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Load restraint – it’s what’s inside that counts

15 January 2019

#Transport, Shipping & Logistics

Nathan Cecil

Published by Nathan Cecil

Load restraint – it’s what’s inside that counts

The Chain of Responsibility (CoR) laws require that any goods loaded on a heavy vehicle are properly restrained. For any goods not properly restrained, any person concerned with the packing, loading, securing or carriage of the goods can expect to be held liable under the Heavy Vehicle National Law (HVNL). 

But, the load restraint requirements don’t just apply to the goods as loaded onto a heavy vehicle, they also apply 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. So, how do you ensure that you are discharging your obligations in relation to the restraint of goods within a container when you didn’t pack the container and can’t check the load restraint within it once the doors are sealed?

Like many problems, you need to attack it at the source. If containers are packed by someone else within your supply chain, you need to address load restraint with them – prior to the goods being packed.

The ‘old’ HVNL included examples of steps that could be considered reasonable in seeking to prevent load restraint breaches, including:

  • exercising supervision or control over others involved in activities leading to the contravention
  • including compliance assurance conditions in relevant commercial arrangements with other supply chain parties 
  • identifying and remedying similar compliance problems that may have happened in the past.

Recent court decisions have identified the following practical measures as potentially being required by importers, those concerned with the loading of goods into containers and consignors of containerised goods:

  • notify manufacturers and suppliers (including overseas) of the load restraint requirements and performance measures applicable in Australia
  • stow containers to minimise any space between the goods and container walls – less than 200mm of gaps cumulatively in any direction (side/side, fore/aft)
  • if in doubt as to the sufficiency of any load restraint system, engage qualified load restraint engineers to design and/or approve any load restraint system in accordance with the performance measures in the Load Restraint Guide.

This is where the common objection ‘my customer/supplier’ isn’t interested in the load restraint requirements and there’s noting that I can do to change this most often arises. The truth of the matter is that anything is possible, it is usually just a matter of making the request (and exerting the right level of pressure) and/or addressing who will pay any associated costs. 

For those further down the chain (e.g. drivers, transport operators) and who have nothing to do with the loading of the goods, the following practical measures have been suggested by the Courts as potentially being appropriate:

  • require customers to warrant that goods have been loaded and restrained in accordance with the Load Restraint Guide
  • ensure that you obtain particulars of the goods, their weight and the centre of gravity of the container, so that you can determine the appropriate truck for the task (e.g. side loader vs flat tray)
  • inspect containers before driving, to check for signs of load shift (e.g. bulging container walls, damage from container impact)
  • where any load shift is identified or later reported, require the customer to satisfy you that they have reviewed their load restraint practices to prevent any further incident of load shift occurring
  • for any customers who have multiple incidents of load shift, refuse to carry their goods.

Just like in romantic movies, it’s what’s on the inside that counts. The CoR laws require you to look beyond the exterior and find out whether your cargo is good or bad underneath. 

AuthorNathan Cecil 

* A version of this article was originally published in CoR Adviser. This article is © 2019 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.

Contacts:

Sydney
Nathan Cecil, Partner 
T: +61 2 8083 0429 
E: nathan.cecil@holdingredlich.com

Geoff Farnsworth, Partner 
T: +61 2 8083 0416 
E: geoff.farnsworth@holdingredlich.com

Melbourne
Harry Kingsley, Partner
T: +61 3 9321 9888 
E: harry.kingsley@holdingredlich.com

Brisbane
Suzy Cairney, Partner 
T: +61 7 3135 0684 
E: suzy.cairney@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Nathan Cecil

Published by Nathan Cecil

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