Lloyd's Maritime and Commercial Law Quarterly
SHIPPER’S LIABILITY FOR THE CARRIAGE OF DANGEROUS CARGOES BY SEA
Stephen D. Girvin*
This article takes as its starting point the risks associated with the carriage of goods by sea and, more especially, the shipper’s liability for the carriage of “dangerous” goods. It looks at what is meant by “dangerous” in this context, including a scrutiny of the development of liability at common law. It questions whether it might not be appropriate to consider afresh the basis for strict liability. Finally, it considers the scope of the dangerous goods provisions in the Hague, Hague-Visby and Hamburg Rules, with particular emphasis on three recent cases.
… [W]e all would be well advised to adjust our terminology and think in terms of dangerous situations rather than dangerous cargo, and thus to recognise that the nature of the cargo is only one of the elements in the complex of facts giving rise to the rights and liabilities of the parties to the adventure.1
The parties to a contract for the carriage of goods by sea, whether this is embodied in a bill of lading or one of the standard charterparty forms, customarily negotiate its terms against a background of both commercial and legal considerations. The parties’ respective liability for risks to which the vessel and its cargo might be exposed during the course of the contract voyage(s) will be of paramount importance. Should they eventuate, the potential risks might expose the parties, through their insurers, to expensive damages claims.
In this paper my concern is the shipper’s liability for damage caused to the owner’s ship or the cargoes of others by his goods.2 In particular, I will analyse three decisions of the English courts which have, in the past five years, explored the scope of this liability in potentially significant ways. The shipper’s duty is commonly expressed as an obligation to notify the carrier of the “dangerous” characteristics of the goods being shipped. What is meant by “dangerous” in this context if often difficult to ascertain with certainty and can vary, depending upon such factors as the bill of lading or charterparty standard form
* Lecturer in Law, University of Nottingham. I am grateful to Michael Bridge for reading a draft of this paper.
1. Michael Mustill, Q.C., “Carriers’ liabilities and insurance”: Chap. 4 of Kurt Grönfors (ed.), Damage from goods (Göteborg, 1978), 77.
2. I shall not consider the liability of the carrier to the owners of cargo on board his vessel or his potential liability to third parties. On the former, see Ministry of Food v. Lamport & Holt Line Ltd
[1952] 2 Lloyd’s Rep. 371. The latter is likely in future to be governed by the proposed Hazardous Noxious Substances Convention: see Patrick Griggs, “Extending the frontiers of liability—the proposed Hazardous Noxious Substances Convention and its effect on ship, cargo and insurance interests” [1996] LMCLQ 145.
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