Публикация посвящена вопросам, связанным с перевозкой опасных грузов и их страхованием
INTRODUCTION
The carriage of dangerous goods remains a legal
minefield for cargo interests and their insurers in
relation to their potential exposure to liability. The 2005
case of ‘Primetrade v Ythan Limited’ highlighted the
possibility of liabilities attached to a bill of lading being
transferred to a receiver of goods or to an intermediate
holder of a bill. This article seeks to elaborate on the
situations where this becomes a possibility and the need
to seek specialised legal advice at the earliest
opportunity.
It is estimated that more than 50% of the cargoes
transported by sea today may be regarded as dangerous,
hazardous and/or harmful and need to be handled with
special care. Figures show that some of the most
common claims resulting from the carriage of dangerous
goods arise from the carriage of bulk cargo, these are
not only high in number but also in value.
Problems may arise with the carriage of dangerous
goods for any number of reasons, the most common of
which being the pressure to work on cargoes before
hatches have been properly ventilated or due to ship’s
monitoring equipment not being maintained. This area is
particularly pertinent in the current climate as 2010 saw
the commissioning of around 1,300 bulk carriers and as
from January 2011 the International Maritime Solid
Bulk Cargo Code (“IMSBC”) becomes mandatory under
chapter VI of the International Convention for the Safety
of Life at Sea (“SOLAS”).
DANGEROUS GOODS
Concern in relation to the carriage of dangerous
substances is demonstrated by the number of
conventions that cover safety, although not all provide a
definition of ‘dangerous goods’. Neither SOLAS nor the
Hague/Hague-Visby Rules nor the Hamburg Rules
define dangerous goods, they either refer to relevant
codes or give some examples. The main code used to
define dangerous goods is the International Maritime
Dangerous Goods Code (“IMDG Code”).
The IMDG Code classifies dangerous goods in different
classes, subdivides a number of these classes, defines
and describes characteristics and properties of the goods
which would fall within each class or division. There are
nine main classes of dangerous goods under this code:
1. Explosives
2. Gases
3. Flammable Liquids
4. Flammable Solids or Substances
5. Oxidizing Substances
6. Toxic and Infectious Substances
7. Radioactive Materials
8. Corrosives
9. Miscellaneous
The International Code for the Construction and
Equipment of Ships Carrying Dangerous Chemicals in
Bulk (“IBC Code”), International Code for the
Construction and Equipment of Ships Carrying
Liquefied Gases in Bulk (“IGC Code”) or the IMSBC
Code do not define dangerous goods either, but they do
list certain substances according to their hazards. 2
Apart from the obvious problems that may be caused by
explosive, flammable and toxic cargoes, bulk cargoes
present their own unique dangers that may either affect
the stability of the ship, in certain cases causing the ship
to capsize, or corrode the hull of the vessel.
RECEIVERS AND THEIR INSURERS ASSUMING
THE LIABILITIES OF THE SHIPPER
Although the charterer will remain responsible under the
Charterparty, owners may have an additional claim
against the shipper named in the bill of lading. Under the
Carriage of Goods by Sea Act 1992 (“COGSA”) title to
sue is not linked to property in goods but to the ‘lawful
holder’ of the bill of lading by virtue of sections 2(1) &
5(2) of COGSA. Section 2(1) of COGSA reads:
(1) Subject to the following provisions of this section, a person
who becomes—
(a) the lawful holder of a bill of lading;
…
shall (by virtue of becoming the holder of the bill or, as the
case may be, the person to whom delivery is to be made) have
transferred to and vested in him all rights of suit under the
contract of carriage as if he had been a party to that contract.
A ‘lawful holder’ of a bill of lading is determined by
section 5(2) which provides:
(2) References in this Act to the holder of a bill of lading are
references to any of the following persons, that is to say—
(a) a person with possession of the bill who, by virtue of
being the person identified in the bill, is the consignee
of the goods to which the bill relates;
(b) a person with possession of the bill as a result of the
completion, by delivery of the bill, of any indorsement
of the bill or , in the case of a bearer bill, of any other
transfer of the bill;
(c) a person with possession of the bill as a result of any
transaction by virtue of which he would have become
a holder falling within paragraph (a) or (b) above had
not the transaction been effected at a time when
possession of the bill no longer gave a right (as
against the carrier) to possession of the goods to
which the bill relates;
and a person shall be regarded for the purposes of this Act as
having become the lawful holder of a bill of lading wherever
he has become the holder of the bill in good faith.
The transfer of the right to sue the carrier under section
2(1) of the Act, from one holder of a bill to another, has
the effect of extinguishing the contractual rights of the
shipper or of any intermediate holder of the bill.
However, the liabilities associated with the contract of
carriage are not transferred simultaneously with the title
to sue. The innocent receiver will only assume the
liabilities under the carriage contract if they or their
underwriters:
(a) takes or demands delivery from the carrier of any of the
goods to which the document relates;
(b) makes a claim under the contract of carriage against the
carrier in respect of any of those goods; or
(c) is a person who, at a time before those rights were vested
in him, took or demanded delivery from the carrier of any of
those goods,
In any of the above circumstances that receiver shall (by
virtue of taking or demanding delivery or making the
claim or, in a case falling within paragraph (c) above, of
having the rights vested in him) become subject to the
same liabilities under that contract as if he had been a
party to that contract in accordance with section 3(1) of
COGSA. This means that the owner will have the ability
to sue the receiver for damages.
WHAT CONSTITUTES MAKING A CLAIM
UNDER SECTION 3(1) OF COGSA
This has been discussed in some depth in the cases of
“the Berge Sisar” [2002] 2 AC 205 by Lord Hobhouse
and by Mr Justice Aikens in the Ythan. Lord Hobhouse
looked at the intention of the draftsmen in section 3(1)
to ensure mutuality of contractual relationship, as such a
‘holder’ of a bill of lading cannot come under the
liabilities imposed by section 3, unless he is a person
with a right of suit that has been vested to him under
section 2(1). It must be an action that is a positive step
by that person to whom rights have been vested “to avail
himself of those contractual rights against the carrier”.
Lord Hobhouse sets out at paragraph 33 of his speech:
“to ‘make a claim’ may be anything from expressing a
view in the course of a meeting or letter as to the
liability of the carrier in issuing a writ or arresting a
vessel” 3
In the Ythan case the underwriters had taken steps to
obtain a security from the Owners’ P&I Club, they had
been successful in this regard as the club was concerned
that other vessels in the same management as the Ythan
would be arrested. The question before Mr Justice
Aikens was whether this amounted to making a claim in
accordance with section 3(1). It was held that it was not.
The reason being that a request for security for a claim,
even though successful, is different in character from an
arrest of a vessel in support of a claim. An arrest is a
formal use of court procedures in support of a claim,
whereas a Letter of Undertaking is a contractual
arrangement.
INSURANCE CONSIDERATIONS
The shipment of dangerous cargo is an increasing
problem, not only because of the frequency of
explosions and other problems on certain ships, such as
container ships, but also because the third party claims
flowing from dangerous cargo are not insured by the
standard Institute Cargo Clauses (“ICC”). Indeed, if the
incident is caused by the wilful misconduct of the
shipper or insufficient packing, the shipper may not have
even be able to claim for loss of his cargo.
By way of further example, in the scenario where a
cargo blows up causing extensive damage to the vessel,
surrounding cargo and potentially injuring the crew, the
cargo receiver may be liable and without insurance
because the standard ICC only provide a policy of
indemnity and not liability.
Underwriters must be careful to ensure they do not cause
the ‘innocent’ receiver who had taken up the bills of
lading to be faced with huge multimillion-dollar claims,
not only from the shipowner and time charterer, but also
the other cargo interests whose cargo was damaged by
the explosion.
CONCLUSION
With the ever increasing variety of chemicals and other
noxious substances being carried it sea, the strict
liability of the shipper (or receiver), who maybe totally
innocent, and the lack of insurance cover for this
unlimited liability means that the impact of a dangerous
cargo on an unsuspecting party can be considerable and
unforeseen. Although prevention is always better (and
cheaper) than the cure, the incidence of these claims is
on the increase. It is therefore essential that proper and
adequate documentation be provided to the Master, at
the time of loading (as required by the IMDG code) and
the shipper/charterer takes every precaution to ensure
that his cargo is safe for the intended voyage and
adequately describes it including details of its IMDG
classification. The cargo should also be well packed and
labelled and every effort made to alert (in writing) the
carrier as to any special characteristics of the cargo.
This article is intended only to give general guidance and
you should always consult a lawyer with any particular
problem you may have.
Ben Macfarlane & Co is a small maritime law practice
with over the 25 years’ experience. We provide an
efficient, effective and value for money service for all of
your maritime law matters. Please see www.bjm-co.com
for more details or call Ben Macfarlane on +44 (0) 207
190 2988.
Источник: www.bjm-co.com/reports/Report_043_CARGO_INSURERS_36k.pdf