The Carriage of Dangerous Goods by Sea

Transcription

1 Hamburg Studies on Maritime Affairs 12 The Carriage of Dangerous Goods by Sea Bearbeitet von Meltem Deniz Güner-Özbek 1. Auflage Taschenbuch. xxvi, 352 S. Paperback ISBN Format (B x L): 15,6 x 23,4 cm Gewicht: 1170 g Recht > Europarecht, Internationales Recht, Recht des Auslands > Rechtsvergleichung schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 Contents Abbreviations...XXIII Introduction... 1 Part 1: Dangerous goods regulations... 5 A. In general... 5 B. Development of dangerous goods regulations... 6 I. Role of the IMO... 6 II. Structure of the IMO... 7 III. The SOLAS Convention... 8 IV. The MARPOL Convention V. The UN Recommendations on the Transport of Dangerous Goods Development of the UN Recommendations (Model Rules) Nature, purpose and significance of the Recommendations The re-formatted UN Recommendations Status and future development of the Recommendations Content of the Recommendations IV. International Maritime Dangerous Goods (IMDG) Code Development of the IMDG Code Statutes of the IMDG Code a) Sources of international law b) The formerly recommendatory IMDG Code c) The IMDG Code as a part of national legislations d) The mandatory IMDG Code Application and implementation of the IMDG C. Other instruments I. The IBC Code II. The IGC Code III. The INF Code IV. The BC Code V. The International Grain Code VI. The Radioactive materials regulations D. Dangerous goods provisions in the carriage conventions I. The Hague/Hague-Visby Rules II. The Hamburg Rules III. The CMI/UNCITRAL draft instrument... 27

3 XII Contents E. The HNS Convention F. Dangerous goods regulations for other modes of transport I. IATA Dangerous Goods Regulations II. European Agreement concerning the International Carriage of Dangerous Goods by Road III. Regulations concerning International Carriage of Dangerous Goods by Rail IV. European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways V. Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels G. Regional and national regulations concerning dangerous goods I. European Union II. Germany III. United Kingdom IV. United States of America Part 2: Meaning of dangerous goods A. In general B. Type of good I. Charterparties II. Bills of lading C. Restrictions on the goods I. Lawful merchandise or goods II. Lawful dangerous goods III. Dangerous good clauses Charterparty forms Bill of lading forms D. Relevance of the IMDG Code in carriage contracts I. Common law II. German law III. Standard of reasonableness IV. Incorporation of the IMDG Code into contracts E. Meaning of dangerous goods I. Terminology: dangerous, hazardous, noxious or harmful II. What is meant by dangerous goods? In the contracts In the safety, marine pollution and third-party liability conventions In the carriage conventions In the statutes... 52

4 Contents XIII 5. In the relevant codes a) The IMDG Code aa) Dangerous goods specifically listed in the IMDG Code bb) Dangerous goods not specifically listed in the IMDG Code cc) Mixtures or solutions dd) Classes and divisions of dangerous goods in the IMDG Code (1) Class 1: Explosives (2) Class 2 Gases (3) Class 3 Flammable liquids (4) Class 4 Flammable solids or substances (5) Class 5 Oxidizing substances (6) Class 6 Toxic and infections substances (7) Class 7 Radioactive materials (8) Class 8 Corrosives (9) Class 9-Miscellaneous (10) Marine pollutants b) Dangerous goods in other codes aa) The IBC Code bb) The IGC Code cc) The BC Code Meaning of dangerous in rules of law a) English law aa) Physically dangerous bb) Intrinsic danger not necessary cc) Relevance of the carrier s knowledge to the meaning of dangerous goods dd) Dangerous as particular characteristics undisclosed ee) Dangerous as cargo has different characteristics than usual ff) Innocuous goods causing damage may be dangerous gg) Legally dangerous goods hh) What is meant by goods of inflammable, explosive or dangerous nature in Art. IV.6 of the Hague/Hague-Visby Rules (1) Dangerous not restricted to preceding words (a) Eiusdem generis rule (b) Euisdem generis rule and Art. IV. 6 of Hague/Hague-Visby Rules (2) Dangerous goods and inherent vice (a) Inherent vice or defect defence (b) The overlap of dangerous goods obligation and inherent vice defence... 73

5 XIV Contents (c) Distinction between dangerous goods and inherent vice or defect ii) Basis of liability for delay b) Meaning of dangerous in American law aa) Dangerous because different from contractual description bb) Goods which become dangerous under special circumstances cc) Goods may be dangerous even if not listed in the regulations c) Meaning of dangerous in German law aa) Definition of dangerous goods in GGBefG bb) General or concrete dangerous nature of the goods cc) Goods listed in the regulations on the transport of dangerous goods d) Meaning of dangerous in the CMI/UNCITRAL draft instrument on the carriage of goods aa) No distinction between dangerous and nondangerous goods bb) Drafting specific provision dealing with dangerous goods F. What should be considered dangerous? I. Nature of the goods II. Public regulations private liability III. Goods listed in the IMDG Code and other codes IV. Dangerous goods in bulk V. Is the effect on stability a danger? VI. Exceptionally dangerous goods VII. Standard of liability, significance of risk and potential damage Part 3: Duties of the parties in relation to dangerous goods A. In general B. Duties of the shipper I. Classification of dangerous goods II. Packing of dangerous goods Purpose of packing Packing obligation Sufficiency of packing III. Stowage and segregation of dangerous goods IV. Marking of dangerous goods V. Marking, labelling and placarding in accordance with IMDG Code VI. Notice of dangerous goods In general... 98

6 Contents XV 2. Hague/Hague-Visby Rules Nature of the notice Nature and character of the goods Sufficient notice To whom is the notice to be given? Effect of carrier s, agents or master s knowledge a) Notice not required where carrier, agent or master has actual or constructive knowledge b) Actual knowledge required in German law Consent to the shipment of dangerous goods Master s authority to consent Notice by freight forwarder a) Role of freight forwarder b) Duties of freight forwarder with regard to dangerous goods c) Notice of dangerous goods by forwarder aa) English law bb) American law cc) German law VII. Documentation of dangerous goods Dangerous goods transport document and declaration Container/Vehicle packing certificate VIII. Is compliance with dangerous goods regulations sufficient? IX. The 24-Hour Advance Manifest Rule or the 24-Hour Rule and its implication for the shipper s duties U.S. cargo security initiatives a) Customs Trade Partnership against Terrorism b) Container Security Initiative c) The 24-Hour Rule d) Shipments affected by the 24-Hour Rule e) Required information f) The 24-Hour Rule in carriage contracts European Union developments and the 24-Hour Rule C. Duties of the carrier I. Seaworthiness of the ship II. Care of goods III. Stowage and segregation by the carrier IV. Obtaining information on the goods V. Documentation, marking and labelling packaging VI. Dangerous goods manifest VII. The International Safety Management (ISM) Code and dangerous goods The ISM Code Implications of the ISM Code for the carriage of dangerous goods

7 XVI Contents D. Is the carrier obliged to carry dangerous goods? I. Common law Goods expressly prohibited Goods not conforming to contractual description II. German law III. Refusal of dangerous goods not accompanied by the declaration IV. Dangerous goods declaration including indemnity clause E. Duties under the CMI/UNCITRAL draft instrument I. Duties of the shipper Delivery for carriage Obligation to provide information, instructions and documents Special rules on dangerous goods II. Duties of the carrier Seaworthiness of the ship Care of goods Obligation to provide information and instructions Part 4: Rights and liabilities of the parties A. In general B. Shipper s liability for dangerous goods I. English law Early principles Brass v. Maitland Reaction to Brass v. Maitland Implied absolute warranty not to ship dangerous goods without notice Liability under the Hague/Hague-Visby Rules a) General rule: negligence b) Strict liability of shipper for carrying dangerous goods without knowledge of carrier II. American law Early principles: strict liability Reactions: unclarity, no cargo warranty? Enactment of COGSA: no strict liability Senator v. Sunway: strict liability of shipper for the shipment of dangerous goods a) Facts of the case b) Plaintiff s argument c) The defendant s argument d) Standard of review e) Plain meaning and the COGSA case law f) Legislative purpose and history of COGSA and the Hague Rules

8 Contents XVII g) Whether COGSA 1304(6) codified general maritime law concerning shipper liability in the dangerous goods context h) Conclusion III. Express language of HGB 564b in German law: strict liability of shipper/actual shipper if dangerous nature of goods unknown to the carrier C. Is strict liability proper? I. Strict liability in general II. Ultra-hazardous activity: dangers of cargo unknown to the carrier III. How does strict liability address safety? D. No strict liability where the carrier has knowledge I. English law II. American law III. German law E. Liability where both parties have knowledge F. The necessity to distinguish between dangerous goods and nondangerous goods which cause damage I. Separation in German law: fault liability for incorrect information on properties and contraband goods II. The Hague/Hague-Visby Rules Art. IV G. Liability of transferees of bills of lading I. In general II. Transfer of contractual rights Common law Civil law Liabilities of the transferee a) English law aa) The British Bills of Lading Act bb) The new British Carriage of Goods by Sea Act (COGSA) (1) The view of the Law Commission (2) Transfer of liabilities under the COGSA (3) Liability of the original shipper b) American law c) German law H. Dangerous goods and charterparties I. Applicability of the implied obligation not to ship dangerous goods without notice to charterparties in common law II. Identity of the shipper: charterer or physical shipper III. German law: shipper or actual shipper Shipper and actual shipper distinguished Liability of actual shipper

9 XVIII Contents I. Extent of shipper s liability I. English law Liability for all damages and expenses directly or indirectly arising Causation or remoteness of damage? II. German law J. The carrier s rights I. Immunity II. The exercise of the right of landing, destroying or rendering the goods innocuous Carrier has not consented to the shipment Carrier has consented to the shipment Unreasonable acts of carrier III. Sacrifice of dangerous goods In general Effect of fault General average resulting from inherent vice or fault of the good General average contribution and dangerous goods German law K. Allocation of liability in concurrent causes I. English law Breach of Art. III.1: unseaworthiness contributing to damage Extent of contribution of unseaworthiness Breach of Art. III.2: failure to properly load, handle and care for goods The Law Reform (Contributory Negligence Act) II. German law III. American law L. Liability towards third parties I. Shipper s liability to the other cargo owners II. Carrier s liability to the other cargo owners Hague/Hague-Visby Rules German law M. Shipper s liability in the CMI/UNCITRAL draft instrument I. In general II. Inclusion of strict liability with regard to dangerous goods III. Extensive duties of shipper IV. Presumed fault and burden of proof V. Loss, damage or injury VI. Delay VII. Strict liability

10 Contents XIX VIII. Conclusion with regard to liability of the shipper: general regime fault-based strict liability exception IX. Strict liability for dangerous goods Part 5: Limitation of liability and insurance A. Shipper s or charterer s exposure to liability in general B. Limitation of liability C. Package or kilo limitation for cargo loss or damage I. Hague/Hague-Visby Rules History of package or kilo limitation of Hague Rules Legislative considerations Limitation for delay? II. Hamburg Rules Limitation of liability for loss of or damage to goods Limitation of liability for delay D. Unlimited liability of shippers E. CMI/UNCITRAL draft instrument I. Consideration of limitation of the shipper s liability in the draft instrument II. Submission of European Shippers Council with regard to limitation of shipper s liability F. Global limitation of liability for maritime claims I. Importance of limitation of liability II. Convention on Limitation of Liability for Maritime Claims Development Convention on Limitation of Liability for Maritime Claims (LLMC 1976) a) Persons entitled to limit liability aa) Owner bb) Charterer cc) Other persons dd) Liability insurer b) Claims subject to limitation aa) Claims in respect of loss of life or personal injury or loss of or damage to property bb) Claims in respect of loss resulting from delay cc) Claims in respect of infringement of rights other than contractual rights dd) Claims in respect of the raising, removal, destruction or the rendering harmless of a ship including anything on board such ship ee) Claims in respect of the removal of the cargo of the ship

11 XX Contents ff) Claims in respect of measures taken to avert or minimize loss gg) Claims brought by way of recourse or for indemnity III. Can a charterer limit his liability against the shipowner? The Aegean Sea case The CMA Djakarta case a) Facts of the case b) Issues c) Interpretation of the convention d) Ordinary meaning of charterer in the 1976 Convention e) The right to limit only extended to claims which were limitable under Art f) Limitation fund and aggregation of claims g) Claims limitable h) Conclusion IV. United States law V. Considerations regarding charterer s liability against shipowner and limitation of liability VI. Criticisms on the limitation of liability G. Insurance I. Marine insurance in general II. Protection and indemnity (P&I) insurance P&I club cover Marine risks insured by P&I clubs Special risks insured by the P&I clubs Club membership Insurable interest Members a) Shipowners b) Chartered vessels c) Charterers as members Charterers liability for damage to hull Conditions of cover and dangerous goods III. Charterer s liability insurance IV. Insurance for shippers Public liability insurance Shipper may run hazard of hazard V. Coverage for liability arising out of dangerous goods Part 6: Third-party liability for damage arising from the carriage of HNS A. In general

12 Contents XXI B. Need for a HNS Convention I. Potential damage II. Inadequacy of existing liability schemes C. Development of HNS Convention I. In the wake of the 1969 Brussels Conference II. Consideration of a limited extension of the CLC 1969 and the elaboration of a new convention for damage by other pollutants III. The preparatory work for the draft on the HNS Convention Proposed systems of liability A new source of insurance: imposition liability on shipper IV. The 1984 Conference on HNS Cargoes covered by the Draft HNS Convention a) Bulk HNS only b) Problems in the inclusion of packaged HNS Allocation of liability between shipowner and shipper Insurance of shipper liability Alternative: cargo liability insurance Outcome of the 1984 Conference on HNS V. Developments since VI. The 1991 Draft VII. Reactions to the 1991 Draft VIII. Subsequent developments D. The HNS Convention I. Definition of HNS Coal and other solid bulk materials Fishmeal Waste Excluded cargoes a) Oil (causing pollution damage) b) Radioactive materials II. Damages covered III. Liability Strict liability of the shipowner (the first tier) Defences available to the shipowner for exoneration from liability Unique defence of the shipowner: shipper s failure to furnish information IV. Limits of liability Small ships Level of limit V. Compulsory insurance of the shipowner VI. HNS Fund (the second tier) Liability of the HNS Fund

13 XXII Contents 2. Contributions to the HNS Fund a) Receiver pays b) Who is a receiver? c) Contributing cargo The separate accounts and the general account Administration of the HNS Fund Organization of the HNS Fund Secretariat and director of the HNS Fund VII. Entry into force Inconsistency of existing EU legislation with HNS Convention EU Regulation 44/ Implications of EU Regulation 44/2001 on the HNS Convention Authorizing member states to ratify the conventions with a reservation Conclusion Appendices Hague-Visby Rules U.S. Customs 24 Hours Rule Clause for Voyage Charter Parties U.S. Customs 24 Hours Rule for Time Charter Parties International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, Multimodal Dangerous Goods Form Bibliography Index