Update on carriage of gas cylinders - Netherlands court decision
The UK P&I Club's Dutch correspondents, DUPI Netherlands B.V., wish to draw Members' attention to a recent decision of the Council of State (Netherlands)
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Carrier responsible for contents of gas cylinders in a FCL container
In a recent case decided by the Council of State (Netherlands), the Carrier of a full container load of gas cylinders was found in breach of European regulations on fluorinated greenhouse gases and substances that deplete the ozone layer. Consequently the carrier was ordered to destroy the gas cylinders at high costs under threat of a single financial penalty of € 300,000.
By taking care of the carriage of the gas cylinders from China to the Netherlands, it was decided that the Carrier - even when not being the shipper or receiver of the cargo – had performed acts that had led to the regulated substances which deplete the ozone layer entering the customs area. The fact that the Carrier did not know that the gas cylinders contained regulated substances that deplete the ozone layer was irrelevant.
The Council decided that the Carrier should not have simply accepted the product information supplied by the consignor and that as Carrier, he may be expected to conduct investigations when the shipment route for the container was a well-known route for the smuggling of the discovered substances. A relatively simple pressure test in this case could have shown that the gas cylinders contained gases other than as described on the labels.
We therefore recommend that Carriers of gas cylinders on well-known routes for smuggling perform a due diligence check with the shipper and receiver of such cargoes. A possible solution could also be to perform an independent survey or a spot sample check on the cargo before shipment in order to prevent high fines and or costs for mandatory destruction of cargo in Europe.Since the above is a matter of EU law, it is expected that the European Commission will develop policy for the whole of the EU in relation to this decision.”
Equitable Compensation for Failure to Comply with Arbitration Clause; the Owners issued bills of lading (governed by English law) for the cargo which contained a law and jurisdiction clause providing that disputes arising under the bills of lading were to be determined in arbitration in London.
The preparation of cargo holds for the next intended carriage is a critical operation which requires careful planning and execution; this article considers a number of legal issues which may arise, including terms commonly used in charterparties to describe the cleanliness of cargo holds, the consequences of failing to comply with such terms, potentially resulting in off-hire claims and damages, and the role of the independent surveyor.
