Lloyd's Maritime and Commercial Law Quarterly
AUSTRALIAN MARITIME LAW DECISIONS 1997
Martin Davies*
A. Carriage of goods by sea
1. Not the Hamburg Rules, but Hamburg-like modifications of the Hague-Visby Rules
For the past six years,1 this review of Australian maritime law has described the position of Australia’s Hamburg Rules “trigger”, which was first cocked by the Carriage of Goods by Sea Act 1991 (Cth). The Act provided that the Hamburg Rules would come into force automatically by a certain date2 unless the Commonwealth Parliament took action to prevent them from doing so. The trigger was finally uncocked on 15 September 1997, when the Carriage of Goods by Sea Amendment Act 1997 (Cth) was passed. Although the Hamburg Rules will not now come into force in Australia, they have not been removed from the Act, and there remains a slim possibility that they may yet become part of Australian law. The amended Act now contains a complicated and decidedly unusual procedure for commencement of the Hamburg Rules. The Minister3 must conduct a review of the position at least every five years, considering the extent to which the Hamburg Rules have been adopted in other countries, particularly Australia’s major trading partners, and consulting with “representatives of shippers, shipowners, carriers, cargo owners, marine insurers and maritime law associations”.4 Having conducted the review, the Minister must table a written report in both houses of the Commonwealth Parliament, setting out his or her decision. If the decision is that the Hamburg Rules should be adopted, they will then come into force no later than 12 months after the tabling of the report.
As well as postponing (probably indefinitely) the commencement of the Hamburg Rules, the amending Act provides for regulations to be made modifying the effect of the Hague-Visby Rules. It is unfortunate that these modifications are to be made by regulation rather than in the Act itself. Although provision has been made for a Schedule of Modifications to be added to the Act, the fact remains that the substantive changes to the
* Harrison Moore Professor of Law, The University of Melbourne. I am grateful to the members of the Maritime and Trade Law Group of Mallesons Stephen Jacques in Melbourne for their assistance in preparing this article. I should particularly like belatedly to express my gratitude to Don Brooker, the head of the group, who died late in 1997; we will all miss him.
1. [1997] LMCLQ 432, 439; [1996] LMCLQ 379, 391; [1995] LMCLQ 379, 391; [1994] LMCLQ 407, 414; [1992] LMCLQ 351, 351.
2. The date was originally 31 October 1994; in October 1994, the commencement was postponed until 19 October 1997.
3. Presently the Minister for Transport and Regional Development.
4. s. 5.2A(3).
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