The main legal issues in the shipment and transport of dangerous goods by sea under English Law and International Carriage Sea Conventions
Author: Aspasia Konstantina Karampetsou
Key words: dangerous goods, strict liability regime, common law, Hague/Hague Visby Rules, Rotterdam Rules
Lately, the shipment of dangerous cargo is a common practice in international sea trade. Even though most dangerous goods are accepted for shipment either pursuant to terms specifically negotiated between the parties to contracts of carriage or in compliance with express terms contained in standard contracts, including a proper declaration, the sad truth is that there times where carriers are carrying a dangerous cargo without their knowledge . Unfortunately, there have been a number of cases in which crews and their ships have been suffered harm from explosions or fires caused by dangerous cargoes because shippers wrongly declared them. It also happens that they get incorrectly or incompletely named, as different companies, countries and trades may use different names for specific dangerous cargoes . This article discusses the contractual liability as well as the obligations of the people, who are involved in both shipment and carriage of dangerous goods under English Law (and the English Law’s interpretation of Hague/Hague Visby Rules) and Rotterdam Rules.
For the purposes of this article, it should be pointed out that when I refer to the term “dangerous goods”, both legally and physically “dangerous” goods are included. It is true that according to both Hague/ Hague Visby Rules, there is no definition for “dangerous goods”. The same applies with regard to Common Law. Goods can be “dangerous” either because they are inherently dangerous, for instance, explosives, or because they have a propensity to become dangerous when faced with extraneous circumstances . However, the House of Lords held that the words “dangerous nature” in Article IV, Rule 6 under Hague/Hague Visby Rules was to be given a broad meaning and not only restricted to “inflammable, explosive” nature of cargo. The groundnut cargo was dangerous within the meaning of this Rule because it was liable to give rise to the loss of other cargo by dumping at sea. Therefore, Rule 6 does not supersede the common law rule in respect of goods which present legal hazard.
It is mentioned that the main reason for which dangerous goods tend to be misdeclared by shippers is the avoidance of their strict liability regime . The shipper is liable even if he has no knowledge of the dangerous nature of the goods or even if he had no means of ascertaining its dangerous nature. It is not necessary to establish negligence on the part of the shipper, as the mere shipment of such goods without giving notice of its dangerous nature establishes the shipper’s liability . In the case of a bill of lading, the shipper remains liable even after he transfers the bill of lading to a third party such as a consignee or endorsee. In addition, if neither the shipper nor the carrier is aware of the true nature of the cargo, the court has to decide, which of two innocent parties should bear the risk. The court has decided that the risk should fall on the shipper, as it is the party which should have most knowledge of the cargo.The shipper can only be exonerated from his liability if he is able to prove that the carrier (or a performing
party) was aware of the dangerous nature of the goods and he did not take all the necessary measures to avoid the risk; a fact that it is extremely difficult to be proven in practice.
Of course, in addition to the avoidance of the shipper’s strict liability regime, there are other reasons for which shippers might resort to hiding the dangerous nature of the goods. They might do so in order to avoid paying the extra rate for the shipment of dangerous goods or avoid any kind of possible delays that might occur in case the carrier refuses to take over the carriage of container due to unambiguity regarding the safety of its cargo or due to the limitations regarding the quantity of the dangerous cargo that he is allowed to carry on board of the container vessel .
This article aims to highlight the main legal issues, relating to dangerous goods by sea, which are mentioned in both the International Conventions and English law. An overview of the characteristics of dangerous goods by sea as well as the reasons why the people who ship dangerous goods might resort to hide the dangerous nature of them, will be further described. By using the method of comparative legal analysis, the study focuses on discussing the definitions of dangerous goods, the development trends of legislation on dangerous goods transportation by sea, and finally legal relations of shipper and carrier of dangerous goods. Based on the analysis, this study will further contribute to suggest the improvement of the maritime legislation in carriage of dangerous goods by sea.
