Australian Comments on the UNCITRAL Draft Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea

• Author: Australian Attorney-General's Department
• Pages: 123-130

AUSTRALIAN COMMENTS ON THE

UNCITRAL DRAFT CONVENTION ON CONTRACTS FOR THE

INTERNATIONAL CARRIAGE OF GOODS WHOLLY OR PARTLY BY SEA

1 General Comments on the Text as a Whole

The Australian delegation acknowledges and appreciates the hard work done by the UNCITRAL Secretariat, by

the Chair and by the Working Group in producing the draft Convention on contracts for the international

carriage of goods wholly or partly by sea. The Australian delegation was an active participant in the Working

Group sessions and recognises the efforts that were made to produce a workable and modern instrument on the

carriage of goods by sea. The Australian delegation is also extremely grateful to the Comité Maritime

International for their work in producing the first draft of the convention.

Whilst acknowledging all the work that has been put into the draft Convention, the Australian delegation has a

number of concerns with the text. The Australian delegation welcomes the opportunity afforded by th e

Secretariat to air these concerns prior to the Commission meeting in June 2008.

Australia has three general concerns with the text and a number of more specific concerns. The three general

concerns are the complexity of the instrument, the perception that the text could favour carriers at the expense of

small shippers and the shift, via the volume contract provision, from a mandatory liability regime to one based

on freedom of contract. The more specific concerns are recorded against the particular provisions.

Complexity of the instrument – It is inevitable in drafting a new international instrument that new and improved

wording will lead to changes in the law which will create uncertainties over interpretation. Australia is of the

opinion that the current text is so different from current international law and so complicated that the potential

for lengthy and costly litigation is high. As this litigation will be domestic, there remains the potential for the

uniformity of the international law to be undermined by having provisions interpreted differently in different

countries.

Balance of the instrument — The Australian delegation considers that the draft convention may be read as

giving greater weight to carrier interests rather than striking an equitable balance between the interests of

shippers and carriers. Whilst some shippers have sufficient negotiating power to be able to conclude fair

contracts, Australia’s primary concern is how the draft convention will impact on small and medium shippers.

Volume contract exception — The Australian delegation has consistently expressed its concerns relating to

article 82 and the definition of volume contract in article 1. The Australian delegation maintains that the current

text allows too broad an exemption from the mandatory regime. It will be possible for a significant majority of

contracts for the carriage of goods by sea to be drafted in such a way as to fall within the definition of ‘volume

contracts’. As such, derogation from many of the fundamental obligations of the carrier and from provisions

such as the limits of liability will be possible and, we believe, widespread. In particular, the Australian

delegation has concerns with the effect such a broad exemption will have on the small shipper. The Australian

delegation also notes that the current text amounts to an erosion of a long-standing, international, mandatory

liability regime and recognises the potential for such an exemption to increase the cost of cargo in surance for

shippers.

2 Comments on Specific Provisions

Article 1: Definitions

1 ‘Contract of carriage’

This definition is wider than previous conventions as it applies to goods carried partly by sea. The second

sentence requires that the contract ‘provide for carriage by sea’ which might technically exclude contracts which

do not specify the mode of transport to be used. On the other hand, there is no actual requirement in the draft

Convention for the goods to be carried by sea. In theory, as long as the contract of carriage provides that the

goods will be carried by sea, the draft Convention will apply even if the goods are not actually so carried. This

might lead to problems in some jurisdictions.

(2008) 22 A&NZ Mar LJ 123