Key considerations: Time bars in inland and coastal shipping in Australia

Introduction

Unlike in some jurisdictions, Australia does not have a local cargo liability regime, such as Europe’s Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway. Further, there are no specific terms of carriage used for inland or coastal transport with parties generally entering into commercial agreements for such terms, including issuing a bill of lading for the voyage. However, bills of lading are often not used for shorter coastal voyages or where the parties enter into a contract of affreightment for longer-term agreements.

In such circumstances, it becomes important to understand what legislation will govern an incident occurring during inland or coastal transit, especially any applicable time bars for potential claims. We set out below the various types of incidents which may occur and the applicable time bars for each under relevant legislation.    

Cargo Claims

Generally cargo claims in Australia are regulated by the Carriage of Goods by Sea Act 1991 (Cth) (COGSA) which, for outbound shipments, gives force of law to an amended version of Australia’s domestic enactment of the Hague-Visby Rules (referred to as the amended Hague Rules within COGSA) (the Australian Rules); and for inbound shipments, the Australian Rules, apply only if the sea carriage contract would not otherwise be governed by agreement or by law by the Hague, Hague-Visby or Hamburg Rules, or a modification of one of those Conventions by the law of a Contracting State.

In accordance with Australian Rules and those Conventions, the general time bar for cargo claims is 1 year from the date of discharge of the cargo, provided that notice of loss or damage, and the general nature of such loss or damage, is given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery, or, if the loss or damage is not apparent, within 3 days. 

However, in regard to inland and coastal shipping the position is more complex and will depend on the destination of the voyage. If the voyage is from an Australian port in one State or Territory to a port within a different State or Territory – i.e. an interstate carriage, then (unless the contract is evidenced by a consignment note) the Australian Rules will apply and the time bar for cargo claims will be 1 year as above. On the other hand, if the voyage is from an Australian port in one State or Territory to another port within the same State or Territory – i.e. an intrastate carriage, then the Australian Rules will not apply and the time bar period will be based on the applicable law and jurisdiction contained within the contract of carriage.  

Personal injury claims

There is no specific Commonwealth legislation dealing with time bars for personal injury claims in admiralty and therefore the particular legislation in each State or Territory will apply.

In New South Wales personal injury proceedings are to be commenced within 2 years from date of death or injury to enforce a claim or lien for injuries/death caused by one vessel to persons on board another in accordance with section 22 of the Limitation Act 1969 (NSW). If injury/death arises from a maritime claim (as defined in sections 4 and 5 of the Admiralty Act 1988 (Cth)) then by section 37 of the Admiralty Act 1988 (Cth), if no claim is brought under another Act or law, the time bar period is 3 years from the date the cause of action arose. 

In Queensland, in personam personal injury claims are subject to a time bar period of 3 years. Because Queensland legislation specifically provides that it does not apply to in rem claims, an in rem action claiming damages for personal injury should be subject to a time bar period of 3 years by operation of section 37(1)(b) of the Admiralty Act 1988 (Cth). 

In the Northern Territory, the general time bar for personal injury claims is 3 years in accordance with section 37 of the Admiralty Act 1988 (Cth).

In Tasmania, the Limitation Act 1974 (Tas) sets out the time bars for various contractual, tort and other claims (including personal injury). Section 8 (2) provides in relation to shipping that: 

In all other instances the time bar for personal injury claims is 3 years.

Personal injury claims in South Australia, Victoria and Western Australia are subject to a time bar period of 3 years. Because there is no special in rem exclusion, as there is in New South Wales, Queensland, Tasmania and the Northern Territory, the 3 year time bar period applies to claims in personam or in rem under the Admiralty Act 1988 (Cth).

Collisions in inland waterways

The International Regulations for Preventing Collisions at Sea 1972 (COLREG) is in force in Australia and enacted through Commonwealth, State and Territory laws. COLREG applies to all vessels, regardless of their size, nature or operation in all navigable waters of Australia from inland waters to the high seas.

Previously the Navigation Act 1912 (Cth) provided for a 2 year time bar for collision claims, however it has since been repealed and replaced by the Navigation Act 2012 (Cth) and Navigation Regulations 2013 (Cth) which do not expressly include a time bar for collision claims.

Accordingly, In the event of a collision occurring within Australia’s inland and coastal waterways the provisions of the Admiralty Act 1988 (Cth) would apply as a claim for damage done by a ship (whether by collision or otherwise) is included within the definition of a general maritime claim under section 4 (3) (b) of the Admiralty Act 1988 (Cth). Under that Act, and unless otherwise provided for in any State, Territory or other Commonwealth legislation, the time bar for bringing a claim arising from a collision in Australia is 3 years from when the cause of action arose in accordance with section 37(1)(b) of the Act.  

New South Wales, Tasmania, and the Northern Territory have passed legislation establishing a 2 year time bar for claims for damage caused by a ship. In each jurisdiction, the court may at its discretion extend the special maritime time bar periods to such extent and on such terms as it thinks fit, and shall do so to give the plaintiff a reasonable opportunity of arresting the defendant vessel if the plaintiff has not had a reasonable opportunity of doing so during the time bar period.

Queensland, South Australia, Victoria, and Western Australia do not have maritime specific provisions and therefore all time bar questions are determined by reference to the general time bar legislation or other applicable legislation. Property damage claims in tort in South Australia, Victoria, and Western Australia are subject to a time bar period of 6 years. Because there is no exclusion for in rem claims, as there is in New South Wales, Tasmania, the Northern Territory and Queensland, the 6-year time bar period applies both to in personam and in rem claims, as both are based on an action in tort.

Conclusion

It is therefore important to be aware of the fact that it is not only the type of claim which dictates which time bar period applies, but the jurisdiction in which the claim arose as well. Both must be taken into account when calculating any applicable time bar period to a claim arising out of an inland or coastal shipping incident in Australia.

Further, parties should also keep in mind that they are generally free to impose any time bar provisions by commercial agreement, and that such provisions will typically be given effect to by an Australian court.