Review of the Carriers and Innkeepers Act 1958, May 1998

Chapter 4 – Retention of Provisions Relating to Carriers

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OVERVIEW

4.1 As indicated in Chapter 1 of this Report, the Committee sought submissions from carriers and other interested parties in relation to the review of the Act. The submissions were overwhelmingly in support of the repeal of the provisions of the Act governing carriers.

SUBMISSIONS FROM CARRIERS

4.2 On the subject of the relevance of the Act to the industry today, Mayne Nickless Ltd informed the Committee that common carriers were "an extinct legal species" and that:

The provisions of the Act dealing with common carriers have no real relevance today and could quite readily be repealed.[87]

4.3 Current industry practice is to include terms and conditions in the contract of carriage excluding liability:

For many years we have used standard form conditions, which state that we are not a common carrier and which exclude or limit our liability for loss of or damage to the goods we carry …. Today, all carriers exclude liability as a common carrier in standard consignment note conditions and those conditions will either apply or specific contractual arrangements will be entered into.[88]

4.4 Mayne Nickless Ltd considered that it was not necessary to retain any part of the Act dealing with carriers:

We do not believe it would be beneficial for any Victorian legislation to govern the relationship between carriers and their customers as section 74 of the TPA adequately covers the field. Commercial transactions need no specific legislative governance.[89]

4.5 Mayne Nickless also reminded the Committee that the Act applied only to carriage by land. Other State and Commonwealth legislation applies in relation to the carriage of goods by air, sea or rail. Further, international transactions are covered by international conventions.[90]

4.6 In relation to the High Court’s decision in Wallis v Downard-Pickford (North Queensland) Pty Ltd[91], Mayne Nickless Ltd correctly pointed out that section 74 TPA does not cover commercial transactions, and noted:

As a provider of predominantly commercial transport services, section 74 does not generally apply to us in practice. However, our standard conditions state that all conditions or warranties imposed by the TPA (or equivalent State legislation) prevail over our conditions.[92]

4.7 Another carrier, DHL International (Aust) Pty Ltd, confirmed that the Act has little relevance for its dealings:

[T]he relevance of the Act for dealings between DHL and its customers is minimal for the following reasons: (1) DHL is not a common carrier and does not hold itself out to be a common carrier; (2) customers enter into a contract of carriage with DHL which limits DHL’s liability; and (3) DHL’s liability for international shipments may be covered under the Warsaw Convention.[93]

SUBMISSIONS FROM THE LEGAL PROFESSION

4.8 In relation to modern contracts of carriage the Law Institute of Victoria ("LIV") informed the Committee:

In reality, virtually all carriage of goods is today covered by an individual agreement or standard form contract and there seems little relevance in retention of special provisions of this nature to protect common carriers.[94]

4.9 The LIV concluded that:

The repeal of the Victorian legislation would have few, if any, practical ramifications given that almost all carriers limit their potential liability (to the extent possible) by means of contractual terms and ensure appropriate insurance arrangements are in place where particularly valuable goods are to be carried.[95]

4.10 However the LIV then, inconsistent with the above assertion, added:

Nevertheless circumstances will inevitably arise from time to time whereby for whatever reason a common carrier will fail to limit its potential liability by contractual means and incur substantial liability for the damage to or loss of goods despite the absence of negligence or breach of warranty implied by section 74. In these circumstances it is appropriate for legislative protection to operate to ameliorate the effects of the common law.[96]

4.11 The Victorian Bar Council advised the Committee in its submission that the provisions of the Act dealing with carriers no longer provided a useful purpose.[97]

4.12 The Office of Parliamentary Counsel Victoria ("OPC") submitted that:

[I]t is our view that the provisions of the C&I Act dealing with the liability of carriers may be repealed without affecting modern dealings between carriers and their customers.[98]

4.13 The OPC considered that the Act, in practice, affected few (if any) contracts:

Since most contracts of carriage are with private carriers, the provisions in ss. 3-12 of the C&I Act have no application to such commercial dealings between carriers and the persons who engage them. There appears to be adequate protection for contracts for carriage between consumers and private carriers under the Goods Act (Part IV), the TPA (ss. 68 and 74) and the Fair Trading Act 1985 ….[99]

4.14 The OPC further indicated that:

Contracts for which no statutory protection is afforded (and to which the C&I Act would therefore apply) appear to be commercial contracts for carriage and the limitation provisions in the Act appear to be irrelevant to those contracts. Parties[‘] rights under these contracts are governed by standard conditions or negotiated terms.[100]

COMMITTEE’S CONCLUSIONS AND RECOMMENDATION

4.15 In light of the above submissions, the Committee concludes that the provisions in the Act dealing with carriers are outdated and irrelevant to modern commercial dealings for carriers and their customers for the following reasons:

(a) common carriers are almost (if not entirely) non-existent in Victoria today;

(b) modern contracts of carriage are governed by terms and conditions agreed upon by the parties; and

(c) contracts between carriers and consumers are adequately covered by the TPA and other applicable fair trading legislation.

4.16 The Committee therefore concludes that no part of the Act in relation to carriers need be retained.

Scrutiny of Acts and Regulations Committee
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