Australia has ratified/acceded to the following conventions relating to port State control (PSC):

• United Nations Convention on the Law of the Sea (UNCLOS)
• International Convention for the Safety of Life at Sea (SOLAS)
• International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW)
• International Convention for the Prevention of Pollution from Ships (MARPOL)
• Maritime Labour Convention (MLC)
• International Convention on Load Lines

These conventions are given effect by provisions in the Navigation Act 2012 (Cth) (Navigation Act), its subordinate legislation (known as ‘Marine Orders’), and the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) (POTS(PPS)).

The Australian Maritime Safety Authority (AMSA) is the port State control agency in Australia. Australian PSC officers are appointed as inspectors by AMSA in accordance with section 254 of the Navigation Act.

Under the Navigation Act, the powers of an Australian PSC officer are as follows:

1. Power to detain a vessel, bring it, or cause it to be brought, to a port, or to another place they consider appropriate if they reasonably suspect that:

a. the vessel is unseaworthy or substandard;

b. the vessel has been, is or will be involved in a contravention of the Navigation Act;

c. a seafarer or person onboard is or will be involved in a contravention of the Navigation Act; or

d. the master or a seafarer of the vessel will be operated without appropriate certificates, and those certificates cannot be produced (section 248).

2. Power to enter premises by consent or under a warrant for the purposes of ascertaining whether the Navigation Act is being complied with (section 256).

3. Power to board a vessel without consent or warrant (section 257).

4. Monitoring and enforcement powers, including the power to:

• search a premises (premises includes a vessel);
• examine or observe any activity;
• inspect, examine, take measurement of or conduct tests on anything;
• make any still or moving image or recording of anything;
• inspect any document;
• take extracts from, or make copies of, a document;
• take equipment and materials onto the premises as required for the purpose of exercising powers;
• request that a person demonstrate the operation of machinery or equipment;
• require the master to stop or manoeuvre the vessel;
• adopt a specified course or speed;
• maintain a specified course or speed;
• operate or require a person to operate electronic equipment to see whether it contains information (data);
• require a person to put the data in documentary form and remove documents from the premises;
• require a person to transfer data to a storage device and to remove the storage device;
• secure a thing for a period not exceeding 24 hours to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained, or are serious and urgent;
• seize evidential material; and
• inspect, examine, take measurements of, conduct testing on or take samples of evidential material.

(sections 259-260)

5. Power to require persons to answer questions and produce documents (section 263).

6. Power to give a direction (section 264).

7. Power to give an improvement notice (section 265).

8. Power to give a prohibition notice (section 267).

Section 27 of POTS (PPS) grants AMSA similar powers for the purposes of ascertaining whether a pollution discharge has occurred in contravention of a convention.

Wrecks

Australia is not a signatory to the Nairobi International Convention on the Removal of Wrecks (WRC).

Rather, chapter 7 of the Navigation Act establishes the Commonwealth regulatory regime for notifying and dealing with wrecks. Unlike the WRC, the definition of ‘wreck’ for the purposes of the Navigation Act does not extend to goods or cargo that have fallen overboard from a ship that is not itself wrecked, derelict, stranded, sunk, abandoned, foundered or in distress.

The Navigation Act grants AMSA powers to require the legal owner to locate, remove, sink or destroy the wreck. These powers apply to regulated Australian vessels wherever they are situated (as part of Australia’s obligations as the flag State), and foreign flagged vessels within the territorial sea (see section 229(2) of the Navigation Act).

AMSA can also mark or remove the wreck itself, in any manner it sees fit, if:

a. such actions are considered necessary to save human life, secure safe navigation of vessels, or protect the marine environment; or

b. when there is no legal owner of the wreck or if a legal owner does not comply with a written notice to undertake these actions within a specified timeframe.

AMSA can additionally destroy or sink the wreck, or part of the wreck, if deemed necessary. The Navigation Act also enables AMSA to recover any expenses incurred in locating, marking, removing, destroying or sinking the wreck from the legal owner.

If a domestic commercial vessel within the definition in the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) (National Law) or a recreational vessel creates a wreck in the coastal waters of Australia, removal is the responsibility of the relevant State or Territory government (see section 6(2)(viii) of the National Law). State and Territory-based acts concerning wreck removal are as follows:

• New South Wales: Marine Safety Act 1998
• Northern Territory: Marine Act 1981 and the Ports Management Act 2015
• Queensland: Transport Operations (Marine Safety) Act 1994
• South Australia: Harbours and Navigation Act 1993
• Tasmania: Marine and Safety Authority Act 1997
• Victoria: Marine Safety Act 2010
• Western Australia: Western Australian Marine Act 1982 and the Navigable Waters Regulations 1958

Pollution

MARPOL and its six technical annexes are implemented in Australia by the following Commonwealth legislation:

• Navigation Act
• POTS(PPS)
• POTS(PPS)(Orders) Regulations 1994
• Marine Order 91 (Marine pollution prevention – oil) 2025
• Marine Order 93 (Marine pollution prevention—noxious liquid substances) 2014
• Marine Order 94 (Marine pollution prevention—packaged harmful substances) 2014
• Marine Order 95 (Marine pollution prevention—garbage) 2018
• Marine Order 96 (Marine pollution prevention—sewage) 2018
• Marine Order 97 (Marine pollution prevention—air pollution) 2022

States and Territories give effect to MARPOL in coastal waters by the following legislation:

• New South Wales: Marine Pollution Act 2012
• Northern Territory: Marine Pollution Act 1999
• Queensland: Transport Operations (Marine Pollution) Act 1995
• South Australia: Protection of Marine Waters (Prevention of Pollution from Ships) Act 1987
• Tasmania: Marine-related Incidents (MARPOL Implementation) Act 2020
• Victoria: Pollution of Waters by Oil and Noxious Substances Act 1986
• Western Australia: Pollution of Waters by Oil and Noxious Substances Act 1987

Additionally, under the Protection of the Sea (Powers of Intervention) Act 1981 (Cth) (Intervention Act) AMSA has the power to issue directions and take such measures as it considers necessary to prevent or reduce the extent of likely pollution by oil or noxious substances. The Intervention Act applies both within and outside Australia and extends to every external Territory.

The applicable fuel oil sulphur content limits applicable in Australian territorial waters are follows:

• Fuel oil must contain a maximum of 0.50 per cent m/m sulphur.
• Vessels must not carry fuel oil with a sulphur content of more than 0.50 per cent m/m, unless it is being carried as cargo.

See POTS(PPS) and Marine Order 97 (Marine pollution prevention – air pollution) 2022) (Marine Order 97).

No Emission Control Areas have been established within Australia at this stage. However, Marine Order 97 adoptions the definition of emission control area set out at regulation 2 of MARPOL Annex VI.

Collision

Australia has acceded to the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS), which is given effect as follows:

• Territorial waters – Part 3 of the Navigation Act, Regulation 19 of the Navigation Regulations 2023 (Cth) (Navigation Regulations) (Regulation 19) and Marine Order 30 (Prevention of Collisions) 2016 (Marine Order 30)
• Coastal waters – relevant State and Territory marine safety legislation.

Marine Order 30 sets out the requirements for the prevention of collisions, internationally agreed measures for the navigation, management and working of a vessel, and the lights and signals to be used on a vessel in accordance with COLREGS.

In the event of a collision, liability will generally be determined pursuant to the principle of tort and contract law, as applied in Australia.

However, there are specific statutory considerations including that:

• Regulation 19 operates to apportion liability as between 2 or more vessels, on the basis liability to make good the damage or loss must be in proportion to the degree in which each vessel was at fault; and
• Section 197 of the Navigation Act provides that in the event of a collision involving one or more vessels, a vessel is not taken to be at fault merely because of a contravention COLREGS.

Salvage

While Australia has acceded to The International Convention on Salvage (Salvage Convention), only certain parts have the force of law in Australia. The Navigation Act (Part 3 of Chapter 7) and the Navigation Regulations give effect to the Salvage Convention (Articles 6 to 8, 12 to 19, 21 to 23, and 26 and 30). The Navigation Regulations (Schedule 1) contain the Common Understanding Concerning Articles 13 and 14 of the Salvage Convention.

An important element of the Salvage Convention is that the salvage operations must be rendered by a ‘volunteer’ i.e. there must not be a contract to undertake the salvage operations (see Article 6(1)). However, the definition of ‘salvage operation’ under section 14 of the Navigation Act does not include this specific requirement. It states that a salvage operation is simply “any act or activity undertaken to assist a vessel or any other property not permanently and intentionally attached to the shoreline (including freight at risk) in danger in any waters”.

Under the Intervention Act, AMSA may direct a vessel to assist with a salvage operation. In complying with an AMSA direction, a person has the right to recover their expenses from the owner of a ship.

The Full Federal Court in Mount Isa Mines Ltd v Ship “Thor Commander” (2018) 263 FCR 181 held that a person who obeys a statutory duty or obligation can still be a salvor because that duty or obligation is not enforceable against the salvor by the ship in danger, but rather by a governmental authority (i.e., AMSA).

Yes. The Convention on Limitation of Liability for Maritime Claims and the 1996 Protocol (LLMC) have the force of law in Australia by way of the Limitation of Liability for Maritime Claims Act 1989 (Cth).

Shipowners (owner, charterer, manager and operator of a seagoing ship) and salvors may limit their liability in accordance with Article 1 for the claims set out in Article 2 of the LLMC.

Importantly, Australia has exercised a reservation under Article 18 to exclude claims falling under Article 2(1)(d) from being subject to limitation, namely, claims “in respect of the raising, removal, destruction or rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship”.

In the recent decision of Tasmanian Ports Corporation Pty Ltd v CSL Australia Pty Ltd (The Goliath) [2025] FCAFC 53. the Full Federal Court considered whether a wreck removal claim was limitable on the basis it also fell within the scope of Article 2(1)(a), being damage to harbour works (a claim which is limitable under Australian law). The Court held that the purpose of Article 18(1) can only be achieved if a reservation excludes all wreck removal claims under Article 2(1)(d), even those that might also fall within Article 2(1)(a). The reservation would be undermined by allowing limitation through re-characterisation.

Under Australian law, shipowners cannot limit their liability for wreck removal expenses, regardless of whether those claims fall also under Article 2(1)(a).

Australia is not a signatory to the 1952 Arrest Convention. In Australia, ship arrests are governed by the Admiralty Act 1988 (Cth) (Admiralty Act). The Admiralty Act is enacted pursuant to the powers at section 76(iii) of the Constitution, which deal with the exercise of Admiralty and maritime jurisdiction in Australia (for more detail, see the Australian Law Reform Commission’s report 33 on the Civil Admiralty Jurisdiction (ALRC Report)).

A ship coming into Australian waters may be arrested by a receiver for the purpose of attaining security, provided they can establish a claim for a maritime lien recognised by Australian law (see Question 8 below) or a general maritime claim under the Admiralty Act.

A receiver will have a general maritime claim under section 4(3)(d) for a claim arising out of an act or omission of the owner or charterer of the ship, a person in possession or control of a ship, or a person for whose wrongful acts or omissions the owner, charterer, or person in possession or control of the ship is liable, being an act or omission in the navigation or management of the ship, including in connection with:

• the loading of goods on to, or the unloading of goods from, the ship; and
• the carriage of goods or persons on to, or the disembarkation of persons from, the ship.

A general maritime claim will establish a right a to proceed in rem (to arrest a ship) under the Admiralty Act where the “relevant person” test can be satisfied pursuant to section 17 of the Act. Section 17 provides that:

Where, in relation to a general maritime claim concerning a ship or other property, a relevant person:

a. was, when the cause of action arose, the owner or charterer of, or in possession or control of, the ship or property; and

b. is, when the proceeding is commenced, the owner of the ship or property a proceeding on the claim may be commenced as an action in rem against the ship or property.

It is possible for a ship under arrest to be retained by the court as security for the satisfaction of any award or judgment that may be made in an arbitration or in a proceeding in another jurisdiction pursuant to section 29 of the Admiralty Act.

The courts in Australia also have the power to make freezing orders (known as Mareva orders or asset preservation orders) to prevent a party disposing of or dealing with assets. However, a freezing order is an exceptional remedy and will not be granted lightly. Amongst other things, the court needs to be satisfied that the granting of the order is necessary to prevent the frustration or inhibition of the court’s process where there is real danger that a judgment, or prospective judgment, of the court will be wholly or partly unsatisfied.

There is no requirement to have a power of attorney. However, the lawyer authorised to make the arrest application, must be an Australian legal practitioner.

To commence an in rem application, it is necessary to prepare and file the following documents for filing in the Federal Court of Australia:

• The writ in rem, stating the prima facie basis of the claim;
• An affidavit from an Australian legal practitioner in support of the application for an arrest warrant, which sets out the jurisdictional elements of the arrest;
• An application for an arrest warrant; and
• The arrest warrant.

Maritime liens are recognised by section 15 of the Admiralty Act. Claims for salvage, damage done by a ship, wages of the master or crew member, and master’s disbursements are all recognised categories of maritime liens and may be commenced as an action in rem against a ship. Section 6 explicitly states that the provisions of the Admiralty Act do not create a new maritime lien or other charge, or a cause of action that would not have existed if the Act had not been passed.

It was the intention of the ALRC Report that the Admiralty Act would include a list of maritime liens as a guide, rather than an exhaustive list, noting that “[i]n the absence of formal international agreement the question is best left to the courts to resolve, taking into account developments in other jurisdictions” (see para 123).

In Elbe Shipping SA v the Ship “Global Peace” (2006) 154 FCR 439 Allsop J observed at [131]:

… the word “includes” in s 15(2) reflects the fact that the Act leaves open the possibility of other maritime liens being recognised beyond those listed. This might occur by reference to the development of Australian maritime law in this respect, or by the recognition of foreign maritime liens by reference to principles of private international law different to those expressed by the majority of the Privy Council in The “Halcyon Isle”.

This means that “a proceeding on a maritime lien” pursuant to section 15 of the Admiralty Act should be interpreted as referring not only to maritime liens arising under Australian law, but also to any maritime lien arising under a foreign law that might be recognised by Australian private international law.

As to the law that will apply, it is notable that while the High Court of Australia has ruled that where torts are committed outside of the jurisdiction, the governing law is to be the lex loci delicti (i.e. the place of the wrong)(see for instance John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 and Regie National des Usines Renault SA v Zhang (2002) 210 CLR 49)), a different approach has been seen in relation to maritime liens.

In Reiter Petroleum Inc v The Ship “Sam Hawk” (2016) 246 FCR 337 (Sam Hawk), the Full Court of the Federal Court did not deliver a unanimous decision but the majority preferred application of the lex fori, setting out a two-step approach regarding recognition of foreign maritime liens in Australia.

The first step is to identify the relevant foreign law right, and the second step is to determine whether the foreign right is sufficiently analogous to a maritime lien recognised by Australian law. The majority judgment indicates that a foreign maritime lien can be recognised only if Australian law would also give that maritime lien the same priority that it has under the relevant foreign law (which is not entirely aligned with the decision in Bankers Trust International Ltd v Todd Shipyards Corp (The Halcyon Isle) [1981] AC 221)).

Maritime claims are defined at section 4 of the Admiralty Act. They are divided into ‘proprietary maritime claims’ under section 4(2) and ‘general maritime claims’ under section 4(3). The claims listed in those provisions (as amended from time to time) represent the totality of proprietary maritime claims and general maritime claims that can be pursued in an in rem proceeding in Australia.

To pursue a general maritime claim as an action in rem it is necessary to satisfy the ‘relevant person’ test at section 17 of the Admiralty Act (see Question 6). Per section 3, the relevant person is to be “a person who would be liable on the claim in a proceeding commenced as an action in personam”.

A claim for bunkers or other necessaries would fall within a general maritime claim under section 4(3)(m) of the Admiralty Act, being a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance. Accordingly, the owner or demise charterer of a vessel must be liable in personam to commence an action in rem in respect of any general maritime claim, such as a claim for bunkers (unless the claim can be recognised as a maritime lien (see further below)).

The only exception will be if the claim for bunkers or necessaries is capable of being recognised as a maritime lien, in which case the relevant person test under section 17 will not apply and an in rem claim can be brought under section 15 of the Admiralty Act. However, the Sam Hawk decision (discussed above) will need to be considered. In that case, the Full Court of the Federal Court did not recognise a foreign maritime lien in respect of the supply of bunkers.

The Admiralty Act provides for the arrest of a surrogate ship in relation to a general maritime claim.

In order to effect a surrogate arrest in Australia, the provisions of section 19 of the Admiralty Act must be satisfied. Section 19 provides that a general maritime claim concerning a ship can be pursued against another ship if the claimant can establish that the owner or charterer of, or the person in possession and control of the first ship is also the owner (etc.) of the surrogate ship at the time of arrest.

Associated ship arrests are not possible in Australia.

It is necessary for the Australian legal practitioner acting in the arrest to provide an undertaking to pay to the Federal Court of Australia (on demand):

• the costs and expenses of the Admiralty Marshal to affect the arrest warrant; and
• the costs and expenses of the Admiralty Marshal in relation to the ship while under arrest.

The Admiralty Marshal may also require the arresting party to pay a deposit to cover the expenses he or she will incur to discharge his or her duties (including travel costs, launch hire and insurance premiums). The amount of the deposit to be provided depends on the place of arrest but is usually in the vicinity of AUD10,000 (but can be closer to AUD15,000 if the arrest is in a remote location).

An arresting party may be liable in damages for demanding “unreasonably and without good cause” excessive arrest security, obtaining an arrest or failing to consent to release from arrest (section 34 of the Admiralty Act).

Where a ship has been arrested in an action in rem, the arresting party is entitled to security for its claim in an amount equal to its “reasonably arguable best case”, including interest up to the likely date of judgment and its costs in the proceedings (see Freshpac Machinery Pty Ltd v Ship “Joana Bonita” (1994) 125 ALR 683).

An owner can secure the release of its ship by way of negotiated security in the form of a letter of undertaking (including a Club-issued LOU), bank guarantee, or cash deposited with the court. Once the arresting party has been offered adequate security it will generally consent to the release from arrest. A failure to consent to release when offered adequate security may render the continued arrest wrongful.

The alternative to negotiated security is a bail bond dealt with under Parts VI and VII of the Admiralty Rules 1988 (Cth) (Admiralty Rules).

Australia is not a signatory to the United Nations Convention on the International Effects of Judicial Sales of Ships (known as the “Beijing Convention”).

Rather, the procedure for judicial sale in Australia is contained in Part X of the Admiralty Rules. Pursuant to rule 69, the court may, on application by a party, order that the ship that is under arrest in the proceeding:

• be valued;
• be valued and sold; or
• be sold without valuation.

Further, if the ship is depreciating in value, the court may at any stage of the proceeding, either with or without application, order that it be sold (see Marinis Ship Supplies (Pty) Ltd v The Ship “Ionian Mariner” (1995) 59 FCR 245).

Once the order for sale has been made, the court will set a timeframe within which notice of claims against the proceeds must be filed and will set conditions for the advertisement of the notice of sale (usually in both local and internationally recognised media platforms).

Rule 70 provides that the sale of the ship under rule 69 must be conducted by the Admiralty Marshal. The Admiralty Marshal will have the ship valued by an experienced ship broker and must sell the ship for the highest possible price.

In the event no offers are made during the timeframe set for advertisement, the Admiralty Marshal may obtain orders from the court to extend the period of advertisement. If the highest price offered is less that the valuation obtained, an order from the court will be required for the sale of the ship at that price. The Rules are silent on the manner of sale, but the most common process is by private treaty following advertisement for a reasonable amount of time.

The proceeds of sale are paid into court by the Admiralty Marshal, thereby creating a fund. The judicial sale extinguishes maritime liens and statutory claims (i.e. proprietary and general maritime claims under the Act) and transfers them to the fund. A purchaser from the Admiralty Marshal gains clear title to the ship free from any claims, liens or encumbrances.

The court will make orders for the advertisement of a notice enabling potential claimants to file any claims that they may have against the res (being the fund). Once the claims are filed, it will be necessary for the claimants to obtain orders for judgment, thereby proving the legal validity and quantum of those claims.

The court will set down a hearing for the determination of priorities or the ranking of the claims. This is of particular importance in circumstances where the fund is insufficient to meet all the judgments obtained against the ship.

Prima facie, Australian courts will determine of the ranking of priorities in the following order:

1. Admiralty Marshal’s costs and expenses associated with the arrest, valuation and sale of the ship
2. The costs of the arresting party up until and including the arrest of the ship
3. Maritime liens
4. Possessory liens;
5. Mortgages
6. Statutory actions in rem (i.e. proprietary or general maritime claims)
7. In personam claims

In the recent Federal Court decision of Dan-Bunkering (Singapore) Pte Ltd v The Ship Yangtze Fortune (Distribution) [2024] FCA 1220 it was held that the registered owner had a valid general maritime claim on the basis of a claim for hire (notwithstanding the appearance of a lease-back arrangement), and was, therefore, entitled to claim against the fund, being the sale proceeds of its own ship. The Court awarded judgment for the registered owner against the fund and ordered distribution between all the claimants, who were of the same class and as such ranked equally without preference (all having general maritime claims).

Australian law recognises that a bill of lading performs three separate functions: (1) as a receipt for goods shipped; (2) as evidence of the contract of carriage between shipper and carrier; and (3) as a document entitling the holder to possession of the goods (see BHP Trading Asia Ltd v Oceaname Shipping Ltd (1996) 67 FCR 211 and Hi-Fert Pty Ltd v Kuikang Maritime Carriers Inc (2000) 173 ALR 263).

In Australia, the Carriage of Goods by Sea Act 1991 (Cth) (COGSA), regulates certain contracts for the carriage of goods by sea (including order bills of lading, straight bills of lading, sea waybills, and electronic waybills) into and out of Australia, as well as between the Australian States. The COGSA features a schedule of modifications to the Hague-Visby Rules in Schedule 1A (Amended Hague Rules).

Relevantly, the definition of ‘carrier’ under the Hague-Visby Rules was not altered by the Amended Hague Rules and therefore the Australian definition of “carrier” includes the owner or the charterer who enters into a contract of carriage with a shipper.

Ultimately, an Australian court’s determination of who will be liable as the ‘carrier’ for the purposes of the Amended Hague Rules is a matter of factual inquiry and evidence. In the event of mistaken identity, provided the pleadings make clear an intention to sue the ‘contracting carrier’ rather than the shipowner or charterer, the claimant may be permitted to substitute the name of the correct party under the relevant Supreme or Federal Court Rules, subject to any time limitation impediments.

Importantly, the carrier cannot contract out of its obligations under the Amended Hague Rules and any agreement that purports to put the carrier in a more favourable position is “null and void and of no effect” (Article 3, rule 8). This is discussed further below.

Outside of the cargo damage context, it is noted that the courts of New South Wales have been prepared to extend the definition of a ‘merchant’ under a bill of lading to freight forwarders, finding them liable for charges owing to carriers (see, for instance, Australian Tallow & Agri-Commodities Pty Ltd v Malaysia International Shipping Corporation (2001) 50 NSWLR 576).

The proper law of the bill of lading or sea carriage document is a relevant consideration under Australian law. COGSA contains mandatory provisions relating to bills of lading (and other sea carriage contracts).

Section 11(1) of COGSA provides that all parties to (inter alia) a “sea carriage document” relating to the carriage of goods from any place in Australia to any place outside of Australia are taken to have intended to contract according to the laws in force at the place of shipment within Australia. As a result, Australian courts will apply the Amended Hague Rules to outward-bound shipments (see Article 10, rule 1).

The position with respect to inward-bound shipments to Australia is more complex. These are governed by Article 10, rules 2 and 3(a)-(c), and will depend on the terms of the sea carriage agreement and the law applicable to the import. This is not always immediately obvious, as was seen in the Full Federal Court decision of Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038, where the Court was required to consider which of the various documents circulating between the parties comprised the contract (ultimately giving primacy to a ‘second recap email’ over the booking note).

As a general rule, Australian courts will give effect to the commercial intentions of the bargaining parties where those are made clear in the contract. However, recent Australian case law has shown that courts will also pay due regard to consumer protection and public policy considerations when considering whether to stay proceedings or override an exclusive jurisdiction clause.

Where COGSA applies (i.e. to certain sea carriage documents) it is important to heed section 11(2) which provides that any agreement which purports to either limit the effect of section 11(1) or to preclude or limit the jurisdiction of Australian courts to entertain a claim in respect of any contract for the carriage of goods by sea into or out of Australia has no effect.

In saying this, Rares J concluded in Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd (formerly Beach Building & Civil Group Pty Ltd)(admin apptd) [2013] FCAFC 107 at [71]:

The purpose of s 11 of COGSA is to protect, as part of a regime of marine cargo liability within the object of s3, the interest of Australian shippers and consignees from being forced contractually to litigate or arbitrate outside Australia. That purpose does not extend to protection of charterers or shipowners from the consequences of enforcement of their freely negotiated charterparties subjecting them to the well-recognised unusual mechanism of international arbitration in their chosen venue.

Whether or not a clause has been validly incorporated will generally turn on ordinary contractual principles. Charterparty terms which are directly germane to the contract of carriage (for example, those governing freight, delivery terms or demurrage) will attract lesser scrutiny from Australian courts than clauses which are ancillary to the contract of carriage (such as arbitration clauses).

In Australia there have been a number of decisions dealing with the right to arbitrate in the context of COGSA section 11(2), which provides that an agreement has no effect insofar as it purports to preclude or limit the jurisdiction of an Australian court.

The case of Carmichael Rail Network Pty Ltd (as trustee for the Carmichael Rail Network Trust) v BBC Chartering Carriers GMBH & Co KG & Anor (2024) 417 ALR 173 (The BBC Nile) shows the approach taken by the High Court of Australia in order to give effect to an agreement to arbitrate, while considering the application of Article 3(8) of the Amended Hague Rules. Article 3(8) provides that any clause relieving the carrier or the ship from liability for loss or damage to goods or lessening such liability shall be null and void and of no effect.

As noted above, Australia originally acceded to the Hague Rules (as amended by the Visby and SDR Protocols), giving them force of law by Schedule 1 of COGSA. Following a Commonwealth Department of Transport review in 1995–6, the Carriage of Goods by Sea Amendment Act 1997 (Cth) was passed, containing a schedule of modifications to the Hague-Visby Rules in Schedule 1A, known as the ‘Amended Hague Rules’. The amendments were made with the intention of improving Australia’s marine cargo liability regime by extending the scope of carrier liability.

The Amended Hague Rules depart from the Hague-Visby Rules in a number of respects. Most notably they:

• extend their operation to “within the limits of the port or wharf ” (Article 1, rule 3); and
• contain broadened definitions of the contracts of carriage or documents to which the rules shall apply (i.e. a “sea carriage document” includes “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” (Article 1(1)(g)(iv)).

The list of sea carriage documents to which COGSA applies is prefaced by the word “including”, which suggests a non-exhaustive definition, however the principle of ejusdem generis has been held not to apply (see Dampskibsselskabet Nordon A/S v Gladstone Civil Pty Ltd (2013) 216 FCR 469), where the majority held that a voyage charterparty was not a “sea carriage document relating to the carriage of goods” within the meaning of COGSA).

Australia is a party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted in 1958 (NY Convention). The International Arbitration Act 1974 (Cth) (IAA) gives effect to Australia’s obligations under the NY Convention and accordingly, foreign awards to which the NY Convention applies are generally recognised and enforced by Australian courts.

However, Australian courts may refuse to enforce a foreign award in certain circumstances, as set out at sections 5(8) and (7) of the IAA. These circumstances include where the award is not valid at law in the relevant country (being the place of the agreement or the place where the award was made), the award goes beyond the scope of the arbitration, the subject matter of the dispute is not capable of settlement by arbitration in the Australian court being asked to enforce the award, and where the enforcement of the award would be contrary to public policy.

The below table sets out the general position regarding limitation periods in Australia.

However, it is crucial to note that limitation is the subject of separate legislation in each State and Territory, and there are some distinct differences, particularly as to when and how a limitation period might be extended. Likewise, certain pre-court dates must be complied with in respect of personal injury claims in Queensland, South Australia, and the ACT.

Accordingly, legal advice should be sought early to ensure rights are preserved.

Australia does not recognise force majeure as a standalone legal doctrine. Its effect arises only where a contract expressly includes a force majeure clause. Such clauses are contractual risk allocation mechanisms that excuse or limit liability when extraordinary events outside the parties’ control delay or hinder performance. Their precise effect is determined by the specific wording of the clause.

Australian courts will closely examine the conduct of any party seeking to rely on a force majeure clause, and relief will be denied where the party contributed to the loss through negligence or unreasonable conduct.

Undue hardship is not an independent ground for relief under Australian law. Instead, relief is available only through the doctrine of frustration, a narrow common law principle.