Abstract
It is clear that a shipper is not restricted to shipping only goods which carry no risk at all and also true that all goods present some risk.1 Responsibility for such risks or for avoiding or minimizing their consequences may of course fall on the shipper, who may be liable for losses suffered by the carrier or third parties as a result of the shipment of such goods. Otherwise it is the carrier’s duty to provide a seaworthy ship which is fit for the contracted cargo. Furthermore, it is a normal part of a carrier’s duties to take appropriate measures to avoid loss resulting from risks of which he is or should be aware. He assumes all risks of accidents attributable to a failure to carry in that manner.
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References
Rose, “Cargo Risks: ‘Dangerous’ Goods” [1996] 55 Cam. L.J. 601, 604.
Asariotis, “Main Obligations and Liabilities of the Shipper” [2004] TranspR 284, 285.
Williams, “The Implications of the ISM Code for the Transport of Packaged Dangerous Goods by Sea”, in International Symposium on the Transport of Dangerous Goods by Sea and Inland Waterways (1998), 117, 120.
Colinvaux, Carver Carriage by Sea (1982) Vol. 1, 17.
Williams, “The Implications of Shipping Dangerous Cargo”, in Pursuit and Defence of Cargo Claims, 10th & 11th May 1991, 2.
Willinger, “Rechtliche Grundlagen für die Verpackungen gefährlicher Güter” [1981] TranspR 81.
Gündisch, Die Absenderhaftung im Land-und Seetransportrecht (1999), 158 f; Wong K.K, “Packing Dangerous Goods” [1976–77] 8 J. Mar L. & Com. 387, 387 ff.
Karan, The Carriers Liability under the International Maritime Conventions the Hague, Hague-Visby, and Hamburg Rules (2004), 308.
Hague-Visby Rules Art. IV.3. Problems can arise where insufficiency of packing causes damage to other cargo. In Goodwin, Ferreira & Co. v. Lamport & Holt Line Ltd. (1929) 34 Lloyd’s Rep. 192, it has been suggested that although the exception is primarily directed at the packing of goods damaged, there is nothing to prevent its being used in such a situation. However, this case was decided on the basis of a “catchall” exception, i.e. Art. IV.2.(q). On the other hand, this may also fall within the question of care under Art. III.2 in respect of the “other” cargo, depending on the circumstances. If the carrier is held responsible for the other cargo that was damaged by insufficiently packed cargo, he may nevertheless seek indemnification from the shipper of the first cargo after compensation. Tetley, Marine Cargo Claims (1988), 505 f.
Tetley, Marine Cargo Claims (1988), 491. In “Bamfield v. Goole etc., [1910] 2 K.B. 94, unknown to both the shipper and the carrier, the substance underwent a change during the transit: the packing proved insufficient and poisonous gases were given off.
Wong K.K, “Packing Dangerous Goods” [1976–7] 8 J. Mar L. & Com. 387, 395 ff. Training in this area is, therefore, essential and management arrangements in the organization carrying out the packing must ensure that this training is provided.
Williams, “The Implications of the ISM Code for the Transport of Packaged Dangerous Goods by Sea”, in International Symposium on the Transport of Dangerous Goods by Sea and Inland Waterways (1998) 117, 120.
Maloof/ Krauzlis, “Shipper’s Potential Liabilities in Transit” [1980] 5 Mar. Law 175. See also Hoey v. Hardie (1912) 29 30 N.S.W; The Zhulia 235 F.433, 434, (E.D.N.Y 1916).
Karan, The Carriers Liability under the International Maritime Conventions the Hague, Hague-Visby, and Hamburg Rules (2004), 202.
Colinvaux, Carver Carriage by Sea (1982) Vol. 2, 831.
Williams, “The Implications of the ISM Code for the Transport of Packaged Dangerous Goods by Sea”, in International Symposium on the Transport of Dangerous Goods by Sea and Inland Waterways (1998), 117, 119.
Edgcomb, “The Trojan Horse Sets Sail: Carrier Defences against Hazmat Cargoes” [2000–01] 13 U.S.F. Mar. L.J. 31, 39.
Williams, “The Implications of Shipping Dangerous Cargo”, in Pursuit and Defence of Cargo Claims, 10th & 11th May 1999 1, 13.
Therefore, the carrier does not fail to exercise due diligence in neglecting to have the interior stowage of containers inspected prior to sailing. In Poliskie Line Oceniczne v. Hooker Chemical Corp., 499 F.Supp. 94, 99, a cargo of sulphur dichloride was carried. The shipper stowed drums of sulphur dichloride in the container in violation of the Code of Federal Regulations where no dunnage or bracing was placed in the spaces between the drums or between the drums or door of the container and where the drums were not properly placed in the container to eliminate slack space. The court concluded that the shipper’s stowage negligence per se was based on numerous violations of the Hazardous Materials Regulations. The shipper asserted that the carrier had a duty to open the container, inspect it and inform the shipper how to stow the drums properly. The court rejected this argument, noting that the shipper had improperly certified that the cargo in the container was packaged in compliance with the HMR. The court found that the carrier was entitled to rely on this certification, relieving him of any duty to inspect. The court found that, in any case, the carrier’s due diligence obligation did not require him to inspect the inside of the container.
Tetley, Marine Cargo Claims (1988), 546.
For instance, in order to allow identification of the contract goods by the carrier for the purpose of safe and economic stowage of the cargo and delivery to the contractual consignee. Gaskell/ Asariotis/ Baatz, Bills of Lading: Law and Contracts (2000), 457 f.
Ibid.
Kervella, “IMO Roles on the Transport of Dangerous Goods in Ships and the Work of the International Bodies in the UN system, the Harmonization Issues with Regard to Classification, Criteria, Labelling and Placarding, Data Information, Emergency Response and Training”, in the 11th International Symposium on the Transport of Dangerous Goods by Sea and Inland Waterways (1992), 74, 81.
The IMDG Code Chap. 5.3. See Colormaster Printing Ink. Co. v. S.S. Asiafreighter, 1991 U.S. Dist. LEXIS 4644 (S.D.N.Y), where the freight consolidator failed to placard the shipping container holding poisonous gas and provide the required written notification to the carrier.
Wong K.K, “Packing Dangerous Goods” [1976–77] 8 J. Mar L. & Com. 387, 395 f.
Webster, “Managing Risk” [2004] 18(9) M.R.I. 15.
Williams, “The Implications of Shipping Dangerous Cargo”, in Pursuit and Defence of Cargo Claims (1999), 1.
Cooke/ Young/ Taylor, Voyage Charters (2001), 149.
(1856) 6 E&B.470. See also Acatos v. Burns (1878) 3 Ex.D.282; Bamfeld v. Goole, & Sheffield Transport [1910] 2 K.B. 94; Great Northern Railway v. L.E.P. Transport [1922] 2 K.B. 742; Ministry of Food v. Lamport & Holt [1952] 2 Lloyd’s Rep.371.
Wilford/ Coghlin/ Kimball, Time Charters (2003), 187; International Mercantile Marine Co. v. Fels 170 F. 275, 277 (2d. Cir. 1909).
Williams, “The Implications of Shipping Dangerous Cargo”, in Pursuit and Defence of Cargo Claims (1999), 1, 4.
In fact, it was intended that shipper should give a declaration to the carrier. Sturley, Legislative History of the Carriage of Goods by Sea Act (1990) Vol. 1, 272 f.
Astle, Shipowner’s Cargo Liabilities and Immunities (1981), 182.
Cooke/ Young/ Taylor, Voyage Charters (2001), 151.
In an Australian case Hoey v. Hardie (1912) 29 30 N.S.W, only the name of the substance — bichrome of potash — was provided. The chemical was shipped in bags and badly packed. The notice was found insufficient to warn of the actual nature of the goods and so prevented steps being taken to avoid or prevent the damage.
Edgcomb, “The Trojan Horse Sets Sail: Carrier Defences against Hazmat Cargoes” [2000–01] 13 U.S.F. Mar. L.J. 31, 51.
Cooke/ Young/ Taylor, Voyage Charters (2001), 151. It was also asserted that a carrier does have some obligation to ascertain the dangerous characteristics of the cargo he carries. Borgships, Inc.v. Olin Chems. Group, 1997 U.S. Dist LEXIS 3065 (S.D.N.Y). Furthermore, it was held that a carrier must have knowledge of dangerous characteristics, such as film scrap, when he undertakes to carry such cargo. If he does not have actual knowledge, then the carrier is under an obligation to seek it. Remington Rand, Inc. v. American Export Lines, Inc. 132 F.Supp.261 (D.Md. 1951).
Cooke/ Young/ Taylor, Voyage Charters (2001), 151.
In a Canadian case Elders Co. v. Ralf Misener [2005] 3 F.C.R. 367, a cargo of alfalfa pellets caught fire when being discharged. The owner of the cargo sued the shipowner, who counterclaimed for the damage caused by the fire. The court considered whether the shipowner ought to have known of that dangerous condition. The IMDG Code current at the time of the shipment categorized alfalfa pellets as dangerous, while Canadian regulations published three years earlier available to the vessel’s master did not. The court held that the master could rely on the Canadian Regulations and was under no duty to refer to the IMO Code. So the shipowner did not have knowledge of the dangerous condition.
Abdul Hamid, Loss or Damage from the Shipment of Goods, Rights and Liabilities of the Parties to the Maritime Adventure (Diss. Southampton 1996), 223.
Cooke/ Young/ Taylor, Voyage Charters (2001), 1008.
The Athanasia Comninos and Georges Chr. Lemos [1990] 1 Lloyd’s Rep.277; The Atlantic Oil Carriers v. British Petroleum (The “Atlantic Duchess”) [1957] 2 Lloyd’s Rep. 55.
The Mediterranean Freight Services v. BP Oil International (The “Fiona”) [1994] Lloyd’s Rep. 506. (C.A); aff’d [1993] 1 Lloyd’s Rep.257, where the cargo was described with complete accuracy as “fuel oil”, but this was held to be inadequate notice on the grounds that, at the time of the carriage (1988), the risks attendant on the carriage of certain types of fuel oil were not generally known. Similarly it has been held that although shipowners were generally aware of certain dangerous characteristics of sulphur, the highly corrosive properties of wet sulphur were not generally known to shipowners in the early 1980s and that therefore a special notice of characteristics should have been given. See also International Mercantile Marine Co. v. Fels 170 F.275 (2nd Cir. 1909).
For instance, in the Athanasia Comminos and Georges Chr. Lemos [1990] 1 Lloyd’s Rep. 277, oral and written warnings were given to the carrier to the effect that “there is gas in our coal, watch your ventilation” and “all coal gassy... treat her like a tanker”. They were also warned about the use of naked lights and supplied with an extract from “Thomas on Stowage”. However, it was said that these warnings were not intended to constitute warnings as to the specially gassy nature of the coal, since it did not bring to the attention of the carriers that the coal was specially gassy. The warnings were merely intended to remind the master of the correct method of carrying coal. The carriers could not, by virtue of warnings, appreciate the true nature of the risks of the cargo shipped. Hence such warnings would not suffice to discharge the obligation to notify under common law. Similarly in The Fiona [1993) 1 Lloyd’s Rep. 257, 269. the description on the bill of lading “IMCO Class 3 inflammable liquids” was found to be weak. It was said that the notation endorsed on the bill of lading should have conveyed a warning to the owners that the cargo was flammable and therefore required special precautions to be taken when para. 1.2.4 of the IMDG Code expressly provides that 2 substances which have a flashpoint above 61°C (141°F) are not considered dangerous by virtue of their fire hazard and when the certificates of quality placed on board the ship at the time of shipment showed that the flashpoint was 88°C and 98° respectively. However, the marking “Sodium Chlorite” was found sufficient notice, since everyone concerned knew that it was classified as dangerous goods. Shaw Savill & Albion Company Ltd. v. Electric Reduction Co. (“The Mahia”) [1995] 1 Lloyd’s Rep. 264. In Ionmar Compania Naviera, S.A.. v. Olin Corp. 666 F.2d 897, 1982 A.M.C. 19 (5th Cir.1982), steel drums of pool chlorine were carried. All necessary labeling was fulfilled by the shipper. However, warning was found to be insufficient as to the specific propensity of chlorine to ignite when in the presence of sawdust or other fine, organic material.
Abdul Hamid, Loss or Damage from the Shipment of Goods, Rights and Liabilities of the Parties to the Maritime Adventure (Diss. Southampton 1996), 65.
Great Northern Railway v. L.E.P Transport and Depository [1922] 2 K.B. 742. On the other hand, the use of the word “naphtha” in the description of a cargo of soap was notice of its dangerous propensity to give off naphtha vapor. International Mercantile Marine v. Fels 164 F.337 (S.D.N.Y 1908), aff’d, 170 F. 275 (2d Cir. 1909).
RGZ 93 S.163.
In Pitria Star Navigation Co. v. Monsanto Co. 1984 WL 3636, claims were asserted by the shipowner against a voyage charterer and the manufacturer and shipper of the cargo of parathion, a poison, liquid insecticide. This cargo is generally carried in gallon drums and it has been calculated that one drum contains sufficient quantity to kill about 10 million people. A dose of 25 mg is likely to be fatal on inhalation. Three seamen died during the voyage as a result of an accident which resulted in the parathion contaminating the ship’s bilges. Each drum was painted green and lithographed in contrasting white with 14 large skull and crossbones. Each drum also contained warnings and information regarding the insecticide’s characteristics, drum handling, spill clean-up, decontamination and the type of medical treatment required in case of accidental exposure. In addition, each drum was labelled with printed four-language warnings and information, unique pictorial warnings against touching, breathing and swallowing and the IMO poison warning. As a result each drum in 14 different places and in various languages, contained labels with short, prominent displayed warnings of “can kill you”, “stop”, “danger” and “poison”. The master testified that he had no means of knowing how dangerous the commodity was and that they had not been given any notice or warning as to its potentially lethal characteristics. However, the court found that there was no negligence with respect to giving required warning of dangerous nature of the cargo. Rather uncontroversial evidence indicated that at no time did any officer of the vessel read these warning labels carefully or thoroughly.
Colinvaux, Carriage by Sea (1982) Vol. 2, 844. In Portsmouth Steamship Co. v. Liverpool & Glasgow Salvage Ass. (1929) 34 Ll. L. Rep. 459, the plaintiff’s vessel was hired for salvage services to carry cargo from another vessel which had run ashore. The cargo salvaged included palm oil in barrels. A large number were broken and their contents leaked into the ship’s holds and caused serious damage. The decision was based on the shipowner’s indemnity against complying with the charterer’s orders. Nevertheless, it was held that as regards the implied common law obligation, any warning with regard to the cargo ought to have been given to the shipowner at home. Having regard to the position of the master during the salvage operations, it was not sufficient to say that the captain knew as much about the palm-oil barrels as the charterer’s salvage officer. The owner was the proper person to have the opportunity of deciding what should be done if warning was given. It is said that that the observation should not be extended beyond the particular facts of the case, i.e. that the ship was used for salvage purposes. Abdul Hamid, Loss or Damage from the Shipment of Goods, Rights and Liabilities of the Parties to the Maritime Adventure (Diss. Southampton 1996), 67.
Wilford/ Coghlin/ Kimball, Time Charters (2003), 184; Cooke/Young/Taylor, Voyage Charters (2001), 1007; Abdul Hamid, Loss or Damage from the Shipment of Goods, Rights and Liabilities of the Parties to the Maritime Adventure (Diss. Southampton 1996), 76. In the Athanasia Comminos and Georges Chr. Lemos [1990] 1 Lloyd’s Rep.277, it was said obiter that “... the words quoted (with the knowledge of their nature and character) must include knowledge which the carrier and crew ought to have, as well as that which they actually have; otherwise there would be premium ignorance”. The Hamburg Rules expressly set out the carrier’s constructive knowledge in Art. 13 (2) “... If the shipper fails to do so and such carrier or actual carrier does not have otherwise have knowledge of their dangerous character”.
DuClos, “Liability for Losses Caused by Inherently Dangerous Goods Shipped by Sea and the Determinative Competing Degrees of Knowledge” <www.duclosduclos.org/LiabilityforLossesCausedByInherently.pdf> 10 f. (visited 13.7.2007) (to be published in U.S.F. Mar. L. J Vol. 20 No. 1).
Astle, The Hamburg Rules (1981), 122.
Abdul Hamid, Loss or Damage from the Shipment of Goods, Rights and Liabilities of the Parties to the Maritime Adventure (Diss. Southampton 1996), 69.
Ibid.
In Acatos v. Burns [1878] 3 Ex. D. 282, a cargo of maize was found to be in a dangerous condition at an intermediate port. In an action against him for conversation, the carrier alleged a breach of common law undertaking by the shipper. In rejecting this allegation, the court held that it was reasonable to impute knowledge of the dangerous characteristics of the goods where the carrier has full opportunities of observing the dangerous character of the good. Maize was the consignment and everybody knows that maize may sprout. The shipowner, seeing the maize coming on board and accepting it, could not claim against the shipper on a guarantee that maize would not sprout during the voyage. Where, however, it is impracticable for the carrier to scrutinize and analyze the nature and characteristics of the cargo, no imputation will be made. In Health Steel Mines, Ltd. v. The ‘Erwin Schroeder’ (The Erwin Schroeder) [1969] 1 Lloyd’s Rep. 370, because of the moisture content of the cargo of copper concentrate, shifting boards were fitted. However, the cargo shifted and the vessel took list. It was said that there was much uncertainty regarding concentrates and the question of shifting cargoes at the time when the shipment was made. Therefore, the owners could not be expected to know of the dangers involved in carrying such a shifting cargo, having regard to the state of expert knowledge at the time. Imputation of that knowledge would be unreasonable.
DuClos, “Liability for Losses Caused by Inherently Dangerous Goods Shipped by Sea and the Determinative Competing Degrees of Knowledge”, <www.duclosduclos.org/LiabilityforLossesCausedByInherently.pdf> 7 f. (visited 13.7.2007) (to be published in U.S.F. Mar.L.J. Vol. 20 No. 1); Wong K.K, “Packing Dangerous Goods” [1976–77] 8 J. Mar. L. & Com. 387, 390.
DuClos, “Liability for Losses Caused by Inherently Dangerous Goods Shipped by Sea and the Determinative Competing Degrees of Knowledge”, <www.duclosduclos.org/LiabilityforLossesCausedByInherently.pdf> 12. (visited 13.7.2007) (to be published in U.S.F. Mar.L.J. Vol. 20 No. 1).
Rabe, Seehandelsrecht (2000), 447.
Ibid.
Gündisch, Die Absenderhaftung im Land-und Seetransportrecht (1999), 197.
Ibid.
Schwampe, Charterers’ Liability Insurance (1988), 57.
Chandris v. Isbrandtsen-Moller [1951] 1 K.B.240.
General Feeds Inc. v. Burnham Shipping Corp. (The Amphion) [1991] 2 Lloyd’s Rep.101; Islamic Investment Co. v. Transorient Shipping Ltd. (The Nour) [1999] 1 Lloyd’s Rep. 1.
Cooke/ Young/ Taylor, Voyage Charters (2001), 1007.
Ibid. at 1008.
Ibid. at 1007.
It was suggested that the nature and character of the dangerous goods must be declared in writing by the shipper to the carrier. Sturley, Legislative History of the Carriage of Goods by Sea Act (1990) Vol. 1, 272 f.
Colinvaux, Carver Carriage by Sea (1982) Vol. 1, 32. In Chandris v. Isbrandtsen-Moller Co. Inc. [1951] 1 K.B. 240 a charter excluded shipment of “acids, explosives and ammunition or other dangerous cargo” and contained a clause paramount incorporating the provisions of S.4, sub-s.6, of the United States Carriage of Goods by Sea Act, 1936, which is identical with Art. IV.6 of the Hague-Visy Rules”. The vessel was delayed for 22 days beyond the lay-days at the discharging port, and all except 6.5 days of that delay was caused by the shipment of the dangerous cargo. Upon learning of the shipment, the owner did not rescind the contract, but claimed and recovered freight at the charter rate, and demurrage for 6.5 days. The owner than claimed damages in general for the balance of the delay at the discharge port, on the grounds that this delay had resulted from the charterer’s breach in shipping dangerous goods. It was held that the master’s consent was irrelevant, since he had no authority to vary the charter nor did he purport to do so. The incorporation of the Hague Rules made no difference, since it was impossible to imply in Art. IV.6 a provision that, if the master had consented to the shipment of dangerous cargo with knowledge of its nature and character, the carrier should not be entitled to damages for loss resulting from the shipment.
Wilford/ Coghlin/ Kimball, Time Charters (2003), 177.
Tetley, Marine Cargo Claims (1988), 466f. Ente Nazionale v. Baliwag Navigation 605 F.Supp. 355, 363 f.; Skibs v. A/S Gylfe v. Hyman-Michaels Co. 304 F.Supp.1204, 1221.
Hill, Freight Forwarders (1972), 16.
Ibid. at 133 ff; Glass, Freight Forwarding and Multimodal Transport Contracts (2004), 48 ff.
Tetley, Marine Cargo Claims (1988), 692.
Ibid. at 693 ff.; Tetley, “Responsibility of Freight Forwarders” [1987] 22 E.T.L 79 ff.
See standard printed terms and conditions: British International Freight Association (BIFA) Standard Trading Condition; German Freight Forwarders’ Standard Terms and Conditions, (ADSp); Standard Trade Conditions of The Canadian International Freight Forwarders Association, Inc. Glass, Freight Forwarding and Multimodal Contracts (2004), 74 ff.
Tetley, Marine Cargo Claims (1988), 692 f.
Hill, Freight Forwarders (1972), 132.
Brass v. Maitland (1856) 6 E & B 470, was a forwarder case in which it was held that there is implied warranty by the shipper. In Great Northern Railway Com. V. L.E.P Limited [1922] 2 K.B 742, it was held that forwarding agents who deliver goods which are in fact dangerous to the carrier without informing him of their danger are liable for consequent damage sustained through that danger. See also Bamfield v. Goole Transport Co. [1910] 2 K.B. 94.
Hill, Freight Forwarders (1972), 133.
Ward v. Baltimore Stevedoring Co., 437 F.Supp. 941, 1978 AMC. 965, a longshoreman who was injured while discharging highly toxic cargo, brought a suit against the freight forwarder. It was held that in the absence of any allegation that the freight forwarder was told that the cargo was highly toxic and could cause harm if improperly packaged or handled and where the freight forwarder’s only connection with the cargo was that he had prepared the bill of lading for shipment, the freight forwarder was not liable to the longshoreman. Likewise, when the weight of cargo has been supplied to the freight forwarder by the shipper, the freight forwarder is not responsible to the carrier for improperly declared cargo weights, because the forwarder agent is under no duty to the carrier to provide accurate shipping documents. Accordingly, when the carrier was fined $65,520 by customs in the Ivory Coast for improper weights, it was held that the carrier could recover this sum from the shipper under Section 3(5) of COGSA, but not from the freight forwarder. Atlantic Overseas Corp. v. Feder, 452 F.Supp.347, 1978 A.M.C. 1203 (S.D.N.Y); see also Scholastic Inc. v. M/V Kitano, 362 F.Supp.2d 449, 2005 A.M.C. 1049.
Schoenbaum, Admiralty and Maritime Law (2004) Vol. 1, 609.
Scholastic Inc. v. M/V Kitano 362 F.Supp.2d 449.
Rabe, Seehandelsrecht (2000), 303.
Senator Linie GmbH v. Sunway Line 291 F.3d. 145.
Compton, “Dangerous Goods” 2004 (January) Cargo Systems, 34, 35.
“New IMDG Code ‘dangerous’ says club”, 2000 (14 December) Fairplay 7; In re M/V. Harmony and Consolidated Cases, 393 F.Supp.2d 649. In that case the M/V Harmony stowed the containers in accordance with the IMDG Code. Neither the manufacturer/ shipper nor the carrier knew the true risks and dangers of storing and shipping this chemical in the manner utilized by the shipper. Testing subsequent to the accident revealed that the chemicals should have been stored at a lower temperature than provided for by the IMDG Code.
Bulow, “Charter Party Consequences of Maritime Security Initiatives: Potential Disputes and Responsive Clauses” [2006] 37 J. Mar. L & Com. 79.
C-TPAT partners receive these benefits: a reduced number of inspections (reduced border times); an assigned account manager (if one is not already assigned); access to the C-TPAT membership list; eligibility for account-based processes (bimonthly/monthly payments, e.g.); an emphasis on self-policing, not Customs verification. Bishop, “A’ secure’ Package? Maritime Cargo Container Security After 9/11” [2002] 29 Transp. L.J. 313, 321.
Bishop, “A’ secure’ Package? Maritime Cargo Container Security After 9/11” [2002] 29 Transp. L.J. 313, 319.
Ibid. at 320.
Todd, “ISPS Clauses in Charterparties” [2005] J.B.L. 2005 372, 374.
Regulation 648/2005, OJ L 117, 4.5.2005, 13.
Colinvaux, Carver Carriage by Sea (1982) Vol. 1, 109.
Colinvaux, Carver Carriage by Sea (1982) Vol. 1, 114.
Ibid. Chap.1.3 of the IMDG Code comprises provisions in relation to training which is recommendable. A state may decide its mandatory application. When a carrier is contracted to carry dangerous cargo, the crew must be qualified to handle dangerous cargoes. It may be that an incompetent crew that does not know how to handle dangerous goods may result in the vessel being found unseaworthy. For instance, U.S. Hazmat Regulations require training of all employees who perform work functions covered by the Hazardous Material Regulations (49 CFR Parts 171–180). Any employee who works in shipping, receiving or material-handling areas or who may be involved in preparing or transporting hazardous materials is required to have training. A carrier may not transport a hazardous material by vessel unless each of its hazmat employees involved in that transportation is trained as required. The record of training for a crew member who is a hazmat employee subject to training requirements must be kept on board the vessel while the crew member is in service on board the vessel (49 CFR 176). Tugman, “US and International Hazardous Material Regulations” [1995] (8) P&I Int’l 154.
Colinvaux, Carver Carriage by Sea (1982) Vol. 1, 351.
Schoenbaum, Admiralty and Maritime Law (2004) Vol. 1, 684.
In the Northern Shipping Co. v. Deutsche Seerederei (The “Kapitan Sakharov”) [2000] 2 Lloyd’s Rep. 255, a container on deck containing dangerous cargo exploded, causing fire on deck which spread below resulting in the sinking of the vessel and the death of two seamen. It was found that the cause of loss of the vessel and its cargo was the isopentane in eight tank containers stowed in the aft part of the hatch catching fire as a result of the explosion and fire on deck. The international standards as to seaworthiness were those embodied in the SOLAS, and, in this case, the U.S.S.R’s (now the Russian Federation’s) version of the IMDG Code, given the initials “MOPOG” At the time of the accident, SOLAS Chap.VII, Reg.6.3 provided that dangerous goods in packaged form which give off dangerous vapors shall be stowed in a mechanically ventilated space or on deck, and in the IMDG Code, Reg. 5. that Class 3.1 liquids should be carried in a well ventilated space. MOPOG made similar provisions. It was found that the poor natural ventilation in the vessel’s hold would not have effectively removed flammable vapour from the cargo spaces below deck and that the availability of firefighting equipment in the holds was no adequate substitute. The presence of isopentane below deck, and its combustion by the initial fire and exacerbation of it, was responsible for the heating and explosion of one or both of the tanks, causing, in turn, the rupture of the bulkheads between holds 2 and 3, so allowing both holds to flood with fire-fighting water and the ship to sink. If the isopentane had been stowed on deck, the vessel would not have been lost, and neither SOLAS nor the IMDG Code nor MOPOG nor the vessel’s technical certificate permitted stowage of isopentane under deck in the inadequately ventilated hold. It was concluded that the stowage of the isopentane under deck made the vessel unseaworthy and in that respect the carrier failed to exercise due diligence. See also the Fiona [1994] 2 Lloyd’s Rep. 507, where it was held that fuel oil was an inflammable, explosive and dangerous cargo to the shipment of which the master and owners had not consented, as they knew of its nature and character; however, although the shipment of the fuel oil was a cause of the explosion, the dominant cause was the failure to clean the tanks before loading.
Colinvaux, Carver Carriage by Sea (1982) Vol. 1, 132.
Ibid.
Schoenbaum, Admiralty and Maritime Law (2004) Vol. 1, 687 f.
Edgcomb, “The Trojan Horse Sets Sail: Carrier Defences against Hazmat Cargoes” [2000–01] 13 U.S.F.Mar.L.J 31, 48; Contship Containerlines, Ltd. v. PPG Industries, Inc. 442 F.3d 74, 77. 7
Tetley, Marine Cargo Claims (1988), 527 ff.
Tetley, Marine Cargo Claims (1988), 545.
Tetley, Marine Cargo Claims (1988), 541, 546.
Old Colony Ins. V. S.S. Southern Star, 280 F. Supp.189, 1967 A.M.C. 1641.
The Standale (1938) 61 Ll. L.Rep. 223.
Peermohamed, “Dangerous Cargo” [2002] P&I Int’l 17, 19.
Ibid. Furthermore, during stowage and segregation procedures it may be necessary to keep dangerous goods under constant surveillance in order to detect any leaks at an early stage and to cool the goods with water spray in case a fire breaks out on board.
Edgcomb, “The Trojan Horse Sets Sail: Carrier Defences against Hazmat Cargoes” [2000–01] 13 U.S.F. Mar. L.J. 31, 46.
Tetley, Marine Cargo Claims (1988), 554; Bulow, “‘Dangerous’ Cargoes: the Responsibilities and Liabilities of the Various Parties” [1989] LMCLQ 342, 353.
Ensley City 71 F. Supp. 44; Remington Rand, Inc. v. American Export Lines, Inc. 132 F.Supp. 129, 136.
Peermohamed, “Dangerous Cargo” [2002] (7) P&I Int’l 17, 19.
For more information on the ISM Code, see Philip Anderson, ISM Code, A practical. guide to the legal and insurance implications (1998); Terry Ogg, “IMO’s International Safety Management Code (The ISM Code)” [1996] IJOSL 143, 145 f.; Edelman, “The Maritime Industry and the ISM Code” [1999] 8-WTR Currents:Int’l Trade L.J 43, 44; Rodriguez/Hubbard, “The International Safety Management (ISM) Code: A New Level of Uniformity” [1999] 73 Tul.L.Rew. 1585, 1595 ff.
Williams, “The Implications of the ISM Code for the Transport of Packaged Dangerous Goods by Sea”, in International Symposium on the Transport of Dangerous Goods by Sea and Inland Waterways (1998), 117.
Anderson, ISM Code, A Practical Guide to the Legal and Insurance Implications (1998) 21; Rodriguez/Hubbard, “The International Safety Management (ISM) Code: A New Level of Uniformity” [1999] 73 Tul.L.Rew. 1585, 1595 ff.; Edelman, “The Maritime Industry and the ISM Code” [1999] 8-WTR Currents: Int’l Trade L.J. 43.
Rodriguez/Hubbard, “The International Safety Management (ISM) Code: A New Level of Uniformity” [1999] 73 Tul.L.Rew. 1585, 1599 ff.
Williams, “The Implications of the ISM Code for the Transport of Packaged Dangerous Goods by Sea”, in International Symposium on the Transport of Dangerous Goods by Sea and Inland Waterways (1998) 117, 118.
Ibid., at 121.
Ibid..
Tetley, Marine Cargo Claims (1988), 555 f; The Ensley City 71 F.Supp.444.
Abdul Hamid, Loss or Damage from the Shipment of Goods, Rights and Liabilities of the Parties to the Maritime Adventure (Diss. Southampton 1996), 117.
Jackson v. Rodgers (1683) 2 Show. 327; Batson v. Donovan (1820) 4 B.&Ald.21, 33; Edwards v. Sherrat (1801) 1 East 604.
Abdul Hamid, Loss or Damage from the Shipment of Goods, Rights and Liabilities of the Parties to the Maritime Adventure (Diss. Southampton 1996), 117; Kahn-Freund, The Law of Inland Transport (1956), 314.
Wilford/ Coghlin/ Kimball, Time Charters (2003), 315 ff.; Hamblen & Jones, “Charterers Orders —“to obey or not to obey” [2001] 26 Tul. Mar. L. J., 105, 113–114.
Cooke/ Young/ Taylor, Voyage Charters (2001), 155. The loading of excluded cargo is a breach of the contract. If the charterer or shipper does so, the shipowner or carrier may elect to rescind the contract, or he may affirm the contract, reserving his right to damages. If he affirms it, the old contract is not displaced, but its terms will become applicable to the cargo in fact loaded. Alternatively, the carrier may treat the shipment as an offer to ship goods for carriage at the current rate of freight for those goods, but otherwise on the terms of the charterparty, and he may accept that offer. In this case, a new contract will be implied. Colinvaux, Carver Carriage by Sea (1982) Vol. 2, 821.
Wilford/ Coghlin/ Kimball, Time Charters (2003), 177.
A&D. Properties v. M.V. Volta River 1983 WL 637, 1984 A.M.C. 464; Boyd v. Moses 74 U.S. 316 (1869); The Ensley City 71 F.Supp. 444; Birth v. Hardie, 132 F.61 (S.D.N.Y 194).
Abbot, Treatise of the Law Relative to Ships and Seamen (1901), 643.
Abdul Hamid, Loss or Damage from the Shipment of Goods, Rights and Liabilities of the Parties to the Maritime Adventure (Diss. Southampton 1996), 119.
General Feeds v. Burnham Shipping, [1991] 2 Lloyd’s Rep. 101.
Boyd/ Burrows/ Foxton, Scrutton on Charterparties (1996), 106. This view is also in accord with The Atlantic Duchess [1957] 2 Lloyd’s Rep. 55, 95 and The Fiona [1993] 1 Lloyd’s Rep. 257.
If the cargo is described only in general terms, it has been suggested that the carrier is entitled to refuse it if the extra precautions required to ensure safe carriage will cause unreasonable delay or expense. Cooke/ Young/ Taylor, Voyage Charters (2001), 155.
In Internav Ltd. v. Scanbulk Ltd. (Wismar) 1980 S.M.A. No:1454, under a time charterparty, the actual owner of the vessel refused to load a cargo of Direct Reduced Iron (D.R.I.) because it could be subject to the emission of highly flammable gas if it had catalyzed with water. D.R.I. are iron-ore pellets which are produced in a process which removes 25%of the oxygen naturally linked to raw iron ore. The pellets thus produced have a purity content of 92%–93% iron, making them far more economically efficient to transport. The cargo-exclusion clause in the NYPE did not specifically exclude D.R.I., but stated that “no injuries, dangerous or inflammable cargo” should be loaded “unless packed, labeled, loaded, stowed and discharged according to IMCO Regulations/U.S. Coast Guard Regulations”. It was ruled that the cargo was not inherently dangerous as it had not been listed as “dangerous” in the IMDG Code, although it was classified as “Materials Hazardous in bulk by the IMO”. Furthermore, the exclusion clause specifically allowed the loading of “dangerous cargo” provided IMCO and USCG regulations were followed. The arbitrators concluded that the owner was wrong in refusing to load the cargo and that the cargo could have been safely transported had all the instructions prepared by the charterer’s experts been followed. On the other hand, in Tramp Shipping Co. Inc. v. Steamship Co. Ltd. (The Agia Erini II) (1974) S.M.A No. 875, the owner refused to load a cargo of sulphur under an exclusion clause in the NYPE charterparty relating to “injuries, dangerous or inflammable cargoes”. The panel ruled that the owner was justified in refusing to allow the vessel to load this type of cargo, which is included in Title 46 of the Federal Regulations.
Ellerman East Africa Service Bill cl. 19; P&O Nedloyd Bill cl. 19.
Ibid. See also Mitsui OSK Lines Combined Transport Bill 1993 cl. 19.3.
Hague/ Hague-Visby Rules Art. IV.6. HGB § 564b, COGSA § 1304(6). In Apl Co. Pte. Ltd. v. UK Aerosols Ltd. 2006 WL 2792875 (N.D. Cal.), 2006 A.M.C. 2418 a clause in the bill of lading providing that “regardless of the Merchant’s knowledge about the ‘nature of the Goods, the Merchant shall indemnify the Carrier against all claims, losses, damages, liabilities or expenses arising in consequence of the Carriage of such Goods’” said to violating COGSA. Where a carrier knows that cargo “poses a danger and requires gingerly handling or stowage” it cannot invoke strict liability under sec, 1304(6). Ibid. at 9. See infra Part 4.
Jones, “Carriers Include Indemnity Undertaking in Dangerous Goods Declaration that They Require Shippers Execute” <www.forwarderlaw.com/library/view.php?article_id=225> (visited 10.11.2006).
Asariotis, “Main Obligations and Liabilities of the Shipper”, 2004 TranspR 284, 285; Zunarelli, “The Liability of the Shipper” [2002] LMCLQ 350.
Berlingieri, “Basis of liability and exclusions of liability” [2002] LMCLQ 336, 337 ff.
Berlingieri, “Basis of Liability and Exclusions of Liability” [2002] LMCLQ 336, 339.
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(2008). Duties of the parties in relation to dangerous goods. In: The Carriage of Dangerous Goods by Sea. Hamburg Studies on Maritime Affairs, vol 12. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-75837-2_4
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