Eldon Chambers
Level 1, 5 High Street
PO Box 4472
Shortland Street
Auckland 1140
New Zealand

Tel:  +64 9 379 5589
Fax: +64 9 379 5590
Mob: +64 21 421 423

or contact here

Please note that persons unknown have stolen details from my website to send emails using my name and contact details.  The emails begin with my name and contact details and continues with “…I am currently in the UK.  I will contact you after due consideration help me with the transaction……”.  These emails are not from me.  If you receive such emails, please report them to the online crime website at www.theorb.org.nz.

Maritime and transport law

In two recent decisions, the Supreme Court has decided questions of interpretation relating to the legal regimes applying to the carriage of goods within New Zealand and internationally.

International Carriage of Goods by Sea
In the long running litigation between various cargo owners and the operators of the vessel Tasman Pioneer, the Supreme Court has recently held, reversing the decisions in the courts below, that Article 4.2(a) of the Hague-Visby Rules applied to exclude the liability of the operator of a liner trading service for claims brought by various cargo owners.  Cargo was lost and damaged after the vessel grounded off the coast of Japan.  The circumstances were unusual in that the master of the Tasman Pioneer acted quite improperly after the vessel had grounded.  Instead of proceeding immediately to anchor and asking for assistance, the master chose to continue on with the course which he had taken, and thereby caused damage to the cargo.  The master acted as he did to try and conceal the mistake he had made in taking the course which lead to the grounding.  In deciding that the exclusion applied, the court focussed on the words of the provision.  It held that there was no proper basis for the decision in the High Court that the exclusion was subject to an implied condition that the servant or agent of the carrier had to have acted in good faith for the exclusion to apply, nor, for the approach of the majority in the Court of Appeal who had interpreted the exclusion narrowly on an erroneous approach to the purpose of the Hague-Visby Rules.  Paul has provided a case note on this decision for the New Zealand Law Journal (see case note and Supreme Court decision).

The Rotterdam Rules - new regime relating to the carriage of goods by sea
Recently, the United Nations General Assembly adopted the Convention on Contracts for the international Carriage of Goods Wholly or Partly by Sea.  It is intended that this Convention will replace the Hague-Visby Rules with a more modern regime for the international carriage of goods by sea.  The Convention has been open for signature by States from 23 September 2009 when a ceremony took place in Rotterdam.  The Rules have gained momentum, the 20th State signed in late 2009, bringing the Convention into force.  It will be interesting to see whether more States choose to adopt the new Rotterdam Rules.  This question is likely to be considered by both New Zealand and Australia in 2010.

Domestic Carriage
In Ports of Auckland Limited v Southpac Trucks Ltd [2010] 1 NZLR 363 (see Supreme Court decision), the Supreme Court considered the regime which governs the domestic carriage of goods within New Zealand - the Carriage of Goods Act 1979.  This Act replaces the common law of carrier’s liability with a statutory limited liability regime where goods are carried within New Zealand.  Section 6 of the Act provides that “notwithstanding any rule of law to the contrary, no carrier is liable as such, whether in tort or otherwise, and whether personally or vicariously for the loss or damage to any goods carried by him except (a) in accordance with the terms of the contract of carriage and the provisions of the Act, or, (b) where the carrier intentionally causes the loss and damage.” 

Southpac’s truck was damaged as it was being unloaded from a vessel by a forklift which was driven negligently by a POAL employee.  While the POAL employee was not himself engaged in the operations relating to the carriage of the Southpac truck, POAL was engaged in the carriage (although it had subcontracted its responsibilities).  The question was whether Southpac could bring a claim in negligence at common law for its full losses or whether the limits of liability under the statutory regime applied.  The court held that, on the proper interpretation of the Act in the light of its purpose - the creation of a code covering domestic carriage - section 6 of the Act applied and barred any claim at common law.   POAL was a carrier under the Act and was entitled to the limits of liability under the Act, regardless of fault.  Its servant or agent also had the protection of the Act, provided it was a carrier, even if the employee was not doing work in relation to the goods.  The court had no reluctance in holding that the situation was governed by the Act.  It emphasised the certainty which the Act’s regime had been intended to create for commercial parties and their insurers.

It should be noted that in situations where a party is not a “carrier” in terms of the broad definition under the Act, common law claims will be available.

In both cases the court properly emphasised the importance of certainty in rules relating to commercial matters.  While both decisions involved losses which occurred in unusual circumstances, that did not mean that the particular statutory regime or provision was not applicable.  Indeed, the words used in the relevant provisions and the policy factors, supported the application of the statutory regime in Southpac and the exclusion in the Tasman Pioneer.

Contract law - interpretation

Vector Gas v Bay of Plenty Energy (see Supreme Court decision)  - In contrast, there was less unanimity in the court in relation to the principles of contract interpretation.  While all five judges agreed on the interpretation of a provision as to the price of gas in interim arrangements concluded between the parties’ lawyers, the judgments reveal differences in the approach to the admissibility of contractual negotiations as an aid to determining the meaning of a contract.   Three members of the court could see no reason why, in principle, such negotiations should be excluded from possible consideration on a question of interpretation provided they were not put forward to establish subjective intent.  One member of the court followed the approach in the recent English House of Lords decision in Chartbrook which excluded negotiations from consideration, and the fifth judgment considered that the question of admissibility did not arise.  While all the judgments focus quite correctly on the importance of an objective consideration of the meaning of the contract, it is, perhaps, regrettable that the judgments appear to have left room for some continuing uncertainty (and, no doubt, legal argument) on the scope of admissibility of extrinsic evidence on matters of interpretation.

Publications - A Guide to the WADA Code, CUP 2008

Cambridge University Press has recently published A Guide to the World Anti-Doping Code - A Fight for the Spirit of Sport by Paul David.  The text provides a guide to the international regime which aims to assist all who may have to deal with doping matters under the Code, whether as administrators, advisors, or adjudicators.

Papers and presentations

Paul has recently given a paper to the New Zealand branch of MLAANZ (Sentencing in Marine Pollution Prosecutions) and a paper to the New Zealand branch of the International Institute of Marine Surveyors (The Role of the Expert Witness in Maritime Matters - An Outline of Legal and Practical Considerations). 

Paul has also recently given papers to the Australian and New Zealand Sports Law Association on Drugs in sport - Recent developments in a fast changing area and the Legal Research Foundation on The hearing of sporting disputes - A quiet revolution? 

Further papers, see recent developments in Shipping Law.  Contract law conference papers, see “Damages for Breach of Contract - The difficulty of applying the principles to real cases”, Contract Law Review 2008, Contract Law Review (2007), Developments in Contract law (2006). 

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