Contents

Part 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 [see Note 1]................. 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 not implied...... 11

18.......... Act prevails over certain provisions of the Trade Practices Act 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 Act 1974 and substitution of new section 11

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

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

Schedule 1A—Schedule of modifications 22

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

Schedule 2—The Hamburg Rules 36

Notes 55

An Act relating to the carriage of goods by sea, and for 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 on which it receives the Royal Assent.

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

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that the amended Hague Rules should be replaced by the Hamburg Rules, Part 3 and Schedule 2, and section 2A, are repealed on the first day after the end of that 10 years.

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 2 have not commenced, review the question of whether the amended Hague Rules should be replaced by the Hamburg Rules.

(2) The first review must be completed within 5 years of the commencement of this section. Subsequent reviews must be completed within 5 years of the previous review. For this purpose, a review is completed when the tabling requirement in subsection (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 major trading partners; and

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

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

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

(5) If the Minister tables a statement in each House of the Parliament in accordance with subsection (4) setting out a decision that the amended Hague Rules should be replaced by the Hamburg Rules, the Governor‑General may, by Proclamation, fix a day (subject to subsection (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 after the 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 in subsection (4) being complied with;

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

3 Object of Act

(1) The object of this Act is to introduce a regime of marine cargo liability 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

(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 Brussels Convention as amended by the Visby Protocol and the SDR Protocol, and as modified in accordance with regulations under section 7; and

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

4 Interpretation

(1) In this Act:

amended Hague Rules has the meaning given in section 7.

Australia, when used in a geographical sense, includes the external Territories.

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

Hamburg Convention means the United Nations Convention on the Carriage of Goods by Sea, being Annex I of the Final Act of the United Nations Conference on the Carriage of Goods by Sea done at 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, and includes Australian representatives of member Associations of the International Group of Protection and Indemnity Associations.

maritime law associations means law associations with an interest in maritime law, whether or not they are also interested in other areas of law.

SDR Protocol means the Protocol amending the Brussels Convention, as amended by the Visby Protocol, done at Brussels on 21 December 1979.

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

(2) A reference in this Act to a non‑negotiable document includes a reference 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.

Part 2—Application of the amended Hague Rules etc.

7 The amended Hague Rules

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

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

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

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

(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 in Schedule 1, however the text has effect for the purposes of this Act as if it were modified in accordance with the Schedule of modifications.

(3) The regulations may:

(a) amend the Schedule of modifications, but only in connection with the purposes set out in subsection (2); and

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

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

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

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

Note: This subsection ensures that the amendments can be incorporated in a reprint 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

8 The amended Hague Rules to have the force of law

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

9 Interpretation

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

9A Determination of limits of a port or wharf

A determination by the Minister, for paragraph 4 of Article 1 of the amended Hague Rules, of the limits of a port or wharf in Australia is a legislative instrument, but Part 6 of the Legislative Instruments Act 2003 does not apply to the determination.

Note: The amended Hague Rules are set out in Schedule 1A—see ss 4(1) and 7(1).

10 Application of the amended Hague Rules

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

(a) is made on or after the commencement of Schedule 1A and before 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 in Australia; or

(iii) contained in or evidenced by a non‑negotiable document (other than a bill of lading or similar document of title), being a contract that contains express provision to the effect that the amended Hague Rules are to govern the contract as if the document were a bill of lading.

Note: The amended Hague Rules are set out in Schedule 1A—see ss 4(1) and 7(1).

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

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

11 Construction and jurisdiction

(1) All parties to:

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

(b) a non‑negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii), relating to such a carriage of goods;

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

(2) An agreement (whether made in Australia or elsewhere) has no effect so far as it purports to:

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

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

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

(ii) a non‑negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods.

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

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 the English 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 on 31 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 in Australia.

14 Interpretation

In this Part and the Hamburg Rules, unless the contrary intention appears, a word or expression has the same meaning as it has in the 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 a port in Australia to another port in Australia.

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

16 Construction

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

(2) An agreement (whether made in Australia or elsewhere) has no effect so far as it purports to preclude or limit the effect of subsection (1) in respect of such a contract.

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 goods by sea to which Part 2 or 3 of this Act applies any absolute undertaking by the carrier of the goods to provide a seaworthy ship.

18 Act prevails over certain provisions of the Trade Practices Act 1974

The provisions of this Act prevail over the provisions of Division 2 of Part V of the Trade Practices Act 1974 to the extent of 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 immediately before the commencement of this section, continues to apply to a contract 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).

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

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

“2C Carriage of goods by sea

Nothing in this Act affects:

(a) the continued operation of section 9 of the Sea‑Carriage of Goods Act 1924 under subsection 20(2) of the Carriage of Goods by Sea Act 1991; or

(b) the operation of section 11 or 16 of the Carriage of Goods by Sea 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.

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 set out below:—

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

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

(c) “Goods” includes goods, wares, merchandise, and articles of every kind whatsoever except live animals and cargo which by the contract of carriage 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 goods are 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 of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth.

ARTICLE 3

1. The carrier shall be bound before and at the beginning of the voyage to exercise 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 of the 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 and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.

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

(a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage.

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

Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually 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 the carrier 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 of lading has been transferred to a third party acting in good faith.

5. The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.

6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage 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 of lading.

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

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

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

6bis. An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought 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, commencing from the day when the person bringing such action for indemnity has settled the claim 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 previously taken up any document of title to such goods, he shall surrender the same as against the issue of the “shipped” bill of lading, but at the option of the carrier such 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 the goods 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 the purpose of this article be deemed to constitute a “shipped” bill of lading.

8. Any clause, covenant, or agreement in a contract of carriage relieving the carrier 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 obligations provided in this article or lessening such liability otherwise than as provided in this convention, shall be null and void and of no effect. A benefit of insurance in favour of the carrier or similar clause shall be deemed to be a clause relieving the carrier from liability.

ARTICLE 4

1. Neither the carrier nor the ship shall be liable for loss or damage arising or 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 is properly 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 fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article 3. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.

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

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

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

(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 legal process.

(h) Quarantine restrictions.

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

(j) Strikes or lock‑outs or stoppage or restraint of labour from whatever cause, 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 from inherent 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 of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.

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

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

5.(a) Unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading, neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 units of account per package or unit or 2 units of 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 the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged.

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

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

(d) The unit of account mentioned in this Article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in sub‑paragraph (a) of this paragraph shall be converted into national currency on the basis of the value of that currency on a date to be 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 be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State.

Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of the preceding sentences may, at the time of ratification of the Protocol of 1979 or accession thereto or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in its territory shall be fixed as follows:

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

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

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

The calculation and the conversion mentioned in the preceding sentences shall be made in such a manner as to express in the national currency of the State 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 the result of the conversion as the case may be, when depositing an instrument of ratification of the Protocol of 1979 or of accession thereto and whenever there is a change in either.

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

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

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

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

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

ARTICLE 4bis

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

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

3. The aggregate of the amounts recoverable from the carrier, and such servants and agents, shall in no case exceed the limit provided for in this Convention.

4. Nevertheless, a servant or agent of the carrier shall not be entitled to avail himself of the provisions of this Article, if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.

ARTICLE 5

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

ARTICLE 6

Notwithstanding the provisions of the preceding articles, a carrier, master or agent 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 and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or his obligation as to seaworthiness, so far as this stipulation is not contrary to public policy, or the care or diligence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care and discharge of the goods carried by sea, provided that in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a non‑negotiable document and shall be marked as such.

Any agreement so entered into shall have full legal effect.

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

ARTICLE 7

Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to, or in 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 goods are carried by sea.

ARTICLE 8

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

ARTICLE 9

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

ARTICLE 10

The provisions of this Convention shall apply to every Bill of Lading relating 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 provides that the rules of this Convention or legislation of any State giving effect to them are to govern the contract

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

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

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

Schedule 1A—Schedule of modifications

Subsection 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 portions shown 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, with the meanings set out below:—

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

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

(i) contains or evidences a contract of carriage by sea in connection with which no bill of lading or similar document of title has been issued; and

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

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

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

(ba) “Data message” means information generated, stored or communicated by electronic, optical or analogous means (including electronic data interchange, electronic mail, telegram, telex or telecopy) even if the information is never reproduced in printed form.

(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 in charge of the goods, according to paragraph 3 of this Article from the time when the goods are loaded on to the time they are discharged from the ship.

(f) “Negotiable sea carriage document” means:

(i) a bill of lading (other than a bill of lading that, by law, is not negotiable); or

(ii) a negotiable document of title that is similar to a negotiable bill of lading and that contains or evidences a contract of carriage of goods 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 and that 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 a document of the kind known as a sea waybill or the kind known as a ship’s delivery order) that either contains or evidences a contract of carriage of goods by sea.

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