INTRODUCTION
“According to Hague-Visby Rules, a set of legal principles established under English law, the Hamburg Rules, which are a body of regulations under American law, and the IMDG International Regulations, a comprehensive framework governing the transportation of hazardous goods, it is observed that these legal frameworks play a significant role in shaping the international maritime industry. The present inquiry shall employ the most recent iteration of the Rotterdam Rules in order to evaluate the aforementioned definitions. The present chapter commences with an elucidation of the term “dangerous goods” as it is within the English language, the United States, and the framework of the International Maritime Dangerous Goods Regulations. The present study aims to undertake an assessment in order to evaluate the level of clarity associated with the term “dangerous.” Subsequently, we shall proceed to undertake a concise examination of each of the classes delineated within the International Maritime Dangerous Goods (IMDG) code. Subsequently, a comprehensive analysis will be conducted to ascertain the adequacy of product classification based on the International Maritime Dangerous Goods (IMDG) code in establishing the eligibility of items as hazardous goods. As per the scholarly analysis conducted by Guner-Ozbeck, the categorization of risky products, as perceived by shipping companies, encompasses those commodities that pose unforeseen hazards to both the vessel itself and the accompanying cargo.” As per the established norms and conventions of the commercial and industrial sectors, hazardous items are delineated as entities that necessitate the acquisition of specific knowledge in order to mitigate potential risks.[1]
Given its nature as a technical standard, it is conceivable that the IMDG code could potentially attract criticism due to the presence of this particular flaw. The present analysis leads to the determination that the aforementioned concept exhibits a notable deficiency in terms of its expansive and comprehensive adaptability, particularly when juxtaposed with a legal definition that has the potential to evolve and mature over a prolonged duration. The incorporation of the definition of hazardous goods, as delineated in the Rotterdam Rules, is duly acknowledged as a widely accepted international standard.
“The foundational principle underlying the principle of dangerous goods in English law is rooted in the Hague-Visby Rules, which place an obligation on the shipper to abstain from exporting hazardous commodities.[2]It is to be noted that neither the High-Velocity Rule (HVR) nor the body of customary law provides a precise definition of the term in question. However, there exist two distinct approaches to tackle this issue. One perspective posits that deleterious entities are those that have been officially designated as such through the establishment of prior legal or customary rulings. In contrast, it is noteworthy to consider the Merchant Shipping Act of 1894, particularly section 446, as an illustrative instance of the aforementioned undertaking […] The regulation that has recently come into focus is Rule 1(2) of the 1997 ‘Merchant Shipping (Dangerous Goods and Marine Pollutants)’” Regulations.[3]
The present approach encounters a challenge in its failure to acknowledge the dynamic and evolving nature of the definition of harm. Consequently, it is imperative that the aforementioned list be subject to perpetual updates and rejuvenation. Moreover, it is imperative to acknowledge that this approach fails to consider the potential scenario wherein certain items may not possess inherent harmful properties, yet could pose a hazard during transportation due to extraneous circumstances.[4]An additional indispensable element inherent in the English approach pertains to the contractual prerogative to delineate the parameters of a hazard, thereby precluding its inclusion within the vessel’s confines. The legal dispute between MicadaCompania Naviera S.A. and Texim, colloquially referred to as “The Agios Nicolas,” has garnered significant attention within legal and maritime circles. This protracted legal battle has captivated the interest of scholars and practitioners alike, as it raises complex issues pertaining to contractual obligations, maritime law, and the interpretation of international conventions. MicadaCompania Naviera S.A., a prominent maritime company, and Texim, a well-established entity in the shipping industry, find themselves embroiled in a contentious legal conflict. The dispute revolves around the vessel commonly known as “The Agios Nicolas,” which has become the focal point of this legal imbrog[5]The contractual agreement explicitly stipulated the prohibition of any form of livestock, as well as the exclusion of injurious, inflammable, or hazardous substances, including but not limited to acids, explosives, calcium carbide, ferro silicon, naphtha, motor spirit, tar, or any derivatives thereof, from being transported. The provision of iron ore by the concerned party was not in the form of actual iron ore, but rather in the form of iron ore concentrate, thereby contravening the stipulated requirement. The transportation of iron ore concentration necessitated the utilization of specialized fitting boards, a practice that contravened existing legal regulations. The ultimate outcome entailed both widespread devastation and a significant economic setback. Conversely, it was determined that the party assuming the role of the shipper bore the liability for the incurred losses due to the absence of an accurate manifest, the presence of a contractual provision limiting liability, and the failure to apprise the carrier of the veritable nature of the transported goods.[6]According to the ruling delivered by Donaldson J., it was determined that the cargo in question can be aptly described as “a wet wolf in a dry sheep’s clothing.” Consequently, it was concluded that there existed a lack of evidence indicating that the carrier possessed complete knowledge regarding the nature of the cargo, thereby giving rise to a potentially perilous circumstance.
The lawsuit that was brought forward by the Ministry of Food against Lamport & Holt[7]According to the Ministry of Food Case, there is a possibility that commodities are hazardous despite the fact that they do not present a threat to the vessel. This decision was made due to the fact that an otherwise harmless product, such as grain, might become hazardous if it is exposed to certain conditions. Grain was transported in the ship’s lower hold, while tallow was transported on the tween deck directly above the grain. The case in point. Tallow was lost from the corn because its packing was both loose and bulky. Damage to the corn was not the responsibility of the carriers since adequate precautions had been taken to avoid leakage. This was due to the fact that exporters had not provided carriers with enough warning regarding tallow. An additional claim posited by the vendors pertained to the shippers’ purported liability for the harm incurred by the carrier due to the seepage and their alleged negligence in adequately apprising the carrier of the inherent characteristics of the tallow substance.[8]
The case pertaining to the Ministry of Food elucidated the phenomenon wherein substantial quantities of grain have the potential to undergo overheating, thereby necessitating the implementation of precautionary measures to ensure safety. In the context of shipping hazardous materials, it is imperative for shipper to fulfill their obligations of issuing a warning regarding the potential risks associated with the intrinsic properties of the material. This responsibility becomes particularly significant in scenarios where the shipper possesses knowledge pertaining to numerous factors that contribute to an elevated probability of risk occurrence. In instances where the peril is linked to the liberation of a chemical compound, and the individual responsible for its conveyance possesses a comprehensive understanding of said substance, it follows that the carrier is cognizant of the potential hazards involved.[9]As per the findings elucidated in the Ministry of Food Case, it is imperative for the individual entrusted with the transportation of medicinal substances to possess a comprehensive understanding of their chemical composition, thereby enabling them to discern and duly acknowledge the inherent hazards associated with said substances. The significance of this matter cannot be understated, as it underscores the imperative for the recipient to possess a comprehensive knowledge of subject matter at hand.
The investigation into case of the Athanasia Comninos[10]has devised a new method for determining whether or not a product is hazardous to human health, which takes into account factors other than the inherent risks given by the material being evaluated. The approach that was used in Mitchell Coutts v. Steel was reaffirmed by the Athanasia Comninos.[11]which discovered that some products can be illegally hazardous to the individuals who buy them. Therefore, according to English law, items are considered detrimental if they have the potential to obstruct, delay, or seize a vessel.The Hague-Visby Rules make sure that shipper and carrier duties do not drop below the HVR with its Article 3(8) and Article 4(3) provisions. Any behavior that might cause a vessel or its cargo to be delayed, detained, or seized is considered to be in violation of these guidelines.
Regarding the Athanasia Comnino incident, it is pertinent to acknowledge that the vessel was engaged in the transportation of coal, a circumstance wherein the potential hazards can be mitigated through the implementation of judicious measures aimed at regulating the release of methane emissions. However, the carrier did not take these steps. The notice of the purpose of the cargo was not in dispute in this instance since the carrier was aware that the shipment included coal and the release of methane is a recognized concern in the industry. Instead, the issue was whether or not coal is considered to be an intrinsically harmful material, given that it was not included on the list of potentially hazardous substances in the rules.[12]As will be seen in the next section, which examines the method used by the United States, the Hamburg Rules devote greater attention to whether or not to mark potentially hazardous items on regulations. However, the most significant challenge with the English Hague-Visby implementation is not associated with labeling or regulatory lists. What is important is the nature of the content and the conditions of the journey. Mustill J. acknowledged that it is difficult to determine whether coal is safe or hazardous. Because it had agreed in the contract to transport objects with certain qualities, including risks, the carrier was responsible for the damage that occurred.
In the case of The Athanasia Comninos, Judge Mustill’s decision may be found at:[13]is necessary in order to comprehend the methodology used in the course of defining what constitutes a risk.
Mustill J. held that
to come up with a general test that, even without detailed information about the cargoes’ characteristics, will be able to detect those that violate the contract. I believe that it is essential to keep in mind that the issue at hand is the distribution of risk for the repercussions of a hazardous event throughout the journey, and not the categorization of commodities as “dangerous” or “safe,” when searching for such a test. Obviously, one factor that adds to this predicament is the high quality of the goods. Nevertheless, there are further concerns. The shipowner’s familiarity with the goods being transported and the care he takes in doing so are both very important.[14]
Therefore, the English use a three-part standard to determine what constitutes “dangerous goods”:
The primary considerations in evaluating the safety of a shipment encompass three key aspects. Firstly, it is crucial to ascertain whether the item listed possesses inherent hazardous properties. This determination aids in assessing the potential risks associated with the shipment. Secondly, it is imperative to examine whether the shipper has provided comprehensive information regarding the item’s characteristics, packaging methodology, and any other pertinent details that may impact the safety of the shipment. This disclosure enables a thorough evaluation of potential hazards and necessary precautions. Lastly, the treatment of the item by the carrier assumes significance, encompassing the implementation of appropriate safety measures and adherence to reasonable expectations commensurate with the nature of the transported item. By scrutinizing these three facets, a comprehensive assessment of the safety of the shipment can be achieved.
The determination of whether an entity possesses hazardous characteristics is contingent upon the evaluation of three fundamental factors. In the circumstance that the aforementioned tripartite conditions, in conjunction with the Hague-Visby Rules, which were duly incorporated into the ‘Carriage of Goods by Sea Act’ of 1992 (COGSA 1992), are duly fulfilled, it is incumbent upon the shipper of a hazardous substance to assume liability for any resultant damage arising from the transportation of said perilous commodity. In the context of the present circumstances, the utilization of Athanasia Comninos emerges as a subject of scholarly inquiry. The examination of Comninos’ contributions and insights assumes particular relevance in the contemporary milieu, as her work offers valuable insights and perspectives that can shed light on the prevailing conditions. By delving into Comninos’ scholarship, researchers can glean a deeper understanding of the intricate dynamics at play and potentially uncover[15]There is a possibility that the case General Feeds Inc. v. Burnham Shipping Corporation (The Amphion) would shed light on this.[16]In this particular instance, the bill of lading listed general feed, which consisted of fishmeal as one of the components. This difference between general feed and fishmeal is very important due to the fact that bagged fishmeal has the potential to overheat and catch fire. General feed does not have this risk. This indicates that further safety measures, such as an anti-oxidant therapy, are required in order to mitigate the threat.[17] The shipper was informed that the cargo being transported consisted of fishmeal; nevertheless, the central dispute in this case centered on the fact that the fishmeal in question was advertised as having been antioxidant treatment. As a direct consequence of this, the carrier did not take any further steps to guarantee that the cargo was handled. As a consequence of this, a fire broke out as the cargo was being unloaded, and all of the goods was destroyed. During the course of the arbitration, it came to light that the fishmeal in question had not been subjected to any kind of processing. As a result, Evan J. decided that in order for the carriers to be held accountable, the fishmeal had to have been properly processed. Because the cargo in this instance was not handled in the appropriate manner, the shippers were found to be in violation of contract.[18]The aforementioned claim was substantiated through the utilization of the Athanasia Comninos case as empirical validation. The aforementioned action was carried out in strict adherence to the established criteria as stipulated in Article 3(8) and Article 4(3) of the Hague–Visby Rules. The accountability for both the loss and the breach of contract was attributed to the shippers in light of this occurrence.
The term “dangerous” is used in a very wide sense in English law, and this has a direct bearing on the HVR criteria. As a result of Mitchell Coutts v. Steel and The Donald v. Steel, the Supreme Court of the United States[19]It was discovered that the word hazardous may also apply to things that are illegal or that are in contravention with the law. The principles of common law, which correspond to growing international standards like the HVR, have been responsible for the development of the most recent iteration of the concept of dangerousness. Despite this, there is a great deal of leeway in this view.When it was first introduced, COGSA 1992 included the HVR as one of the primary reasons for doing so. The HVR makes the implicit assumption that the shipper will not transport hazardous items, with the exception of situations in which the shipper had either explicit knowledge or constructive awareness that the consignment comprised harmful materials.[20]Using this method compels the shipper to disclose the items that are being transported; failing to do so puts them at danger of violating the contract and leaving them without any legal options in the event that the cargo is lost or damaged. This contractual strategy does not solve the issues that are faced with current hazardous commodities. These concerns have intensified as a result of an increase in the number of hazardous commodities that are transported by sea.
The English technique is one of the most adaptable approaches to threat assessment; nonetheless, it is predicated on the existence of contractual obligations. Because the question that has to be answered in these circumstances is whether the carrier is in danger of losing his means of subsistence and freedom, which “is precisely analogous to the shipment of a dangerous cargo that might cause the destruction of the ship.”[21]. The concept of a hazardous good is more all-encompassing than the IMDG categories that are used to classify hazardous goods. This technique creates a framework that is more adaptable, so shielding the carrier from the shipper’s potential misrepresentation of the goods that are being transported. If the shipper provides the carrier with exhaustive information on the items that are being transported, the carrier bears responsibility for “danger” that may prohibit the shipment from being accepted. The outcome is the same as it would be with the judicial system.
An examination of the contextual factors surrounding the occurrence of the accident reveals a notable emphasis on hazardous conditions rather than hazardous attributes, as explicated in the International Maritime Dangerous Goods (IMDG) guidelines. Henceforth, the term “dangerous” encompasses a broader scope, extending beyond the mere prospect of inflicting peril or devastation upon a vessel.[22]; crew[23]; other cargo or cleaning expenses and delay, and covers all features of the goods which might lead to the detention of the ship.
The necessity for a novel convention pertaining to the transportation of hazardous commodities arises from its inadequate scope in addressing third-party and intangible environmental damages.
Similar concerns arise whenever the United States engages in the handling of hazardous materials in accordance with the Hamburg Rules.[24]The Carriage of Goods by Sea Act of 1932 (COGSA 1932), under the jurisdiction of the Hague Rules, stands as the paramount legislative enactment within the United States. Even if these constraints were the impetus for the creation of the Hamburg laws, there are important grounds to revise COGSA 1932.[25]. Even though the Hamburg Rules have been kind of “implemented” in US common law via amendments and legislation, there is still a lot of controversy around them. This is due to the fact that US rulings on COGSA 1932 resulted in the creation of a system with distinctive doctrines that are incompatible with the harmonised approach.[26]Sturley’s results show,
Even the international systems that the vast majority of commercial nations and trade partners of the United States have embraced, COGSA predates them all. Draftsmen in the early 1920s were unable to foresee either the container revolution or the rise of internet commerce. It is common knowledge that worldwide consistency in this area would be beneficial; nevertheless, the legal system in the United States must be brought into line with the legal systems of the rest of the world as soon as possible. The passage of time has resulted in the development of distinct American legal ideas, which has led to COGSA, as interpreted by courts in the United States, being in conflict with present international regimes and even the international notion of transporting commodities by sea. This is due to the fact that COGSA was established in order to govern the transport of seaborne goods, but the courts in the United States have given it a different meaning.
“In the instance of the legal dispute between VimarSequros y Reaseguros, S.A. and M/V Sky Reefer, it is worth examining the intricacies of the case.[27]The investigation uncovers that the formulation of the Carriage of Goods by Sea Act (COGSA) was significantly shaped by the Hague Rules, a set of regulations that emerged as a result of international harmonization efforts. Conversely, the present modeling approach required a meticulous adaptation of the implementation to align precisely with the legal framework inherent to the United States. In light of the aforementioned rationale, it was deemed appropriate by the Supreme Court of the United States to employ the legal framework of the United States in the matter at hand, specifically in the case of Robert C. Herd & Co. v. Krawill Mach. Corp.[28]It has been purported that the provision pertaining to the Carriage of Goods by Sea Act (COGSA) of 1932 has been physically expunged from the Hague Rules. The Hague Rules, along with subsequent modifications such as the Hamburg Rules, have engendered a multifaceted tapestry of laws and legal advancements within the United States’ legal framework. This amalgamation of legal provisions and approaches has resulted in a complex and intricate landscape.”
If you want to be sarcastic about it, you might argue that traveling by water is inherently dangerous business. Mining is unquestionably one of the many other hazardous vocations that can be found on land, underneath the earth, and on the same level of risk that aviation can be found in the air. The first method of transportation ever used was sailing across the sea. Due to the presence of this environment, activities such as the extraction of gas and oil as well as other nautical operations are hazardous when performed on offshore platforms. On board ships, the most common causes of harm and death are the ship’s own contents, including cargo and other substances. However, there are variables from the outside, which originate from the dangerous climate that the container was exposed to while it was at sea.
Oil, chemicals, radioactive materials, and other potentially hazardous items are examples of hazardous substances that may be found on board ships. Nonetheless, there are items that are not classified as cargo, such as the oil and gasoline that are stored in a ship’s bunkers or the lubricating oils that are taken as ship supplies.
These compounds are considered pollutants because they have the potential to damage or degrade the marine environment, cause harm to humans, and potentially cause property damage or loss. When it comes to vessels that transport potentially harmful chemicals, protecting the maritime environment and minimizing pollution are two aspects of the same overarching goal. The majority of individuals are concerned about loss and damage to shipments that occur at sea. The shipping of hazardous materials by ship is seeing a surge in modern times. This rise may be attributed to a variety of factors including accidents, explosions, spills, and pollutants. The growing awareness among the general public about the dangers posed by these factors has led to the establishment of international technology standards and transportation contract clauses that improve passenger safety. The compensation and responsibility for hazardous items have been controlled as a result of increased environmental consciousness and worries about the financial repercussions of maritime disasters. This is because of the two factors into account. These days, a significant amount of commerce takes place on the sea.
In addition, the safe transportation of hazardous materials is essential to the success of international commerce. It is believed that fifty percent of all shipments carried by water are hazardous. These items are hazardous to people’s health as well as the environment and the natural world. Many naval accidents, both large and little, were brought on by hazardous items. Because of this, hazardous materials need to be carried in a secure manner. This research investigates the international treaties, national legislation, liabilities, and party responsibilities that regulate the harmless carriage of hazardous items by sea, as well as the movement of hazardous commodities by water. Specifically, the study focuses on the transportation of hazardous goods.
[1]Guner-Ozbeck, M. (2007), ‘The Carriage of Dangerous Goods by the Sea’. Springer, 60.
[2]Tiberg “Legal Survey” in Gronfers (ed) (1978), ‘Damage from Goods’, MLA, 9-11.
[3]Wilford, Coghlin, and Kimball (2003), Time Charters, 4th Ed., LLP, 179..
[4]Wilson, J,‘Carriage of Goods by Sea’, 6th Edition,(2008) Longman, 32
[5]Ibid.
[6] Ibid.
[7]Micada Compania Naviera S.A. v. Texim (The Agios Nicolas) [1968] 2 Lloyd’s Rep. 57.
[8] Ibid
[9]Ministry of Food v. Lamport & Holt [1952] 2 Lloyd’s Rep.
[10]Ibid
[11]Jackson, D.C., “Dangerous cargo: a legal overview,” in Maritime Movement of Dangerous Cargoes—Public Regulation and Private Liability, Papers of a one-day seminar, Southampton University, 11th September 1981, A3.
[12]Mitchell Coutts v. Steel [1916] 2 KB 610.
[13]Cooke (2007), Voyage Charters, 3rd edition, Informa, London, 162.
[14]Baughen, “Obligations of the shipper to the carrier,” (2008) 14 JIML, 557.
[15]Effort Shipping Co Ltd v. Linden Management S.A. (The Giannis NK) [1998] 1 All ER. 495 (HL).
[16]Robert, G. (2009), “Dangerous cargo and ‘legally dangerous’ cargo,” in D. Rhidian Thomas (editor), The Evolving Law and Practice of Voyage Charterparties, Informa—Maritime and Professional, 120.
[17]The Athanasia Comninos [1990] 1 Lloyd’s Rep. 277 at 277.
[18] Ibid;
[19]The Athanasia Comninos [1990] 1 Lloyd’s Rep. 277 at 282; Westchester Fire Insurance Co v. Buffalo Salvage Co [1941] AMC 1601.
[20]General Feeds Inc. v. Burnham Shipping Corporation (The Amphion) [1991] 2 Lloyd’s Rep.
[21]Fishmeal is a Class 9 Hazard under the IMDG Code
[22]Ibid
[23]Robert, G. (2009), “Dangerous cargo and ‘legally dangerous’ cargo,” in D. Rhidian Thomas (editor), The Evolving Law and Practice of Voyage Charterparties, Informa—Maritime and Professional, 120.
[24]Ibid
[25]The Athanasia Comninos [1990] 1 Lloyd’s Rep 277 at 282; Westchester Fire Insurance Co v. Buffalo Salvage Co [1941] AMC 1601.
[26]The Athanasia Comninos [1990] 1 Lloyd’s Rep 277 at 282
[27]Fishmeal is a Class 9 Hazard under the IMDG Code.
[28]Ibid.