Carriage of Goods Act 1979

Time Limit

Under section 18 of the Carriage of Goods Act 1979 no action may be brought against a carrier for damage or partial loss of goods while he or she is responsible for them, unless written notice is given within 30 days after the date on which the carrier’s responsibility for the goods ceased. No notice is required if it is apparent that the carrier is or ought to be aware of the damage or partial loss. According to section 19 any claim must be brought within 12 months from the date on which the carriage should have been completed in accordance with the contract. Proceedings may only be brought after this 12 month period with the leave of the Court.

Limitations on Liability

Section 15 of the Carriage of Goods Act 1979 provides that liability is limited to NZ$1500 per unit of goods carried. In the case of containerised carriage the unit is the container with the result that the NZ$1500 limit applies to the contents of the entire container, unless the value of the goods at risk is specified in the contract. This limitation provision does not apply to:

Liability for loss or damage of goods intentionally caused by the carrier;

Liability arising out of the contract for damages other than for the loss or damage to the goods carried;

Liability arising out of the contract for damages consequential upon the loss of or damage to the goods.

Carriage of Goods Act 1979 applies (see above as per carriage of goods by road)

Carriage of Goods Act 1979

1929 Warsaw Convention

1999 Montreal Convention

Time Limits

For the domestic carriage of goods by air the Carriage of Goods Act 1979 applies (see above as per carriage of goods by road).

For international carriage any right to damages under both the 1999 Montreal and 1929 Warsaw Conventions shall be extinguished if written notice is not given to the carrier within fourteen days from the receipt of damaged cargo. In the case of delayed cargo written notice must be given within 21 days from when the cargo was placed at the carrier’s disposal. Any action must be brought within two years from the date on which the aircraft ought to have arrived or on which the carriage stopped.

Limitations on Liability

For the domestic carriage of goods by air the Carriage of Goods Act 1979 applies (see above as per carriage of goods by road).

For international carriage liability for damage to goods is strict under Article 18 of both the 1929 Warsaw Convention and 1999 Montreal Convention. However, the carrier will escape liability for damage to goods where the damage has resulted solely from either:

The cargo being inherently defective;

The cargo being defectively packaged by someone other than the carrier or his servants or agents;

An act of war or armed conflict;

An act of public authority carried out in connection with the carriage of the cargo.

Where the damage to the goods is caused by delay in the carriage of the cargo the carrier will not be liable if all necessary measures were taken to avoid the damage or it would have been impossible to take such measures. The carrier may also be wholly or partly exonerated from liability if the person claiming compensation contributed to the damage through their own negligence or wrongful act or omission.

Liability for destroyed, lost, damaged, or delayed cargo is limited to 17 Special Drawing Rights per kilogram unless the consignor has made a special declaration of interest.

Carriage of Goods Act 1979

Maritime Transport Act 1994

Time Limits

For the domestic carriage of goods by sea the Carriage of Goods Act 1979 applies (see above as per carriage of goods by road).

For international carriage Article 3 of the Hague Rules requires that written notice of loss or damage must be given to the carrier within three days of the removal of the goods. Any suit must be brought within one year from the date of delivery.

Limitations on Liability

For the domestic carriage of goods by sea the Carriage of Goods Act 1979 applies (see above as per carriage of goods by road).

With regard to international carriage, the Maritime Transport Act 1994 enacts the Hague Visby Rules. Article 4 outlines the instances where neither the carrier nor the ship shall be responsible for loss or damage. Unless the nature and value of the goods have been declared the maximum amount that can be claimed is 666.67 Special Drawing Rights per unit or 2 Special Drawing Rights per kilogramme of gross weight of the goods, whichever is the higher.

The Maritime Transport Act 1994 also gives effect to the Convention on Limitation of Liability for Maritime Claims, 1976. This allows the carrier to limit his aggregate liability to an amount calculated by reference to the gross weight of the vessel.

Under section 198 of the Maritime Transport Act 1994, New Zealand ships, or foreign ships demise chartered to a New Zealand operator may carry coastal cargo from and to New Zealand ports. Foreign registered ships may also carry coastal cargo between ports provided the coastal service is offered as part of an international service involving the carriage of cargo destined for a foreign port.

Liability is circumscribed by the Injury Prevention Rehabilitation and Compensation Act 2001. This Act provides a no fault system of compensation. It applies to all persons (resident or otherwise) in New Zealand who suffer an accident. This will generally act as a statutory bar to any proceedings being brought in any court in New Zealand for damages arising directly or indirectly out of personal injury. It will not bar proceedings where the claim is based on an international convention relating to the carriage of passengers to which New Zealand is a party.

Same situation applies as for carriage by road (see above).

For domestic carriage the same situation applies as for carriage by road (see above).

For international carriage to or from New Zealand the carrier will be strictly liable under Article 17 of the 1929 Warsaw Convention or the 1999 Montreal Convention if a passenger dies or sustains bodily injury while on board an aircraft or while embarking on or disembarking from it. If the 1999 Montreal Convention applies then the carrier’s liability for personal injury is potentially unlimited unless the carrier can establish that it was not at fault. The 1929 Warsaw Convention (and applicable protocol, if any) will generally operate to limit the carrier’s liability.

The Injury Prevention Rehabilitation and Compensation Act 2001 does not operate as a bar to claims based on personal injuries that occur on a domestic segment of an international voyage. Both the 1929 Warsaw Convention and the 1999 Montreal Convention specify that carriage does not lose its international character by virtue of one of the flights occurring entirely within the territory of the same State. The test is whether the place of departure and the place of final destination are situated within different States. Carriage to be performed by successive carriers is deemed to be one undivided carriage if it has been regarded by the parties as a single operation.

For international carriage the 1974 Athens Convention does not apply as New Zealand is not a party to it. The right to bring proceedings in a New Zealand court for personal injury sustained during international carriage depends on whether the person injured is ordinarily a resident of New Zealand or not. If they are ordinarily a resident then the Injury Prevention Rehabilitation and Compensation Act 2001 will operate as a bar to a personal injury claim being brought in a New Zealand court, regardless of where the injury occurred. If the person is not ordinarily a resident of New Zealand then they may be able to bring a personal injury claim in a New Zealand court if the injury was suffered while on board, or embarking on or disembarking from, the ship upon which they came to or left New Zealand.

In New Zealand the type of claims for which arrest is possible, align closely (but not exactly) with the position in the United Kingdom.

The Admiralty Act 1973 contains a number of statutory heads of claim which may form the basis for an action against and arrest of a ship. The list includes, claims:

For possession or ownership of a ship.

In respect of a mortgage of or a charge on a ship.

For loss of life or personal injury.

For loss of or damage to goods carried in a ship.

Arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship.

In respect of goods, materials, or services supplied to a ship in its operation or maintenance.

In respect of the construction, repair or equipment of a ship, or for dock or port or harbour charges or dues.

Arising out of an act which is claimed to be a general average act.

For the forfeiture or condemnation of a ship.

While a matter of discretion for the Court as to how and on what conditions any arrest is maintained, it is possible to arrest a ship in New Zealand in support of either arbitral or foreign proceedings. It should also be possible to arrest a ship on the basis of an unsatisfied foreign in rem proceeding.

The process for arresting a ship is relatively quick and straightforward. The arresting party must file a notice of proceeding in rem stating short particulars of its claim, accompanied by an application for a warrant of arrest supported by an affidavit. The supporting affidavit must contain a short description of the nature of the claim, other listed items of information and any other relevant information. The arresting party must provide an indemnity to the Registrar of the High Court for fees and expenses incurred by the Registrar in execution of the warrant of arrest as well as against any liability arising out of or incidental to any act lawfully done by the Registrar in executing the warrant. If the arrest is prolonged, the Registrar will typically request security for his fees.

An arresting party is not required to provide counter-security to the ship owner for a potential claim for wrongful arrest. While a ship owner can bring a claim against the arresting party for wrongful arrest, to succeed the ship owner must establish that the arresting party acted in bad faith or in a grossly negligent fashion.

The ship will be released upon payment into court of the amount claimed or security in that amount being given to the satisfaction of the Registrar. P&I Club letters of guarantee have been accepted by the New Zealand court in the past as satisfactory security for this purpose.