Australia: It pays to show a little restraint

Last Updated: 7 December 2014
Article by Nathan Cecil
Most Read Contributor in Australia, September 2016

Load restraint, particularly the restraint of goods within a load or container, has been identified by the NSW Police Force as an area that will be targeted next year. Speaking to Informa on the upcoming Chain of Responsibility and Heavy Vehicle Safety Conference, Inspector Phillip Brooks, Traffic and Highway Command, commented that load restraint "is an emerging problem for the sector" and one of the main issues facing heavy vehicle safety at the moment. This announcement follows the recent focus of the annual Operation Austrans on load restraint, particularly at distribution centres.

Load restraint forms one of the essential pillars of heavy vehicle safety, along with mass, dimension, fatigue, speed and maintenance standards (an ever growing list). In recent times, the spotlight of Chain of Responsibility compliance and enforcement activities has tracked through over-mass breaches, driver speeding and, more recently, vehicle maintenance. In the coming year, the industry can expect the spotlight to shine on load restraint.

The advance warning issued by the authorities means that load restraint should be a topic that is being discussed in boardrooms and around peak industry body tables now. This is especially so given that Managers and Directors can be held personally liable in respect of any corporate load restraint offences (as discussed in our article in the October 2014 edition of ATN).

The National Transport Commission's Load Restraint Guide provides very detailed and proscriptive guidance on how properly to restrain a load on a heavy vehicle. However, there is very little discussion or guidance on the restraint of goods within a load/container. As we were told by our parents, 'it's what's on the inside that counts'. The issue of internal load restraint is similar to the issue of accurate weight declaration facing the shipping industry at the moment, where shipping lines have limited ability to verify declared weights within containers and where overloading has been identified as a contributing factor to some significant maritime casualties. In both sectors, the industry and the regulators are still finding their feet in relation to how to police the issue and who to penalise.

Under a pre-Chain of Responsibility framework, most people would argue that sole responsibility and liability should rest with whoever loaded and secured (or failed to secure) goods within a load/container. Today, we know that all parties in the Chain have been deputised to help enforce heavy vehicle safety standards. Even so, in relation to the restraint of goods within a load/container, road logistics operators may be inclined to the view 'we didn't pack the goods, so it doesn't concern us'.

But, as Ira Gershwin wrote in 1935, "It Ain't Necessarily So". Road transport logistics is increasingly becoming an integrated, multi-service offering. Many logistics providers once considered to be operating in a discrete road carriage 'all care and no responsibility' environment now provide additional service offerings which potentially expose them to liability for insufficient load restraint within a load/container.

For example, many logistics providers are now responsible for collecting, carrying, receiving, unpacking and warehousing goods before they are re-packed and distributed through wholesale and retail networks. By virtue of unpacking such goods, the logistics operator is aware of the particulars of the packing and restraint of the goods within the load. With knowledge comes responsibility. With responsibility comes potential liability.

Where a shift in stow or in-transit damage to the goods is noted, this should perhaps put a logistics provider on notice that there might be an issue of insufficient load restraint. Further, even where there is no shift in stow, where a logistics provider ought reasonably identify that the manner of load restraint of such goods is insufficient, the Chain of Responsibility principles dictate that the logistics provider must do something about it. This is particularly so where the business and insufficient restraint is repeated over time across various shipments. Chain of Responsibility compliance policies should prompt an issue to be logged, investigated and actioned in such circumstances. Indeed, (at least in a work health and safety context) warehouse operators have successfully been prosecuted and fined in relation to their operating procedures which failed to respond to sub-standard loading and packing by other parties.

In this sense, shipping containers are like Pandora's Box. Once opened, what emerges cannot be put back and, if proper action isn't taken, could hang around to haunt you.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Nathan Cecil
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