In this Act, unless the context otherwise requires,—
Actual carrier, in relation to the carriage of any goods, means every carrier who, at any material time, is or was in possession of the goods, or of any container, package, pallet, item of baggage, or any other thing in or on which the goods are or were believed by him to be, for the purpose of performing the carriage or any stage of it or any incidental service; and includes the contracting carrier where he performs any part of the carriage
Carriage includes any incidental service; and carry has a corresponding meaning
Carrier means a person who, in the ordinary course of his business, carries or procures to be carried goods owned by any other person, whether or not as an incident of the carriage of passengers; and, except in sections 21 to 24 of this Act, includes a person who, in the ordinary course of his business, performs or procures to be performed any incidental service in respect of any such goods
Checked baggage means baggage, personal effects, or other articles, checked or registered with the carrier, or 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 check or form of receipt is issued), as baggage intended to be carried incidental to a contract for carriage of a passenger
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
Contract of carriage means a contract for the carriage of goods
Court means any Court of competent jurisdiction
Goods means goods, baggage, and chattels of any description; and includes animals and plants; and also includes money, documents, and all other things of value
Hand baggage means baggage, personal effects, or other articles, not being checked baggage
Incidental service, in relation to any goods, means any service (such as that performed by consolidators, packers, stevedores, and warehousemen) the performance of which is to be or is undertaken to facilitate the carriage of the goods pursuant to a contract of carriage
International carriage,—
(a)
In relation to the carriage of goods by air, means carriage in which, according to the contract of carriage, the place of departure and the place of destination (whether or not there is a break in the carriage or a transhipment) are within the territories of two countries, or within the territory of a single country if 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 pursuant to a contract of carriage of that person
Ship means any vessel used for the carriage of goods by sea.
In this Act, 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 upon which the freight for that type of cargo is customarily computed or adjusted:
Provided that, where the freight payable under a contract of carriage is computed or adjusted upon a specified unit of bulk, weight, or measurement, references in this Act to unit of goods or unit shall be deemed, for the purposes of the carriage of goods pursuant to that contract, to be references to that specified unit:
(b)
In relation to goods contained in a container, means the container load of goods; and includes, where the container is provided by the contracting party, the container:
(d)
In relation to goods loaded on a pallet, means the pallet load of goods; and includes, where the pallet is provided by the contracting party, the pallet:
(e)
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:
(f)
In relation to goods that are unitised for the purposes of carriage in any manner not referred to in any of the preceding paragraphs of this subsection, means the unit of goods as so unitised:
(g)
In relation to goods (other than baggage) not referred to in any of the preceding paragraphs of this subsection, means each item of the goods:
(h)
In relation to baggage, means each item of baggage.
(2)
For the purpose of determining the limit of the liability of any carrier, the limit of liability prescribed by section 15 of this Act in respect of each unit of goods relates to the unit of goods as accepted for carriage by the actual carrier or, where the carriage is undertaken by more than one carrier, by the first actual carrier, whether or not that unit is subsequently packed, repacked, or unpacked, or otherwise aggregated with or segregated from any other goods, at any stage of the carriage.
4-
Act to bind Crown
(1)
Subject to subsection (2) of this section, this Act binds the Crown.
(2)
Nothing in this Act applies to—
(a)
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 (other than payment by or on behalf of the military authorities of any other State):
(b)
[Repealed]
Compare: 1948 No 66 s 9; 1967 No 151 ss 2, 19(3)
Subsection (2) was inserted, as from 1 April 1990, by section 105(1) Defence Act 1990 (1990 No 28).
Subsection (2)(b) was repealed, as from 1 April 1998, by section 62(1) Postal Services Act 1998 (1998 No 2). See clause 2 Postal Services Act Commencement Order 1998 (SR 1998/49).
Subject to subsections (4) and (4A) of this section and to section 4 of this Act, this Act applies to every carriage of goods, not being international carriage, performed or to be performed by a carrier pursuant to a contract entered into after the commencement of this Act, whether the carriage is by land, water, or air, or by more than one of those modes.
(2)
Subject to subsection (1) of this section, this Act applies to every carriage of goods whether the carriage is or is not incidental to the carriage of passengers.
(3)
Subject to subsection (1) of this section, this Act applies to every carriage by air or by water whether or not the aircraft or ship by which the carriage takes place is at the same time also engaged in international carriage.
(4)
This Act does not apply to any carriage by air performed as part of an air transport service for the carriage of passengers operated by any club that is affiliated with the Royal New Zealand Aero Club (Incorporated), if the carriage is performed in an aircraft owned or hired by the club, and if all persons carried on the aircraft, whether as crew or passengers, are members of the club with full rights of membership:
Provided that the provisions of this subsection do not apply in any case where any such passenger is not carried by reason of the fact that he is a member of the club but for the purpose of carrying out a function not related to his membership.
(4A)
This Act does not apply to the carriage of letters by a postal operator, whether by the postal operator's agents or otherwise.
(4B)
For the purposes of subsection (4A), the terms postal operator and letter have the same meaning as they have in the Postal Services Act 1998.
(5)
[Repealed]
Compare: 1940 No 31 s 2; 1967 No 151 s 19(1), (2), (4)
Subsection (1) was amended, as from 1 April 1998, by section 62(1) Postal Services Act 1998 (1998 No 2) by substituting the expression “subsections (4) and (4A)” for the expression “subsection (4)”. See clause 2 Postal Services Act Commencement Order 1998 (SR 1998/49).
Subsections (4A) and (4B) were inserted, as from 1 April 1998, by section 62(1) Postal Services Act 1998 (1998 No 2) by substituting the expression “subsections (4) and (4A)” for the expression “subsection (4)”. See clause 2 Postal Services Act Commencement Order 1998 (SR 1998/49).
Subsection (5) was repealed, as from 1 February 1995, by section 212(2) Maritime Transport Act 1994 (1994 No 104). See regulation 2 Maritime Transport Act Commencement Order 1994 (SR 1994/272).
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Other remedies affected
Notwithstanding any rule of law to the contrary, no carrier shall be liable as such, whether in tort or otherwise, and whether personally or vicariously, for the loss of or damage to any goods carried by him except—
(a)
In accordance with the terms of the contract of carriage and the provisions of this Act; or
(b)
Where he intentionally causes the loss or damage.
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Contracting out
The parties to a contract of carriage are free to make their own terms in respect of any matter to which any of sections 10, and 18 to 27 of this Act apply; and, where they do so, the relevant section or sections shall, in relation to that matter, have effect subject to those express terms.
Compare: 1940 No 31 s 4; 1948 No 66 ss 4, 5; 1967 No 151 s 30
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Kinds of contract of carriage
(1)
For the purpose of determining upon whom liability for the loss of or damage to any goods is to fall, every contract of carriage shall be one of the following kinds:
(a)
A contract for carriage at owner's risk, under which the carrier shall not be liable for the loss of or damage to any goods, except where the loss or damage is intentionally caused by the carrier:
(b)
A contract for carriage at limited carrier's risk, under which the carrier shall be liable for the loss of or damage to any goods in accordance with sections 9, 14, and 15 of this Act:
(c)
A contract for carriage at declared value risk, under which the carrier shall be liable for the loss of or damage to any goods up to an amount specified in the contract and otherwise in accordance with sections 9, 14, and 15 of this Act:
(d)
A contract for carriage on declared terms, under which the carrier shall be liable for the loss of or damage to any goods in accordance with the specific terms of the contract.
(2)
Subject to the succeeding provisions of this section, where in any contract of carriage the term at owner's risk or the term at limited carrier's risk or the term at declared value risk or the term on declared terms is used, the contract shall be deemed for the purposes of this Act to be one to which paragraph (a) or paragraph (b) or paragraph (c) or paragraph (d) (as the case may require) of subsection (1) of this section applies.
(3)
Subject to the succeeding provisions of this section, the kind of contract of carriage to be entered into in a particular case is a matter for agreement between the parties.
(4)
Where the contract does not purport to be of a particular kind, it shall be deemed for the purposes of this Act to be a contract for carriage at limited carrier's risk.
(5)
No contract of carriage purporting to be a contract for carriage at owner's risk shall have effect as such (but instead shall have effect as a contract for carriage at limited carrier's risk) unless—
(a)
The contract is—
(i)
In writing; and
(ii)
Expressed to be at owner's risk; and
(iii)
Signed by the parties or their agents; or
(b)
Before, or at the time when, the goods are accepted for carriage, the contracting party or his agent signs a statement in the following terms:
“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 he intentionally loses or damages them.”
For the purposes of this paragraph, that statement may be included in the consignment note or any other document relating to the carriage, but in that case the statement shall be conspicuous and shall be separately signed by the contracting party or his agent.
(6)
No contract of carriage purporting to be a contract at declared value risk shall have effect as such (but instead shall have effect as a contract for carriage at limited carrier's risk) unless the contract is in writing.
(7)
No contract of carriage purporting to be a contract for carriage on declared terms shall have effect as such (but instead shall have effect as a contract for carriage at limited carrier's risk) unless the contract is—
(a)
Freely negotiated between the parties; and
(b)
In writing; and
(c)
Signed by the parties or their agents.
(8)
Where, in any proceeding, the question of whether any contract of carriage was or was not freely negotiated is in issue, the Court in determining that question shall 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 they are to be carried:
(e)
Any other matters that the Court considers may properly be taken into account,—
and either party may adduce evidence relating to any such matter.
(9)
No contract of carriage at owner's risk or at declared value risk shall have effect as such (but instead shall have effect as a contract for carriage at limited carrier's risk) unless the amount by which the freight charged by the contracting carrier under the contract differs from the amount that he would have charged for the same carriage at limited carrier's risk is fair and reasonable, having regard to the difference in the risk actually undertaken by the carrier and the risk that he would have undertaken if the carriage had been at limited carrier's risk.
(10)
For the purposes of subsection (9) of this section, any rate of freight prescribed by or under any enactment in respect of any mode of carriage pursuant to any kind of contract of carriage shall be deemed to be a fair and reasonable rate to charge for such carriage.
(11)
Any contract of carriage entered into by a contracting carrier with 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; but subsections (5) to (8) of this section shall not apply in respect of any such contract.
(12)
The provisions of sections 9, 14, and 15 of this Act apply to contracts for carriage at limited carrier's risk and to contracts for carriage at declared value risk.
(13)
Sections 9(1), 14, and 15 of this Act do not apply to contracts for carriage at owner's risk or to contracts for carriage on declared terms.
(14)
Notwithstanding anything in section 7 of this Act, the provisions of subsections (2) to (7) of section 9 of this Act apply to contracts for carriage at owner's risk and to contracts for carriage on declared terms, subject to any express term in the contract.
Subject to the other provisions of this Act, a contracting carrier is liable as such to the contracting party for the loss of or damage to any goods occurring while he is responsible for the goods in accordance with the succeeding provisions of this section, whether or not the loss or damage is caused wholly or partly by him or by any actual carrier.
(2)
The responsibility of the contracting carrier for goods begins when the goods are accepted for carriage in accordance with the contract.
(3)
Subject to subsection (4) of this section, the responsibility of the contracting carrier for goods ends—
(a)
In a case where the goods are to be delivered to the consignee,—
(i)
When they are tendered to the consignee in the manner expressed or implied in the contract; or
(ii)
Where any amount by way of freight 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 and that amount has not been paid in full, when the contracting carrier or (as the case may require) the last actual carrier is capable of tendering the goods to the consignee in accordance with the contract and gives notice to any person liable to pay the amount or (as the case may require) the balance of the amount that he is so capable:
(b)
In a case where 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 5th day (excluding any day on which the carrier's premises are not open for the collection of goods) after the date on which the contracting carrier or (as the case may require) the last actual carrier notifies the consignee that the goods are available for collection.
(4)
In any case where, at the time when the contracting carrier or (as the case may require) the last actual carrier is able to tender the goods to the consignee in accordance with the contract, the consignee's whereabouts are unknown to that carrier, the responsibility of the contracting carrier for the goods ends when he or (as the case may require) the last actual carrier has taken reasonable steps to find the consignee and notify him of the matters referred to in paragraph (a)(ii) or (as the case may require) paragraph (b)(ii) of subsection (3) of this section.
(5)
No notice referred to in subsection (3)(a)(ii) of this section shall take effect until it is received by the person liable to pay the freight.
(6)
Notwithstanding any of the foregoing provisions of this section, the responsibility of a contracting carrier who contracts for the carriage of goods to a destination outside New Zealand ends for the purposes of this Act at the time when the international carriage of those goods begins.
(7)
Notwithstanding any of the foregoing provisions of this section, 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 for the purposes of this Act at the time when the international carriage of those goods ends.
The provisions of this section apply, subject to the other provisions of this Act, where 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 himself performs part of the carriage).
(2)
In any case to which this section applies where 1 actual carrier is involved, that carrier is, subject to the terms of his contract with the contracting carrier, liable as such to the contracting carrier for the loss of or damage to any goods occurring while the actual carrier is separately responsible for the goods in accordance with subsection (6) of this section, whether or not the loss or damage is caused wholly or partly by the actual carrier.
(3)
In any case to which this section applies where more than 1 actual carrier is involved,—
(a)
Subject to subsection (4) of this section, the actual carriers are, subject to the terms of their respective contracts, jointly liable as such to the contracting carrier for the loss of or damage to any goods occurring while the actual carriers are jointly responsible for the goods in accordance with subsection (5) of this section, whether or not the loss or damage is caused wholly or partly by the actual carriers or any of them:
(b)
Each actual carrier is, subject to the terms of his contract, separately liable as such to the contracting carrier for the loss of or damage to any goods occurring while he is separately responsible for the goods in accordance with subsection (6) of this section, whether or not the loss or damage is caused wholly or partly by the actual carrier.
(4)
No actual carrier is liable under subsection (3)(a) of this section if he proves that the loss or damage occurred otherwise than while he was separately responsible for the goods in accordance with subsection (6) of this section.
(5)
For the purposes of subsection (3)(a) of this section, 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 in accordance with subsection (3) or subsection (4) of section 9 of this Act.
(6)
For the purposes of subsections (2) to (4) of this section, 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 him for carriage until the time—
(a)
When they are duly tendered by him 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 in accordance with subsection (3) or subsection (4) of section 9 of this Act.
(7)
For the purposes of subsection (3)(a) of this section, the actual carriers shall be liable in proportion to the amount of freight or other consideration payable to each of the actual carriers for the carriage performed by him.
(8)
For the purposes of subsection (7) of this section, where the contracting carrier himself performs any part of the carriage, the amount of freight or other consideration payable to him shall be the difference between the total amount payable under the contract of carriage and the aggregate amount payable to the actual carriers.
(9)
For the purposes of subsections (7) and (8) of this section, where any actual carrier (in this subsection referred to as the secondary actual carrier) performs any part of the carriage pursuant to a contract with any other actual carrier (in this subsection referred to as the primary actual carrier) (and not pursuant to a contract with the contracting carrier), the amount of the freight or other consideration payable to the primary actual carrier shall be the difference between the amount actually payable to him and the amount payable by him to the secondary actual carrier.
