STEVEDORE DP World Australia and the CFMMEU have made progress in resolving their differences and heading off disruptive industrial action.
A spokesman for DPWA said action set for Brisbane and Fremantle this week had been put on hold, albeit stoppages still occurred at Port Botany on Monday 1 April.
“We are hopeful that we’ll reach an agreement to have the action stopped in Sydney as well,” the spokesman said.
Negotiations occurred until late on Sunday night and again on Monday morning.
The spokesman indicated talks towards an actual EA could also resume.
“We’ve said that there’s no negotiation while there’s threat of, or actual, industrial action,” the spokesman said.
“Once we clear the air on that front we’ll be able to start negotiations.”
In a statement to customers, DPWA said since the union began protected industrial action at DPWA terminals on 19 March, they had “struggled to secure sufficient labour and skills required to meet the needs of our customers”.
“We are cognisant that the ongoing bans and stoppages continue to impact our shipping line customers and supply chain partners,” DPWA stated late last week.
“We can confirm that we are in regular contact with all stevedore operators to secure any and all available capacity at their terminals across the four ports
We also continue to explore options to change vessel rotations and the elimination of port calls.”
The dispute between the union and the company centres on the terms of a new enterprise agreement, particularly income protection insurance.
“A guarantee Hong Kong will not hit Aussie goods with tariffs is how Australian authorities are hailing a new trade agreement.
Australia and Hong Kong signed the Australia-Hong Kong Free Trade Agreement and the associated Investment Agreement on Tuesday 26 March.
While much of the agreement is about education and services (not things that belong in a ship), there are also relevant themes for Australian exporters.
“The Australia-Hong Kong FTA will provide increased certainty for Australian service providers and investors,” the Department of Foreign Affairs and Trade said in a statement.
“It will lock in continued access to the Hong Kong market for Australian exporters of education, financial and professional services.
“It will also guarantee that Hong Kong will not apply tariffs to Australian goods exports in the future.”
According to DFAT, Hong Kong was Australia’s twelfth largest trading partner overall in 2017, with total two-way trade in goods and services worth $18.8bn.
In 2017, Hong Kong was Australia’s sixth most important destination for merchandise exports ($12bn) and seventh-largest services market ($3bn).
After signature, Australia is to follow the domestic treaty making processes to ratify the agreements.
This is to include tabling the text of the agreements in Parliament and an inquiry by the Joint Standing Committee on Treaties.
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Is your transport company a “Common Carrier”? Does this clause exclude them from liability should your goods get damaged or lost in transit? The Daily Cargo News explores Transport Contracts in their latest opinion piece.
“It Is a truth universally acknowledged that transport operators will have no liability for any loss or damage to the goods they carry (unless they are ocean carriers in which case different rules may apply much to the chagrin of the said ocean carriers).
This golden rule is not contained in any statute, though it is worth making the point that under the Australian Consumer Law as it applies to small business, it is likely that non-negotiable exclusion clauses in standard form contracts may be considered to be unfair and therefore unenforceable.
The exemptions from liability are to be found in transport contracts themselves, often in what is known as the fine print. The clause will usually say (in effect) that the carrier is not liable for anything, ever. It may go on to say that if the carrier is sued by anyone claiming loss or damage (a third party negligence claim, for example) the contracting party will indemnify the carrier.
The exclusion clause often begins with the mysterious incantation: “The Carrier is not a Common Carrier and will have no liability as such.” Despite the fact that the incantation is repeated (figuratively) every time a transport contract is entered into, it is doubtful that either party knows what it means.
To understand the status and meaning of Common Carrier, one must go back in time, around 200 years, to the days of horse and carriage, and before the railroads. At that time carriers, usually illiterate, operated on usual routes. Let’s say London to Bristol, and return. In those days, if you wanted your chest to go to Bristol, you would approach a common carrier who worked that route, and ask him (it would almost invariably have been a man) to take your chest to Bristol. You would probably agree on a price, and that was basically that.
Because there was no written contract the common law described the obligations of the common carrier (the word common in this context referring to the fact that the carrier carried goods for many different people, rather than his social class).
Despite the fact that written contract terms will generally prevail over any common law duties as a common carrier, the phrase continues to be used. A large part of the significance of the law of common carrier related to his or her liability for loss of or damage to the goods carried. Despite its antiquity, it was considered in a recent decision of the UK Supreme Court (formerly known as the House of Lords, the UK’s highest court), in the case of Volcafe v Compania Sud Americana De Vapores SA [2018] UKSC 61.
That case concerned carriage of goods by sea, so the facts are not relevant here. However Lord Sumption traversed liability regimes for bailees of goods, which includes the common carrier.
He said:
The characteristic feature of a common carrier was that he held himself out as accepting for carriage the goods of all comers on a given route, subject to capacity limits. As such, he was strictly liable at common law for loss of or damage to the cargo subject only to exceptions for acts of God and the Queen’s enemies. The absence of negligence was irrelevant. But although the position of common carriers is commonly referred to by way of background in the case law, as it was in the judgments below, it is no longer a useful paradigm for the common law liability of a shipowner. Common carriers have for many years been an almost extinct category. For all practical legal purposes, the common law liability of a carrier, unless modified by contract, is the same as that of bailees for reward generally.
The UK Supreme Court has helpfully restated that:
a common carrier is strictly liable for loss and damage (unless caused by an Act of God or Queen’s Enemies)
a bailee for reward is not an insurer and his or her obligation extends only to taking reasonable care of the goods (though he or she must also prove the absence of negligence)
in any event, the terms of written contracts of carriage will modify and prevail over these common law relationships.
Some common issues
While claims under transport contracts might be relatively straightforward (ie the carrier has no liability, for anything, ever), this might be a little more complicated when a third party is involved.
A common example is where a third party asks a freight forwarder to arrange for the delivery of goods from the wharf or warehouse to the third party’s premises. The forwarder will often contract with a carrier (a transport company or courier). If the goods are damaged while in the care of the carrier, the third party may make a claim in bailment (as per the second point above) on the basis that the third party is not bound by the terms of the contract between the Forwarder and the carrier. This can give rise to complicated legal issues relating to Himalaya Clauses and Sub-Bailment on Terms, but also (as mentioned above) the terms of the contract may require the forwarder to indemnify the carrier in relation to any claims.
The other complicating factor can be insurance. Transit insurance is common but there may be issues around who’s policy applies (someone has to pay for the policy, plus wear any deductible that might apply to any claim).
It is also common for carriers to give an assurance that they have insurance. While this is almost always true, it is potentially misleading and will depend on what form of insurance the carrier has. While the carrier may indeed have liability insurance (for example), if the carrier’s terms and conditions exclude liability, the insurer has no obligation to pay because the carrier has no liability.
And if the carrier has transit insurance, there may be an issue as to whether the carrier has an insurable interest in the goods.
Conclusion Transport contracts are all about clearly defining the parties’ obligations and liabilities, who does what, and who is liable for what. Once that is clear the parties can manage the relationship appropriately, through pricing and/or insurance. While it is tempting to leave barnacle clauses in contracts (such as reference to Common Carrier) because they’ve always been there, they have the potential to confuse relationships and potentially lead to avoidable disputes. Geoff Farnsworth is a partner with Holding Redlich”
“A Sydney fabrication business has been ordered to pay more than $67,000 in penalties and recovered duty and GST.
This followed an investigation by the Australian Border Force into the importation of Chinese aluminium products via Thailand.
The investigation by ABF Customs Compliance Operations focused on an import declaration last December for almost 15 tonnes of aluminium sections shipped into Sydney in a sea container.
The investigation found three “false and misleading statements”, which included a false declaration regarding the origin of the goods, to avoid the payment of Countervailing Duty, Dumping Duty and Customs Duty.
The Australian Government imposes countervailing duty and dumping duty to fight the dumping of low priced overseas goods below their “normal value”.
The shipment was under-valued. According to the ABF, the false and misleading statements caused a shortfall of $35,722 in duty, and a further $4676 in GST.
As well as paying the under-declared duty and GST the company was penalised $26,791 – the equivalent of 75% of the duty shortfall. In total it was required to pay $67,189.
ABF Acting Commander Malcolm Phelps said the case was a reminder for businesses to correctly declare imports.
“At the end of the day importers who don’t pay the correct amount of duty and GST are depriving the Australian economy and ultimately Australian taxpayers,” Acting Commander Phelps said.
“In this case, considerable effort was made to route the consignment through Thailand to conceal the fact that it originated in China.”
Acting Commander Phelps said ABF Customs Compliance Operations officers worked diligently to ensure importers complied with reporting and revenue collection.
“Failure to comply can result in severe penalties, or the suspension or cancellation of licences and potentially prosecution,” he said.
As Australia’s customs service, the ABF has made trade enforcement one of its key operational priorities.”
“Research just released by Infrastructure Partnerships Australia and BIS Oxford Economics’ reports goods travelling in international aircraft arriving and leaving Australia are worth $109bn annually – a fact that, until today, has been entirely hidden.
The 2019 International Airfreight Indicator, reports one in every five dollars of Australia’s traded goods travels via air.
“Every day more than 550 international flights arrive and depart Australia, yet until now, we have been remarkably blind to the value, the type of commodity, and the economic contribution of goods that travel in the belly of these aircraft,” said Infrastructure Partnerships Australia chief executive Adrian Dwyer.
“In a national first, the 2019 International Airfreight Indicator shines a light on a multi-billion industry that has historically gone unnoticed in our broader trade debate.
“The Indicator shows that airports are crucial to our trade story, and the cargo transported beneath passengers is vitally important to airlines, airports and the Australian economy.”
Mr Dwyer said last year $109bn of international trade passed through Australia’s airports, with airfreight set to top $114bn this financial year.
“While airfreight only represents 1% of Australia’s trade volume, it punches well above its weight in value. One in every $5 of Australia’s imports and exports travels via our airports – making the airfreight sector one of the largest value contributors to Australia’s trade position.”
Mr Dwyer said in a period of heightened trade tensions and structural economic change, data was critical in improving planning, regulation and investment in freight.
“Without useful data to examine and measure our freight sector we will be flying blind on our international trade,” he said. “That is why Infrastructure Partnerships Australia has called on Government to establish a dedicated freight body to independently measure and publish detailed analysis of the overall performance of our logistic and supply chain networks.”
“An apparent attempt to smuggle more than a tonne of molasses tobacco, 810,000 cigarettes and other banned products has led to charges being laid against a 48-year-old man from the Perth suburb of Scarborough.
According to the Australian Border Force, the illicit cargo was concealed inside a sea container from India and the value of evaded duty on the molasses tobacco and cigarettes amounted to more than $1.84m.
Officers at the ABF WA Container Examination Facility scrutinised container the after it arrived from India on 18 February.
A sharp-nosed detector dog sniffed out the tobacco.
It is alleged that behind a ‘cover load’ of food and household products were:
1104kg of molasses tobacco
810,000 cigarettes (40,500 packets)
77.6kg of chewing tobacco
1200 Kamini pills
Kamini pills, which contain opium poppy, and chewing tobacco are banned in Australia.
On 6 March 2019, ABF officers raided an Osborne Park business premises and a Scarborough home.
Several tobacco products were located and seized at the business
The man was arrested at the business and charged with one count of importing tobacco products with the intention of defrauding the revenue.
He was bailed ahead of another appearance in Perth Magistrates Court.
The ABF is also investigating a second container allegedly sent from the same consignor in India to the same consignee in Perth.
The amount of duty allegedly evaded is allegedly more than $2.14m.
ABF Acting Regional Commander for Western Australia Emma Newman praised the officers at the container examination facility.
“These seizures will put a significant dent in the supply of illicit tobacco in Western Australia,” Acting Commander Newman said. “People who engage in this kind of behaviour – whether it’s growing, importing, supplying or buying black market tobacco – not only put money into the hands of organised crime, but take away potential tax dollars from the Australian community.”
Paul Damkjaer, CEO of the CBFCA (Customs Brokers and Forwarders Council of Australia) has criticised the Australian Governments proposed Bio-Security Levy in a recent ‘Letter to the Editor’ on the Daily Cargo News Website.
“Agriculture minister David Littleproud recently established a bio-security levy steering committee to make recommendations on the implementation of this new levy.
The Customs Brokers and Forwarders Council of Australia has a long history of working with the Department of Agriculture and Water Resources on biosecurity policy.
The CBFCA is one of the peak industry associations representing service providers in international trade logistics and supply chain management, in particular those service providers who undertake border clearance activities through the departments of Home Affairs and Agriculture, these being licensed individual customs brokers or licensed corporate customs brokerages where the individual licensed customs broker is a nominee for that corporate entity.
Licensed customs brokers are accredited by DAWRS under the Broker Accreditation Scheme to undertake in co-regulatory arrangement documentation assessment activities for non-commodities/ commodities, and freight forwarders are accredited under the Approved Arrangements Scheme.
In this capacity, the CBFCA has provided commentary to a variety of Government and regulatory inquiries as to policy, equity, compliance, cost recovery and process improvement on biosecurity matters.
The CBFCA as an active member of the Department of Agriculture Cargo Consultative Committee and the Import Industry Finance Consultative Committee and works with the Department on a variety of idealistic biosecurity process outcomes, is very disappointed with the Minister and his advisors for excluding the CBFCA and other key industry associations and stakeholders from the steering committee.
What is interesting to note is the CBFCA was involved in past biosecurity import levy meetings and industry workshops but was still overlooked, despite our long history working with the Department.
During departmental workshops we often heard from industry that their preferred collection model was via the Full Import Declaration which is currently in place and is facilitated by the customs brokers and freight forwarders who pay the fees and pass on to their clients. If the new committee is to push for this collection model the CBFCA is most qualified to represent and make commentary on behalf of members. In the absence of the CBFCA we question if our specific industry sector will be appropriately represented.
The CBFCA understands that the Australia’s border biosecurity protects our food supply, agriculture industry and our way of life. However, we have concerns about whether the money collected will even be used for biosecurity, as the current cost recovered Imports Program is in desperate need of additional resources to manage the brown marmorated stink bug.
The CBFCA strongly opposes this proposed new tax as unfair, wrongly targeted and highly inefficient, however we support adequate funding for biosecurity.
The Department claims that biosecurity is a “shared responsibility”. This is often spoken about, but unfortunately not practiced enough. The CBFCA believes any additional funding should provide a modern, seamless border clearance that also manages biosecurity risks, as only in partnership with industry the biosecurity risks can be better managed.”
Article credit of The Daily Cargo News – Letter to the Editor 13th of March 2019
“Opposition infrastructure spokesman Anthony Albanese has hit out at the government over its handling of the proposed bio-security levy, describing the controversial policy as “a revenue grab”.
Mr Albanese, a former minister, was a keynote speaker at the Australian Logistics Council Forum 2019, held in the conference facilities at the Melbourne Cricket Ground.
He noted the levy arose from the review of the inter-governmental agreement on bio-security.
“The review proposed a levy of $10 on all shipping containers to take effect from July 1,” Mr Albanese told the gathering.
“But the government is attempting to impose a general import levy based upon volume on all shipping movements – this appears to be a revenue grab,” he said.
“It has created understandable concern about whether the money collected will even be used for bio-security because of course, it is no hypothetical – no tax ever really is.”
Mr Albanese said bio-security was important and had to be paid for.
“But the government has completely botched this process by failing to consultant or produce a regulatory impact statement.”
Agriculture minister David Littleproud this week announced the composition of a steering committee to examine the levy and its implementation.
Mr Albanese also criticised the government over inland rail, accusing it of failing to include the cost of the 38-kilometre Acacia Ridge – Port of Brisbane section. He reiterated Labor plans to revitalise Australian-flagged shipping and an Australian-flagged fleet of tankers to provide fuel security.
The proposed levy would be imposed on all cargo imported to Australia by sea. The government proposes to charge $10.02 per TEU and $1 per tonne for non-containerised cargo.”
