Consumer demand and an increasing global population has 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.
This article examines the rollover risks in connection with freight transported on the road within shipping containers and how to manage these risks.
Chain of Responsibility
The Chain of Responsibility (CoR) requires any goods loaded on a heavy vehicle to be properly restrained. If 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).
The load restraint requirements 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 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. In such circumstance, the following parties may be found liable:
- drivers – for operating the vehicle while overloaded
- consignors – for not fully considering the ramifications or any additional weight being included
- loaders – for not thoroughly reviewing the CWD or checking the accuracy of any supply documentation
- executives of the above businesses – for not exercising due diligence and failing to identify any problems.
The above decisions, actions or omissions could have caused the driver to operate 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
- the party's capacity to control, eliminate or minimise the risk.
CoR's primary duty is to ensure, so far as is reasonably practicable, the safety of the party's transport activities relating to the vehicle, thus limiting the relevant transport activities to those performed in a particular capacity by the particular party.
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.
Containerised freight pose 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 those in Australia.
Import containers must be packed and their contents secured to Australian standards (refer to Load Restraint Guide 2018), 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
- controlled conditions imposed by customs and biosecurity protocols may prevent some containers from being opened until their arrival
- cost and expenses could prevent effective inspection since such inspections often involve full or partial unloading.
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 importer's job under the CoR to exercise their control and influence over how containers are packed before the Australian importer 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
- actually receives the goods after completion of their road transport.
If the business is not involved in the packing of the container and does not book the road transport upon its arrival in Australia, then its duty would be limited to a "watching brief", i.e. to look out for any issues with the packing or load restraint within the container and report/document any problems to your local supplier to raise those issues with the overseas' supplier, then continue to monitor to make sure the same problems do not continue to occur.
If you book the road transport to collect the container from the port, then your business is likely a "receiver" and a "consignor".
A receiver, for the purpose of section 186, means a person who, other than the person who merely unloads the goods, (a) first receives the goods in Australia or (b) unpacks the goods after the goods are first unloaded in Australia. A receiver must ensure, so far as is reasonably practicable, that the consignment documentation is not false or misleading.
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.
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 driver was driving the freightliner at an excessive speed for the load as he navigated the corner
- the load had been inadequately secured within the container by the foreign exporter
- the container was overweight
- each CoR party failed to make reasonable enquiries that could
have avoided the foreseeable risk of the rollover and the damage
- the driver should have made inquiries about the weight of the container and whether the load was secured
- 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
- 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.
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.