Australian Peak Shippers Association Inc and Freight & Trade - PowerPoint PPT Presentation

Australian Peak Shippers Association Inc and Freight & Trade Alliance – 29 October 2019 Melbourne | Sydney | Brisbane | Canberra | Perth 1

Loss or damage to cargo during transit  Standard form and bespoke Clauses  Usually incorporate Institute Cargo Clauses (A) 1/1/82 or 1/1/90  Melbourne | Sydney | Brisbane | Canberra | Perth 2

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From 1 September 2019 to 31  May 2020 25 categories of “target high  risk goods” “Target High Risk” Countries  Specified heat or fumigation  treatment for: • Breakbulk/open top containers/flat rock containers; and • Enclosed containers MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 4

 Motor vehicles and accessories from Long Beach, California  Scheduled to be shipped 28 August 2018 BUT delayed until 2 September 2018  Not Fumigated  Department advises vessel cannot call into Australia  Negotiations with Department  Goods shipped back to USA for fumigation MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 5

Shipper’s liability to the ocean and/or contractual carrier?  MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 6

Shippers liability to other cargo owners?  Dangerous Cargo: Mitchell Cotts v Steel Bros & Co Ltd [1916] 2 K.B. 610  MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 7

 Third Party Cargo Owner Losses? • Damage caused by heat treatment or fumigation – Clause 1 – “All Risks” cover • Delay – Clause 4.5 – exclusion • Continuation of Cover – Clause 8.3 • Unloading, Storing and Forwarding goods – Clause 12 • Notification of termination of carriage – Clause 9 MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 8

 Non compliant cargo owner • Failure to fumigate likely not an “all risks” cover under clause 1 • Unsuitability of preparation – Clause 4.3 - exclusion • Delay – Clause 4.5 – exclusion • No cover under clause 8.3 or 12 MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 9

 530 stink bugs found on a vessel while in Australian waters across 11 decks.  Consignment of vehicles shipped from China, Japan and Korea  DAWR refuses to allow vessel into Australian Ports  Vessel returns to Singapore for fumigation – cargo discharged – fumigation takes place – re-loaded onto vessel – continues voyage under same bills of lading  Fumigation and freight costs in excess of $2,000,000 MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 10

Common Law – Involuntary and the result of a necessity: Leduc v Ward  (1888) 20 Q.B.D. 475 Bill of lading terms – compliance with orders of government or authority  etc Hague Visby Rules – reasonable deviation: Stag Line v Foscolo, Mango  [1932] A.C 328 and Article 4 rule 4 If BMSB is found the carrier is permitted to deviate  MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 11

Common law right if deviation reasonable: The Teutonia (1872) L.R. 4 P.C  171 Bill of lading terms  Carrier can claim additional freight and exercise a lien if incurred as a  result of BMSB – Common Law and Bill of Lading Terms allow this Insurer no obligation to indemnify pursuant to clause 12 Institute Cargo  Clauses (A) 1/1/82 or 1/1/09 which require transit to be terminated MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 12

Difficult  Article 3 Rule 1 Hague Visby Rules – Vessel not seaworthy – earlier  cargoes- The Arianna [1987] 2 Lloyd’s Rep 376 If caused by cargo loaded – not make the ship unseaworthy: The Apostilis  (No.1) [1997] 2 Lloyd’s Rep 241 CA. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 13

Claims for either negligent advice or misleading and deceptive conduct if  advise shippers not to fumigate contrary to DAWR directives. Make sure you hold an errors and omissions policy which covers liability  for negligent or misleading and deceptive conduct in these circumstances. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 14

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Maurice Lynch Special Counsel Insurance, Trade and Transport – Sydney Phone: +61 2 8035 7975 Mobile: +61 410 768 584 Email: mlynch@millsoakley.com.au Melbourne | Sydney | Brisbane | Canberra | Perth 20

Melbourne Sydney Brisbane Level 6 Level 12 Level 14 530 Collins Street 400 George Street 145 Ann Street Melbourne VIC 3000 Sydney NSW 2000 Brisbane QLD 4000 T: +61 3 9670 9111 T: +61 2 8289 5800 T: +61 7 3228 0400 F: +61 3 9605 0933 F: +61 2 9247 1315 F: +61 7 3012 8777 Canberra Perth Level 1 Level 2 121 Marcus Clarke Street 225 St Georges Terrace Canberra ACT 2601 Perth WA 6000 T: +61 2 6196 5200 T: +61 8 6167 9800 F: +61 2 6196 5298 F: +61 8 6167 9898 Disclaimer This PowerPoint presentation is intended to provide only a limited analysis of the subject matter covered. It does not purport to be comprehensive, or to provide legal advice. Any views or opinions expressed are the views or opinions of the presenter, and not those of Mills Oakley as a Firm. Readers should satisfy themselves as to the correctness, relevance and applicability of any of its content, and should not act on any of it in respect of any specific problem or generally without first obtaining their own independent professional legal advice. www.millsoakley.com.au 21