shipper in the Bill of Lading.

6. Goods of an inflammable, explosive or dangerous nature to the shipmentwhereof the carrier, master or agent of the carrier has not consented with



knowledge of their nature and character, may at any time before discharge belanded at any place, or destroyed or rendered innocuous by the carrier withoutcompensation and the shipper of such goods shall be liable for all damages andexpenses directly or indirectly arising out of or resulting from such shipment. Ifany such goods shipped with such knowledge and consent shall become adanger to the ship or cargo, they may in like manner be landed at any place, ordestroyed or rendered innocuous by the carrier without liability on the part ofthe carrier except to general average, if any.

ARTICLE 4bis

1. The defences and limits of liability provided for in this Convention shallapply in any action against the carrier in respect of loss or damage to goodscovered by a contract of carriage whether the action be founded in contract orin tort.

2. If such an action is brought against a servant or agent of the carrier (suchservant or agent not being an independent contractor), such servant or agentshall be entitled to avail himself of the defences and limits of liability whichthe carrier is entitled to invoke under this Convention.

3. The aggregate of the amounts recoverable from the carrier, and suchservants and agents, shall in no case exceed the limit provided for in thisConvention.

4. Nevertheless, a servant or agent of the carrier shall not be entitled toavail himself of the provisions of this Article, if it is proved that the damageresulted from an act or omission of the servant or agent done with intent tocause damage or recklessly and with knowledge that damage would probablyresult.

ARTICLE 5

A carrier shall be at liberty to surrender in whole or in part all or any of hisrights and immunities or to increase any of his responsibilities and obligationsunder this convention, provided such surrender or increase shall be embodiedin the Bill of Lading issued to the shipper. The provisions of this conventionshall not be applicable to charter parties, but if bills of lading are issued in thecase of a ship under a charter party they shall comply with the terms of thisconvention. Nothing in these rules shall be held to prevent the insertion in aBill of Lading of any lawful provision regarding general average.

ARTICLE 6

Notwithstanding the provisions of the preceding articles, a carrier, master oragent of the carrier and a shipper shall in regard to any particular goods be at



liberty to enter into any agreement in any terms as to the responsibility andliability of the carrier for such goods, and as to the rights and immunities of thecarrier in respect of such goods, or his obligation as to seaworthiness, so far asthis stipulation is not contrary to public policy, or the care or diligence of hisservants or agents in regard to the loading, handling, stowage, carriage,custody, care and discharge of the goods carried by sea, provided that in thiscase no bill of lading has been or shall be issued and that the terms agreed shallbe embodied in a receipt which shall be a non-negotiable document and shallbe marked as such.

Any agreement so entered into shall have full legal effect.

Provided that this article shall not apply to ordinary commercial shipmentsmade in the ordinary course of trade, but only to other shipments where thecharacter or condition of the property to be carried or the circumstances, termsand conditions under which the carriage is to be performed are such asreasonably to justify a special agreement.

ARTICLE 7

Nothing herein contained shall prevent a carrier or a shipper from enteringinto any agreement, stipulation, condition, reservation or exemption as to theresponsibility and liability of the carrier or the ship for the loss or damage to, orin connexion with, the custody and care and handling of goods prior to theloading on, and subsequent to the discharge from the ship on which the goodsare carried by sea.

ARTICLE 8

The provisions of this convention shall not affect the rights and obligationsof the carrier under any statute for the time being in force relating to thelimitation of the liability of owners of sea-going vessels.

ARTICLE 9

This Convention shall not affect the provisions of any internationalConvention or national law governing liability for nuclear damage.

ARTICLE 10

The provisions of this Convention shall apply to every Bill of Ladingrelating to the carriage of goods between ports in two different States if:

(a) the Bill of Lading is issued in a Contracting State, or

(b) the carriage is from a port in a Contracting State, or



(c) the contract contained in or evidenced by the Bill of Lading providesthat the rules of this Convention or legislation of any State giving effectto them are to govern the contract

whatever may be the nationality of the ship, the carrier, the shipper, theconsignee, or any other interested person.

Each Contracting State shall apply the provisions of this Convention to theBills of Lading mentioned above.

This Article shall not prevent a Contracting State from applying the rules ofthis Convention to Bills of Lading not included in the preceding paragraphs.

Schedule 1A— Schedule of modifications


Schedule 1A—Schedule of modificationsSubsection 7(2)

1. Modifications

1.1 The modifications of the text in Schedule 1 are:

(a) the omission from the text (reproduced below) of the portionsshown there in light type-face and struck through; and

(b) the insertion of the portions shown there in italic type.

THE AMENDED HAGUE RULES

ARTICLE 1

1. In this convention these Rules, the following words are employed, withthe meanings set out below:—

(a) “Carrier” includes the owner or the charterer who enters into a contractof carriage with a shipper.

(aa) “Consignment note” means a non-negotiable document that:

(i) contains or evidences a contract of carriage by sea in connectionwith which no bill of lading or similar document of title has beenissued; and

(ii) clearly states that no liability for any loss of, damage to or delay ofthe goods will be accepted by the carrier of the goods; and

(iii) is clearly marked as being non-negotiable.

(b) “Contract of carriage” applies only to contracts of carriage covered by abill of lading or any similar document of title, in so far as such documentrelates to the carriage of goods by sea, including any bill of lading or anysimilar document as aforesaid issued under or pursuant to a charter partyfrom the moment at which such bill of lading or similar document of titleregulates the relations between a carrier and a holder of the same.

(b) “Contract of carriage” means a contract of carriage covered by a seacarriage document (to the extent that the document relates to thecarriage of goods by sea), and includes a negotiable sea carriagedocument issued under a charterparty from the moment at which thatdocument regulates the relations between its holder and the carrierconcerned.

(ba) “Data message” means information generated, stored or communicatedby electronic, optical or analogous means (including electronic data

Schedule of modifications


interchange, electronic mail, telegram, telex or telecopy) even if theinformation is never reproduced in printed form.

(c) “Goods” includes goods, wares, merchandise, and articles of every kindwhatsoever except live animals and cargo which by the contract ofcarriage is stated as being carried on deck and is so carried.

(d) “Ship” means any vessel used for the carriage of goods by sea.

(e) “Carriage of goods by sea” covers the period during which a carrier is incharge of the goods, according to paragraph 3 of this Article from thetime when the goods are loaded on to the time they are discharged fromthe ship.

(f) “Negotiable sea carriage document” means:

(i) a bill of lading (other than a bill of lading that, by law, is notnegotiable); or

(ii) a negotiable document of title that is similar to a negotiable bill oflading and that contains or evidences a contract of carriage ofgoods by sea.

(g) “Sea carriage document” means:

(i) a bill of lading; or

(ii) a negotiable document of title that is similar to a bill of lading andthat contains or evidences a contract of carriage of goods by sea; or

(iii) a bill of lading that, by law, is not negotiable; or

(iv) a non-negotiable document (including a consignment note and adocument of the kind known as a sea waybill or the kind known as aship’s delivery order) that either contains or evidences a contract ofcarriage of goods by sea.

[NOTE: These Rules do not apply to all sea carriage documents—see Article 10.]

(h) “Writing” includes electronic mail, electronic data interchange,facsimile transmission, and entry in a database maintained on acomputer system.

2. For these Rules, goods are taken to be delivered to the consignee whenthey are delivered to, or placed at the disposal of:

(a) the consignee; or

(b) an authority to which the goods are required by law to be delivered; or

(c) a person authorised by the consignee to take delivery of the goods.

3. For these Rules:



(a) a carrier begins to be in charge of goods at the time the goods aredelivered to the carrier (or an agent or servant of the carrier) within thelimits of a port or wharf; and

(b) the carrier ceases to be in charge of the goods at the time the goods aredelivered to, or placed at the disposal of, the consignee within the limitsof the port or wharf that is the intended destination of the goods.

4. For these Rules, the limits of a port or wharf in Australia are the limitsof:

(a) the area within the limits fixed for the port or wharf by the ChiefExecutive Officer of Customs under paragraph 15 (1) (a) or (2) (a) of theCustoms Act 1901; and

(b) any terminal area used for cargo handling that has a common boundarywith the area within the limits mentioned in paragraph (a).

5. However, if the Minister is satisfied that, for a particular port or wharf,the limits worked out as set out in paragraph 4 of this Article may produce ananomalous result, the Minister may by instrument determine the limits of theport or wharf for these Rules.

6. For these Rules, the limits of a port or wharf outside Australia are thelimits fixed by any local law (including any terminal area used for cargohandling that has a common boundary with the area within those limits).

ARTICLE 1A

1. These Rules apply, with any necessary changes, to a sea carriagedocument in the form of a data message in the same way as they apply to such adocument in printed form.

2. Without limiting paragraph 1, for these Rules in their application to suchsea carriage documents:

(a) a sea carriage document is issued when a data message is generated in away that constitutes issue of such a document within the system beingused by the parties to the relevant contract of carriage; and

(b) a sea carriage document is transferred when a data message isgenerated in a way that constitutes transfer of the sea carriage documentwithin the system being used by the parties to the relevant contract ofcarriage.

ARTICLE 2

1. Subject to the provisions of this Article and Articles 6 and 6A, underevery contract of carriage of goods by sea the carrier, in relation to the loading,



handling, stowage, carriage, custody, care and discharge of such goods, shall besubject to the responsibilities and liabilities, and entitled to the rights andimmunities, set out in these Rules.

2. For paragraph 1 of this Article, “goods” includes goods (except liveanimals) carried on or above deck.

3. However, if the shipper has specific stowage requirements for goodscarried on or above deck, then, for paragraph 1 of this Article to apply, theshipper must tell the carrier in writing of those requirements at or before thetime of booking the cargo.

4. Despite Article 4bis, if a carrier carries goods on or above deck contraryto an express agreement with the shipper of the goods made at or before thetime of booking the cargo, then, for any loss or damage to the goods thatresults solely from the goods being carried on or above deck, the carrier is notentitled:

(a) to any exception or exemption under these Rules; or

(b) to any limit provided by these Rules to its liability for the loss or damage.

[NOTE: Article 6A allows a shipper and a carrier to agree that these Rules do not apply to

certain kinds of cargo that must be carried on deck—see that Article.]

ARTICLE 3

1. The carrier shall be bound before and at the beginning of the voyage toexercise due diligence to—

(a) Make the ship seaworthy.

(b) Properly man, equip and supply the ship.

(c) Make the holds, refrigerating and cool chambers, and all other parts ofthe ship in which goods are carried, fit and safe for their reception,carriage and preservation.

2. Subject to the provisions of Article 4, the carrier shall properly andcarefully load, handle, stow, carry, keep, care for, and discharge the goodscarried.

3. After receiving the goods into his charge the carrier or the master oragent of the carrier shall, on demand of the shipper, issue to the shipper abill oflading sea carriage document showing among other things—

(a) The leading marks necessary for identification of the goods as the sameare furnished in writing by the shipper before the loading of such goodsstarts, provided such marks are stamped or otherwise shown clearly uponthe goods if uncovered, or on the cases or coverings in which such goods



are contained, in such a manner as should ordinarily remain legible untilthe end of the voyage.

(b) Either the number of packages or pieces, or the quantity, or weight, asthe case may be, as furnished in writing by the shipper.

(c) The apparent order and condition of the goods.

Provided that no carrier, master or agent of the carrier shall be bound tostate or show in the bill of lading sea carriage document any marks, number,quantity, or weight which he has reasonable ground for suspecting notaccurately to represent the goods actually received, or which he has had noreasonable means of checking.

4. Such a bill of lading sea carriage document shall be prima facieevidence of the receipt by the carrier of the goods as therein described inaccordance with paragraph 3 (a), (b) and (c). However, proof to the contraryshall not be admissible when the bill of lading in the case of a negotiable seacarriage document that has been transferred to a third party acting in goodfaith.

5. The shipper shall be deemed to have guaranteed to the carrier theaccuracy at the time of shipment of the marks, number, quantity and weight, asfurnished by him, and the shipper shall indemnify the carrier against all loss,damages and expenses arising or resulting from inaccuracies in suchparticulars. The right of the carrier to such indemnity shall in no way limit hisresponsibility and liability under the contract of carriage to any person otherthan the shipper.

6. Unless notice of loss or damage and the general nature of such loss ordamage be given in writing to the carrier or his agent at the port of dischargebefore or at the time of the removal of the goods into the custody of the personentitled to delivery thereof under the contract of carriage, or, if the loss ordamage be not apparent, within three days, such removal shall be prima facieevidence of the delivery by the carrier of the goods as described in the bill ofladingsea carriage document.

The notice in writing need not be given if the state of the goods has, at thetime of their receipt, been the subject of joint survey or inspection.

Subject to paragraph 6bis the carrier and the ship shall in any event bedischarged from all liability whatsoever in respect of the goods, unless suit isbrought within one year of their delivery or of the date when they should havebeen delivered.



This period may, however, be extended if the parties so agree after the causeof action has arisen.

In the case of any actual or apprehended loss or damage the carrier and thereceiver shall give all reasonable facilities to each other for inspecting andtallying the goods.

6bis. An action for indemnity against a third person may be brought evenafter the expiration of the year provided for in the preceding paragraph ifbrought within the time allowed by the law of the court seized of the case.However, the time allowed shall be not less than three months, commencingfrom the day when the person bringing such action for indemnity has settled theclaim or has been served with process in the action against himself.

7. After the goods are loaded the sea-carriage document bill of ladingto be issued by the carrier, master, or agent of the carrier, to the shippershall, if the shipper so demands, be a “shipped” negotiable sea carriagedocumentbill of lading, provided that if the shipper shall have previouslytaken up any sea carriage document for document of title to such goods, heshall surrender the same as against the issue of the “shipped” negotiablesea carriage documentbill of lading, but at the option of the carrier anegotiable sea carriage document such document of title may be noted atthe port of shipment by the carrier, master, or agent with the name ornames of the ship or ships upon which the goods have been shipped andthe date or dates of shipment, and when so noted, if it shows theparticulars mentioned in paragraph 3 of Article 3, shall for the purpose ofthis article be deemed to constitute a “shipped” negotiable sea carriagedocumentbill of lading.

8. Any clause, covenant, or agreement in a contract of carriage relieving thecarrier or the ship from liability for loss or damage to, or in connexion with,goods arising from negligence, fault, or failure in the duties and obligationsprovided in this article or lessening such liability otherwise than as provided inthese Rulesthis convention, shall be null and void and of no effect. A benefit ofinsurance in favour of the carrier or similar clause shall be deemed to be aclause relieving the carrier from liability.

ARTICLE 4

1. Neither the carrier nor the ship shall be liable for loss or damage arisingor resulting from unseaworthiness unless caused by want of due diligence onthe part of the carrier to make the ship seaworthy, and to secure that the ship isproperly manned, equipped and supplied, and to make the holds, refrigerating



and cool chambers and all other parts of the ship in which goods are carried fitand safe for their reception, carriage and preservation in accordance with theprovisions of paragraph 1 of Article 3. Whenever loss or damage has resultedfrom unseaworthiness the burden of proving the exercise of due diligence shallbe on the carrier or other person claiming exemption under this article.

2. Neither the carrier nor the ship shall be responsible for loss or damagearising or resulting from—

(a) Act, neglect or default of the master, mariner, pilot, or the servants of thecarrier in the navigation or in the management of the ship.

(b) Fire, unless caused by the actual fault or privity of the carrier.

(c) Perils, dangers and accidents of the sea or other navigable waters.

(d) Act of God.

(e) Act of war.

(f) Act of public enemies.

(g) Arrest or restraint of princes, rulers or people, or seizure under legalprocess.

(h) Quarantine restrictions.

(i) Act or omission of the shipper or owner of the goods, his agent orrepresentative.

(j) Strikes or lock-outs or stoppage or restraint of labour from whatevercause, whether partial or general.

(k) Riots and civil commotions.

(l) Saving or attempting to save life or property at sea.

(m) Wastage in bulk or weight or any other loss or damage arising frominherent defect, quality or vice of the goods.

(n) Insufficiency of packing.

(o) Insufficiency or inadequacy of marks.

(p) Latent defects not discoverable by due diligence.

(q) Any other cause arising without the actual fault or privity of the carrier,or without the fault or neglect of the agents or servants of the carrier, butthe burden of proof shall be on the person claiming the benefit of thisexception to show that neither the actual fault or privity of the carrier northe fault or neglect of the agents or servants of the carrier contributed tothe loss or damage.

[NOTE: For the liability of a carrier for loss caused by delay, see Article 4A.]



3. The shipper shall not be responsible for loss or damage sustained by thecarrier or the ship arising or resulting from any cause without the act, fault orneglect of the shipper, his agents or his servants.

4. Any deviation in saving or attempting to save life or property at sea orany reasonable deviation shall not be deemed to be an infringement or breachofthis convention these Rules or of the contract of carriage, and the carrier shallnot be liable for any loss or damage resulting therefrom.

5.

(a) Unless the nature and value of such goods have been declared by theshipper before shipment and inserted in the bill of lading, sea carriagedocument, neither the carrier nor the ship shall in any event be or becomeliable for any loss or damage to or in connection with the goods in anamount exceeding 666.67 units of account per package or unit or 2 unitsof account per kilogramme of gross weight of the goods lost or damaged,whichever is the higher.

(b) The total amount recoverable shall be calculated by reference to thevalue of such goods at the place and time at which the goods aredischarged from the ship in accordance with the contract or should havebeen so discharged.

The value of the goods shall be fixed according to the commodity exchangeprice, or, if there be no such price, according to the current market price, or, ifthere be no commodity exchange price or current market price, by reference tothe normal value of goods of the same kind and quality.

(c) Where a container, pallet or similar article of transport is used toconsolidate goods, the number of packages or units enumerated in theBill of Lading sea carriage document as packed in such article oftransport shall be deemed the number of packages or units for thepurpose of this paragraph as far as these packages or units are concerned.Except as aforesaid such article of transport shall be considered thepackage or unit.

(d) The unit of account mentioned in this Article is the Special DrawingRight as defined by the International Monetary Fund. The amountsmentioned in sub-paragraph (a) of this paragraph shall be converted intonational currency on the basis of the value of that currency on a date tobe determined by the law of the court seized of the case.

The value of the national currency, in terms of the Special Drawing Right,of a State which is a member of the International Monetary Fund, shall becalculated in accordance with the method of valuation applied by the



International Monetary Fund in effect at the date in question for its operationsand transactions. The value of the national currency, in terms of the SpecialDrawing Right, of a State which is not a member of the International MonetaryFund, shall be calculated in a manner determined by that State.

Nevertheless, a State which is not a member of the International MonetaryFund and whose law does not permit the application of the provisions of thepreceding sentences may, at the time of ratification of the Protocol of 1979 oraccession thereto or at any time thereafter, declare that the limits of liabilityprovided for in this Convention these Rules to be applied in its territory shall befixed as follows:

(i) in respect of the amount of 666.67 units of account mentioned insub-paragraph (a) of paragraph 5 of this Article, 10,000 monetary units;

(ii) in respect of the amount of 2 units of account mentioned insub-paragraph (a) of paragraph 5 of this Article, 30 monetary units.

The monetary unit referred to in the preceding sentence corresponds to 65.5milligrammes of gold of millesimal fineness 900’. The conversion of theamounts specified in that sentence into the national currency shall be madeaccording to the law of the State concerned.

The calculation and the conversion mentioned in the preceding sentencesshall be made in such a manner as to express in the national currency of theState as far as possible the same real value for the amounts in sub-paragraph (a)of paragraph 5 of this Article as is expressed there in units of account.

States shall communicate to the depositary the manner of calculation or theresult of the conversion as the case may be, when depositing an instrument ofratification of the Protocol of 1979 or of accession thereto and whenever thereis a change in either.

(e) Neither the carrier nor the ship shall be entitled to the benefit of thelimitation of liability provided for in this paragraph if it is proved that thedamage resulted from an act or omission of the carrier done with intentto cause damage, or recklessly and with knowledge that damage wouldprobably result.

(f) The declaration mentioned in sub-paragraph (a) of this paragraph, ifembodied in the Bill of Lading, sea carriage document, shall be primafacie evidence, but shall not be binding or conclusive on the carrier.

(g) By agreement between the carrier, master or agent of the carrier and theshipper other maximum amounts than those mentioned insub-paragraph (a) of this paragraph may be fixed, provided that no



maximum amount so fixed shall be less than the appropriate maximummentioned in that sub-paragraph.

(h) Neither the carrier nor the ship shall be responsible in any event for lossor damage to, or in connection with, goods if the nature or value thereofhas been knowingly mis-stated by the shipper in theBill of Lading seacarriage document .

6. Goods of an inflammable, explosive or dangerous nature to the shipmentwhereof the carrier, master or agent of the carrier has not consented withknowledge of their nature and character, may at any time before discharge belanded at any place, or destroyed or rendered innocuous by the carrier withoutcompensation and the shipper of such goods shall be liable for all damages andexpenses directly or indirectly arising out of or resulting from such shipment. Ifany such goods shipped with such knowledge and consent shall become adanger to the ship or cargo, they may in like manner be landed at any place, ordestroyed or rendered innocuous by the carrier without liability on the part ofthe carrier except to general average, if any.

ARTICLE 4A

1. Despite Article 4, a carrier is liable to a shipper for loss (including butnot limited to, pure economic loss, loss of markets or deterioration) caused tothe shipper by the shipper’s goods being delayed while the carrier is in chargeof the goods unless the carrier establishes, on the balance of probabilities,that:

(a) the delay was excusable; and

(b) the carrier (or, if at the time of the delay, the goods were under thecontrol of servants or agents of the carrier, those servants or agents)took all measures that were reasonably required to avoid the delay andits consequences.

[NOTE: For the meaning of “in charge of the goods”, see paragraph 2 of Article 1.]

2. For this Article, goods have been delayed if they are not delivered at theport of discharge specified in the relevant contract for carriage of goods:

(a) within the time allowed in the contract for that purpose; or

(b) if the contract does not specify a time for that purpose—within areasonable time for delivery, at that port, of similar goods carried by adiligent carrier (having regard to any particular circumstances of thecase and the intentions of the shipper and the carrier).

[NOTE: For the meaning of “delivered”, see paragraph 1A of Article 1.]

3. For paragraph 1 (a) of this Article, a delay is excusable only if:



(a) it is caused by a deviation authorised by the shipper, or by a term in thecontract of carriage; or

(b) it is caused by circumstances beyond the reasonable control of thecarrier or its servants or agents; or

(c) it is reasonably necessary to comply with an express or impliedwarranty; or

(d) it is reasonably necessary for the safety of the ship or its cargo; or

(e) it is for the purposes of saving human life or aiding a ship in distress; or

(f) it is reasonably necessary for the purpose of obtaining medical orsurgical aid for a person on board; or

(g) it is caused by barratrous conduct of the master or crew; or

(h) paragraph 4 of this Article applies.

4. For paragraph 1 (a) of this Article, a delay caused by industrial action isexcusable if the industrial action was not substantially caused, or substantiallycontributed to, by unreasonable conduct of the carrier.

5. For paragraph 4, conduct of servants or agents of the carrier is nottaken to be conduct of the carrier if the servants or agents engaged in theconduct without the carrier’s express or implied authority.

6. The quantum of the carrier’s liability for loss caused by the delay islimited to whichever is the lesser of:

(a) the actual amount of the loss; or

(b) two and a half times the sea freight payable for the goods delayed; or

(c) the total amount payable as sea freight for all of the goods shipped bythe shipper concerned under the contract of carriage concerned.

7. To avoid doubt, nothing in Article 4 or this Article prevents a carrierbeing liable to a shipper under both Article 4 and this Article.

ARTICLE 4bis

1. The defences and limits of liability provided for in this Convention theseRules shall apply in any action against the carrier in respect of loss or damageto goods covered by a contract of carriage whether the action be founded incontract or in tort.

2. If such an action is brought against a servant or agent of the carrier (suchservant or agent not being an independent contractor), such servant or agentshall be entitled to avail himself of the defences and limits of liability whichthe carrier is entitled to invoke under this Convention these Rules.



3. The aggregate of the amounts recoverable from the carrier, and suchservants and agents, shall in no case exceed the limit provided for in thisConvention these Rules.

4. Nevertheless, a servant or agent of the carrier shall not be entitled toavail himself of the provisions of this Article, if it is proved that the damageresulted from an act or omission of the servant or agent done with intent tocause damage or recklessly and with knowledge that damage would probablyresult.

ARTICLE 5

A carrier shall be at liberty to surrender in whole or in part all or any of hisrights and immunities or to increase any of his responsibilities and obligationsunder this conventionthese Rules, provided such surrender or increase shall beembodied in the Bill of Lading sea carriage document issued to the shipper.The provisions of this convention these Rules shall not be applicable to charterparties, but if negotiable sea carriage documents bills of lading are issued inthe case of a ship under a charter party they shall comply with the terms of thisconvention these Rules. Nothing in these rules shall be held to prevent theinsertion in a Bill of Lading sea carriage document of any lawful provisionregarding general average.

ARTICLE 6

Notwithstanding the provisions of the preceding articles, a carrier, master oragent of the carrier and a shipper shall in regard to any particular goods be atliberty to enter into any agreement in any terms as to the responsibility andliability of the carrier for such goods, and as to the rights and immunities of thecarrier in respect of such goods, or his obligation as to seaworthiness, so far asthis stipulation is not contrary to public policy, or the care or diligence of hisservants or agents in regard to the loading, handling, stowage, carriage,custody, care and discharge of the goods carried by sea provided that in thiscase no bill of lading has been or shall be issued and that the terms agreed shallbe embodied in a receipt which shall be a non-negotiable document and shallbe marked as such.

However:

(a) the terms so agreed must be set out in a receipt or consignment note; and

(b) the receipt or consignment note must be, and must be marked as being,non-negotiable; and

(c) the receipt or note must state that no other sea carriage document hasbeen, or will be, issued for the carriage.



Any agreement so entered into shall have full legal effect.

Provided that this article shall not apply to ordinary commercial shipmentsmade in the ordinary course of trade, but only to other shipments where thecharacter or condition of the property to be carried or the circumstances, termsand conditions under which the carriage is to be performed are such asreasonably to justify a special agreement.

ARTICLE 6A

1. A shipper of goods and the carrier of the goods may agree in writing, ator before the time the cargo is booked, that these Rules do not apply to thecarriage of the goods if:

(a) the goods must be carried on deck; and

(b) the character or condition of the goods reasonably justifies a specialagreement regarding the carriage of the goods on deck.

2. In paragraph 1, goods:

(a) does not include containerised goods (that is, goods that are carried inor on cellular equipment that is capable, after the goods are loaded intoor onto it, of being carried in the standard cell guides of a cellularcontainer ship, whether or not the equipment in or on which the goodsare loaded is carried within such cell guides during its carriage by sea);and

(b) includes breakbulk cargo (including breakbulk cargo that is too large tofit into the standard cell guides of a cellular container ship even ifcellular equipment of some kind is used to carry it).

[NOTE: The standard cell guides of a cellular container ship are designed primarily to holdcontainers measuring either 20 feet by 8 feet by 8 feet 6 inches, or 40 feet by 8 feet by 8 feet 6inches (although they may be able to accommodate other kinds of standard cellular equipment).

3. An agreement under this Article has effect only if the sea carriagedocument for the carriage of the goods bears a statement endorsed on its facethat the shipper and the carrier have entered into it.

4. This Article applies to all shipments of goods referred to in paragraph 1,including ordinary commercial shipments made in the ordinary course of trade.

ARTICLE 7

Nothing herein contained shall prevent a carrier or a shipper from enteringinto any agreement, stipulation, condition, reservation or exemption as to theresponsibility and liability of the carrier or the ship for the loss or damage to, orin connexion with, the custody and care and handling of goods prior to the



loading on, and subsequent to the discharge from the ship on which the goodsare carried by sea.

ARTICLE 8

The provisions of this convention These Rules shall not affect the rights andobligations of the carrier under any statute for the time being in force relatingto the limitation of the liability of owners of sea-going vessels.

ARTICLE 9

This ConventionThese Rules shall not affect the provisions of anyinternational Convention or national law governing liability for nucleardamage.

ARTICLE 10

1. The provisions of this Convention shall Subject to paragraph 6, theseRules apply toevery sea carriage documents Bill of Lading relating to thecarriage of goods from ports in Australia to ports outside Australia twodifferent States, regardless of the form in which the sea carriage document isissued.if:

(a) the Bill of Lading is issued in a Contracting State, or

(b) the carriage is from a port in a Contracting State., or

(c) the contract contained in or evidenced by the Bill of Lading provides thatthe rules of this Convention or legislation of any State giving effect tothem are to govern the contract;

whatever may be the nationality of the ship, the carrier, the shipper, theconsignee, or any other interested person.

[NOTE: For the meaning of “sea carriage document”, see paragraph 1 (g) of Article 1.]

2. Subject to paragraph 6, these Rules apply to the carriage of goods by seafrom ports outside Australia to ports in Australia, unless one of theConventions mentioned in paragraph 3 (or a modification of such a Conventionby the law of a contracting State) applies, by agreement or by law, to thecarriage, or otherwise has effect in relation to the carriage.

3. The Conventions are:

(a) the Brussels Convention;

(b) the Brussels Convention as amended by either the Visby Protocol or theSDR Protocol or both;

(c) the Hamburg Convention.



4. Subject to paragraphs 5 and 6, these Rules apply to a sea carriagedocument that contains or evidences a contract for the carriage of goods by seafrom a port in a State or Territory in Australia to a port in another State orTerritory in Australia.

5. If a contract for the carriage of goods by sea from a port in a State orTerritory in Australia to a port in another State or Territory in Australia iscontained only in or evidenced only by a consignment note, these Rules applyonly if the goods:

(a) are to be carried onwards by sea to, or are being carried onwards by seafrom, a port outside Australia; and

(b) have been declared to the carrier in writing to be international cargo.

6. These Rules do not apply to the carriage of goods by sea under acharterparty unless a sea carriage document is issued for the carriage.

7. These Rules apply to a sea carriage document issued under acharterparty only if the sea carriage document is a negotiable sea carriagedocument, and only while the document regulates the relationship between theholder of it and the carrier of the relevant goods.

Each Contracting State shall apply the provisions of this Convention to theBills of Lading mentioned above.

This Article shall not prevent a Contracting State from applying the rules ofthis Convention to Bills of Lading not included in the preceding paragraphs.

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Schedule 2—The Hamburg RulesSection 12

PART I. GENERAL PROVISIONS

Article 1. Definitions

In this Convention:

1. “Carrier” means any person by whom or in whose name a contract ofcarriage of goods by sea has been concluded with a shipper.

2. “Actual carrier” means any person to whom the performance of thecarriage of the goods, or of part of the carriage, has been entrusted by thecarrier, and includes any other person to whom such performance has beenentrusted.

3. “Shipper” means any person by whom or in whose name or on whosebehalf a contract of carriage of goods by sea has been concluded with a carrier,or any person by whom or in whose name or on whose behalf the goods areactually delivered to the carrier in relation to the contract of carriage by sea.

4. “Consignee” means the person entitled to take delivery of the goods.

5. “Goods” includes live animals; where the goods are consolidated in acontainer, pallet or similar article of transport or where they are packed,“goods” includes such article of transport or packaging if supplied by theshipper.

6. “Contract of carriage by sea” means any contract whereby the carrierundertakes against payment of freight to carry goods by sea from one port toanother; however, a contract which involves carriage by sea and also carriageby some other means is deemed to be a contract of carriage by sea for thepurposes of this Convention only in so far as it relates to the carriage by sea.

7. “Bill of lading” means a document which evidences a contract ofcarriage by sea and the taking over or loading of the goods by the carrier, andby which the carrier undertakes to deliver the goods against surrender of thedocument. A provision in the document that the goods are to be delivered to theorder of a named person, or to order, or to bearer, constitutes such anundertaking.

8. “Writing” includes, inter alia, telegram and telex.

Article 2. Scope of application

1. The provisions of this Convention are applicable to all contracts ofcarriage by sea between two different States, if:

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(a) the port of loading as provided for in the contract of carriage by sea islocated in a Contracting State, or

(b) the port of discharge as provided for in the contract of carriage by sea islocated in a Contracting State, or

(c) one of the optional ports of discharge provided for in the contract ofcarriage by sea is the actual port of discharge and such port is located ina Contracting State, or

(d) the bill of lading or other document evidencing the contract of carriageby sea is issued in a Contracting State, or

(e) the bill of lading or other document evidencing the contract of carriageby sea provides that the provisions of this Convention or the legislationof any State giving effect to them are to govern the contract.

2. The provisions of this Convention are applicable without regard to thenationality of the ship, the carrier, the actual carrier, the shipper, the consigneeor any other interested person.

3. The provisions of this Convention are not applicable to charter-parties.However, where a bill of lading is issued pursuant to a charter-party, theprovisions of the Convention apply to such a bill of lading if it governs therelation between the carrier and the holder of the bill of lading, not being thecharterer.

4. If a contract provides for future carriage of goods in a series ofshipments during an agreed period, the provisions of this Convention apply toeach shipment. However, where a shipment is made under a charter-party, theprovisions of paragraph 3 of this article apply.

Article 3. Interpretation of the Convention

In the interpretation and application of the provisions of this Conventionregard shall be had to its international character and to the need to promoteuniformity.

PART II. LIABILITY OF THE CARRIER

Article 4. Period of responsibility

1. The responsibility of the carrier for the goods under this Conventioncovers the period during which the carrier is in charge of the goods at the portof loading, during the carriage and at the port of discharge.

2. For the purpose of paragraph 1 of this article, the carrier is deemed to bein charge of the goods

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(a) from the time he has taken over the goods from:

(i) the shipper, or a person acting on his behalf; or

(ii) an authority or other third party to whom, pursuant to law orregulations applicable at the port of loading, the goods must behanded over for shipment;

(b) until the time he has delivered the goods:

(i) by handing over the goods to the consignee; or

(ii) in cases where the consignee does not receive the goods from thecarrier, by placing them at the disposal of the consignee inaccordance with the contract or with the law or with the usage ofthe particular trade, applicable at the port of discharge; or

(iii) by handing over the goods to an authority or other third party towhom, pursuant to law or regulations applicable at the port ofdischarge, the goods must be handed over.

3. In paragraphs 1 and 2 of this article, reference to the carrier or to theconsignee means, in addition to the carrier or the consignee, the servants oragents, respectively of the carrier or the consignee.

Article 5. Basis of liability

1. The carrier is liable for loss resulting from loss of or damage to thegoods, as well as from delay in delivery, if the occurrence which caused theloss, damage or delay took place while the goods were in his charge as definedin article 4, unless the carrier proves that he, his servants or agents took allmeasures that could reasonably be required to avoid the occurrence and itsconsequences.

2. Delay in delivery occurs when the goods have not been delivered at theport of discharge provided for in the contract of carriage by sea within the timeexpressly agreed upon or, in the absence of such agreement, within the timewhich it would be reasonable to require of a diligent carrier, having regard tothe circumstances of the case.

3. The person entitled to make a claim for the loss of goods may treat thegoods as lost if they have not been delivered as required by article 4 within 60consecutive days following the expiry of the time for delivery according toparagraph 2 of this article.

4.(a) The carrier is liable

(i) for loss of or damage to the goods or delay in delivery caused by fire, ifthe claimant proves that the fire arose from fault or neglect on the partof the carrier, his servants or agents;

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(ii) for such loss, damage or delay in delivery which is proved by theclaimant to have resulted from the fault or neglect of the carrier, hisservants or agents, in taking all measures that could reasonably berequired to put out the fire and avoid or mitigate its consequences.

(b) In case of fire on board the ship affecting the goods, if the claimant orthe carrier so desires, a survey in accordance with shipping practices must beheld into the cause and circumstances of the fire, and a copy of the surveyor’sreport shall be made available on demand to the carrier and the claimant.

5. With respect to live animals, the carrier is not liable for loss, damage ordelay in delivery resulting from any special risks inherent in that kind ofcarriage. If the carrier proves that he has complied with any special instructionsgiven to him by the shipper respecting the animals and that, in thecircumstances of the case, the loss, damage or delay in delivery could beattributed to such risks, it is presumed that the loss, damage or delay in deliverywas so caused, unless there is proof that all or a part of the loss, damage ordelay in delivery resulted from fault or neglect on the part of the carrier, hisservants or agents.

6. The carrier is not liable, except in general average, where loss, damageor delay in delivery resulted from measures to save life or from reasonablemeasures to save property at sea.

7. Where fault or neglect on the part of the carrier, his servants or agentscombines with another cause to produce loss, damage or delay in delivery thecarrier is liable only to the extent that the loss, damage or delay in delivery isattributable to such fault or neglect, provided that the carrier proves the amountof the loss, damage or delay in delivery not attributable thereto.

Article 6. Limits of liability

1.(a) The liability of the carrier for loss resulting from loss of or damage togoods according to the provisions of article 5 is limited to an amountequivalent to 835 units of account per package or other shipping unit or 2.5units of account per kilogramme of gross weight of the goods lost or damaged,whichever is the higher.

(b) The liability of the carrier for delay in delivery according to theprovisions of article 5 is limited to an amount equivalent to two and a halftimes the freight payable for the goods delayed, but not exceeding the totalfreight payable under the contract of carriage of goods by sea.

(c) In no case shall the aggregate liability of the carrier, under bothsubparagraphs (a) and (b) of this paragraph, exceed the limitation which would

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be established under subparagraph (a) of this paragraph for total loss of thegoods with respect to which such liability was incurred.

2. For the purpose of calculating which amount is the higher in accordancewith paragraph 1(a) of this article, the following rules apply:

(a) Where a container, pallet or similar article of transport is used toconsolidate goods, the package or other shipping units enumerated in the bill oflading, if issued, or otherwise in any other document evidencing the contract ofcarriage by sea, as packed in such article of transport are deemed packages orshipping units. Except as aforesaid the goods in such article of transport aredeemed one shipping unit.

(b) In cases where the article of transport itself has been lost or damaged,that article of transport, if not owned or otherwise supplied by the carrier, isconsidered one separate shipping unit.

3. Unit of account means the unit of account mentioned in article 26.

4. By agreement between the carrier and the shipper, limits of liabilityexceeding those provided for in paragraph 1 may be fixed.

Article 7. Application to non-contractual claims

1. The defences and limits of liability provided for in this Convention applyin any action against the carrier in respect of loss or damage to the goodscovered by the contract of carriage by sea, as well as of delay in deliverywhether the action is founded in contract, in tort or otherwise.

2. If such an action is brought against a servant or agent of the carrier, suchservant or agent, if he proves that he acted within the scope of his employment,is entitled to avail himself of the defences and limits of liability which thecarrier is entitled to invoke under this Convention.

3. Except as provided in article 8, the aggregate of the amounts recoverablefrom the carrier and from any persons referred to in paragraph 2 of this articleshall not exceed the limits of liability provided for in this Convention.

Article 8. Loss of right to limit responsibility1. The carrier is not entitled to the benefit of the limitation of liability

provided for in article 6 if it is proved that the loss, damage or delay in deliveryresulted from an act or omission of the carrier done with the intent to causesuch loss, damage or delay, or recklessly and with knowledge that such loss,damage or delay would probably result.

2. Notwithstanding the provisions of paragraph 2 of article 7, a servant oragent of the carrier is not entitled to the benefit of the limitation of liabilityprovided for in article 6 if it is proved that the loss, damage or delay in delivery

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resulted from an act or omission of such servant or agent, done with the intentto cause such loss, damage or delay, or recklessly and with knowledge thatsuch loss, damage or delay would probably result.

Article 9. Deck cargo1. The carrier is entitled to carry the goods on deck only if such carriage is

in accordance with an agreement with the shipper or with the usage of theparticular trade or is required by statutory rules or regulations.

2. If the carrier and the shipper have agreed that the goods shall or may becarried on deck, the carrier must insert in the bill of lading or other documentevidencing the contract of carriage by sea a statement to that effect. In theabsence of such a statement the carrier has the burden of proving that anagreement for carriage on deck has been entered into; however, the carrier isnot entitled to invoke such an agreement against a third party, including aconsignee, who has acquired the bill of lading in good faith.

3. Where the goods have been carried on deck contrary to the provisions ofparagraph 1 of this article or where the carrier may not under paragraph 2 ofthis article invoke an agreement for carriage on deck, the carrier,notwithstanding the provisions of paragraph 1 of article 5, is liable for loss ofor damage to the goods, as well as for delay in delivery, resulting solely fromthe carriage on deck, and the extent of his liability is to be determined inaccordance with the provisions of article 6 or article 8 of this Convention, asthe case may be.

4. Carriage of goods on deck contrary to express agreement for carriageunder deck is deemed to be an act or omission of the carrier within the meaningof article 8.

Article 10. Liability of the carrier and actual carrier

1. Where the performance of the carriage or part thereof has been entrustedto an actual carrier, whether or not in pursuance of a liberty under the contractof carriage by sea to do so, the carrier nevertheless remains responsible for theentire carriage according to the provisions of this Convention. The carrier isresponsible, in relation to the carriage performed by the actual carrier, for theacts and omissions of the actual carrier and of his servants and agents actingwithin the scope of their employment.

2. All the provisions of this Convention governing the responsibility of thecarrier also apply to the responsibility of the actual carrier for the carriageperformed by him. The provisions of paragraphs 2 and 3 of article 7 and ofparagraph 2 of article 8 apply if an action is brought against a servant or agentof the actual carrier.

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3. Any special agreement under which the carrier assumes obligations notimposed by this Convention or waives rights conferred by this Conventionaffects the actual carrier only if agreed to by him expressly and in writing.Whether or not the actual carrier has so agreed, the carrier nevertheless remainsbound by the obligations or waivers resulting from such special agreement.

4. Where and to the extent that both the carrier and the actual carrier areliable, their liability is joint and several.

5. The aggregate of the amounts recoverable from the carrier, the actualcarrier and their servants and agents shall not exceed the limits of liabilityprovided for in this Convention.

6. Nothing in this article shall prejudice any right of recourse as betweenthe carrier and the actual carrier.

Article 11. Through carriage

1. Notwithstanding the provisions of paragraph 1 of article 10, where acontract of carriage by sea provides explicitly that a specified part of thecarriage covered by the said contract is to be performed by a named personother than the carrier, the contract may also provide that the carrier is not liablefor loss, damage or delay in delivery caused by an occurrence which takesplace while the goods are in the charge of the actual carrier during such part ofthe carriage. Nevertheless, any stipulation limiting or excluding such liability iswithout effect if no judicial proceedings can be instituted against the actualcarrier in a court competent under paragraph 1 or 2 of article 21. The burden ofproving that any loss, damage or delay in delivery has been caused by such anoccurrence rests upon the carrier.

2. The actual carrier is responsible in accordance with the provisions ofparagraph 2 of article 10 for loss, damage or delay in delivery caused by anoccurrence which takes place while the goods are in his charge.

PART III. LIABILITY OF THE SHIPPER

Article 12. General rule

The shipper is not liable for loss sustained by the carrier or the actualcarrier, or for damage sustained by the ship, unless such loss or damage wascaused by the fault or neglect of the shipper, his servants or agents. Nor is anyservant or agent of the shipper liable for such loss or damage unless the loss ordamage was caused by fault or neglect on his part.

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Article 13. Special rules on dangerous goods

1. The shipper must mark or label in a suitable manner dangerous goods asdangerous.

2. Where the shipper hands over dangerous goods to the carrier or an actualcarrier, as the case may be, the shipper must inform him of the dangerouscharacter of the goods and, if necessary, of the precautions to be taken. If theshipper fails to do so and such carrier or actual carrier does not otherwise haveknowledge of their dangerous character:

(a) the shipper is liable to the carrier and any actual carrier for the lossresulting from the shipment of such goods, and

(b) the goods may at any time be unloaded, destroyed or renderedinnocuous, as the circumstances may require, without payment ofcompensation.

3. The provisions of paragraph 2 of this article may not be invoked by anyperson if during the carriage he has taken the goods in his charge withknowledge of their dangerous character.

4. If, in cases where the provisions of paragraph 2, subparagraph (b), of thisarticle do not apply or may not be invoked, dangerous goods become an actualdanger to life or property, they may be unloaded, destroyed or renderedinnocuous, as the circumstances may require, without payment ofcompensation except where there is an obligation to contribute in generalaverage or where the carrier is liable in accordance with the provisions ofarticle 5.

PART IV. TRANSPORT DOCUMENTS

Article 14. Issue of bill of lading

1. When the carrier or the actual carrier takes the goods in his charge, thecarrier must, on demand of the shipper, issue to the shipper a bill of lading.

2. The bill of lading may be signed by a person having authority from thecarrier. A bill of lading signed by the master of the ship carrying the goods isdeemed to have been signed on behalf of the carrier.

3. The signature on the bill of lading may be in handwriting, printed infacsimile, perforated, stamped, in symbols, or made by any other mechanical orelectronic means, if not inconsistent with the law of the country where the billof lading is issued.

Article 15. Contents of bill of lading

1. The bill of lading must include, inter alia, the following particulars:

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(a) the general nature of the goods, the leading marks necessary foridentification of the goods, an express statement, if applicable, as to thedangerous character of the goods, the number of packages or pieces, and theweight of the goods or their quantity otherwise expressed, all such particularsas furnished by the shipper;

(b) the apparent condition of the goods;

(c) the name and principal place of business of the carrier;

(d) the name of the shipper;

(e) the consignee if named by the shipper;

(f) the port of loading under the contract of carriage by sea and the date onwhich the goods were taken over by the carrier at the port of loading;

(g) the port of discharge under the contract of carriage by sea;

(h) the number of originals of the bill of lading, if more than one;

(i) the place of issuance of the bill of lading;

(j) the signature of the carrier or a person acting on his behalf;

(k) the freight to the extent payable by the consignee or other indicationthat freight is payable by him;

(l) the statement referred to in paragraph 3 of article 23;

(m) the statement, if applicable, that the goods shall or may be carried ondeck;

(n) the date or the period of delivery of the goods at the port of discharge ifexpressly agreed upon between the parties; and

(o) any increased limit or limits of liability where agreed in accordancewith paragraph 4 of article 6.

2. After the goods have been loaded on board, if the shipper so demands,the carrier must issue to the shipper a “shipped” bill of lading which, inaddition to the particulars required under paragraph 1 of this article, must statethat the goods are on board a named ship or ships, and the date or dates ofloading. If the carrier has previously issued to the shipper a bill of lading orother document of title with respect to any of such goods, on request of thecarrier, the shipper must surrender such document in exchange for a “shipped”bill of lading. The carrier may amend any previously issued document in orderto meet the shipper’s demand for a “shipped” bill of lading if, as amended, suchdocument includes all the information required to be contained in a “shipped”bill of lading.

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3. The absence in the bill of lading of one or more particulars referred to inthis article does not affect the legal character of the document as a bill of ladingprovided that it nevertheless meets the requirements set out in paragraph 7 ofarticle 1.

Article 16. Bills of lading: reservations and evidentiary effect

1. If the bill of lading contains particulars concerning the general nature,leading marks, number of packages or pieces, weight or quantity of the goodswhich the carrier or other person issuing the bill of lading on his behalf knowsor has reasonable grounds to suspect do not accurately represent the goodsactually taken over or, where a “shipped” bill of lading is issued, loaded, or ifhe had no reasonable means of checking such particulars, the carrier or suchother person must insert in the bill of lading a reservation specifying theseinaccuracies, grounds of suspicion or the absence of reasonable means ofchecking.

2. If the carrier or other person issuing the bill of lading on his behalf failsto note on the bill of lading the apparent condition of the goods, he is deemedto have noted on the bill of lading that the goods were in apparent goodcondition.

3. Except for particulars in respect of which and to the extent to which areservation permitted under paragraph 1 of this article has been entered:

(a) the bill of lading is prima facie evidence of the taking over or, where a“shipped” bill of lading is issued, loading, by the carrier of the goods asdescribed in the bill of lading; and

(b) proof to the contrary by the carrier is not admissible if the bill of ladinghas been transferred to a third party, including a consignee, who in good faithhas acted in reliance on the description of the goods therein.

4. A bill of lading which does not, as provided in paragraph 1,subparagraph (k) of article 15, set forth the freight or otherwise indicate thatfreight is payable by the consignee or does not set forth demurrage incurred atthe port of loading payable by the consignee, is prima facie evidence that nofreight or such demurrage is payable by him. However, proof to the contrary bythe carrier is not admissible when the bill of lading has been transferred to athird party, including a consignee, who in good faith has acted in reliance onthe absence in the bill of lading of any such indication.

Article 17. Guarantees by the shipper

1. The shipper is deemed to have guaranteed to the carrier the accuracy ofparticulars relating to the general nature of the goods, their marks, number,

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weight and quantity as furnished by him for insertion in the bill of lading. Theshipper must indemnify the carrier against the loss resulting from inaccuraciesin such particulars. The shipper remains liable even if the bill of lading hasbeen transferred by him. The right of the carrier to such indemnity in no waylimits his liability under the contract of carriage by sea to any person other thanthe shipper.

2. Any letter of guarantee or agreement by which the shipper undertakes toindemnify the carrier against loss resulting from the issuance of the bill oflading by the carrier, or by a person acting on his behalf, without entering areservation relating to particulars furnished by the shipper for insertion in thebill of lading, or to the apparent condition of the goods, is void and of no effectas against any third party, including a consignee, to whom the bill of lading hasbeen transferred.

3. Such letter of guarantee or agreement is valid as against the shipperunless the carrier or the person acting on his behalf, by omitting the reservationreferred to in paragraph 2 of this article, intends to defraud a third party,including a consignee, who acts in reliance on the description of the goods inthe bill of lading. In the latter case, if the reservation omitted relates toparticulars furnished by the shipper for insertion in the bill of lading, the carrierhas no right of indemnity from the shipper pursuant to paragraph 1 of thisarticle.

4. In the case of intended fraud referred to in paragraph 3 of this article thecarrier is liable, without the benefit of the limitation of liability provided for inthis Convention, for the loss incurred by a third party, including a consignee,because he has acted in reliance on the description of the goods in the bill oflading.

Article 18. Documents other than bills of lading

Where a carrier issues a document other than a bill of lading to evidence thereceipt of the goods to be carried, such a document is prima facie evidence ofthe conclusion of the contract of carriage by sea and the taking over by thecarrier of the goods as therein described.

PART V. CLAIMS AND ACTIONS

Article 19. Notice of loss, damage or delay

1. Unless notice of loss or damage, specifying the general nature of suchloss or damage, is given in writing by the consignee to the carrier not later thanthe working day after the day when the goods were handed over to theconsignee, such handing over is prima facie evidence of the delivery by the

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carrier of the goods as described in the document of transport or, if no suchdocument has been issued, in good condition.

2. Where the loss or damage is not apparent, the provisions of paragraph 1of this article apply correspondingly if notice in writing is not given within 15consecutive days after the day when the goods were handed over to theconsignee.

3. If the state of the goods at the time they were handed over to theconsignee has been the subject of a joint survey or inspection by the parties,notice in writing need not be given of loss or damage ascertained during suchsurvey or inspection.

4. In the case of any actual or apprehended loss or damage the carrier andthe consignee must give all reasonable facilities to each other for inspectingand tallying the goods.

5. No compensation shall be payable for loss resulting from delay indelivery unless a notice has been given in writing to the carrier within 60consecutive days after the day when the goods were handed over to theconsignee.

6. If the goods have been delivered by an actual carrier, any notice givenunder this article to him shall have the same effect as if it had been given to thecarrier, and any notice given to the carrier shall have effect as if given to suchactual carrier.

7. Unless notice of loss or damage, specifying the general nature of the lossor damage, is given in writing by the carrier or actual carrier to the shipper notlater than 90 consecutive days after the occurrence of such loss or damage orafter the delivery of the goods in accordance with paragraph 2 of article 4,whichever is later, the failure to give such notice is prima facie evidence thatthe carrier or the actual carrier has sustained no loss or damage due to the faultor neglect of the shipper, his servants or agents.

8. For the purpose of this article, notice given to a person acting on thecarrier’s or the actual carrier’s behalf, including the master or the officer incharge of the ship, or to a person acting on the shipper’s behalf is deemed tohave been given to the carrier, to the actual carrier or to the shipper,respectively.

Article 20. Limitation of actions

1. Any action relating to carriage of goods under this Convention istime-barred if judicial or arbitral proceedings have not been instituted within aperiod of two years.

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2. The limitation period commences on the day on which the carrier hasdelivered the goods or part thereof or, in cases where no goods have beendelivered, on the last day on which the goods should have been delivered.

3. The day on which the limitation period commences is not included in theperiod.

4. The person against whom a claim is made may at any time during therunning of the limitation period extend that period by a declaration in writing tothe claimant. This period may be further extended by another declaration ordeclarations.

5. An action for indemnity by a person held liable may be instituted evenafter the expiration of the limitation period provided for in the precedingparagraphs if instituted within the time allowed by the law of the State whereproceedings are instituted. However, the time allowed shall not be less than 90days commencing from the day when the person instituting such action forindemnity has settled the claim or has been served with process in the actionagainst himself.

Article 21. Jurisdiction

1. In judicial proceedings relating to carriage of goods under thisConvention the plaintiff, at his option, may institute an action in a court which,according to the law of the State where the court is situated, is competent andwithin the jurisdiction of which is situated one of the following places:

(a) the principal place of business or, in the absence thereof, the habitualresidence of the defendant; or

(b) the place where the contract was made provided that the defendant hasthere a place of business, branch or agency through which the contract wasmade; or

(c) the port of loading or the port of discharge; or

(d) any additional place designated for that purpose in the contract ofcarriage by sea.

2.(a) Notwithstanding the preceding provisions of this article, an actionmay be instituted in the courts of any port or place in a Contracting State atwhich the carrying vessel or any other vessel of the same ownership may havebeen arrested in accordance with applicable rules of the law of that State and ofinternational law. However, in such a case, at the petition of the defendant, theclaimant must remove the action, at his choice, to one of the jurisdictionsreferred to in paragraph 1 of this article for the determination of the claim, butbefore such removal the defendant must furnish security sufficient to ensure

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payment of any judgement that may subsequently be awarded to the claimant inthe action.

(b) All questions relating to the sufficiency or otherwise of the securityshall be determined by the court of the port or place of the arrest.

3. No judicial proceedings relating to carriage of goods under thisConvention may be instituted in a place not specified in paragraph 1 or 2 of thisarticle. The provisions of this paragraph do not constitute an obstacle to thejurisdiction of the Contracting States for provisional or protective measures.

4.(a) Where an action has been instituted in a court competent underparagraph 1 or 2 of this article or where judgement has been delivered by sucha court, no new action may be started between the same parties on the samegrounds unless the judgement of the court before which the first action wasinstituted is not enforceable in the country in which the new proceedings areinstituted;

(b) for the purpose of this article the institution of measures with a view toobtaining enforcement of a judgement is not to be considered as the starting ofa new action;

(c) for the purpose of this article, the removal of an action to a differentcourt within the same country, or to a court in another country, in accordancewith paragraph 2(a) of this article, is not to be considered as the starting of anew action.

5. Notwithstanding the provisions of the preceding paragraphs, anagreement made by the parties, after a claim under the contract of carriage bysea has arisen, which designates the place where the claimant may institute anaction, is effective.

Article 22 Arbitration

1. Subject to the provisions of this article, parties may provide byagreement evidenced in writing that any dispute that may arise relating tocarriage of goods under this Convention shall be referred to arbitration.

2. Where a charter-party contains a provision that disputes arisingthereunder shall be referred to arbitration and a bill of lading issued pursuant tothe charter-party does not contain a special annotation providing that suchprovision shall be binding upon the holder of the bill of lading, the carrier maynot invoke such provision as against a holder having acquired the bill of ladingin good faith.

3. The arbitration proceedings shall, at the option of the claimant, beinstituted at one of the following places:

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(a) a place in a State within whose territory is situated:

(i) the principal place of business of the defendant or, in the absencethereof, the habitual residence of the defendant; or

(ii) the place where the contract was made, provided that thedefendant has there a place of business, branch or agency throughwhich the contract was made; or

(iii) the port of loading or the port of discharge; or

(b) any place designated for that purpose in the arbitration clause oragreement.

4. The arbitrator or arbitration tribunal shall apply the rules of thisConvention.

5. The provisions of paragraphs 3 and 4 of this article are deemed to be partof every arbitration clause or agreement, and any term of such clause oragreement which is inconsistent therewith is null and void.

6. Nothing in this article affects the validity of an agreement relating toarbitration made by the parties after the claim under the contract of carriage bysea has arisen.

PART VI. SUPPLEMENTARY PROVISIONS

Article 23 Contractual stipulations

1. Any stipulation in a contract of carriage by sea, in a bill of lading, or inany other document evidencing the contract of carriage by sea is null and voidto the extent that it derogates, directly or indirectly, from the provisions of thisConvention. The nullity of such a stipulation does not affect the validity of theother provisions of the contract or document of which it forms a part. A clauseassigning benefit of insurance of the goods in favour of the carrier, or anysimilar clause, is null and void.

2. Notwithstanding the provisions of paragraph 1 of this article, a carriermay increase his responsibilities and obligations under this Convention.

3. Where a bill of lading or any other document evidencing the contract ofcarriage by sea is issued, it must contain a statement that the carriage is subjectto the provisions of this Convention which nullify any stipulation derogatingtherefrom to the detriment of the shipper or the consignee.

4. Where the claimant in respect of the goods has incurred loss as a resultof a stipulation which is null and void by virtue of the present article, or as aresult of the omission of the statement referred to in paragraph 3 of this article,the carrier must pay compensation to the extent required in order to give the

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claimant compensation in accordance with the provisions of this Conventionfor any loss of or damage to the goods as well as for the delay in delivery. Thecarrier must, in addition, pay compensation for costs incurred by the claimantfor the purpose of exercising his right, provided that costs incurred in the actionwhere the foregoing provision is invoked are to be determined in accordancewith the law of the State where proceedings are instituted.

Article 24. General average

1. Nothing in this Convention shall prevent the application of provisions inthe contract of carriage by sea or national law regarding the adjustment ofgeneral average.

2. With the exception of article 20, the provisions of this Conventionrelating to the liability of the carrier for loss of or damage to the goods alsodetermine whether the consignee may refuse contribution in general averageand the liability of the carrier to indemnify the consignee in respect of any suchcontribution made or any salvage paid.

Article 25. Other conventions

1. This Convention does not modify the rights or duties of the carrier, theactual carrier and their servants and agents, provided for in internationalconventions or national law relating to the limitation of liability of owners ofseagoing ships.

2. The provisions of articles 21 and 22 of this Convention do not preventthe application of the mandatory provisions of any other multilateralconvention already in force at the date of this Convention relating to mattersdealt with in the said articles, provided that the dispute arises exclusivelybetween parties having their principal place of business in States members ofsuch other convention. However, this paragraph does not affect the applicationof paragraph 4 of article 22 of this Convention.

3. No liability shall arise under the provisions of this Convention fordamage caused by a nuclear incident if the operator of a nuclear installation isliable for such damage:

(a) under either the Paris Convention of 29 July 1960 on Third PartyLiability in the Field of Nuclear Energy as amended by the Additional Protocolof 28 January 1964 or the Vienna Convention of 21 May 1963 on CivilLiability for Nuclear Damage, or

(b) by virtue of national law governing the liability for such damage,provided that such law is in all respects as favourable to persons who maysuffer damage as either the Paris or Vienna Conventions.

The Hamburg Rules


4. No liability shall arise under the provisions of this Convention for anyloss of or damage to or delay in delivery of luggage for which the carrier isresponsible under any international convention or national law relating to thecarriage of passengers and their luggage by sea.

5. Nothing contained in this Convention prevents a Contracting State fromapplying any other international convention which is already in force at thedate of this Convention and which applies mandatorily to contracts of carriageof goods primarily by a mode of transport other than transport by sea. Thisprovision also applies to any subsequent revision or amendment of suchinternational convention.

Article 26. Unit of account

1. The unit of account referred to in article 6 of this Convention is theSpecial Drawing Right as defined by the International Monetary Fund. Theamounts mentioned in article 6 are to be converted into the national currency ofa State according to the value of such currency at the date of judgement or thedate agreed upon by the parties. The value of a national currency, in terms ofthe Special Drawing Right, of a Contracting State which is a member of theInternational Monetary Fund is to be calculated in accordance with the methodof valuation applied by the International Monetary Fund in effect at the date inquestion for its operations and transactions. The value of a national currency interms of the Special Drawing Right of a Contracting State which is not amember of the International Monetary Fund is to be calculated in a mannerdetermined by that State.

2. Nevertheless, those States which are not members of the InternationalMonetary Fund and whose law does not permit the application of the provisionsof paragraph 1 of this article may, at the time of signature, or at the time ofratification, acceptance, approval or accession or at any time thereafter, declarethat the limits of liability provided for in this Convention to be applied in theirterritories shall be fixed as:

12,500 monetary units per package or other shipping unit or 37.5 monetaryunits per kilogramme of gross weight of the goods.

3. The monetary unit referred to in paragraph 2 of this article correspondsto sixty-five and a half milligrammes of gold of millesimal fineness ninehundred. The conversion of the amounts referred to in paragraph 2 into thenational currency is to be made according to the law of the State concerned.

4. The calculation mentioned in the last sentence of paragraph 1 and theconversion mentioned in paragraph 3 of this article is to be made in such amanner as to express in the national currency of the Contracting State as far as

The Hamburg Rules


possible the same real value for the amounts in article 6 as is expressed there inunits of account. Contracting States must communicate to the depositary themanner of calculation pursuant to paragraph 1 of this article, or the result of theconversion mentioned in paragraph 3 of this article, as the case may be, at thetime of signature or when depositing their instruments of ratification,acceptance, approval or accession, or when availing themselves of the optionprovided for in paragraph 2 of this article and whenever there is a change in themanner of such calculation or in the result of such conversion.

The Hamburg Rules


ANNEX II

COMMON UNDERSTANDING ADOPTED BY THE UNITED NATIONSCONFERENCE ON THE CARRIAGE OF GOODS BY SEA

It is the common understanding that the liability of the carrier under thisConvention is based on the principle of presumed fault or neglect. This meansthat, as a rule, the burden of proof rests on the carrier but, with respect tocertain cases, the provisions of the Convention modify this rule.

Notes to the Carriage of Goods by Sea Act 1991

Table of Acts


Notes to the Carriage of Goods by Sea Act 1991Note 1

The Carriage of Goods by Sea Act 1991 as shown in this compilationcomprises Act No. 160, 1991 amended as indicated in the Tables below.

The Carriage of Goods by Sea Act 1991 was amended by the Carriage ofGoods by Sea Regulations 1998 (1998 No. 174) and the Carriage of Goods bySea Regulations 1998 (No. 2) (1998 No. 324). The amendments areincorporated in this compilation.

For repeal details for section 2A, Part 3 (items 12 to 16) and Schedule 2see section 2.

Table of Acts

Act Numberand year

Dateof Assent

Date ofcommencement

Application,saving ortransitionalprovisions

Carriage of Goods by SeaAct 1991

160, 1991 31 Oct 1991 S. 2A, Part 3 (ss.12-16) andSchedule 2: (sees. 2(2) and (3))Remainder: RoyalAssent

S. 2(2)and (3)(rs. by123, 1997,Sch. 1[item 1])S. 2(4)-(6)(rep. by123, 1997,Sch. 1[item 1])

Carriage of Goods by SeaAmendment Act 1997

123, 1997 15 Sept 1997 15 Sept 1997 —

Notes to the Carriage of Goods by Sea Act 1991

Table of Amendments


Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted

Provision affected How affectedS. 2............................................ am. No. 123, 1997

S. 2A ......................................... ad. No. 123, 1997

Ss. 3, 4 ...................................... am. No. 123, 1997

S. 7............................................ rs. No. 123. 1997

S. 9A ......................................... ad. Statutory Rules 1998 No. 174

S. 10.......................................... am. Statutory Rules 1998 No. 174

Note to s. 10(1).......................... ad. Statutory Rules 1998 No. 174

S. 11.......................................... am. No. 123, 1997; Statutory Rules 1998 Nos. 174 and 324

S. 22.......................................... ad. No. 123, 1997

Heading to Schedule 1 .............. rs. No. 123, 1997

Schedule 1A .............................. ad. Statutory Rules 1998 No. 174am. Statutory Rules 1998 No. 324