Lloyd's Maritime and Commercial Law Quarterly
“DANGEROUS” CARGOES: THE RESPONSIBILITIES AND LIABILITIES OF THE VARIOUS PARTIES
Lucienne Carasso Bulow*
Who is responsible for the liabilities which ensue when a “dangerous” cargo causes damage? Determining which party is liable when a dispute occurs will vary profoundly, depending on a specific review of the circumstances in which each particular case takes place. Under United States law, a cargo owner has the duty to advise the carrier of any dangers in the cargo of which it is or ought to be aware and of which the carrier is not and cannot reasonably be expected to be aware.1 This paper will examine the various permutations of the above principle when it is applied in different circumstances, in various court and arbitration decisions. To do so, we must first define what is “dangerous”, a definition which is not as straightforward as one would think. We will then examine previous arbitration and court rulings in the United States which have addressed this question.
1. Who determines that a cargo is “dangerous” and who regulates its handling?
Several organizations make guidelines for the ocean transportation of “dangerous” cargoes to complement the International Convention for Safety of Life at Sea (SOLAS). The most important of these organizations is the International Maritime Organization (IMO), formerly known as the Inter-Governmental Maritime Consultative Organization (IMCO). It is, as its old name implies, an inter-governmental consultative organization.2 IMO issues “recommendations” to government bodies concerning the implementation of cargo handling regulations under its International Maritime Dangerous Goods Code (IMDG),3 which is prepared by a United Nations Committee of Experts.
These regulations establish the precautionary measures which must be taken
* Member, Society of Maritime Arbitrators, New York; Manager of Maritime Claims, Continental Grain Co., New York. The views expressed in this article do not necessarily reflect those of Continental Grain Company. This paper was presented at the Vllth International Congress of Maritime Arbitrators held in Madrid in October 1987. It has since been updated and revised.
S.M.A. in the footnotes refer to the Award Service of the Society of Maritime Arbitrators Inc., New York.
1. International Mercantile Marine Co. v. Fels (1909) 170 F. 275, 277 (2nd Cir.).
2. National organizations also make guidelines. The United Kingdom Department of Transport publishes its recommendations for the transportation of dangerous cargoes in its “Blue Book”, which was produced to augment SOLAS. Shipments from Canada are regulated by the Canadian Coast Guard and those from the United States by the U.S. Coast Guard. They are all in conformity with IMO recommendations.
3. The Maritime Safety Committee is authorized by the IMO Assembly to adopt amendments to the IMDG Code, thus enabling the Organization to respond promptly to new developments. IMO also publishes Bulk Dangerous Chemicals Code, Bulk Liquefied Gases Code for New Ships, Bulk Liquefied Gases and Code of Safe Practice for Solid Bulk Cargoes.
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