Transport of dangerous goods by sea

19 Янв

В статье детально рассматриваются вопросы, связанные с перевозкой опасных грузов по морю. В частности и особенности, подробно исследуются положения Международного кодекса морской перевозки опасных грузов, впервые опубликованного в 1965 г. под эгидой Международной морской организации (ИМО), и его правовая природа. Особое внимание уделяется последним новеллам. Автор подчеркивает необходимость правильного декларирования опасных грузов и раскрывает нормы английского права, а также судебную практику в этом отношении.

A high proportion of goods carried internationally are potentially dangerous. To ensure they are transported safely, there are a number of international standards which specify how such goods can be handled safely. Carriers also require contractual warranties for shippers in relation to dangerous goods. In this article, we consider both.

International legal framework

The International Maritime Organisation (“IMO”) is a United Nations specialised agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships. The IMO has developed two international conventions to address these issues:

  • The 1960 International Convention for the Safety of Life at Sea (“SOLAS Convention”).
  • The International Convention for the Prevention of pollution from Ships (“MARPOL Convention”).

To supplement the principles laid down in the SOLAS and MARPOL Conventions, the IMO developed the International Maritime Dangerous Goods Code (the “IMDG Code”).

IMDG Code

The IMDG Code contains detailed technical specifications to enable dangerous goods to be transported safely by sea. The IMDG Code classifies dangerous goods into different hazardous risk classes (there are nine classes of dangerous goods) and identifies products by unique UN reference numbers. These nine hazard classes have been established internationally by a United Nations (UN) committee to ensure that all modes of transport (road, rail, air and sea) classify dangerous goods in the same way.

The IMDG Code covers matters such as packing, labelling (using hazard warning labels), stowage, segregation and handling, and emergency response action. The IMDG Code also includes standard documentation requirements when dangerous goods are being transported. When dangerous goods are transported, they must be accompanied by a dangerous goods transport document, which we examine in more detail below. In addition, a dangerous goods container or vehicle packing certificate, stating that the provisions of paragraph 5.4 of the IMDG Code have been met, should be signed by the person packing or loading the freight container or vehicle.

New training provisions became mandatory from 1 January 2010 for shore based personnel. The requirement is for training commensurate with their responsibilities. Shore based personnel who require training include shippers, freight forwarders, container packers and consolidators, shipping line operations and booking staff, stevedores and port staff.

Is the IMDG Code mandatory?

As of 1 January 2004, the IMDG Code became a mandatory requirement for the SOLAS Contracting States/Parties, of which there are 161, as at 31 October 2011, and which represent 98.91% of world tonnage (Source: IMO – Summary of Status of Convention – 31/10/2011).

Amendments to the IMDG Code

The IMDG Code is updated every two years to take account of new dangerous goods and new safety concerns. Each version of the IMDG Code is given an Amendment number to signify how many times it has been updated. This number appears at the bottom of each page together with the year of the Amendment. The previous Amendment was 34-08 which remained in force until 31 December 2011. However, from 1 January 2011, Amendment 35-10 could also be used because 2011 was a transition year which allowed the use of both Amendments in tandem. Amendment 35-10 is mandatory as from 1 January 2012.


Summary of changes in Amendment 35-10

There are many detailed changes to the Dangerous Goods List and to most chapters. Below are some of the significant additions and changes:

Additional items in the Dangerous Goods List

There are 16 new UN numbers going up to 3496, with explosives going up to 0509.

New UN numbers added in Amendment 35-10

0509 POWDER, SMOKELESS

3482b ALKALI METAL DISPERSION, FLAMMABLE or ALKALINE EARTH METAL DISPERSION, FLAMMABLE

3483 MOTOR FUEL ANTI-KNOCK MIXTURE, FLAMMABLE

3484 HYDRAZINE, AQUEOUS SOLUTION, FLAMMABLE with more than 37% hydrazine, by mass

3485 CALCIUM HYPOCHLORITE, DRY, CORROSIVE or CALCIUM HYPOCHLORITE MIXTURE, DRY, CORROSIVE with more than 39% available chlorine (8.8% available oxygen)

3486 CALCIUM HYPOCHLORITE MIXTURE, DRY, CORROSIVE with more than 10% but not more than 39% available chlorine

3487 CALCIUM HYPOCHLORITE, HYDRATED, CORROSIVE or CALCIUM HYPOCHLORITE, HYDRATED MIXTURE, CORROSIVE with not less than 5.5% but not more than 16% water

3488 TOXIC BY INHALATION LIQUID, FLAMMABLE, CORROSIVE, N.O.S. with an inhalation toxicity lower than or equal to 200ml/m3 and saturated vapour concentration greater than or equal to 500 LC50

3489 TOXIC INHALATION LIQUID, FLAMMABLE, CORROSIVE, N.O.S. with an inhalation toxicity lower than or equal to 1000ml/ m3 and saturated vapour concentration greater than or equal to 10 LC50

3490 TOXIC BY INHALATION LIQUID, WATER-REACTIVE, FLAMMABLE, N.O.S with an inhalation toxicity lower than or equal to 200ml/ m3 and saturated vapour concentration greater than or equal to 500 LC50

3491 TOXIC BY INHALATION LIQUID, WATER-REACTIVE, FLAMMABLE, N.O.S. with an inhalation toxicity lower than or equal to 1000ml/ m3 and saturated vapour concentration greater than or equal to 10 LC50

3492 TOXIC BY INHALATION LIQUID, CORROSIVE, FLAMMABLE, N.O.S. with an inhalation toxicity lower than or equal to 200ml/m3 and saturated vapour concentration greater than or equal to 500 LC50

3493 TOXIC INHALATION LIQUID, CORROSIVE, FLAMMABLE, N.O.S. with an inhalation toxicity lower than or equal to 1000ml/ m3 and saturated vapour concentration greater than or equal to 10 LC50

3494 PETROLEUM SOUR CRUDE OIL, FLAMMABLE TOXIC

3495 IODINE

3496 BATTERIES, NICKEL-METAL HYDRIDE

Note: No UN Numbers were deleted.

Other significant changes

UN 3166 and 3171 (vehicles) no longer have SP960 (not regulated). They have SP961 – exempt if on vehicle decks, but otherwise they are regulated according to SP962. They need not be labelled, marked or placarded, but they must be on the DGN. Fuel cell powered engines and vehicles are now names under UN 3166.

A new chapter 5.5 covers provisions for UN 3359, now called a FUMIGATED CARGO TRANSPORT UNIT, collecting the text from various other places.

Calcium Hypochlorites, UN 1748, 2208 and 2880 no longer have a possible corrosive subrisk. There are new UN numbers 3485-7 for these.

UN numbers 1391, 1649 and 2031 no longer have a possible subrisk 3 for the cases where the flashpoint is below 60. There are new UN numbers 3482-4 for these.

Limited quantity packages need no longer be marked with the UN number. There is a new diamond label for LQ packages, or a version with a Y inside if consigned under the limited quantity requirements for air transport. This is also the design of the placard-sized mark for CTUs containing only LQ, replacing the ‘LTD QTY’ mark. See chapter 3.4.

Extremely flammable substances such as UN 1131 Carbon Disulphide are no longer prohibited on ships carrying explosives. They just require a segregation value of 4. The exemptions for 1.4S, articles for life-saving purposes, 10Kg of G articles except fireworks, etc. are no longer required.

Paragraph 5.4.1.5.1 explicitly says the number, type and capacity of the inner packaging is not required.

A new paragraph 5.4.6 requires the consignor and the carrier to retain Dangerous Goods documents for 3 months.

(Source Digital IMDG Code support)


Dangerous goods transport document

Chapter 5.4 of the IMDG Code (Amdt. 35-10) requires the shipper (referred to as the consignor in the IMDG Code) who offers dangerous goods for transportation to give the carrier the information applicable to those dangerous goods. The IMDG Code states that the information may be provided on a dangerous goods transport document, which is also sometimes referred to as a dangerous goods note or a dangerous goods declaration. The dangerous goods transport document may be in any form and the IMDG Code does not preclude the use of electronic data processing (EDP) and electronic data interchange (EDI) transmission.

The dangerous goods transport document must contain all the information required by the provisions of the IMDG Code (paragraph 5.4.1.2.1 of the IMDG Code (Amdt. 35-10)). Such information includes a description of the dangerous goods and other technical details relating to the same. The dangerous goods transport document must also “include a certification or declaration that the consignment is acceptable for transport and that the goods are properly packaged, marked and labelled, and in proper condition for transport in accordance with the applicable regulations” (paragraph 5.4.1.6.1 of the IMDG Code (Amdt. 35-10)). The text of the certification is set out in the IMDG Code. The certification must be signed and dated by the shipper.

Other applicable provisions

Under English law, there is a common law implied warranty that the goods are fit for carriage in the ordinary way and are not dangerous. There is also strict liability if a shipper ships an undeclared dangerous cargo if losses result. Under some of the international conventions which apply to the international movement of goods, the carrier may have certain protection when handling dangerous goods. For example Article IV, rule 6 of the Hague Visby Rules gives the carrier certain rights when dangerous goods were shipped without the carrier’s knowledge, including the right to destroy the same.

Carriers will often seek alternative or additional protection by requiring the shipper to give express warranties about the nature of the goods and indemnities should the carrier suffer financial loss as a result of knowingly or unknowingly handing dangerous goods. Shipping lines in their bills of lading terms and conditions often place onerous obligations on the shipper to seek consent prior to handing over dangerous goods, and to provide all necessary information in relation to the goods. The obligations will usually be accompanied by an indemnity should there be a failure to comply with the obligations.

Similarly, the standard terms used by freight forwarders usually include warranties and indemnities which give the freight forwarder protection which goes beyond the common law warranty and the protection afforded to the carrier under the international conventions. The freight forwarder often acts as an intermediary between the shipping line and the shipper, and therefore the freight forwarder may be required to provide the shipping line with warranties and indemnities regarding the nature of the goods, which is why the shipper’s warranties and indemnities are important. It will be the same for anyone involved in the movement and/or packing of dangerous goods, they will have a potential exposure when handling dangerous goods, and will therefore require their counterparty to provide certain warranties and indemnities.

Why is it important to declare dangerous goods?

The shipping line will use the information provided by the shipper to prepare the documentation required onboard the ship and to decide where to place the container on board the ship. Under the IMDG Code, each ship carrying dangerous goods is required to have a special list or manifest setting out the dangerous goods and marine pollutants and the location thereof (paragraph 5.4.3.1 of the IMDG Code (Amdt. 35-10)). It is therefore essential that the information provided in relation to dangerous goods is complete and accurate, particularly in view of the fact that in the container industry, once the doors of the container are closed, the shipping line or anyone else involved in the handling of the container will rarely check the accuracy of the information provided.

Misdeclaration of cargo, whether intentional or as a result of a lack of understanding of the complex dangerous goods legislation, is an ongoing problem which can have very grave consequences, such as fires and explosions on vessels resulting in loss of life and very high value losses. There are a number of examples of such incidents in the recent past. In 2002 the Hanjin Pennsylvania suffered a major explosion during her second voyage and in 2006 an explosion occurred on board the Hyundai Fortune which destroyed countless containers and resulted in a total loss of the vessel. In both instances the cause of the incident was believed to be misdeclared cargo.

In addition to the obvious damage an explosion or a fire will cause to a vessel, there is also the damage to the other cargo on board to be considered and damage to the environment. Inevitably the question of who should bear the enormous costs resulting from such incidents will give rise to debate as was the case in relation to the Aconcagua which was damaged by explosion in 1998. The Court of Appeal in December 2010 dismissed the appeal by the shipper of the cargo (calcium hypochlorite) and upheld the Court of First Instance’s decision to award the time charterers damages from the shipper for breach of contract contained in the charterers’ bill of lading. Ultimately though, the high losses resulting from such incidents will fall upon marine insurers.

Автор: Catherine Emsellem-Rope, Associate, on +44 (0)20 7264 8279 or catherine.emsellem-rope@hfw.com, or your usual contact at HFW.

Источник:http://www.hfw.com/publications/bulletins/logistics-bulletin-january-2012/logistics-bulletin-january-2012-transport-of-dangerous-goods-by-sea

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