LAW4223

International Trade Law

August Semester 2016

Individual Assignment

Student’s name: JASON LIM KAH HOE

Student I/D: I14006141
Section No. : 1IB1
Lecture’s name: Ms. Nazruzila Razniza Mohd Nadzri
Date of submission: 30/10/2017
Introduction:

We are asked to discuss the duty of the shipper under both common law and Hague-Visby Rules
especially the duty of not to ship a dangerous cargo. According to Common Law, the shipper is
not allowed to ship dangerous goods without any disclosure. It is also the duty of the shipper to
inform the carrier whether the goods are in nature of dangerous or not, and fail to do so, would
violate the duty of not to ship dangerous goods in Common Law. However, it is not necessary
for the shipper to inform the carrier when the carrier are ought to reasonably aware of the nature
of dangerous of the goods, because the fact that the shipowner was accepting the goods was
assumed as acceptance of the dangerousness that the goods might cause, as the risks of the goods
were clearly obvious. There are few different type of goods that can be categorized as dangerous
goods, which includes goods that have the ability to cause physical damage, such as explosive,
radioactive, or combustible materials, and goods that do not have the ability to cause physical
damage, but could trigger hazard to or jeopardize the safety of the ship, crew or cargo if they
were not dealt with appropriately. On the other hand, Article IV(6), Hague-Visby Rules says that
the carrier can even land the goods at any place or destroy them without having to liable to
compensate the shipper if a disclosure of dangerous goods was not made, or a disclosure of
dangerous goods was made, but the goods turned out to cause danger to the cargo.

Content:

In this case, Roppa Co has entered a carriage contract to transport radioactive substance with
Jerry Ltd who hands the manual to Roppa Co saying ''for care and handling instructions refer to
manuals. ''. Under Common Law, according to a case, Mitchell, Cotts & Co v Steel Brothers &
Co Ltd [1916], which could be applied in the given case, where a cargo of rice was held to be
dangerous as permissions were needed to discharge the cargo at Piraeus, which the shipper knew,
but did not inform the shipowner who was not aware of it. It turned out the ship had to be
detained due to lacking of required documents, which made rice, which was not categorized as
dangerous goods, a dangerous good, as it jeopardize the safety of the ship, which has been
mentioned earlier. Therefore, in the given case between Roppa Co and Jerry Ltd, Jerry Ltd would
be liable for the breach of contract if the similar situation happened.
However, if neither of the party is aware of the dangerousness or difficulties that the goods are
going to cause, the shipper has to be liable for it according to Common Law. An example would
be the case, Brass v Maitland [1856], where the bleaching powder corroded the barrels, which
caused damage to other goods. It was held that the shipper was liable for it as under common
law, it does not depend on the knowledge of the shipper whether the goods are dangerous or not.
Therefore, if both Roppa Co and Jerry Ltd are not aware of the dangerous propensity of the
goods during transit, Jerry Ltd would still be liable as a result of failing to inform the shipowner.

Having that said, under common law, the carrier has an absolute duty to provide a seaworthy
ship to take delivery of the cargo, and the duty of the carrier is done once the ship starts it voyage
in good condition. A case that can be referred to is President of India v West Coast Steamship
Co, where the court held that the carrier should supply a ship in good condition enough to
survive the usual threats on the sea. Therefore, in the given case, Roppa Co has to make sure that
the ship supplied by him is in good condition enough.

On the other hand, Hague-Visby Rule only will be applied when a bill of lading is issued, which
is also what we can see in the given case between Roppa Co and Jerry Ltd. Article IV(6) actually
imposes an absolute duty on the shipper regardless of fault or neglect of their part. An example
case would be Effort shipping Co Ltd v Linden Management SA and Another (1998), where
the court held that the shipper was liable for the damages arising out from having to destroy the
cargo of nuts infested by beetles, which was considered a dangerous good. Another case is
Chandris v Isbrandsten-Moller Co Inc [1951], where the shipowner claimed damages from
the shipper due to the delay caused by the instruction required from the port authorities, and the
shipper claimed that the fact that the shipowner accepted the carriage of the dangerous goods
showed that the shipowner had understood and knew the risk, and waived their right to claims
arising from the carriage, however, the court held that accepting the carriage of the dangerous
goods did not mean that their right to claim damage had been waived, and therefore, the shipper
had to compensate damages to the shipowner. Both of these cases actually show how Article
IV(6) imposes an absolute duty on the shipper, which could happen in the given case between
Roppa Co and Jerry Ltd as a bill of lading is issued as a receipt of the goods.
However, if the carrier failed to ensure the seaworthiness of the ship at the first place, the carrier
would be having difficulty relying on Article IV(6) to obtain compensation from the shipper,
despite the fact that Article IV(6) is in favor of the carrier. An example of case that can be
referred to is Northern Shipping Co v Deutsche Seereederei GmbH [2000], where the ship
sank due to a fire caused by an explosion of an undeclared dangerous cargo on deck, which then
spread to a cargo of isopentane inappropriately stored below deck by the carrier. The court held
that the fact that the cargo of isopentane was stored inappropriately has violated the duty of
carrier to ensure the seaworthiness of the ship, and therefore, the carrier was at fault first, and
cannot accuse the shipper of storing an undeclared cargo, according to Hague-Visby Rules.

Conclusion:

In a nutshell, the shipper under both Common Law and Hague-Visby Rule can be seen as having
to be liable for damages caused by either shipping dangerous goods without any disclosure or
making mistakes transporting dangerous goods. Under Common Law, it requires the carrier to
hold sole responsibilities for ensuring the seaworthiness of the ship, and under Hague-Visby
Rule, ArticleIV(6), it imposes an absolute duty on the shipper, and allows carrier to land the
goods at any place or destroy them without having to liable to apply due diligence.
References:

1. Crump & Co. 2013. TRANSPORTING DANGEROUS GOODS – AN UPDATE.

[ONLINE] Available at:
https://www.skuld.com/Documents/Topics/Cargo/Skuld_Transportation_of_Dangerous_
Goods.pdf?epslanguage=en. [Accessed 19 October 2017].

2. Law And Sea. 2017. Under Common Law, the Hague and the Hague-Visby Rules.
[ONLINE] Available at: http://www.lawandsea.net/COG/COG_Dangerous_Goods.html.
[Accessed 19 October 2017].

3. Shipping law governs the relations and risks and liabilities. 2017. Shipping law governs
the relations and risks and liabilities. [ONLINE] Available at:
https://www.lawteacher.net/free-law-essays/international-law/shipping-law-governs-the-
relations-and-risks-and-liabilities-borne-by-two-main-parties-international-law-
essay.php. [Accessed 19 October 2017].