The new Safety of Life at Sea (SOLAS) changes requiring outbound export shippers to verify a gross mass have generated extensive dialogue among supply chain participants. There is confusion surrounding the extent to which parties may rely on the information contained in a container weight declaration (CWD) provided by a third party. It is useful to revisit the Heavy Vehicle National Law (HVNL) provisions in relation to CWDs.
Company Prosecuted for Exceeding Gross Mass Limit
In Roads & Maritime Services v Troy Heavy Haulage Pty Limited (2013), the operator of a heavy vehicle, Troy Heavy Haulage Pty Ltd (Troy), was charged with three offences under s 56 of the Road Transport ( General ) Act 2005 (the Act). It was alleged that the defendant's vehicle was in breach of mass, dimension and load restraint requirements.
The offences arose on 21 September 2012 when Troy's heavy vehicle collected a shipping container at Port Botany after clearing quarantine. The shipping container was packed with a load of five forklift machines, forks and masts. Troy was charged with breaches of mass, dimension and load restraint requirements.
While the case concerned a number of issues the focus of this article is Troy's reliance on the information contained in the CWD it had received from the consignor, Speedmark Australia Pty Limited (Speedmark). Troy attempted to use this as evidence that 'all reasonable steps' had been taken to avoid the breach of the mass requirement (outlined in ss 87 and 89 of the Act).
Section 89 of the Act provides as follows:
"...the Defendant may rely on the weight stated in the relevant container weight declaration, unless it is established that the Defendant knew or ought reasonably to have known that:
- the stated weight was lower than the actual weight; or
- the distributed weight of the container and its contents, together with:
- the mass or location of any other load; or
- the mass of the vehicle or combination of any part of it, would cause one or more breaches of a mass requirement".
The reasonable steps defence will be successful if a defendant can establish that they:
- did not know, and could not reasonably be expected to have known, of the contravention; and
- had taken all reasonable steps to prevent the contravention.
The mass on the quad axle group of the defendant's vehicle was 32.15 tonnes, which exceeded the allowed mass by 12.15 tonnes, or 60.75%. The magistrate found that this was a "severe-risk breach". Speedmark had provided Troy with a sea freight less container load (LCL) arrival prealert in connection with the consignment of forklifts. The CWD was for a weight of 21,320kg (or 21.32 tonnes).
The Decision
The Act makes clear in its provisions that a CWD states, or purports to state, the weight of the container and its contents. It was of great significance in this case that the CWD is not intended to provide a statement of the distribution of a vehicle's load once the container is loaded onto the vehicle. Accordingly, the magistrate emphasised that the CWD can only be relied on to the extent that the weight of the container and its contents is relevant to the offence.
In deciding this case, the magistrate had regard to an earlier decision of the Supreme Court of NSW, John Tilman v. Daromin Engineering Pty Limited (2000), which found that the legislation "intends to ensure there is no overloading of a particular axle, in excess of the permitted load on that axle, and the obligation to ensure that the axle is not overloaded is not removed by calculating the total weight of the vehicle and its load". As such, the reliance on a CWD alone may be insufficient to make out the reasonable steps defence, depending on the evidence in the particular case.
In this case, there was no evidence given by the defendant as to the measurement of the load on any of the axles. Because the only evidence was the CWD and the driver's testimony that he had weighed the vehicle with on-board gauges, there was no evidence that any method to calculate the mass on the axles, and in particular the quad axle, had been used.
The magistrate found there to be no evidence that Troy took any action to ascertain the weight/mass on the quad axle, and in that circumstance, reliance on the CWD alone was not sufficient as it only provides a representation of the weight of the container and its contents as a whole.
New Requirements for Export Shippers
The new requirements for export shippers to provide a verified gross mass under the SOLAS amendments from 1 July 2016 will be implemented in all of the convention countries, so it is anticipated that there may be an improvement in the accuracy of the container weight information for both inbound and out-bound containers.
This should assist with heavy vehicle road safety, but it will remain important for those in the chain to carefully consider their own obligations in relation to container weight information under the CoR and SOLAS regimes.
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.