Corporate & Commercial
Contracts, structures and governance for businesses that need the paperwork to hold when something goes wrong.
Mergers & Acquisitions
Buying or selling a business, from the term sheet and due diligence through to completion and the restraints that follow.
Litigation & Dispute Resolution
Commercial disputes in the NSW, ACT and Federal courts, resolved early where that is possible and run properly where it is not.
Technology and Software
Your product scales digitally. Your contracts have to scale with it.
The track record
Judgments and tribunal outcomes, transactions completed, appointments taken, and the conversations we are part of in Australia and in Germany.
Germany
A German desk for businesses moving between Australia and the German-speaking market.
Singapore
Singapore law where it governs the contract, and the arbitral seat that carries much of the region’s work.
Transport, Logistics and Shipping
When goods travel the world, liability travels with them.
Most cargo claims are decided by the transport document, the trading conditions behind it, and a deadline that runs whether or not anyone is watching it. We read those first, and tell you who is worth pursuing before money is spent finding out.
2007
Practising in Australia since
3
Offices: Sydney, Canberra, Frankfurt
2
Legal systems, one team
1
Principal on every matter
How the work runs in this sector
Six things that decide a cargo claim before the merits
01
The transport document, and who it makes the carrier
The bill of lading, sea waybill or air waybill names the party you can sue and fixes the terms you are suing on. A bill of lading made out to order is a document of title, it is transferable, and the carrier delivers against presentation of an original. A sea waybill is neither, so the carrier delivers to the named consignee on proof of identity. Which one you use should follow the payment terms rather than habit, because it decides who controls the goods in transit.
02
The trading conditions underneath it
A freight forwarder that issued its own transport document generally answers as a carrier. One that genuinely arranged the carriage as an agent may not, and the answer sits in the document, the standard trading conditions and how the engagement was actually performed, not in the label adopted after a loss. Those conditions usually extend the carrier’s defences down to stevedores, warehouse keepers and road hauliers, which is why suing the party that physically damaged the goods often recovers no more than suing the carrier.
03
The regime, and the ceiling it puts on recovery
Sea carriage out of Australia is governed by the amended Hague Rules given force by the Carriage of Goods by Sea Act 1991 (Cth), carriage into Australia by that regime or by its counterpart in force at the port of shipment, and international air cargo by the Montreal Convention 1999, implemented by the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). The sea regime caps recovery at an amount per package or per kilogram of the goods, whichever is higher, the air regime by weight alone, and the cap usually sits well below what the goods are worth. Declaring the value of the goods to the carrier before shipment, in the form each regime prescribes and usually against a higher charge, displaces it. Where declaring is not commercial, insuring the balance is the answer.
04
The clock, which is the sharpest edge on the file
One year from delivery for sea carriage, or from the day the goods should have been delivered, and two years for international air. Neither is an ordinary limitation period that a court can extend once it has run. The sea rules do allow the parties to extend the period by agreement once a claim has arisen, and a carrier asked in good time will usually grant an extension, so the request should be made early and in writing. The air rules make no provision for extension, and forwarders’ trading conditions routinely impose shorter notice and suit periods on top of both. Businesses spend nine or ten months negotiating with a carrier and then find the right to sue has already gone. We fix the trigger date first, before anything is spent on the merits.
05
The first 48 hours after a loss
Photograph the container, the seal, the stow and the goods before anything is moved, and keep the packaging. Note the damage on the delivery receipt rather than signing it clean. Give written notice to the carrier and the forwarder at once, because for air cargo a written complaint within 14 days of receipt for damage, or 21 days for delay, is a condition of suing the carrier at all. Notify the underwriter and arrange a survey, ideally with the carrier present. What is done in those two days usually decides what the claim is worth two years later.
06
Insurance and recovery, run together not in sequence
Notify the underwriter promptly and comply with the policy conditions, because delay or an unnotified settlement with the carrier can prejudice cover. At the same time protect the recovery against the carrier, since the insurer steps into your position by subrogation and will expect that right intact. We act for cargo interests and for insurers, and we advise on general average contribution and security where a casualty affects the whole voyage.
In this sector
What we do for transport, logistics and shipping clients
The work
We advise shippers, consignees, freight forwarders and carriers on carriage, forwarding and logistics contracts, on bills of lading and sea waybills, and on the sea and air regimes that decide what can be recovered and by when. We pursue and defend cargo damage, delay and misdelivery claims, advise on marine and transit cover and on subrogated recoveries, and work back through the contract chain to find the party that actually carries the loss.
Where it usually goes wrong
Liability is allocated long before anything goes wrong, in documents signed months earlier and in trading conditions nobody reads until there is a loss. The two failures we see most are a claim pursued against the wrong party, because the forwarder’s status was assumed rather than tested, and a good claim that expires while it is being negotiated. Both are avoidable, and both are decided in the first fortnight.
The land legs, and what does not cover them
Australia has no equivalent of the European road carriage convention, so a client who assumes that a CMR-style regime reaches the truck leg will be wrong. Domestic road and rail carriers exclude liability almost entirely in their standard terms, and the leg at either end of an international movement is usually protected by insurance rather than by any right against the carrier. That is worth knowing before the goods move rather than after.
A foreign court clause in the bill
Bills of lading routinely send disputes to London or Singapore. For carriage into or out of Australia the Carriage of Goods by Sea Act preserves the jurisdiction of the Australian courts over sea carriage documents, and lets an arbitration clause stand only where the arbitration is conducted here. So a foreign forum clause should be tested rather than accepted, because it often does not do what it appears to do.
Who does the work
The person you meet is the person who runs it
Fabian Hoffmann
Principal · Sydney, Canberra and Frankfurt
Juris Doctor (ANU) and the First State Examination in Law (Bielefeld), admitted in the Australian Capital Territory, Notary Public of the Society of Notaries of New South Wales, member of the Singapore Institute of Arbitrators, and Vertrauensanwalt for both the Federal Republic of Germany and the Republic of Austria. Works in German and English, and tutored contract law at the ANU College of Law for four years.
Mason Keene-McCann
Principal · Canberra
Admitted to practice in the Supreme Court of Victoria and holds a practising certificate in the Australian Capital Territory. Joined Boettcher Law in 2022 and works with barristers and experts on contested commercial matters.
Australia and Germany
One team, both legal systems
Where a matter runs across both jurisdictions, the German side is handled by our Frankfurt office under German law, not passed to correspondent counsel and marked up. That is the practical difference: one team, one set of documents, and nobody translating between two firms at your cost.
Tax on either side sits with an accountant. We work with Accru Felsers through the German Professional Services Alliance and bring them in at the point the numbers start to matter, which on a restructure or a share transfer is usually before we draft.
Related
The areas of law that carry this sector
Send us the transport documents
Cargo claims are decided by documents and deadlines. Send us the bill of lading or air waybill, the trading conditions and the loss notices, and we will tell you which regime applies, how long you have left, and who is worth pursuing.
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