Around 90 per cent of world trade is carried by the international shipping industry. Consumers, as beneficiaries of the movement of goods internationally, prosper from the international frameworks which govern the carriage of goods by sea and which set out the internationally negotiated liabilities, rights and immunities available between carriers and shippers. Because carriers are able to arrange their activities with knowledge of the benefits that the sea carriage regimes and ancillary contracts offer, any unilateral interference with the international framework, such as that presented by section 18 of the Australian Consumer Law, should be viewed with caution and resisted in order to preserve international comity and the avoidance of high freight rates which would serve to make Australian business less competitive at the international level.
The issues and difficulties presented as a consequence of the unilateral interference described have been considered through the framework of doctrinal research. By systematically analysing the history of international maritime commerce, together with the conventions which today govern the international movement of goods by sea, and principally the Hague‐Visby Rules, it is possible to demonstrate the principle of uniformity as the guiding principle in the development of the substantive law of most maritime nations as it relates to the carriage of goods by sea and the contracts which are ancillary to such carriage.
Any interference with the uniform operation and interpretation of the Rules, it is argued, should be resisted. The Rules, as domestically enacted through the Carriage of Goods by Sea Act 1991 (Cth), are afforded limited preference against select provisions of Australia's competition laws. The preference does not, however, extend to, among others, section 18 of the Australian Consumer Law. This has, in turn, resulted in litigation and debate as to the standing of causes of action, proof, time bars and monetary limits where the operation of the Rules and competition law collide.
Recent amendments to Australia's competition laws have improved the position on uniformity by exempting contracts for marine salvage or towage, a charterparty of a ship and contracts for the carriage of goods by ship from the application of the unfair contract terms of the Australian Consumer Law. While a welcome amendment, it is argued that the exemptions are not wide enough and the failure to extend the exemption, both in substance and in scope, will have the effect of preserving the issues and difficulties identified to the detriment of business certainty, Australia's international standing and, ultimately, consumers at large.