Opinion Number. 370



Key Legislation

CUSTOMS ACT 1901, s. 76: INSTRUMENTS ACT 1890 (VIC), s. 108

The Comptroller-General of Customs

The Comptroller-General of Customs has referred to me for opinion the following case:

  1. Consignees of goods have asked that this Department should, if possible, in issuing permits under section 76 of the Customs Act, provide that the issue of such a permit shall not operate against their claims for loss or pillage of goods during the voyage.
  2. The section reads as follows:
  3. '76. Goods unshipped and landed under a Collector's permit shall be placed by and at the expense of the master or owner of the ship from which they were unshipped in a place of security approved by the Collector, and shall until lawfully removed therefrom be at the risk of the master or owner of the ship as if they had not been unshipped.'

  4. The form of permit (Statutory Rules No. 126 of 1909-Regulation 45) is as follows:
  5. Form 20.

    Australian Customs

    Collector's Permit - Permit to Discharge Ships - Before Entry.

    State of Port of
    We request permission to discharge the cargo of the (or the cargoes of the following ships-
    during the month of ) before the report thereof,
    or the passing of Customs entries.
    We undertake to protect the goods when landed, and to pay all expenses incurred in protecting and warehousing the cargo, and that goods landed under this permit shall not be delivered until entries are duly passed therefor: and further, that all goods landed under this permit shall be stacked, sorted, and disposed of to your satisfaction.
    Master, Owner, or Agent. Approved-Collector. 19

  6. Under the form of Bill of Lading (Examples attached with clauses marked bearing on the point) the ship is relieved of liability immediately the goods leave the ship.
  7. Merchants urge that by our action in giving this permit the shipowner is enabled to avoid his just responsibility, and the consignee is unable to protect himself, being quite helpless in the matter.
  8. It has always been assumed that the wording of the section that the goods shall 'be at the risk of the master or owner of the ship as if they had not been unshipped' continues the liability of the owner or master, (though possibly not where there is an express contract to the contrary in the B/L?).
  9. Advice is requested on the following points:
  1. Under the present form of permit and in the absence of an express contract to the contrary, would the liability of owners be continued in favor of the consignee till the goods were cleared?
  2. If the answer to the above be in the affirmative, would the clause in the B/Ls forwarded avoid this responsibility?
  3. Would it be practicable, notwithstanding the clause referred to, so to word the permit as to avoid the effect, in cases where goods are landed under Collector's permit, of causing consignees to lose their remedy against the ship for loss or damage?

The consignee to whom the bill of lading is endorsed has transferred to and vested in him all rights of suit, and becomes subject to the same liabilities in respect of the goods included in the bill of lading as if the contract contained in the bill of lading had been made with him. See Victorian Instruments Act 1890, No. 1103, section 108.

Assuming that the law is similar in all the States, the contractual rights of the consignee against the shipowner arise solely under the bill of lading.

In obtaining a Collector's permit to enable the ship to discharge earlier than it would be able to in the ordinary course, the shipowner is obtaining a concession for the benefit of the ship. In obtaining this concession a shipowner must be taken as accepting the responsibilities which are thrown upon him by the section under which it is granted.

I think that the effect of section 76, as between the ship and the consignee, is to continue the risk of the ship as if the goods had not been unshipped.

But anyone can waive the benefits of a statute; and if the bill of lading stipulates that under such circumstances the goods shall be at owner's risk, I think the consignee is bound by that stipulation.'11

I understand that consignees claim that the granting of a Collector's permit operates to their disadvantage in that it allows a ship to get away sooner than she would otherwise be able to do. This in itself would not matter, but incidentally it prejudices consignees in making good their claims against the ship, and perhaps also prejudices insurers, in cases where the shipowner is not resident. in Australia, and has no permanent representative there, as the ship may leave before the loss or damage is discovered or a claim can be made.

The continuance of the shipowner's responsibilities under section 76 has, of course, no effect in cases like this, and it may be found necessary to consider whether in such cases the Collector's permit should not be refused unless the shipowner satisfies the Collector that he has made provision which will enable consignees' claims to be justly dealt with.

Also I do not think the form of the permit would have any bearing on the question of liability of the shipowner to the consignee.

Instructions were received from the Comptroller-General of Customs on 17 June 1909 for the drafting of a Bill relating to the delivery of goods, which will deal to some extent with the matters under discussion.

[Vol. 7, p. 390]

(1) The Comptroller-General of Customs sought further advice on this paragraph, which was given in an
opinion, not published, dated 2 April 1910 [Vol. 7, p. 409] by Mr Garran as follows: