The National Heavy Vehicle Regulator (NHVR), alongside police, kicked off Operation Quay this month, a month-long blitz to ensure heavy vehicles travelling in and around port facilities in its jurisdictions are safe and compliant.
Lawyer Nathan Cecil, partner – transport, shipping and logistics at Holding Redlich – runs his expert over the operation and shares some timely advice.
Why are container transport operators being targeted?
This targeted action has come about due to the NHVR’s intelligence suggesting that “heavy vehicles transporting freight in shipping containers are more likely to be involved in safety incidents in comparison to vehicles carrying general freight, with unique challenges associated with containerised cargo such as load instability and the potential for rollover”.
But as to the underlying question that operators will have, ‘Why are container transport operators being targeted, rather than packers, Shippers, importers, consignors etc.?’, the answer is – ‘Because they are an easy target’.
The CoR laws only apply to transport activities related to the carriage of goods by truck on Australian roads. That is, the laws only bite once there are goods on a road. Vehicle standards and fatigue are obviously within the primary control of container transport operators.
But what about load restraint? The person with the most control over whether goods are safely restrained within a shipping container is the person who packs the container.
But, in the case of imported containers, the packer and Shipper are overseas and therefore not subject to the reach of the CoR laws.
So, the first Australian parties who have any contact with an imported container are the consignor (whoever arranges the road transport, usually a logistics services provider or the importer), the stevedore (who typically loads the container onto a truck) and the container transport operator.
Arguably, it is the importer who has the most control over how their goods are packed overseas – they are the party who can dictate or have an influence on packing standards.
Next would be the logistics services provider, who has the capacity to seek information on the consignment and, at least indirectly, influence whether the consignment arrives in a complying state. Next would be the stevedore, who typically physically loads the container onto a truck immediately prior to road transport.
Next and finally would be the container transport operator, who typically has little to no involvement before the container is discharged and they are asked to collect it. But, CoR safety duties are shared, so any one or all of those parties can be held responsible.
Of course, when containers are intercepted and inspected on the road, they are in the possession of the container transport operator – who is ‘caught red-handed’ and the most immediate and easiest target for enforcement action.
That may not be the fairest outcome. It may not be the outcome that is most likely to change behaviours and practices and ensure that future consignments reach Australia in a compliant state. But that is the position that we are in – so how do you deal with it?
What do you need to be doing to avoid problems?
Container transport operators have to do everything that they reasonably can to ensure that the containers that they are collecting are restrained properly. Given that they can’t look inside the containers, this means that they must:
• Ensure that this is a requirement of their engagement (e.g. is set out in their customer terms); and/or
• Seek this information and/or assurance from their customers before they collect any container; and/or
• have practices in place to identify and respond to any problems that arise.
Importantly, you need business practices to be set up so that these things happen before you collect a container.
If you’re not sure whether your practices are protecting you in this area, reach out to us and we can help put you in the strongest and safest position.
What to do if you get pulled up for an offence/prosecuted
If something does go wrong, don’t sit on it.
The best thing that you can do is identify the underlying problem and take prompt steps to ensure that it won’t happen again.
Ideally, you would do this responsibly and proactively before you even receive a Court Attendance Notice in the mail. In this way, you will be able to demonstrate to the court that you took responsibility and implemented meaningful change (if required) to ensure transport safety in the future and you will be in the best position to convince the court to impose a lesser, rather than greater, fine.
You need to conduct the above assessment and implementation of any changes in a considered manner that will put you in the best light – so it’s best to seek some informed legal input to ensure that you’re on the right path.
So, for a mixture of right and not so right reasons, you are going to be targeted over the next four weeks and will continue to be an easy target for such matters going forward.
That being the case, the best course is to prepare yourself (and your customers), so that you are in the best position to weather the scrutiny.
• This Q&A was published with the permission of Road Freight NSW which first shared the information with its members.
About the author:
Nathan Cecil jointly heads up Holding Redlich’s national transport practice. Over the last 20-plus years, Cecil has built up a leading knowledge and expertise in all things CoR and transport. His team regularly helps businesses and their executives develop required practices to meet CoR laws, respond to incidents and handle enforcement action.