Consumer demand and an increasing global population have seen a rapid uptick in the number of goods being shipped and carried worldwide.
This increase requires more containers and trucks to carry those goods on our roads. In fact, according to Ports Australia, more than 8 million containers come into our country every year.
But there are risks associated with those containers when they’re transported by road – which the majority of them are. It’s hard for those responsible to check they’ve been packed in accordance with Australian law, and that they’re not overweight. These factors all fall under the Chain of Responsibility (CoR), which requires any goods loaded on a heavy vehicle be properly restrained.
If this is not done, any person concerned with the packing, loading, securing or carriage of the goods can be held liable under the Heavy Vehicle National Law (HVNL).
Understanding the CoR
The load restraint requirements under the CoR not only apply to the goods loaded onto a heavy vehicle, but also to the restraint of goods within a freight container, which is usually done at the point of origin and are not visible or able to be inspected by any party further down the chain.
Your business must ensure that it is discharging its obligations in relation to the restraint of goods within a container. This becomes challenging when your business does not pack the container and cannot check the load restraint within it once the doors are sealed.
CoR recognises that vehicle operators are not the only parties that can direct what happens on the road. There are some instances where other parties in the supply chain can influence what happens on the road.
Take for example the consequences of the risks associated with a Container Weight Declaration (CWD). A CWD is a written declaration that states the freight container’s weight. If the weight of the container in the CWD is noted as less than it actually is, it may cause overloading which could lead to the vehicle rolling over. If this happens, there are several parties who could be found liable, including the driver, for operating the vehicle while overloaded, and the consignors, for not fully considering the ramifications or any additional weight being included.
Along with the drivers and consignors, loaders can also be found liable for not thoroughly reviewing the CWD or checking the accuracy of any supplied documentation, as well as executives for the business concerned, for not exercising due diligence and failing to identify any problems. These decisions, actions or omissions could all lead to the driver operating the vehicle while overloaded.
The safety of transport activities relating to a heavy vehicle is the ‘shared responsibility’ of each party in the CoR. The level and nature of a party’s responsibility for a transport activity depends on the nature of the public risk created by the carrying out of the transport activity, and the party’s capacity to control, eliminate or minimise the risk.
The primary duty of parties under the CoR is to ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle. Businesses need to consider their role in a shared safety duty to ensure safe loads, drivers and vehicles. Likewise, supply chain executives have an independent duty to exercise due diligence to ensure their business is doing the right thing.
The challenges of containerised freight
Containerised freight poses particular challenges to CoR parties. In a domestic freight arrangement, the driver and operator will have considerable influence on how the vehicle is loaded. However, the driver and operator may have less control in a containerised freight situation.
In many cases, containers are loaded and packed overseas. Enforcing these obligations becomes challenging, especially if these packers are located outside of Australia and the safety standards in the country of origin do not align with our own.
Import containers must be packed and their contents secured to Australian standards, not the standard at the place of export. The volume and nature of container trades means it’s impossible to routinely open and inspect containers when they arrive at the wharf and before they take to the roads. After loading, it is often difficult to inspect container loading and packing due to some ports not having the right space and facilities that would allow drivers to inspect containers before they depart. Along with space being an issue, sometimes controlled conditions imposed by customs and biosecurity protocols may prevent some containers from being opened until their arrival, while cost and expenses could also prevent effective inspection because it would involve full or partial unloading.
Driver limitations
Truck drivers and operators are often at the ‘front line’ when dealing with the consequences of poorly packed and secured containers. However, their ability to influence and control the packaging of the container is limited. The driver typically cannot physically inspect the packing, limiting their ability to identify deficiencies or hazards such as inadequate load restraint.
As such, the consignor of the container – typically the importer – is primarily responsible for ensuring that the goods are properly secured in a container. It is the consignor’s job under the CoR to exercise their control and influence over how containers are packed before the Australian consignor organises for the container to be transported by road in Australia and to check that this instruction is being followed.
Under the HVNL, a party is generally classified as a consignor of goods when it engages a heavy vehicle operator either through an agent or another party to transport its goods (i.e. consignment) to a consignee (such as a buyer receiving the consignment) by road for commercial purposes. Such parties will usually be named and identified as consignors in the formal documentation for the goods’ road transport.
If your business simply receives the goods at your premises, then it is likely that your business is a “consignee” under the HVNL, which is defined as a person who:
- has consented to be, and is, named or otherwise identified as the intended consignee of the goods in the transport documentation relating to the road transport of the goods, and
- actually receives the goods after completion of their road transport.
Businesses that do not take all reasonably practicable steps to ensure the safety of their transport activities, or who require or put undue pressure on other parties within the supply chain that requires, results in or encourages them to breach a relevant safety standard are routinely prosecuted and fined.
For example, proceedings were brought against an importer and its two directors in relation to the transport of a sealed container by road from an Australian port, having arrived from China. In this case, a third party was engaged to collect the container from Port Botany in NSW and transport it to the importer’s warehouse.
As the truck driver was driving the combination north on the Hume Highway at Liverpool and turning left onto the Cumberland Highway, the combination began to lift on the left-hand side and began rolling over to the driver’s side and into oncoming traffic. Two vehicles travelling in the opposite direction were struck and one of the drivers was killed on impact.
The court held that there were several causes of the accident arising from the negligence of multiple wrongdoers (being the CoR parties) including the fact the driver was driving the truck at an excessive speed for the load as he navigated the corner, and that the load had been inadequately secured within the container by the foreign exporter and the container was overweight.
In this example, each CoR party failed to make reasonable enquiries that could have avoided the foreseeable risk of the rollover and the damage suffered. The driver should have made inquiries about the weight of the container and whether the load was secured, while the consignor should have made the foreign exporter aware of the load restraint requirements applying to the consigned goods or otherwise ensured that they were met. Finally, the employer should have contacted the consignor to find out how the load was restrained, where it was aware that the consigner had not properly restrained goods in the past.
By Holding Redlich Partner Nathan Cecil
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