Table of Contents
Interna'onal Sea Carrier Rules .......................................................................................... 2
What rules apply to a shipment of goods by sea? ....................................................................... 2
Carrier Obliga:ons...................................................................................................................... 3
Carrier Immuni:es (Ar:cle 4.2) à Carrier is not liable where loss or damage results or arises
from à Defences........................................................................................................................ 5
Carrier’s limita:on of financial liability work............................................................................... 6
Interna'onal Carriage of Goods by Air .............................................................................. 9
Are the criteria of applica:on in Ar:cle 1 of the relevant conven:on sa:sfied? .......................... 9
Who is the carrier? Who should the consignee/consignor sue/who is en:tled to protec:on? ..... 9
Is the carrier liable for the loss, damage, destruc:on or delay of cargo/are there any defences?
................................................................................................................................................. 10
Has the claimant given :mely no:ce/ claimed within the two years limita:on period? ............ 12
What are the financial limits of the air carrier’s liability? (MC1999 Art 22) ................................ 12
Le<er of Credit ................................................................................................................ 13
Iden:fy the banks – what are their obliga:ons? ....................................................................... 13
Is there a complying presenta:on: Instruc:ons or Terms of Credit ............................................ 15
The properness and prompt of bank’s refusal ........................................................................... 15
Is there a problem with the goods? How does this affect the L/C? What can the banks/buyer do?
................................................................................................................................................. 16
Is there fraud on the part of the seller? How does this affect the L/C? What can the banks/buyer
do? ........................................................................................................................................... 16
Arbitra'on ...................................................................................................................... 18
Enforcement of interna:onal commercial arbitra:on agreements and their scope ................... 18
Procedure of interna:onal commercial arbitra:on under the model law .................................. 20
How to enforce and challenge an award from overseas panel in Australia ................................ 22
How to enforce and challenge an award from a Model Law panel in the Australian courts........ 23
, International Sea Carrier Rules
Hague, Hague Visby and Australia’s Modified Rules
What rules apply to a shipment of goods by sea?
• These rules can be different depending on where the ship is leaving from (the
departing port) and the country's laws it follows.
o Article 10(1) of MHVR: the rules and obligations of the modified Hague-
Visby Rules apply to the sea carriage contract relating to the carriage of goods
from ports in Australia to ports outside Australia regardless of the form in
which the sea carriage document is issued.
§ Provision: Article 10(2) of MHVR: These rules may apply to the
carriage of goods by sea from ports outside Australia to ports in
Australia. However, if there is an agreement or a law that invokes one
of the mentioned Conventions as ruled under Article 10(3) or their
modified versions, then those rules would apply instead
• Article 10(3) of MHVR:
o the Brussels Convention;
o the Brussels Convention as amended by either the Visby
Protocol or, the SDR Protocol, or both;
o the Hamburg Convention.
o Article 1 of MHVR: 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:
o (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
o (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
o (iii) is clearly marked as being non-negotiable.
§ (B) the rules and obligations of the modified Hague-Visby Rules apply
to the sea carriage contract covered by a negotiable sea carriage
document issued under a charter party.
• Article 1(g) of MHVR: “Sea carriage document” means:
o (i) a bill of lading; or
o (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
o (iii) a bill of lading that, by law, is not negotiable; or
o (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.
• (ba) “Data message” means information generated, stored or
communicated by electronic, optical or analogous means
(including electronic data interchange, electronic mail,
2
, telegram, telex or telecopy) even if the information is never
reproduced in printed form.
§ (c) “Goods” includes goods, wares, merchandise, and articles of every
kind whatsoever except live animals
§ (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
o Article 10 of HVR: This Convention's rules apply to every Bill of Lading used
for shipping goods between ports in two different countries if:
§ (A) The Bill of Lading is issued in a country that is part of this
Convention.
§ (B) The shipment starts from a port in a country part of this
Convention.
§ (C) The contract described in the Bill of Lading states that the rules of
this Convention or the laws of any country that implements these rules
will govern the contract.
§ These rules apply regardless of the nationality of the ship, the carrier,
the shipper, the recipient, or any other involved person. Each country
in this Convention must follow these rules for the mentioned Bills of
Lading.
§ However, a country can still choose to apply these rules to Bills of
Lading, even if a Bill of Lading fails to meet the specific criteria
mentioned above.
• Provision: The terms of the contract can make the rules stricter
("upwardly modify") if they want, but they can't make them
less strict ("downwards modify"). For example, many BoLs
will say that the Hague-Visby Rules apply even to goods
carried on deck, which is not binding to the ruling.
o Article 1 of HVR: 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) the rules and obligations of the Hague-Visby Rules apply to the sea
carriage contract, which is covered by a Bill of Lading or similar
document which is issued under or according to a charter party.
§ (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 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.
• Some countries follow these rules even if they have yet to agree officially.
• Some countries are part of these rules but may have slightly modified versions.
Carrier Obligations
• Was the ship seaworthy before/at the beginning of voyage? Did carrier use due
diligence?
3
Interna'onal Sea Carrier Rules .......................................................................................... 2
What rules apply to a shipment of goods by sea? ....................................................................... 2
Carrier Obliga:ons...................................................................................................................... 3
Carrier Immuni:es (Ar:cle 4.2) à Carrier is not liable where loss or damage results or arises
from à Defences........................................................................................................................ 5
Carrier’s limita:on of financial liability work............................................................................... 6
Interna'onal Carriage of Goods by Air .............................................................................. 9
Are the criteria of applica:on in Ar:cle 1 of the relevant conven:on sa:sfied? .......................... 9
Who is the carrier? Who should the consignee/consignor sue/who is en:tled to protec:on? ..... 9
Is the carrier liable for the loss, damage, destruc:on or delay of cargo/are there any defences?
................................................................................................................................................. 10
Has the claimant given :mely no:ce/ claimed within the two years limita:on period? ............ 12
What are the financial limits of the air carrier’s liability? (MC1999 Art 22) ................................ 12
Le<er of Credit ................................................................................................................ 13
Iden:fy the banks – what are their obliga:ons? ....................................................................... 13
Is there a complying presenta:on: Instruc:ons or Terms of Credit ............................................ 15
The properness and prompt of bank’s refusal ........................................................................... 15
Is there a problem with the goods? How does this affect the L/C? What can the banks/buyer do?
................................................................................................................................................. 16
Is there fraud on the part of the seller? How does this affect the L/C? What can the banks/buyer
do? ........................................................................................................................................... 16
Arbitra'on ...................................................................................................................... 18
Enforcement of interna:onal commercial arbitra:on agreements and their scope ................... 18
Procedure of interna:onal commercial arbitra:on under the model law .................................. 20
How to enforce and challenge an award from overseas panel in Australia ................................ 22
How to enforce and challenge an award from a Model Law panel in the Australian courts........ 23
, International Sea Carrier Rules
Hague, Hague Visby and Australia’s Modified Rules
What rules apply to a shipment of goods by sea?
• These rules can be different depending on where the ship is leaving from (the
departing port) and the country's laws it follows.
o Article 10(1) of MHVR: the rules and obligations of the modified Hague-
Visby Rules apply to the sea carriage contract relating to the carriage of goods
from ports in Australia to ports outside Australia regardless of the form in
which the sea carriage document is issued.
§ Provision: Article 10(2) of MHVR: These rules may apply to the
carriage of goods by sea from ports outside Australia to ports in
Australia. However, if there is an agreement or a law that invokes one
of the mentioned Conventions as ruled under Article 10(3) or their
modified versions, then those rules would apply instead
• Article 10(3) of MHVR:
o the Brussels Convention;
o the Brussels Convention as amended by either the Visby
Protocol or, the SDR Protocol, or both;
o the Hamburg Convention.
o Article 1 of MHVR: 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:
o (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
o (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
o (iii) is clearly marked as being non-negotiable.
§ (B) the rules and obligations of the modified Hague-Visby Rules apply
to the sea carriage contract covered by a negotiable sea carriage
document issued under a charter party.
• Article 1(g) of MHVR: “Sea carriage document” means:
o (i) a bill of lading; or
o (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
o (iii) a bill of lading that, by law, is not negotiable; or
o (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.
• (ba) “Data message” means information generated, stored or
communicated by electronic, optical or analogous means
(including electronic data interchange, electronic mail,
2
, telegram, telex or telecopy) even if the information is never
reproduced in printed form.
§ (c) “Goods” includes goods, wares, merchandise, and articles of every
kind whatsoever except live animals
§ (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
o Article 10 of HVR: This Convention's rules apply to every Bill of Lading used
for shipping goods between ports in two different countries if:
§ (A) The Bill of Lading is issued in a country that is part of this
Convention.
§ (B) The shipment starts from a port in a country part of this
Convention.
§ (C) The contract described in the Bill of Lading states that the rules of
this Convention or the laws of any country that implements these rules
will govern the contract.
§ These rules apply regardless of the nationality of the ship, the carrier,
the shipper, the recipient, or any other involved person. Each country
in this Convention must follow these rules for the mentioned Bills of
Lading.
§ However, a country can still choose to apply these rules to Bills of
Lading, even if a Bill of Lading fails to meet the specific criteria
mentioned above.
• Provision: The terms of the contract can make the rules stricter
("upwardly modify") if they want, but they can't make them
less strict ("downwards modify"). For example, many BoLs
will say that the Hague-Visby Rules apply even to goods
carried on deck, which is not binding to the ruling.
o Article 1 of HVR: 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) the rules and obligations of the Hague-Visby Rules apply to the sea
carriage contract, which is covered by a Bill of Lading or similar
document which is issued under or according to a charter party.
§ (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 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.
• Some countries follow these rules even if they have yet to agree officially.
• Some countries are part of these rules but may have slightly modified versions.
Carrier Obligations
• Was the ship seaworthy before/at the beginning of voyage? Did carrier use due
diligence?
3
