Subpart 1—Carriage of goods
Overview
241 Overview
(1)
This subpart provides for the liability of carriers for the loss of or damage to goods carried within New Zealand as follows:
(a)
sections 242 to 247 determine that the subpart governs liability in relation to the domestic carriage of goods (other than postal services and other specified exceptions), contain definitions, and determine when contracting out is permitted:
(b)
sections 248 to 260 set the core principles for that liability by—
(i)
dividing contracts of carriage of goods into 4 kinds of contract for liability purposes (with the default position being that carriers have limited liability up to a statutory cap):
(ii)
determining when a carrier is responsible for goods for liability purposes:
(iii)
setting statutory caps and exclusions from liability:
(c)
sections 261 to 273 set out additional rules for the liability of carriers, including—
(i)
providing for the liability of actual carriers to contracting carriers and how that liability is apportioned between actual carriers (see sections 261 to 265):
(ii)
implying into every contract of carriage a statutory warranty by contracting parties as to the condition of the goods, including that the goods are fit to be carried and stored in accordance with the contract (see section 273):
(d)
sections 274 to 281 set notice requirements, and a 12-month limitation period, for bringing proceedings against carriers:
(e)
sections 282 to 292 provide for the rights of carriers to sue to recover amounts of freight payable and exercise liens over goods:
(2)
This section is only a guide to the general scheme and effect of this subpart.
Application and effect of subpart
242 This subpart applies to carriage of goods by carrier under contract
(1)
This subpart applies to every carriage of goods performed or to be performed by a carrier under a contract.
(2)
Subsection (1) applies—
(a)
whether the carriage is by land, water, or air (or by more than 1 of those modes); and
(b)
whether or not the carriage is incidental to the carriage of passengers.
Compare: 1979 No 43 s 5(1), (2)
243 This subpart does not apply to international carriage, to postal services, or in certain other cases
(1)
This subpart does not apply to—
(b)
the carriage of letters by a postal operator, whether by the postal operator’s agents or otherwise:
(c)
the carriage of goods by the New Zealand Defence Force or the Ministry of Defence, except for the purpose of providing a public service in New Zealand or elsewhere for payment:
(d)
any carriage by air that is performed as part of an air transport service for the carriage of passengers and is operated by any club that is affiliated with the Royal New Zealand Aero Club Incorporated (the club) if—
(i)
the carriage is performed in an aircraft owned or hired by the club; and
(ii)
all persons carried on the aircraft, whether as crew or passengers, are members of the club with full rights of membership.
(2)
If an aircraft or a ship is engaged in both international carriage and other carriage of goods at the same time, subsection (1)(a) does not prevent this subpart applying to the carriage that is not international carriage.
(3)
If a passenger (A) is carried for the purpose of carrying out a function not related to A’s membership of the club (and not because A is a member of the club), subsection (1)(d) does not prevent this subpart from applying to the carriage by air that is performed as part of the air transport service for the carriage of A.
(4)
In this section,—
letter has the same meaning as in section 2(1) of the Postal Services Act 1998
payment does not include payment by or on behalf of the military authorities of any State other than New Zealand
postal operator has the same meaning as in section 2(1) of the Postal Services Act 1998.
Compare: 1979 No 43 ss 4(2), 5(3)–(4B)
244 Other remedies affected
Despite any rule of law to the contrary, a carrier is not liable in its capacity as a carrier, whether in tort or otherwise, and whether personally or vicariously, for the loss of or damage to any goods carried by the carrier except—
(a)
in accordance with the terms of the contract of carriage and the provisions of this subpart; or
(b)
where the carrier intentionally causes the loss or damage.
Compare: 1979 No 43 s 6
245 Contracting out permitted for some matters
If the parties to a contract of carriage expressly provide for any matter to which any of the following sections apply, those sections have effect subject to the express terms:
(a)
if the contract is for carriage at owner’s risk or for carriage on declared terms, sections 257 and 258 (which relate to when the responsibility of the contracting carrier for goods begins and ends):
(b)
sections 261 to 265 (which relate to the liability of the actual carrier to the contracting carrier):
(c)
if the contract of carriage is between a contracting carrier and an actual carrier or between actual carriers, section 273 (which provides a statutory warranty as to the condition of goods):
(d)
sections 274 to 281 (which relate to the notice, limitation, and other matters relating to proceedings against carriers):
(e)
sections 282 to 292 (which relate to the rights of carriers, including the right to sue for freight and dispose of certain goods carried).
Compare: 1979 No 43 ss 7, 8(14), 17(3)
Interpretation
246 Interpretation
In this subpart, unless the context otherwise requires,—
actual carrier,—
(a)
in relation to the carriage of any goods, means every carrier who, at any material time, is or was in possession of the following for the purpose of performing the carriage, any stage of the carriage, or any incidental service:
(ii)
any container, package, pallet, item of baggage, or any other thing in or on which the goods are or were believed by the carrier to be; and
(b)
includes the contracting carrier if that person performs any part of the carriage
carriage includes any incidental service
carrier—
(a)
means a person who, in the ordinary course of the person’s business, carries or procures to be carried goods that are owned by any other person (whether or not the carriage is incidental to the carriage of passengers); and
(b)
except in sections 283 to 289, includes a person who, in the ordinary course of the person’s business, performs or procures to be performed any incidental service in respect of any of those goods
checked baggage means baggage, personal effects, or other articles, checked or registered with the carrier, put in any place at the carrier’s direction, or in any other way handed over to and accepted by the carrier (whether or not a receipt is issued) as baggage intended to be carried incidental to a contract for carriage of a passenger
contract of carriage means a contract for the carriage of goods
contracting carrier, in relation to a contract of carriage, means the carrier who, whether as a principal or as the agent of any other carrier, enters or has entered into the contract with the contracting party
contracting party, in relation to a contract of carriage, means the consignor or (as the case may require) the consignee of the goods who enters or has entered into the contract with the contracting carrier
court means any court of competent jurisdiction
goods—
(a)
means goods, baggage, and chattels of any description; and
(b)
includes—
(ii)
money, documents, and all other things of value
hand baggage means baggage, personal effects, or other articles, but excludes checked baggage
incidental service, in relation to any goods, means a service performed, or to be performed, to facilitate the carriage of the goods under a contract of carriage (for example, services performed by consolidators, packers, stevedores, and warehouse workers)
international carriage,—
(a)
in relation to the carriage of goods by air, means carriage in which, according to the contract of carriage and whether or not there is a break in the carriage or a transhipment,—
(i)
the place of departure is in the territory of one country and the place of destination is in the territory of another country; or
(ii)
the place of departure and the place of destination are both within the territory of a single country but there is an agreed stopping place within the territory of another country:
(b)
in relation to the carriage of goods by sea, means carriage from any port in New Zealand to any port outside New Zealand, or to any port in New Zealand from any port outside New Zealand, commencing when the goods are loaded onto a ship and ending when they are discharged from a ship
loss, in relation to any goods, includes the non-delivery or destruction of the goods
passenger means a person carried under a contract of carriage of that person
ship means any vessel used for the carriage of goods by sea.
Compare: 1979 No 43 s 2
247 Meaning of unit of goods
(1)
In this subpart, unless the context otherwise requires, unit of goods or unit,—
(a)
in relation to bulk cargo, means the customary freight unit; that is, the unit of bulk, weight, or measurement on which the freight for that type of cargo is customarily computed or adjusted (subject to subsection (2)):
(b)
in relation to goods contained in a container,—
(i)
means the container load of goods; and
(ii)
includes the container if the container is provided by the contracting party:
(c)
in relation to goods loaded on a pallet,—
(i)
means the pallet load of goods; and
(ii)
includes the pallet if the pallet is provided by the contracting party:
(d)
in relation to goods contained in a package that is not contained in a larger package or in a container, nor loaded on a pallet, means the package of goods:
(e)
in relation to goods that are unitised for the purposes of carriage in any manner not referred to in any of paragraphs (a) to (d) or in subsection (2), means that unit of goods:
(f)
in relation to goods (other than baggage) not referred to in any of paragraphs (a) to (e) or in subsection (2), means each item of the goods:
(g)
in relation to baggage, means each item of baggage.
(2)
For the purposes of subsection (1)(a), if the freight payable under a contract of carriage is computed or adjusted on a specified unit of bulk, weight, or measurement, references in this subpart to a unit of goods or unit must be treated, for the purposes of the carriage of goods under that contract, as references to that specified unit.
(3)
See also section 259(4) (which provides for which unit of goods must be counted for the purposes of determining the limit of a carrier’s liability).
Compare: 1979 No 43 s 3(1)
Kinds of contract of carriage and effect on liability of parties
248 Liability depends on kind of contract of carriage
(1)
For the purposes of this subpart, each contract of carriage is one of the following kinds, as determined by section 249:
(a)
a contract for carriage at owner’s risk:
(b)
a contract for carriage at declared value risk:
(c)
a contract for carriage on declared terms:
(d)
a contract for carriage at limited carrier’s risk.
(2)
The liability of a carrier for loss or damage to goods under a contract of carriage is determined by the kind of contract as follows:
(a)
under a contract for carriage at owner’s risk, the carrier is not liable for the loss of or damage to any goods, except where the loss or damage is intentionally caused by the carrier:
(b)
under a contract for carriage at declared value risk, the carrier is liable for the loss of or damage to any goods up to an amount specified in the contract and otherwise in accordance with sections 256 to 260:
(c)
under a contract for carriage on declared terms, the carrier is liable for the loss of or damage to any goods in accordance with the specific terms of the contract:
(d)
under a contract for carriage at limited carrier’s risk, the carrier is liable for the loss of or damage to any goods in accordance with sections 256 to 260.
(3)
See, in particular, section 259 (which caps the liability of carriers under contracts for carriage at a limited carrier’s risk and at declared value risk).
Compare: 1979 No 43 s 8(1)
249 Particular kind of contract of carriage is matter for agreement subject to meeting requirements for that kind
(1)
A contract of carriage is a particular kind of contract referred to in section 248 if—
(a)
it uses the term for that kind of contract referred to in section 248(1); and
(2)
The kind of contract of carriage to be entered into in a particular case is a matter of agreement between the parties.
(3)
However,—
(a)
a contract of carriage that does not purport to be of a particular kind is a contract for carriage at limited carrier’s risk:
(b)
a contract of carriage that purports to be of a particular kind but does not meet the requirements that apply to that kind under sections 250 to 253 is instead a contract for carriage at limited carrier’s risk.
Compare: 1979 No 43 s 8(2)–(4)
250 Requirements for contract for carriage at owner’s risk
(1)
A contract can be a contract for carriage at owner’s risk only if—
(a)
either—
(i)
the contract is in writing, is expressed to be at owner’s risk, and is signed by the parties or their agents; or
(ii)
before, or at the time when, the goods are accepted for carriage, the contracting party or the party’s agent signs the following statement:
“
These goods are to be carried at owner’s risk. This means that the carrier will pay no compensation if the goods are lost or damaged, unless the carrier intentionally loses or damages them.”; and
(2)
For the purposes of subsection (1)(a)(ii), the statement may be included in the consignment note or in any other document relating to the carriage, but in that case the statement must be prominent and must be separately signed by the contracting party or the party’s agent.
Compare: 1979 No 43 s 8(5), (9)
251 Requirements for contract for carriage at declared value risk
A contract can be a contract for carriage at declared value risk only if—
(a)
the contract is in writing; and
Compare: 1979 No 43 s 8(6), (9)
252 Requirements for contract for carriage on declared terms
(1)
A contract can be a contract for carriage on declared terms only if the contract—
(a)
is freely negotiated between the parties; and
(c)
is signed by the parties or their agents.
(2)
If, in any proceeding, the question of whether a contract of carriage was or was not freely negotiated is in issue, the court in determining that question must have regard to the following matters:
(a)
the respective bargaining strengths of the parties:
(b)
the course of dealing between the parties in respect of the particular transaction in question, and any other transactions between them:
(c)
the value of the transaction:
(d)
any extraordinary features of the goods to be carried or the route over which the goods are to be carried:
(e)
any other matters that the court considers may properly be taken into account.
(3)
Either party may bring evidence relating to any matter referred to in subsection (2).
Compare: 1979 No 43 s 8(7), (8)
253 Difference between amounts charged must be fair and reasonable for contract at owner’s risk or declared value risk
(1)
This section applies to a contract for carriage at owner’s risk or at declared value risk.
(2)
The difference in amount between the freight charged by the contracting carrier under the contract and the amount that the carrier would have charged for the same carriage at limited carrier’s risk must be fair and reasonable.
(3)
For the purposes of determining when the difference is fair and reasonable,—
(a)
regard must be had to the difference in the risk actually undertaken by the carrier and the risk that the carrier would have undertaken if the carriage had been at limited carrier’s risk; and
(b)
a rate of freight prescribed by or under any enactment for any mode of carriage pursuant to any kind of contract of carriage must be treated as being a fair and reasonable rate to charge for the carriage.
Compare: 1979 No 43 s 8(9), (10)
254 Contract between contracting carrier and actual carrier or between actual carriers
(1)
A contract of carriage between a contracting carrier and an actual carrier, or between actual carriers, may be of any kind, regardless of the kind of contract that subsists between the contracting carrier and the contracting party.
(2)
Sections 250 to 252 do not apply in respect of any contract between a contracting carrier and an actual carrier or between actual carriers.
Compare: 1979 No 43 s 8(11)
Liability of contracting carriers
255 Application of sections 256 to 258
(1)
Sections 256 to 258 apply to contracts for carriage at limited carrier’s risk and to contracts for carriage at declared value risk.
(2)
In relation to contracts for carriage at owner’s risk or to contracts for carriage on declared terms,—
Compare: 1979 No 43 s 8(12), (13), (14)
256 Liability of contracting carrier
(1)
A contracting carrier is liable to the contracting party for the loss of or damage to any goods that occurs while the carrier is responsible for the goods under sections 257 and 258 (whether or not the loss or damage is caused wholly or partly by the contracting carrier or by any actual carrier).
(2)
This section is subject to sections 259 and 260 (which limit the liability of carriers) and the rest of this subpart.
Compare: 1979 No 43 s 9(1)
257 When responsibility for goods begins
(1)
The responsibility of the contracting carrier for goods begins when the goods are accepted for carriage in accordance with the contract.
(2)
However, the responsibility of a contracting carrier who contracts for the carriage of goods from a destination outside New Zealand to a destination in New Zealand begins when the international carriage of those goods ends.
Compare: 1979 No 43 s 9(2), (7)
258 When responsibility for goods ends
(1)
The responsibility of the contracting carrier for goods ends as follows:
(a)
if the goods are to be delivered to the consignee,—
(i)
when the goods are tendered to the consignee in accordance with the contract; or
(ii)
if any due freight has not been paid at or before the time the goods are to be tendered to the consignee in accordance with the contract, when the relevant carrier is capable of so tendering the goods and has given notice to that effect to a person liable to pay the unpaid amount of due freight (but see subsection (3)(c)); or
(iii)
if the relevant carrier does not know the whereabouts of the consignee when the carrier is capable of tendering the goods to the consignee in accordance with the contract, when the relevant carrier has taken reasonable steps to find the consignee and give notice to that effect to the consignee:
(b)
if the goods are to be collected by the consignee,—
(i)
when the goods are collected by the consignee; or
(ii)
on the expiry of the fifth day after the date on which the relevant carrier notifies the consignee that the goods are available for collection (but see subsection (3)(d)); or
(iii)
if the relevant carrier does not know the whereabouts of the consignee when the carrier is capable of tendering the goods to the consignee in accordance with the contract, when the relevant carrier has taken reasonable steps to find the consignee and give notice that the goods are available for collection to the consignee.
(2)
However, the responsibility of a contracting carrier who contracts for the carriage of goods to a destination outside New Zealand ends when the international carriage of those goods begins.
(3)
In this section,—
(a)
due freight means the whole or any amount of freight that is due and payable to or on behalf of the contracting carrier at any time before, or at the time at which, the goods are to be tendered to the consignee under the contract:
(b)
relevant carrier means the contracting carrier or the last actual carrier (as the case may require):
(c)
notice is not effective for the purposes of subsection (1)(a)(ii) until it is received by a person liable to pay the due freight:
(d)
a day must be excluded for the purposes of subsection (1)(b)(ii) if it is a day on which the carrier’s premises are not open for the collection of goods.
Compare: 1979 No 43 s 9(3)–(6)
Limits on carrier liability for contracts of carriage at limited carrier’s risk or declared value risk
259 Carrier’s liability limited to $2,000 for each unit of goods or to declared value
(1)
This section applies to contracts for carriage at limited carrier’s risk and to contracts for carriage at declared value risk, but not to contracts for carriage at owner’s risk or contracts for carriage on declared terms.
(2)
For the purposes of this subpart, the following are limited in amount in each case to the sum of $2,000 for each unit of goods lost or damaged or, in the case of a contract at declared value risk, the amount specified in the contract:
(a)
the liability of the contracting carrier to the contracting party:
(b)
the separate liability of any actual carrier to the contracting carrier:
(c)
the joint liability of any actual carriers (where there is more than 1) to the contracting carrier:
(d)
the joint and several liability of every successive carrier under a contract of successive carriage to which section 270 applies.
(3)
The limitation of amount specified in subsection (2) does not apply to—
(a)
any liability for the loss of or damage to any goods that is intentionally caused by the carrier; or
(b)
any liability arising out of the terms of the contract for damages other than for the loss of or damage to the goods; or
(c)
any liability arising out of the terms of the contract for damages that is consequential on the loss of or damage to the goods.
(4)
The reference to each unit of goods in subsection (2) is to each unit of goods as accepted for carriage by the actual carrier or (if the carriage is undertaken by more than 1 carrier) the first actual carrier (whether or not the unit that is accepted is subsequently packed, repacked, or unpacked, or otherwise aggregated with or segregated from any other goods, at any stage of the carriage).
Compare: 1979 No 43 ss 3(2), 8(12), (13), 15
260 Carrier not liable in certain circumstances
(1)
This section applies to contracts for carriage at limited carrier’s risk and to contracts for carriage at declared value risk, but not to contracts for carriage at owner’s risk or contracts for carriage on declared terms.
(2)
A carrier is not liable for the loss of or damage to goods that occurs while the carrier is responsible for the goods under a contract of carriage to the extent that the carrier proves that the loss or damage resulted directly and without fault on the carrier’s part from—
(a)
Example
Fish fillets are packed and carried in a ship. Bacteria in the fish fillets are activated by the temperature of the places through which the ship has to pass and the fish fillets are damaged. The bacteria in the fish fillets are an “inherent vice” in the goods. If the carrier can show that the carrier is without fault and that the damage to the fish fillets directly resulted from the bacteria, the carrier is not liable for the damage to the fish fillets.
(b)
any breach of either of the terms implied in the contract by section 273; or
(c)
seizure under legal process; or
(d)
saving or attempting to save life or property in peril.
(3)
This section applies despite any of the other provisions of this subpart.
Compare: 1979 No 43 ss 8(12), (13), 14
Liability of actual carrier to contracting carrier
261 Application of provisions on liability of actual carrier to contracting carrier
(1)
Sections 262 to 265 apply if a contract of carriage is to be or is performed wholly or partly by 1 or more actual carriers other than the contracting carrier (whether or not the contracting carrier performs part of the carriage).
(2)
However, those sections are subject to the rest of this subpart (including section 245, which permits contracting out for some matters).
Compare: 1979 No 43 s 10(1)
262 Liability where 1 actual carrier is involved
(1)
If 1 actual carrier is involved, that carrier is liable to the contracting carrier for the loss of or damage to any goods that occurs while the actual carrier is separately responsible for the goods.
(2)
Subsection (1) applies to the actual carrier—
(a)
subject to the terms of its contract with the contracting carrier:
(b)
whether or not the loss or damage is caused wholly or partly by the actual carrier.
Compare: 1979 No 43 s 10(2)
263 Liability where more than 1 actual carrier is involved
(1)
If more than 1 actual carrier is involved,—
(a)
the actual carriers are jointly liable to the contracting carrier for the loss of or damage to any goods that occurs while the actual carriers are jointly responsible for the goods:
(b)
each actual carrier is separately liable to the contracting carrier for the loss of or damage to any goods that occurs while the actual carrier is separately responsible for the goods.
(2)
Subsection (1)(a) applies to the actual carriers—
(a)
subject to the terms of their respective contracts with the contracting carrier:
(b)
whether or not the loss or damage is caused wholly or partly by the actual carriers or any of them.
(3)
Subsection (1)(b) applies to an actual carrier—
(a)
subject to the terms of its contract with the contracting carrier:
(b)
whether or not the loss or damage is caused wholly or partly by the actual carrier.
(4)
An actual carrier is not liable under subsection (1)(a) if the actual carrier proves that the loss or damage did not occur while the actual carrier was separately responsible for the goods.
Compare: 1979 No 43 s 10(3), (4)
264 When actual carriers are jointly responsible or separately responsible for goods
(1)
For the purposes of section 263(1)(a), the actual carriers are jointly responsible for the goods from the time when the goods (or the container, package, pallet, item of baggage, or any other thing in or on which the goods are believed to be) are accepted for carriage until the time when the contracting carrier’s responsibility ends under section 258(1).
(2)
For the purposes of sections 262 and 263, each actual carrier is separately responsible for the goods from the time when the goods (or the container, package, pallet, item of baggage, or any other thing in or on which the goods are believed to be) are accepted by the actual carrier for carriage until the time—
(a)
when they are tendered by the actual carrier to the next actual carrier in accordance with the contract of carriage; or
(b)
in the case of the last actual carrier, when the contracting carrier’s responsibility ends under section 258(1).
Compare: 1979 No 43 s 10(5), (6)
265 Provisions relating to joint liability of actual carriers
(1)
For the purposes of section 263(1)(a), the actual carriers are liable in proportion to the amount of freight or other consideration that is payable to each of the actual carriers for the carriage performed by the actual carrier.
(2)
For the purposes of this section,—
(a)
if the contracting carrier performs any part of the carriage, the amount of freight or other consideration payable to the contracting carrier is the difference between the total amount payable under the contract of carriage and the aggregate amount payable to the actual carriers:
(b)
if any actual carrier (A) performs any part of the carriage under a contract with any other actual carrier (B) (and not under a contract with the contracting carrier), the amount of freight or other consideration payable to B is the difference between the amount actually payable to B and the amount payable by B to A.
Compare: 1979 No 43 s 10(7)–(9)
Other provisions relating to liability of carriers
266 Rights of contracting party where contracting carrier insolvent or cannot be found
(1)
This section applies if—
(a)
the contracting carrier is liable to the contracting party for the loss of or damage to any goods; and
(b)
the contracting carrier is insolvent or cannot with reasonable diligence be found.
(3)
If the contracting party brings any proceeding against an actual carrier in respect of any of those rights,—
(a)
the actual carrier has the same rights (if any) against the contracting party (including the right of set-off) as the actual carrier would have had under the contract if the proceeding had been brought against the actual carrier by the contracting carrier:
(b)
if judgment in the proceeding is awarded against the actual carrier, the judgment is an absolute bar to the bringing by the contracting carrier, or by any person claiming through the contracting carrier, of any proceeding to enforce the same right.
Compare: 1979 No 43 s 11(1), (3), (4)
267 Liquidator or assignee in bankruptcy holds money on trust
(1)
If the liquidator or assignee in bankruptcy of an insolvent contracting carrier brings a proceeding against an actual carrier in respect of a right referred to in section 266(2), the relevant amount must be held by the liquidator or assignee on the following trusts:
(a)
for or towards the payment of the whole of the sum payable by the contracting carrier to the contracting party in respect of the loss of or damage to the goods:
(b)
subject to that payment, as an asset in liquidation or bankruptcy.
(2)
In this section, the relevant amount is the sum recovered from the actual carrier, less all costs and expenses reasonably incurred by the liquidator or assignee in bringing and prosecuting the proceeding and not recovered by the liquidator or assignee from the actual carrier.
Compare: 1979 No 43 s 11(2), (4)
Liability of carriers for baggage
268 Special rules relating to liability of carrier in respect of baggage
(1)
A carrier is not liable in its capacity as a carrier with respect to baggage that is left in the carrier’s custody—
(a)
pending the carrier’s acceptance of it for carriage; or
(b)
pending its collection from the carrier after the completion of the carriage.
(2)
This subpart applies to the carriage of hand baggage and checked baggage, with all necessary modifications, as if that carriage were or were to be performed under a contract of carriage of goods.
Compare: 1979 No 43 s 12(1)–(3)
269 Other rules relating to hand baggage
(1)
A carrier is liable for the loss of or damage to any hand baggage that occurs while the passenger is on board the mode of transport or in the course of any of the operations of embarking or disembarking, if the loss or damage is caused wholly or partly by the negligence or wilful default of the carrier.
(2)
If, in respect of the loss of or damage to any hand baggage, the carrier proves that the loss or damage was contributed to by the negligence or wilful default of the passenger, the court may, under the Contributory Negligence Act 1947, relieve the carrier from any part of the carrier’s liability.
Compare: 1979 No 43 s 12(4), (5)
Liability under contracts of successive carriage
270 Contracts of successive carriage by air
(2)
The successive carriers under a contract of successive carriage are jointly and severally liable to the contracting party for the loss of or damage to any goods that occurs while the carriers are jointly responsible for the goods.
(3)
Subsection (2) applies whether or not the loss or damage is caused wholly or partly by the carriers or by any of them.
(4)
However, a successive carrier is not liable under subsection (2) if the successive carrier proves that the loss or damage did not occur while the successive carrier was separately responsible for the goods.
(5)
Subsections (2) to (4) are subject to the rest of this subpart.
(6)
In this section and section 271,—
contract of successive carriage means a contract or contracts for the carriage of any goods exclusively by air, where the carriage—
(a)
is or is to be performed by 2 or more carriers in successive stages; and
(b)
is regarded by the parties as a single operation
successive carrier means a carrier referred to in the definition of contract of successive carriage.
Compare: 1979 No 43 s 13(1)–(4)
271 When successive carriers are jointly responsible or separately responsible for goods
(1)
For the purposes of section 270, successive carriers are jointly responsible for the goods from the time when the goods are accepted by the first successive carrier for carriage in accordance with the contract until the time when, if the contract were not a contract of successive carriage, the contracting carrier’s responsibility would have ended under section 258(1).
(2)
Each successive carrier is separately responsible for the goods from the time when the goods are tendered to the successive carrier in accordance with the contract until the time—
(a)
when they are tendered by the successive carrier to the next successive carrier in accordance with the contract of carriage; or
(b)
in the case of the last successive carrier, when, if the contract were not a contract of successive carriage and the successive carrier were the contracting carrier, the carrier’s responsibility would have ended under section 258(1).
Compare: 1979 No 43 s 13(5), (6)
Liability of employees
272 Liability of carrier’s employee
(1)
Every employee of a carrier who, in the course of the employee’s employment, intentionally causes the loss of or damage to any goods being carried by the carrier is liable to the owner of the goods for that loss or damage.
(2)
An employee of a carrier is not liable in his or her capacity as an employee, whether under this subpart or otherwise, to the owner of any goods being carried by the carrier for the loss of or damage to any of those goods.
(3)
Subsection (2) is subject to subsection (1).
Compare: 1979 No 43 s 16
Warranty by contracting parties
273 Contracting party to warrant condition of goods and compliance with enactments
(1)
In every contract of carriage of goods there is implied on the part of the contracting party a term—
(a)
that, except as disclosed under subsection (2), the goods are fit to be carried and stored in accordance with the contract in the condition, and packed in the manner, in which the goods are tendered for carriage:
(b)
that, except as disclosed under subsection (2), the provisions of every other enactment (if any) that the contracting party is required to comply with and that relate to the consignment for carriage of the goods have been complied with.
(2)
If, before the goods are accepted for carriage, the contracting party notifies the contracting carrier or the first actual carrier of any material particular that would otherwise constitute a breach of either of the terms specified in subsection (1), the carrier may—
(a)
refuse to carry the goods; or
(b)
undertake to carry the goods subject to the reasonable terms and conditions that the carrier may require, having regard to the circumstances of the case.
(3)
This section applies, with all necessary modifications, to contracts of carriage between contracting carriers and actual carriers, and between actual carriers, subject to any express term in the contract (see section 245).
Compare: 1979 No 43 s 17
Proceedings against carriers
274 Notice of claim against contracting carrier must be given within 30 days
(1)
No proceeding may be brought against a contracting carrier for damage to or partial loss of goods that occurs while the contracting carrier is responsible for the goods under this subpart unless written notice is given in accordance with this section.
(2)
The notice must—
(a)
give reasonable particulars of the alleged damage or partial loss; and
(b)
be given within 30 days after the date on which, in accordance with section 258, the carrier’s responsibility for the goods ends; and
(c)
be given to the contracting carrier or (if the contract was not performed entirely by the contracting carrier) to—
(i)
the actual carrier or, as the case may require, the last actual carrier; and
(ii)
the contracting carrier, unless (where notice of the claim is to be given by the consignee) the consignee does not know the identity of the contracting carrier.
Compare: 1979 No 43 s 18(1), (4)
275 Notice of claim against actual carrier must be given within 10 days
(1)
No proceeding may be brought by a contracting carrier against an actual carrier for damage to or partial loss of goods that occurs while the actual carrier is responsible for the goods under this subpart unless the contracting carrier, within 10 days after receiving notice of a claim under section 274, notifies the actual carrier of that claim.
Compare: 1979 No 43 s 18(2)
276 No notice required if carrier is or ought to be aware of damage or loss or in case of fraud
A notice is not required to be given to a carrier under section 274 or 275—
(a)
if it appears from all the circumstances of the case that the carrier is or ought to be aware of the damage or partial loss; or
(b)
in the case of fraud by the carrier.
Compare: 1979 No 43 s 18(1)–(3)
277 Non-notified proceeding may be brought with carrier’s consent or leave of court
(1)
A carrier may consent to a proceeding being brought against the carrier even if a notice of the claim was not properly given.
(2)
If the carrier does not consent, an application may be made to the court, after notice to the carrier, for leave to bring the proceeding.
(3)
The application must be made before the expiry of the period set by section 278 or 279.
(4)
On application being made to it, the court may, if it thinks it just to do so, grant leave to bring the proceeding against the carrier if the court considers that—
(a)
the failure to give notice was caused by mistake of fact or by mistake of any matter of law (other than the provisions of sections 274 to 276 or this section) or by any other reasonable cause; and
(b)
the intended defendant was not materially prejudiced in that person’s defence or otherwise by the failure to give proper notice.
(5)
Leave may be granted on the terms and conditions that the court thinks fit.
Compare: 1979 No 43 s 18(5)–(7)
278 Limitation on proceedings against carriers for loss of goods
(1)
No proceeding may be brought against a carrier for the loss of any goods that occurs while the carrier is responsible for the goods under this subpart after the expiry of a period of 12 months from the date on which the carriage should have been completed in accordance with the contract (the relevant date for the purposes of section 280).
(2)
Subsection (1) does not apply in the case of fraud by the carrier.
Compare: 1979 No 43 s 19(1)
279 Limitation on proceedings against carriers for damage to or partial loss of goods
(1)
No proceeding may be brought against a carrier for damage to or partial loss of any goods that occurs while the carrier is responsible for the goods under this subpart after the expiry of a period of 12 months from—
(a)
the date on which notice is served on the carrier under section 274 or 275; or
(b)
if, under section 276(a), no notice is served, the date on which the contracting carrier’s responsibility for the goods ends under section 258.
(2)
The date referred to in subsection (1)(a) or (b) is the relevant date for the purposes of section 280.
(3)
Subsection (1) does not apply in the case of fraud by the carrier.
Compare: 1979 No 43 s 19(2)
280 Proceeding may be brought after limitation period with carrier’s consent or leave of court
(1)
A carrier may consent to a proceeding being brought against the carrier even if the period specified in section 278 or 279 has expired.
(2)
If the carrier does not consent, an application may be made to the court, after notice to the carrier, for leave to bring the proceeding.
(3)
The application must be made within 6 years after the relevant date referred to in section 278 or 279.
(4)
On an application being made to it, the court may, if it thinks it just to do so, grant leave to bring the proceeding against the carrier if it considers that—
(a)
the delay in bringing the proceeding was caused by mistake of fact or by mistake of any matter of law (other than the provisions of section 278 or 279 or this section) or by any other reasonable cause; and
(b)
the intended defendant was not materially prejudiced in that person’s defence or otherwise by the delay.
(5)
Leave may be granted on the terms and conditions that the court thinks fit.
Compare: 1979 No 43 s 19(3)–(5)
281 Proceeding by consignee if not contracting party
(1)
A proceeding against a contracting carrier in respect of the loss of or damage to any goods that occurs while the carrier is responsible for the goods in accordance with section 256 may, if the property in the goods has passed to the consignee and the consignee is not the contracting party, be brought by the consignee.
(2)
Subsection (1) applies despite anything in this subpart or any rule of law to the contrary.
(3)
If the consignee brings a proceeding in accordance with subsection (1),—
(a)
the consignee must be treated as the contracting party and may sue and recover under the contract accordingly:
(b)
the contracting carrier may raise the same defences and make the same counterclaims as the contracting carrier would have been entitled to raise or make if the proceeding had been brought against the contracting carrier by the contracting party.
(4)
In this section, property has the same meaning as in section 119.
Compare: 1979 No 43 s 20
Rights of carriers
282 Contracting out permitted on rights of carriers
Compare: 1979 No 43 s 7
283 Right to sue for freight
(1)
The right to sue for the recovery of freight payable under a contract of carriage arises,—
(a)
in the case of a contracting carrier, when the contracting carrier ceases to be responsible for the goods in accordance with section 258:
(b)
in the case of an actual carrier, when the actual carrier ceases to be separately responsible for the goods in accordance with section 264(2).
(2)
Nothing in subsection (1) limits or affects the right of a carrier to refuse to accept any goods for carriage unless the freight is prepaid.
Compare: 1979 No 43 s 21
284 Proceeding for recovery of freight
(1)
A proceeding for the recovery of freight may be brought against the consignee if—
(a)
the property in the goods has passed to the consignee; and
(b)
the consignee is not the contracting party.
(2)
Subsection (1) applies despite anything in this subpart or any rule of law to the contrary.
(3)
If the proceeding is brought against the consignee,—
(a)
the consignee must be treated as the contracting party and is liable for the payment of freight under the contract accordingly:
(b)
the consignee may raise the same defences and make the same counterclaims as the contracting party would have been entitled to raise or make if the proceeding had been brought against the contracting party.
Compare: 1979 No 43 s 22
285 Carrier’s lien
(1)
The carrier is entitled to an active and particular lien over the goods from the time when, under section 283(1), a carrier’s right to sue for the recovery of freight arises.
(3)
Nothing in this section or in sections 286 to 288 limits or affects the right to have and enforce a general lien over any goods to which a carrier may be entitled by virtue of any provision expressed or implied in the contract of carriage.
(4)
In this section and sections 286 to 288,—
owner, in relation to any goods, means the person whom, under any contract of carriage or under section 284, the carrier may sue for recovery of freight due in respect of the carriage of those goods
recoverable expenses means all expenses and charges that the carrier, under section 288(2)(b), may recover from the owner of any goods in respect of which the carrier is exercising or has exercised a lien under this section or any of sections 286 to 288.
Compare: 1979 No 43 s 23(1), (2), (8)
286 Notice of carrier’s claim
(1)
Every carrier claiming a lien over any goods under section 285(1) must give notice of the carrier’s claim to the owner of the goods.
(2)
The notice must—
(a)
specify the amount and particulars of the carrier’s claim; and
(b)
require the owner to pay or secure to the carrier the amount of the freight claimed and all recoverable expenses.
Compare: 1979 No 43 s 23(3)
287 Carrier may store goods
(1)
Pending settlement of the claim referred to in section 286, the carrier—
(a)
may remove the goods to any suitable premises for storage; and
(b)
must notify the owner of the goods of the address of the premises; and
(c)
must take all reasonable steps to preserve the goods.
(2)
The premises must be reasonably convenient to enable the owner of the goods, or any other person entitled to the goods, to collect the goods on payment of all freight owing and recoverable expenses so far incurred.
Compare: 1979 No 43 s 23(4)
288 Sale of goods by public auction
(1)
The carrier may sell the goods by public auction if, within 2 months after the date on which the carrier gives notice under section 286, payment in full of all freight owing and recoverable expenses so far incurred has not been tendered to the carrier.
(2)
From the proceeds of sale of the goods by public auction, the carrier may deduct—
(a)
the amount of freight owing to the carrier in respect of the carriage of the goods; and
(b)
all expenses reasonably incurred by the carrier in removing, preserving, and storing the goods pending settlement of the carrier’s claim, and in arranging and conducting the sale of the goods.
(3)
The carrier must pay the balance of the proceeds (if any) to the owner of the goods.
(4)
If the amount of the proceeds is less than the amount of freight owing to the carrier and all recoverable expenses, the deficiency is a debt due to the carrier by the owner of the goods.
Compare: 1979 No 43 s 23(5)–(7)
289 Storage and disposal of unclaimed or rejected goods
(1)
This section applies if, under a contract of carriage,—
(a)
any goods are to be collected by the consignee and the goods are not collected by the consignee promptly after the responsibility of the contracting carrier for the goods ends under section 258; or
(b)
any goods are to be delivered to the consignee and the consignee—
(ii)
refuses to accept the goods (otherwise than because of any default by the carrier).
(2)
The carrier may remove the goods, at the consignee’s expense, to suitable premises for storage.
(3)
The carrier is entitled to an active and particular lien over the goods held by the carrier under this section.
(4)
The lien may be exercised in the same manner and to the same extent as if it were a lien to which section 285 applies, and that section and sections 286 to 288, to the extent that they are applicable and with all necessary modifications, apply accordingly.
(5)
Despite subsections (1) to (4), the carrier must, before selling any goods to which this section applies, offer to carry the goods to, or to the order of, the consignor, and all costs must be met by the consignor.
Compare: 1979 No 43 s 24
290 Disposal of perishable goods
(1)
This section applies if, at any time while any perishable goods are subject to a contract of carriage (including any time while the goods are held under sections 285 to 289), the goods appear to be deteriorating and likely to become offensive.
(2)
The carrier may—
(a)
sell the goods to the best advantage; or
(b)
if sale is not reasonably practicable, destroy or otherwise dispose of the goods.
(3)
Subsection (2) applies despite any of the other provisions of this subpart.
(4)
If the goods are sold, the carrier—
(a)
may deduct from the proceeds of sale—
(i)
the amount of freight or other consideration owing to the carrier in respect of the carriage of the goods; and
(ii)
all expenses reasonably incurred by the carrier in holding the goods and in arranging and conducting the sale; and
(b)
must pay the balance (if any) to the consignee.
(5)
If the goods are destroyed or otherwise disposed of, the expenses reasonably incurred by the carrier are recoverable by the carrier as a debt due from the contracting party.
Compare: 1979 No 43 s 25
291 Disposal of dangerous goods
(1)
This section applies if, at any time while any goods are subject to a contract of carriage (including any time while the goods are held under sections 285 to 289), the carrier believes on reasonable grounds that—
(a)
the goods are in, or are about to enter, a dangerous state; and
(b)
it is necessary to promptly destroy or otherwise dispose of the goods in order to avoid the threat of harm to any persons or property.
(2)
The carrier may promptly destroy or otherwise dispose of the goods.
(3)
Subsection (2) applies despite any of the other provisions of this subpart.
(4)
The reasonable expenses incurred by the carrier in destroying or otherwise disposing of the goods are recoverable by the carrier as a debt due from the contracting party.
Compare: 1979 No 43 s 26
292 Liability of carrier extinguished in respect of sale or disposal of goods
(1)
This section applies if any goods are sold, destroyed, or otherwise disposed of in accordance with any of sections 285 to 291.
(2)
Neither the contracting carrier nor any actual carrier is liable (whether under this subpart or otherwise) in respect of the sale, the destruction, or any other disposition of the goods.
(3)
However, the sale, the destruction, or any other disposition does not affect any liability for any loss or damage that had already occurred in respect of the goods before their sale, destruction, or other disposition.
(4)
This section applies despite any of the other provisions of this subpart.
Compare: 1979 No 43 s 27
Miscellaneous provisions
293 Common carrier of goods abolished
(1)
A carrier is not under any duty or obligation to accept or carry goods that are offered to the carrier for carriage.
(2)
Subsection (1) applies despite any rule of law, but subject to the provisions of any enactment and of any contract entered into by the carrier.
(3)
Every reference in any other enactment to the liability of common carriers as such must be treated as a reference to the liability of carriers under this subpart.
Compare: 1979 No 43 s 28
294 Proceedings against New Zealand agents of overseas carriers
A proceeding arising out of a contract of carriage may be brought in accordance with the provisions of this subpart against a New Zealand agent, whether acting under general or special authority, of an overseas contracting carrier if—
(a)
the contract is or is to be performed wholly or partly in New Zealand; and
(b)
the agent plays some part in relation to the contract.
Compare: 1979 No 43 s 29
295 Certain other Acts not affected
(2)
In any case where any of the provisions of this subpart are inconsistent with any of the provisions of any other enactment referred to in subsection (1), the provisions of that other enactment prevail.
Compare: 1979 No 43 s 30
Subpart 2—Mercantile agents
296 Interpretation
(1)
In this subpart, unless the context otherwise requires,—
document of title includes—
(a)
a bill of lading, a dock warrant, a warehouse keeper’s certificate, and a warrant or an order for the delivery of goods; and
(b)
any other document—
(i)
that is used in the ordinary course of business as proof of the possession or control of goods; or
(ii)
that authorises or purports to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive the goods represented by the document
goods includes all kinds of movable personal property, including animals
mercantile agent means an agent who has, in the ordinary course of the agent’s business as an agent, authority to—
(b)
consign goods for the purpose of sale; or
(d)
raise money on the security of goods
pledge includes any contract pledging or giving a lien or security on goods, whether in consideration of—
(b)
any further or continuing advance; or
(2)
A person (A) must be treated as being in possession of goods, or of the documents of title to goods, if the goods or documents—
(a)
are in A’s actual custody; or
(b)
are held by any other person subject to A’s control or for A or on A’s behalf.
Compare: 1908 No 117 s 2
Sales, pledges, and other dispositions by mercantile agents
297 Sale, pledge, or other disposition by agent in possession with owner’s consent is valid
(1)
This section applies if a mercantile agent (A) is, with the consent of the owner of goods (B), in possession of the goods or of the documents of title to the goods.
(2)
A sale, a pledge, or any other disposition of the goods made by A, when acting in the ordinary course of business as a mercantile agent, is as valid as if A were expressly authorised by B to make the sale, pledge, or other disposition.
(3)
However, subsection (2) applies only if the person who takes the goods under the disposition—
(b)
does not, at the time of the disposition, have notice that A has no authority to make the disposition.
(4)
Subsection (2) is subject to the rest of this subpart.
Example
A person (A) runs a fairly substantial business of selling second-hand televisions, computers, and other electrical equipment as an agent on behalf of the owners of those goods.
Another person (B) gives B’s television to A for the purposes of repair (rather than sale).
A, when acting in the ordinary course of his business, sells B’s television to a consumer (C). C buys the television honestly and does not know that A has not been given authority to sell it.
C obtains good title to the television.
Compare: 1908 No 117 s 3(1)
298 Buyer, etc, has notice of lack of authority if goods subject to perfected security interest
(1)
This section applies if—
(a)
a mercantile agent is, with the consent of the owner of goods, in possession of the goods or of documents of title to the goods; and
(2)
A person who takes the goods under a disposition made by the mercantile agent must be treated as having notice that the agent has no authority to make the disposition.
(3)
Subsection (2) does not apply if it is proved that the authority did exist.
Compare: 1908 No 117 s 3(1A)
299 Effect of withdrawal or expiry of owner’s consent
(1)
This section applies if a mercantile agent has, with the consent of the owner of goods, been in possession of the goods or of the documents of title to the goods.
(2)
A sale, a pledge, or any other disposition that would have been valid if the consent of the owner had continued is valid despite the withdrawal or expiry of the consent.
(3)
However, subsection (2) applies only if the person who takes the goods under the disposition does not, at the time of the disposition, have notice that the consent has been withdrawn or has expired.
Compare: 1908 No 117 s 3(2)
300 Provisions relating to consent
For the purposes of this subpart,—
(a)
possession of the documents of title to goods by a mercantile agent (A) must be treated as being with the consent of the owner if A obtains possession of those documents by reason of A being or having been, with the consent of the owner, in possession of the goods or of any other documents of title to the goods; and
(b)
the consent of the owner is presumed in the absence of evidence to the contrary.
Compare: 1908 No 117 s 3(3), (4)
301 Effect of pledges of documents of title
A pledge of the documents of title to goods must be treated as being a pledge of the goods.
Compare: 1908 No 117 s 4
302 Pledge of goods as security for existing debt or liability
If a mercantile agent pledges goods as security for a debt or liability due from the pledgor to the pledgee before the time of the pledge, the pledgee acquires no further right to the goods than could have been enforced by the pledgor at the time of the pledge.
Compare: 1908 No 117 s 5
303 Rights acquired by exchange of goods or documents
(1)
The consideration necessary for the validity of a sale, a pledge, or any other disposition of goods for the purposes of this subpart may be—
(b)
the delivery or transfer of—
(ii)
a document of title to other goods; or
(iii)
a negotiable security; or
(c)
any other valuable consideration.
(2)
However, if a mercantile agent pledges goods in consideration of the delivery or transfer of other goods, or of a document of title to other goods, or of a negotiable security, the pledgee acquires no right to or interest in the pledged goods in excess of the value of the goods, documents, or security when so delivered or transferred in exchange.
Compare: 1908 No 117 s 6
304 Agreements through employees or other authorised persons
For the purposes of this subpart, an agreement made with a mercantile agent through an employee or any other person authorised in the ordinary course of business to make contracts of sale or pledge on the mercantile agent’s behalf must be treated as being an agreement with the mercantile agent.
Compare: 1908 No 117 s 7
305 Consignee’s lien
(1)
This section applies if—
(a)
an owner of goods has—
(i)
given possession of the goods to another person (A) for the purpose of consignment or sale; or
(ii)
shipped the goods in the name of another person (A); and
(b)
the consignee of the goods has not had notice that A is not the owner of the goods.
(2)
The consignee, in respect of advances made to or for the use of A, has the same lien on the goods as if A were the owner of the goods.
(3)
The consignee may transfer the lien to another person.
(4)
Nothing in this section limits or affects the validity of any sale, pledge, or other disposition by a mercantile agent.
Compare: 1908 No 117 s 8
306 Effect of transfer of document of title to goods on vendor’s lien and right of stopping goods in transit
(1)
This section applies if—
(a)
a document of title to goods has been lawfully transferred to a person (A) as a buyer or an owner of the goods; and
(b)
A transfers the document to a person who takes the document in good faith and for valuable consideration.
(2)
The transfer referred to in subsection (1)(b) has the same effect for defeating a vendor’s lien or right of stopping goods in transit as the transfer of a bill of lading has for defeating the right of stopping goods in transit.
Compare: 1908 No 117 s 9
Miscellaneous provisions
307 Mode of transferring documents
For the purposes of this subpart, the transfer of a document may be by—
(b)
delivery, if the document—
(i)
is by custom or by its express terms transferable by delivery; or
(ii)
makes the goods deliverable to the bearer.
Compare: 1908 No 117 s 10
308 Saving of rights of true owner
(1)
This subpart does not—
(a)
authorise a mercantile agent to exceed or depart from the agent’s authority as between the agent and the agent’s principal; or
(b)
exempt the agent from any liability, civil or criminal, for exceeding or departing from that authority.
(2)
This subpart does not prevent the owner of goods from recovering the goods from a mercantile agent or a specified person at any time before the sale or pledge of the goods.
(3)
In subsection (2), specified person means,—
(a)
in the case of a mercantile agent that is bankrupt, the Official Assignee (within the meaning of the Insolvency Act 2006); or
(b)
in the case of a mercantile agent in liquidation, the liquidator.
(4)
This subpart does not prevent the owner of goods pledged by a mercantile agent—
(a)
from having the right to redeem the goods at any time before the sale of the goods, on—
(i)
satisfying the claim for which the goods were pledged; and
(ii)
paying to the mercantile agent, if required by the agent, any money in respect of which the agent would by law be entitled to retain the goods or the documents of title to the goods (or any of those goods or documents) by way of lien as against the owner; or
(b)
from recovering from any person with whom the goods have been pledged any balance of money remaining in the person’s hands as the proceeds of the sale of the goods after deducting the amount of the person’s lien.
(5)
This subpart does not prevent the owner of goods sold by a mercantile agent from recovering from the buyer the price agreed to be paid for the goods, or any part of that price, subject to any right of set-off on the part of the buyer against the agent.
Compare: 1908 No 117 s 11
309 Common law powers of mercantile agent
This subpart does not limit the powers that are exercisable by a mercantile agent independently of this subpart.
Examples
Powers that are exercisable by a mercantile agent independently of this subpart include powers exercisable under the common law doctrines of ostensible authority and agency by estoppel.
Compare: 1908 No 117 s 12
Subpart 3—Bills of lading, sea waybills, and ship’s delivery orders
Application
310 Application of this subpart
(1)
This subpart applies to the following documents:
(2)
To avoid doubt about the application of this subpart to navigable lakes and inland navigable waters of New Zealand, this subpart extends and applies to all parts of New Zealand to the extent that this subpart is applicable.
Compare: 1908 No 117 ss 1(4), 13A(1)
311 This subpart applies without prejudice to application of Hague Rules
This subpart has effect without prejudice to the application, in relation to any case, of section 209 of the Maritime Transport Act 1994 (which relates to the Hague Rules having the force of law in relation to the carriage of goods by sea).
Compare: 1908 No 117 s 13(7)
Interpretation
312 Interpretation
(1)
In this subpart and subparts 2 and 4, unless the context otherwise requires,—
bill of lading—
(a)
does not include a document that is incapable of transfer either by endorsement or, as a bearer bill, by delivery without endorsement; but
(b)
subject to paragraph (a), includes a received for shipment bill of lading
sea waybill means a document (other than a bill of lading) that—
(a)
is a receipt for goods that contains or evidences a contract for the carriage of goods by sea; and
(b)
identifies the person to whom the carrier will deliver the goods in accordance with that contract (see subsection (3)(b))
ship’s delivery order means a document (other than a bill of lading or a sea waybill) that contains an undertaking that—
(a)
is given under or for the purposes of a contract for the carriage by sea of the goods to which the document relates, or of goods that include those goods; and
(b)
is an undertaking given by the carrier to a person who is identified in the document to deliver the goods to which the document relates to that person.
(2)
In this subpart, unless the context otherwise requires,—
contract of carriage means,—
(a)
in relation to a bill of lading or sea waybill, the contract contained in or evidenced by the bill or waybill; and
(b)
in relation to a ship’s delivery order, the contract under which or for the purposes of which the undertaking contained in the order is given
goods includes all kinds of movable personal property, including animals
holder, in relation to a bill of lading, means any of the following persons:
(a)
a person who possesses the bill and who, by virtue of being the person identified in the bill, is the consignee of the goods to which the bill relates:
(b)
a person who possesses the bill as a result of the completion (by delivery of the bill) of an endorsement of the bill or, in the case of a bearer bill, as a result of any other transfer of the bill:
(c)
a person who possesses the bill as a result of a transaction under which the person would have become a holder under paragraph (a) or (b) had the transaction not been effected at a time when possession of the bill no longer gave a right (as against the carrier) to possession of the goods to which the bill relates
information technology includes any computer or other technology by means of which information or other matter may be recorded in electronic form or communicated by means of an electronic communication (where electronic and electronic communication have the same meanings as in section 209)
network has the same meaning as in section 3 of the Telecommunications (Interception Capability and Security) Act 2013
received for shipment bill of lading has the meaning set out in section 324.
(3)
For the purposes of this subpart,—
(a)
a person must be regarded as having become the lawful holder of a bill of lading if the person has become the holder of the bill in good faith:
(b)
references to a person being identified in a document include references to that person being identified by a description that allows for the identity of the person to be varied, in accordance with the terms of the document, after its issue.
Compare: 1908 No 117 ss 13(1)–(3), 13A(2)–(4)
Section 312(2) network: replaced, on 13 November 2018, by section 40 of the Telecommunications (New Regulatory Framework) Amendment Act 2018 (2018 No 48).
313 Goods that cease to exist or cannot be identified
(1)
Nothing in this subpart prevents this subpart from applying where the goods to which a document relates—
(a)
cease to exist after the document is issued; or
(b)
cannot be identified (whether because the goods are mixed with other goods or for any other reason).
(2)
References in this subpart to the goods to which a document relates must be interpreted in accordance with subsection (1).
Compare: 1908 No 117 s 13(4)
Rights under shipping documents
314 Holder of bill of lading or person to whom delivery is to be made has rights under contract of carriage
(1)
All rights to bring a proceeding under a contract of carriage are transferred to and vest in a person (A) as if A had been a party to the contract if A becomes—
(a)
the lawful holder of a bill of lading; or
(b)
the person who (without being an original party to the contract of carriage) is the person to whom the carrier will deliver the goods to which a sea waybill relates in accordance with that contract; or
(c)
the person to whom the goods to which a ship’s delivery order relates will be delivered in accordance with the undertaking contained in the order.
Compare: 1908 No 117 s 13B(1)
315 Rights where possession of bill of lading no longer gives right to possession of goods
(1)
This section applies if a person (A) becomes the lawful holder of a bill of lading at a time when possession of the bill no longer gives a right (as against the carrier) to possession of the goods to which the bill relates.
(2)
No rights are transferred to A under section 314 unless A becomes the holder of the bill—
(a)
because of a transaction effected under a relevant arrangement; or
(b)
as a result of another person (B) rejecting to A goods or documents that were delivered to B under a relevant arrangement.
(3)
In this section, relevant arrangement means a contractual or other arrangement that was made before the right to possession of the goods ceased to attach to the possession of the bill of lading.
Compare: 1908 No 117 s 13B(2)
316 Rights in relation to ship’s delivery order
(1)
This section applies to the rights vested in a person under section 314 in relation to a ship’s delivery order.
(2)
The rights are vested subject to the terms of the ship’s delivery order.
(3)
If the goods to which the ship’s delivery order relates are only a part of the goods to which the contract of carriage relates, the rights that are vested are confined to rights in respect of the goods to which the order relates.
Compare: 1908 No 117 s 13B(3)
317 Rights may be exercised for benefit of person who suffers loss or damage
(1)
This section applies if, in relation to a document to which this subpart applies,—
(a)
a person (B) with an interest or a right in, or in relation to, goods to which the document relates suffers loss or damage because of a breach of the contract of carriage; but
(b)
section 314 applies in relation to the document so that rights to bring a proceeding for the breach are vested in another person (A).
(2)
A may exercise the rights referred to in subsection (1)(b) for the benefit of B to the same extent as the rights could have been exercised if they had been vested in B.
Compare: 1908 No 117 s 13B(4)
318 Transfer extinguishes certain rights
(1)
If rights are transferred under section 314 in relation to a document, the transfer extinguishes any entitlement that a person has to those rights that derives,—
(a)
in the case of a bill of lading, from the person having been an original party to the contract of carriage; or
(b)
in the case of any document to which this subpart applies, from the previous operation of that section in relation to the document.
(2)
However, section 314 does not limit any rights a person has—
(a)
that derive from the person having been an original party to the contract contained in, or evidenced by, a sea waybill:
(b)
in relation to a ship’s delivery order, that derive otherwise than from the previous operation of that section in relation to the order.
Compare: 1908 No 117 s 13B(5)
Liabilities under shipping documents
319 Person in whom rights are vested becomes subject to liabilities
(1)
This section applies if a person (A), in whom rights are vested under section 314 in relation to a document,—
(a)
takes or demands delivery from the carrier of any of the goods to which the document relates; or
(b)
makes a claim under the contract of carriage against the carrier concerning any of those goods; or
(c)
is a person who, at a time before those rights were vested in that person, took or demanded delivery from the carrier of any of those goods.
(2)
A becomes subject to the same liabilities under the contract of carriage as if A had been a party to the contract.
(3)
This section, to the extent that it imposes liabilities under a contract on a person, does not limit the liabilities under the contract of any person as an original party to the contract.
Compare: 1908 No 117 s 13C(1), (3)
320 Liabilities exclude liabilities in respect of goods to which ship’s delivery order does not relate
If the goods to which a ship’s delivery order relates are only a part of the goods to which the contract of carriage relates, the liabilities that a person is subject to under section 319 in relation to that order exclude liabilities in respect of any goods to which the order does not relate.
Compare: 1908 No 117 s 13C(2)
321 Right of stopping goods in transit, or claims for freight, not affected
(1)
This subpart does not limit or affect—
(a)
any right of stopping goods in transit; or
(b)
any right to claim freight against the original shipper or owner; or
(c)
any liability that the consignee or endorsee has because—
(i)
that person is the consignee or endorsee; or
(ii)
that person has received the goods as a result of the consignment or endorsement.
Compare: 1908 No 117 s 14
322 Bill of lading in hands of shipper, consignee, or endorsee is conclusive evidence as against master or other signer of bill
(1)
Every bill of lading in the hands of the shipper or of a consignee or an endorsee for valuable consideration, representing goods to have been shipped on board a vessel, is conclusive evidence of the shipment as against the master or other person who signs the bill of lading.
(2)
Subsection (1) applies even though the goods or some part of the goods may not have been shipped.
(3)
However, subsection (1) does not apply if the holder of the bill of lading has had actual notice at the time of receiving the bill of lading that the goods were not in fact loaded on board.
(4)
The master or other person who signs a bill of lading may excuse himself or herself from liability for a misrepresentation that goods have been shipped on board a vessel by showing that the misrepresentation was caused—
(a)
without any default on his or her part; and
(b)
wholly by the fraud of the shipper or of the holder of the bill of lading (or a person under whom the holder claims).
Compare: 1908 No 117 ss 15, 16
323 Regulations relating to network or other information technology
(1)
The Governor-General may, by Order in Council, make regulations for the application of this subpart to cases where a network or other information technology is used for effecting transactions corresponding to—
(a)
the issue, the endorsement, the delivery, or any other transfer of a document to which this subpart applies; or
(b)
doing anything else in relation to a document to which this subpart applies.
(2)
The regulations may—
(a)
make the modifications of the provisions of this subpart that are appropriate in connection with the application of this subpart to any case mentioned in subsection (1); and
(b)
contain supplemental, incidental, consequential, and transitional provisions.
(3)
Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Compare: 1908 No 117 s 13(5), (6)
| Legislation Act 2019 requirements for secondary legislation made under this section |
| Publication | | PCO must publish it on the legislation website and notify it in the Gazette | | LA19 s 69(1)(c) |
| Presentation | | The Minister must present it to the House of Representatives | | LA19 s 114, Sch 1 cl 32(1)(a) |
| Disallowance | | It may be disallowed by the House of Representatives | | LA19 ss 115, 116 |
| This note is not part of the Act. |
Section 323(3): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Special provisions about received for shipment bills of lading
324 Special provisions about received for shipment bills of lading
(1)
In this section, received for shipment bill of lading means a shipping document issued in accordance with this section that—
(a)
is signed by a person purporting to be authorised to sign the document; and
(b)
acknowledges that the goods to which the document relates have been received for shipment.
(2)
A received for shipment bill of lading—
(a)
may not be issued until the goods are in the possession of the owner of the ship or of some person duly authorised on the owner’s behalf:
(b)
may be issued only for a named ship in which space has been actually reserved:
(c)
may not be issued earlier than 21 days before the time when the ship is expected to be in port in readiness to load.
(3)
The issue of a received for shipment bill of lading is, until the contrary is proved, sufficient evidence that subsection (2) has been complied with.
(4)
Every received for shipment bill of lading must contain a provision that, in the event of the goods being unavoidably shut out from the named ship, the shipowner (A) must forward the goods—
(a)
by A’s next available ship, or, at A’s option, by a ship of some other owner, or by a ship sailing within a specified number of days; but
(b)
otherwise on the same terms and conditions, with all necessary modifications, as if the goods were actually shipped by the named ship.
(5)
Every received for shipment bill of lading must for all purposes be treated as a valid bill of lading with the same effect and capable of negotiation in all respects and with the same consequences as if it were a bill of lading acknowledging that the goods to which it relates had been actually shipped on board.
Compare: 1922 No 25 s 3
Subpart 4—Power for shipowner to enter and land goods, and lien for freight
325 Interpretation
(1)
In this subpart, unless the context otherwise requires,—
entry means the entry required by the Customs and Excise Act 1996 to be made for the landing or discharge of goods from an importing ship
goods includes all kinds of movable personal property, including animals
owner of goods includes every person who is entitled, either as the owner or the agent for the owner, to the possession of the goods (subject, in the case of a lien, to the lien)
shipowner includes the master of the ship and every other person authorised to act as agent for the owner or entitled to receive the freight, demurrage, or other charges payable in respect of the ship
warehouse includes any warehouse, building, or premises in which goods may be lawfully placed when landed from ships
warehouse owner means the occupier of a warehouse
wharf includes any wharf, quay, dock, or premises in or on which any goods may be lawfully placed when landed from ships
wharf owner means the occupier of a wharf.
(2)
To avoid doubt about the application of this subpart to navigable lakes and inland navigable waters of New Zealand, this subpart extends and applies to all parts of New Zealand to the extent that this subpart is applicable.
Compare: 1908 No 117 ss 1(4), 21
326 Shipowner may enter and land goods in default of entry and landing by owner of goods
(1)
This section applies if the owner of goods that are imported from overseas into New Zealand fails, by the relevant time,—
(a)
to make entry of the goods; or
(b)
having made entry of the goods, to land the goods or take delivery of the goods.
(2)
The shipowner may, at any time after the relevant time, make entry of and land or unload the goods in the manner and subject to the conditions specified in sections 327 to 330.
(3)
In this section, relevant time means—
(a)
the time expressed for the delivery of the goods in the charter party, bill of lading, or agreement; or
(b)
if no time for the delivery of the goods is expressed in the charter party, bill of lading, or agreement, the time that is at the expiry of 72 hours after the report of the ship (excluding a Sunday or a holiday).
Compare: 1908 No 117 s 22
327 Place for landing goods
(1)
The shipowner, in landing goods in accordance with this subpart, must—
(a)
place the goods on the wharf or in the warehouse named in the charter party, bill of lading, or agreement as the wharf or warehouse where the goods are to be placed if the goods can be conveniently received at that place; or
(b)
if paragraph (a) does not apply, place the goods on a wharf or in a warehouse where goods of a similar kind are usually placed.
Compare: 1908 No 117 s 22(c), (d)
328 Owner who is ready and offers to land or take delivery of goods
If, at any time before the goods are landed or unloaded, the owner of the goods is ready and offers to land or take delivery of the goods,—
(a)
the owner must be allowed to do so; and
(b)
the owner’s entry of the goods must be preferred to any entry made by the shipowner.
Compare: 1908 No 117 s 22(e)
329 Landing of goods at wharf where ship is discharged for purpose of sorting goods
(1)
This section applies if—
(a)
goods are, for the purpose of conveniently sorting the goods, landed at the wharf where the ship is discharged; and
(b)
the owner of the goods at the time of the landing has made entry and is ready and offers to take delivery of the goods and to convey the goods to another wharf or warehouse.
(2)
The goods must—
(a)
be sorted at landing; and
(b)
if demanded, be delivered to the owner within 24 hours after being sorted.
(3)
The shipowner must bear the expense of and consequent on the landing and sorting of the goods.
Compare: 1908 No 117 s 22(f)
330 Requirement for notice in certain circumstances
(1)
This section applies if,—
(a)
at any time before the goods are landed or unloaded, the owner of the goods has made entry for the landing and warehousing of the goods at a particular wharf or warehouse other than the one at which the ship is discharging, and has offered and been ready to take delivery of the goods; and
(b)
the shipowner—
(i)
has failed to make that delivery; and
(ii)
failed at the time of the offer to give the owner of the goods correct information of the time at which the goods could be delivered.
(2)
The shipowner must, before landing or unloading the goods under the power given under section 326, give to the owner of the goods, or to the wharf owner or warehouse owner, 24 hours’ notice in writing of the shipowner’s readiness to deliver the goods.
(3)
If the shipowner lands or unloads the goods without giving the notice required under subsection (2), the shipowner does so at the shipowner’s risk and expense.
(4)
In subsection (2),—
warehouse owner means the occupier of the warehouse referred to in subsection (1)(a)
wharf owner means the occupier of the wharf referred to in subsection (1)(a).
Compare: 1908 No 117 s 22(g)
331 Continuation of lien for freight if shipowner gives notice
(1)
This section applies if, at any time when any goods are landed from a ship and placed in the custody of a wharf owner or warehouse owner, the shipowner gives to the wharf owner or the warehouse owner notice in writing that the goods are to remain subject to a lien for freight or other charges that are payable to the shipowner to an amount specified in the notice.
(2)
The goods, while in the custody of the wharf owner or warehouse owner, continue to be subject to the same lien (if any) for the charges that the goods were subject to before the goods were landed.
(3)
The wharf owner or the warehouse owner who receives the goods must retain them until the lien is discharged under section 332 or 333.
(4)
The wharf owner or the warehouse owner must, if he, she, or it fails to comply with subsection (3), compensate the shipowner for any loss suffered by the shipowner that is caused by the failure.
Compare: 1908 No 117 s 23(1), (2)
332 Discharge of lien on production of receipt and delivery of copy of receipt or release
A lien referred to in section 331 is discharged when—
(a)
a receipt for the amount claimed as due is produced to the wharf owner or the warehouse owner; and
(b)
a copy of the receipt or of a release of freight from the shipowner is delivered to the wharf owner or the warehouse owner.
Compare: 1908 No 117 s 23(3)
333 Discharge of lien on deposit with warehouse owner
(1)
The owner of the goods may deposit with the wharf owner or the warehouse owner a sum of money equal to the sum that is specified in the notice given by the shipowner under section 331.
(2)
The lien referred to in section 331 is discharged on the deposit of the money.
(3)
Subsection (2) does not limit any other remedy that the shipowner may have for the recovery of the freight.
Compare: 1908 No 117 s 24
334 Right of wharf owner or warehouse owner, if no notice is given, to pay deposit to shipowner
(1)
A wharf owner or a warehouse owner (A) with whom a deposit is made under section 333 may, at the expiry of 15 days after the deposit is made, pay the deposited sum to the shipowner if the owner who made the deposit (B) does not within that 15-day period give to A a written notice to retain it.
(2)
The notice from B must state—
(a)
the sum (if any) that B admits is payable to the shipowner; or
(b)
that B does not admit any sum is payable to the shipowner.
(3)
A is discharged from all liability in respect of the deposit by making the payment in accordance with this section.
Compare: 1908 No 117 s 25
335 Course to be taken if notice to retain is given
(1)
This section applies if—
(a)
a deposit is made with the wharf owner or the warehouse owner (A) under section 333; and
(b)
the person who makes the deposit (B) gives to A a notice as referred to in section 334 within 15 days after making the deposit.
(2)
A must—
(a)
immediately inform the shipowner of the notice; and
(b)
pay or tender to the shipowner out of the deposited sum the sum admitted by the notice to be payable (if any); and
(c)
retain the balance or, if B does not admit that a sum is payable, retain the whole of the deposited sum for 30 days from the date of the notice.
(3)
A must, at the expiry of the 30-day period referred to in subsection (2)(c), pay the balance or the whole of the deposited sum referred to in that paragraph to the owner of the goods.
(4)
However, subsection (3) does not apply if, before the expiry of the 30-day period referred to in subsection (2)(c),—
(a)
legal or arbitral proceedings are commenced by the shipowner against the owner of the goods to recover the balance or sum referred to in subsection (2)(c) or otherwise for the settlement of any disputes between them concerning the freight or other charges; and
(b)
written notice of those proceedings is served on A.
(5)
A is discharged from all liability in respect of the balance or sum by making the payment in accordance with subsection (3) (subject to subsection (4)).
Compare: 1908 No 117 s 26
336 Wharf owner or warehouse owner may sell goods by public auction after 90 days
(1)
If a lien referred to in section 331 is not discharged and a deposit is not made under section 333, the wharf owner or the warehouse owner (A) may, and if required by the shipowner must, at a relevant time, sell by public auction—
(2)
The goods may be sold under this section either for home consumption or export.
(3)
In this section, relevant time means—
(a)
any time after the expiry of 90 days from the time when the goods are placed in A’s custody; or
(b)
if the goods are of a perishable nature, an earlier time that is fixed by—
(ii)
any surveyor appointed by A.
Compare: 1908 No 117 s 27
Section 336(3)(b)(i): amended, on 24 October 2019, by section 26 of the Statutes Amendment Act 2019 (2019 No 56).
337 Notices of sale to be given
(1)
A wharf owner or a warehouse owner (A) must, before making a sale under section 336, notify the sale by advertisement in 1 newspaper circulating in the area in which the wharf or warehouse is situated.
(2)
A copy of the notice of sale must, before a sale is made under section 336, be prominently displayed on or in the wharf or warehouse.
(3)
A must notify the owner of the goods of the sale by letter sent by post if the address of the owner—
(a)
has been stated on the manifest of the cargo or on any of the documents in A’s possession; or
(4)
However,—
(a)
the title of a good faith purchaser of the goods is not invalidated because A fails to send a notice under subsection (3); and
(b)
the good faith purchaser of the goods is not required to inquire whether that notice has been sent.
Compare: 1908 No 117 s 28
338 How money arising from sale is to be applied
(1)
A wharf owner or a warehouse owner must apply the money received from a sale of goods under section 336 in the following order:
(a)
if the goods are sold for home consumption, in payment of any customs or excise duties owing in respect of the goods:
(b)
in payment of the expenses of the sale:
(c)
in the absence of an agreement between the wharf owner or the warehouse owner and the shipowner concerning the priority of their respective charges, in payment of the rent, rates, and other charges due to the wharf owner or the warehouse owner in respect of the goods:
(d)
in payment of the amount claimed by the shipowner as due for freight or other charges in respect of the goods:
(e)
the surplus (if any) must be paid to the owner of the goods.
(2)
Despite subsection (1)(c) and (d), in the case of an agreement between the wharf owner or the warehouse owner and the shipowner that concerns the priority of their respective charges, those charges have priority according to the terms of the agreement.
Compare: 1908 No 117 s 29
339 Wharf owner’s or warehouse owner’s rent and expenses
If goods are placed in the custody of a wharf owner or a warehouse owner (A) under this subpart, A—
(a)
is entitled to rent in respect of the goods; and
(b)
has, at the expense of the owner of the goods, the power to do, from time to time, all reasonable acts that in A’s judgement are necessary for the proper custody and preservation of the goods; and
(c)
has a lien on the goods for the rent and expenses referred to in paragraphs (a) and (b).
Compare: 1908 No 117 s 30
340 Wharf owner’s or warehouse owner’s protection
(1)
This subpart does not require a wharf owner or a warehouse owner (A) to take charge of any goods that A would not be liable to take charge of if this subpart were not in force.
(2)
A is not required to see to the validity of a lien claimed by a shipowner under this subpart.
Compare: 1908 No 117 s 31