ALRC 33 and the Admiralty Act 1988 (Cth)
5.32 Prior to the enactment of the Admiralty Act 1988 (Cth), the development of admiralty jurisdiction in Australia was prevented by the Colonial Courts of Admiralty Act 1890 (UK), an imperial statute applying to Australia which limited admiralty jurisdiction to matters within the admiralty jurisdiction in England in 1890. This resulted in many obscurities and uncertainties about the scope of the jurisdiction in Australia, and placed many unjustified limitations on the subject matter of the jurisdiction.162
5.33 On 23 November 1982 the then Attorney-General asked the Commission to review and report on all aspects of admiralty jurisdiction. The review resulted in two separate reports on admiralty jurisdiction, Australian Law Reform Commission Report 33 Civil Admiralty Jurisdiction (ALRC 33) and Australian Law Reform Commission Report 48 Criminal Admiralty Jurisdiction and Prize (ALRC 48). 5.34 In its review, the Commission was particularly mindful that international business expectations had been created by the long history of admiralty as a distinct jurisdiction and that there was a need to strike a fair balance between the interests of ship owners and those dealing with the ships. The recommendations of the Commission were directed largely at clarifying the broad framework of admiralty jurisdiction rather than a substantive overhaul of the law.163
5.35 The recommendations of the Commission were accepted and implemented in the Admiralty Act, which primarily provides for and regulates the admiralty
jurisdiction of the courts but, with the exception of s 34, does not create any new causes of action or new substantive rights. Under the previous law a party was only liable for damages for unjustified arrest in cases of gross neglect. Section 34 creates a more extensive liability for damages for unjustified arrest of, or unjustified refusal to release, a ship or other property under the Act.164 The main provisions of the Admiralty Act clarify the type of claims which are subject to admiralty jurisdiction, confer admiralty jurisdiction on the Federal Court of Australia and the state and territory Supreme Courts, and provide for uniform rules of procedure to be made dealing with distinctive aspects of admiralty procedure. 5.36 Although not relevant to questions of insurance, these reviews demonstrate the Commission’s active role in reforming maritime as well as insurance law. These two strands intersect in the present review.
162 Australian Law Reform Commission Report 33 Civil Admiralty Jurisdiction AGPS Canberra 1986 (ALRC 33), Summary, xv.
163 ALRC 33, Summary.
72 Review of the Marine Insurance Act 1909
Other recent reviews of maritime law
5.37 Other significant areas of reform in maritime and relevant aspects of commercial law over the last 25 years include the following.
• The Carriage of Goods by Sea Act 1991 (Cth) (COGSA) sets out Australia’s marine cargo liability regime and sets statutory minimum levels of carrier liability for loss, damage or delay to sea cargoes. International conventions impose terms regulating the contractual relationship between shippers and carriers. The main conventions are the Hague or Hague-Visby Rules and the Hamburg Rules.165 COGSA provided for the amended Hague Rules to apply, but the then government envisaged that the Hamburg Rules would apply once they had been adopted by Australia’s major trading partners. A
working group was formed in 1995 to develop an appropriate cargo liability regime for Australia. COGSA was amended in 1997, and regulations were introduced in 1998 to implement a package of measures developed by the working group.166 These regulations modified the operation of the amended Hague Rules as they apply in Australia.
• Commonwealth legislation has been enacted to protect the marine environment and to adopt international conventions governing marine pollution. A package of ‘protection of the sea’ legislation was enacted in 1981 which implemented international conventions and provided funding for a national plan to deal with oil and chemical spills by imposing levies.167 Other legislation includes the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth)168 and the Protection of the Sea (Oil Pollution Compensation Fund) Act 1993 (Cth).169
• Australia is party to several international conventions concerned primarily with the safety of ships. The Safety of Life at Sea (SOLAS) Convention is regarded as the most important. The SOLAS Convention mandates the International Safety Management Code (ISM Code), which provides an
165 See ALRC DP 63, para 1.30.
166 Department of Transport and Regional Services ‘Australia’s Cargo Liability Regime’ http://www.dotrs.gov.au (12 February 2001).
167 This package included Protection of the Sea (Powers of Intervention) Act 1981 (Cth), Protection of the Sea (Civil Liability) Act 1981 (Cth), Protection of the Sea (Shipping Levy) Act 1981 (Cth) and the Protection of the Sea (Shipping Levy Collection) Act 1981 (Cth). Details of the national plan are set out in ‘Australia’s National Plan to Combat Pollution of the Sea by Oil and other Noxious and Hazardous Substances’ Australian Maritime Safety Authority http://www.amsa.gov.au/me/natplan/overview.htm (12 February 2001).
168 This Act implements parts of the MARPOL Convention relating directly to prevention of pollution. The Navigation Act 1912 (Cth) implements those provisions of MARPOL relating to ships, including ship construction and survey.
169 This Act, together with the Protection of the Sea (Civil Liability) Act 1981 (Cth), implements the CLC/Fund Conventions.
The history of marine insurance law 73 international standard for the safe management and operation of ships. The SOLAS Convention is implemented by Part IV of the Navigation Act 1912 (Cth).
• Part X of the Trade Practices Act 1974 (Cth) (TPA) regulates the market conduct of international liner cargo shipping companies which form
conferences to coordinate joint services, share capacity and agree on freight rates. Part X provides conditional exemptions from Part IV of the TPA (restrictive trade practices) to registered shipping conferences. It has been reviewed and amended a number of times since enactment. Most recently, the Productivity Commission undertook a review of Part X and reported in September 1999. On the Productivity Commission’s recommendation, the government retained Part X but with some additional amendments to improve the application of competition policy to international liner cargo shipping. These changes were implemented by the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000 (Cth).170 • The Shipping Registration Act 1981 (Cth) sets out the conditions for
registration of ships in Australia. In 1997 the Government completed a competition policy review of the Act. That review confirmed the need for a national ship registration system but recommended restructuring the Register into a number of parts so as to provide greater flexibility and reduce costs of registration for some vessel owners.
• The Navigation Act 1912 (Cth) is the main piece of Commonwealth legislation which regulates various matters including ship safety, coastal trade, employment of seafarers and shipboard aspects of the protection of the marine environment. It also regulates wrecks and salvage operations,
passengers, tonnage measurement of ships and a range of administrative measures relating to ships and seafarers. There have been over 70
amendments to the Act since its enactment, around 50 of which have been in the last 20 years.171 The most recent and wide-ranging review of the Act has been conducted jointly by the Department of Transport and Regional Services (Cross-Modal and Maritime Transport Division) and the Australian Maritime Safety Authority.172
170 Department of Transport and Regional Services ‘Review of Part X of the Trade Practices Act 1912’ http://www.dotrs.gov.au (12 February 2001).
171 Department of Transport and Regional Services and Australian Maritime Safety Authority Review of the Navigation Act 1912 Final Report June 2000, 184.
172 Department of Transport and Regional Services and Australian Maritime Safety Authority Review of the Navigation Act 1912 Final Report June 2000. This review did not consider Part VI dealing with the coastal trade. Coastal trade issues were reviewed by the Shipping Reform Group, which reported in March 1997.
74 Review of the Marine Insurance Act 1909
The review noted that the Navigation Act does not have a stated objective but covers a range of subjects, reflecting its origins and development as an omnibus piece of legislation covering shipping regulation. The review recommended that the legislation have stated objectives and that matters not directly related to ship safety and marine environment protection should be repealed or relocated in more appropriate legislation. It recommended that the objectives of the legislation should be to enhance ship safety and protection of the marine environment, facilitate international shipping trade, and provide safe conditions for seafarers.
The review suggested that the extent of changes proposed supports the development of new shipping legislation rather than amendment of the Navigation Act. The review proposed a staged approach be taken, with progressive repeal of the
Navigation Act as new legislation is drafted.173
• Electronic commerce generally has been assisted by the enactment of the Electronic Transactions Act 1999 (Cth) (ETA).174 The ETA was the result of recommendations made by the Electronic Commerce Expert Group which was established by the Attorney-General to report on the legal issues arising from the development of electronic commerce.175 Each state and territory is enacting uniform legislation based on the ETA. Changes have also been made to the laws governing carriage of goods by sea to accommodate electronic transactions. The uniform Sea-Carriage Documents Acts enacted in all states and the Northern Territory to replace old bills of lading
legislation specifically cover electronic bills of lading, as does the Carriage of Goods by Sea Act 1991 (Cth).176
173 Department of Transport and Regional Services and Australian Maritime Safety Authority Review of the Navigation Act 1912 Final Report June 2000, executive summary.
174 See para 15.58–15.72.
175 Expert Group to the Attorney General Electronic Commerce: Building the Legal Framework Report of the Electronic Commerce Expert Group to the Attorney General, Attorney-General’s Department 31 March 1998.
6. An international market
Contents
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