The Fs wished to ship household, building and other goods from New Zealand to Tonga. VKL Ltd (VKL) agreed to provide the service and delivered a container to the Fs’ property on 6 October 2008, collecting it again on 23 October. The container arrived in Tonga on 12 November 2008 at which point it was discovered that it had a hole in it and that the goods had for the most part been damaged.

Held: The respondent, VKL, is ordered to pay the applicants, Mr and Mrs F, NZD 7,346.16.

Section 209 of the Maritime Transport Act 1994 provides:

(1) The Rules, as set out in Schedule 5 to this Act, shall have the force of law in New Zealand.
(2) Subsection (1) of this section shall apply to carriage of goods by sea evidenced by a non-negotiable document (other than a bill of lading or similar document of title) that contains express provision to the effect that the Rules are to govern the carriage as if the document were a bill of lading.

Schedule 5 of the Maritime Transport Act 1994 contains the Amended Hague Rules [ie the Hague-Visby Rules with SDR Protocol], effectively incorporating them into New Zealand law.

Article 3.6 of the Amended Hague Rules places a time limit on when claims may be brought against carriers. The Fs' goods were delivered on 12 November 2008 and the Fs' claim was lodged with the Disputes Tribunal on 19 January 2010. The Fs' claim was therefore lodged more than 12 months from the date of delivery and accordingly pursuant to art 3.6 the Fs cannot bring a claim against the carrier. The Fs have brought their claim against VKL, however, and while VKL may have made all of the arrangements regarding shipment of the Fs goods to Tonga, VKL itself is not a carrier and is accordingly not included within the 12 month limitation period. The agreement between the parties was entirely verbal with no written contracts being signed. There is no evidence to support either VKL operating only as the carrier's agent or that the parties had agreed that the Amended Hague Rules would apply to VKL. VKL is not protected by the 12 month limitation period specified in the Amended Hague Rules and accordingly the Fs are not prevented from bringing their claim.

Section 28 of the Consumer Guarantees Act 1993 provides consumers with a guarantee that services will be provided with reasonable care and skill. VKL agreed to arrange for the Fs' goods to be shipped to Tonga. VKL was responsible for arranging for a container for the goods to be shipped in and for that container to be shipped to Tonga. VKL was also responsible for the preparation of all relevant documentation required including shipping and customs documents. VKL did not use reasonable care and skill in selecting a container for use by the Fs. Also, once the goods had been shipped and the damage discovered, VKL did not use reasonable care and skill to assist the Fs to recover their losses from the carrier. VKL thus breached the guarantee that its services would be provided with reasonable care and skill. As VKL cannot now remedy its failure by either supplying another container or assisting with the shipping company, the Fs are entitled to damages pursuant to s 32(b)(2) of the Consumer Guarantees Act 1993.