SCHEDULE 8Carriers’ Liability
11
(1)
Section 37 (effect of detention of transporter) shall be amended as follows.
(2)
In subsection (1) for “section 36” substitute “
section 36(1)
”
.
(3)
In subsection (2) for “claiming an interest in the transporter,” substitute “
whose interests may be affected by detention of the transporter,
”
.
(4)
In subsection (3)(c) omit “and the applicant has a compelling need to have the transporter released”.
(5)
“(3A)
The court may also release the transporter on the application of the owner of the transporter under subsection (2) if—
(a)
a penalty notice was not issued to the owner or an employee of his, and
(b)
the court considers it right to release the transporter.
(3B)
In determining whether to release a transporter under subsection (3A) the court shall consider—
(a)
the extent of any hardship caused by detention,
(b)
the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and
(c)
any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature).”
(6)
“(5A)
The power of sale under subsection (4) may be exercised only when no appeal against the imposition of the penalty is pending or can be brought (ignoring the possibility of an appeal out of time with permission).
(5B)
The power of sale under subsection (4) shall lapse if not exercised within a prescribed period.”
(7)
“(7)
This section applies to a transporter detained under section 36A as it applies to a transporter detained under section 36(1); but for that purpose—
(a)
the court may release the transporter only if the court considers that the detention was unlawful or under subsection (3A) (and subsection (3) shall not apply), and
(b)
the reference in subsection (4) to the period of 84 days shall be taken as a reference to a period prescribed for the purpose of this paragraph.”