hazardous goods at sea: are safe ships and clean seas mutually exclusive? a canadian perspective

For centuries, dangerous cargoes have been transiting the world’s oceans. This article examines how the international community and Canada have dealt with the movement of such cargoes and concludes that over the years both have tended to concentrate upon safety, be it the safety of the vessel, her crew and/or passengers or the cargo itself. With today’s increasing interest in the protection of the marine environment, that focus has tended to shift. How far that shift goes will depend upon how the international community deals with the draft Convention on Liability and Compensation for Damage in Connection with the Carriage of Dangerous Goods by Sea, currently before MO and other international conventions, such as the Law of the Sea Convention.

Simon Barker can be contacted at 19 Stamford Private, Ottawa, Ontario KIT 3J4, Canada. Tel: (613) 594-8000.

This article is based on a research paper completed at Dalhousle Law School under the supervision of Professor Edgar Gold. His advice and the help of many others is gratefully acknowledged.

‘L.H.J. Legault, ‘The freedom of the seas: a licence to pollute?‘, University of Toronto Law JOUfrm/, Vol 21, 1971, pp 21 I-221. ‘Clyde Sanger, Ordering the Oceans, The Making of the Law of the Sea, Zed Books, London, 1986, p 102.

Hazardous goods at sea

Are safe ships and clean seas mutually exclusive? A Canadian perspective

Simon Barker

Much has been written on marine polution over the last two to three

decades. and for a very good reason: for centuries the world’s oceans

have been viewed as the ideal dumping ground, for no matter what is

put into them they have the unceasing ability to bounce back and

regenerate, or so the myth goes. ’ To some dcgrcc this is true; howcver.

recent studies have shown that regeneration takes ;I little longer these

days and the bounce clots not have as much spring as it once did.

Pollution of the marine environment appears in many different forms.

Over the years we have witnessed pollution from land-based sources.

vessels. the atmosphere. radioactive fallout as ;I result of weapons

testing. and through ocean dumping. The oceans are being assaulted

from all angles. It is perhaps the assault from vessels, and in particular

oil, that has stolen the limelight over recent years. Who can forget

pictures from the State of Alaska in MaI-ch I%‘9 after the grounding of

the l!3xorr vrrlric~; or the feeling of helplessness as the A,~~oco Cutliz

drifted aimlessly towards the French coast in March 1978 without the aid

of her steering gear; or the sight of Royal Air Force aircraft overflying

the Toryy c’ru~~wn in March 1967. Tclcvision has brought oil pollution

spills directly into our homes for all to xc. Who can deny not feeling a

touch of anger and frustration at the sight of scabids, otters and other

niarinc nianinials flounder-ing helplessly in sc’as of oil. not to mention

the thousands of man hours and hundreds of thousands of tax dollars

incurrcd in clean-up operations?

llowever, research has shown more than half of all the oil reaching

the SGI comes from land based sources, and not from vessels.’ Despite

this, much of our focus to date has been on oil and the carriage of oil by

sea, largely bccausc of its visability. Yet what of ha,arclous cargoes

other than oil carried by sea’? Other forms of pollution. no less

important. are relcgatcd to backstage because they arc subtler and more

undramatic.

306 0308-597X/92/040306-27 iQ 1992 Butterworth-Heinemann Ltd

Hazardous goods at sm

This paper will concentrate on vessel-source pollution. It will focus upon the carriage of dangerous, hazardous and noxious substances by sea, apart from oil. Nevertheless, to focus on one source of the problem without considering other sources would be wrong. Digressions will therefore occasionally be made as and when warranted.

The carriage of dangerous, hazardous and noxious substances by sea is not a new problem. It is one that has been with us for centuries. The only difference now is that the nature of the cargo has changed. From the days of Nelson, gun powder has been a dangerous cargo. Residents of Halifax, Nova Scotia will appreciate the dangerous nature of explosives in recalling the collision on the morning of 6 December 1917 between the Motet Blanc and the Imo when a cargo of TNT caused extensive property damage, some 9 000 injuries and some 2 000 deaths.3 Today, the product, be it a hydrocarbon, a highly toxic weed killer or radioactive waste, is perhaps more dangerous. For instance 67 years later, on I.3 January 1984 the cargo vessel Dmu Optima sailed from Newcastle-upon-Tyne, the UK, on a regular voyage to Denmark. During the course of the voyage the vessel encountered force I2 storms which resulted in a number of containers/trailers stored on deck being swept overboard. Amongst those lost were 80 drums containing a highly toxic weed killer, Dinoseb. Exhaustive searches by the Dutch and Danish governments failed to locate the drums, and it was not until 27 March 1984 that the first drum was discovered - in a fishing net. Other drums were subsequently found and by 14 May 1984 71 drums had been retrieved intact: nine remain in the sea.’ The problem has been further complicated by the fact that the volume of dangerous cargoes transiting the world’s oceans has increased lo-fold. New technology in packaging, carrying vessels and even the product itself, combined with an increase in the consumer demand for synthetic products has meant more and more dangerous cargoes are found traversing the globe.

The story of the Dutw Optimu illustrates some interesting points. Dangerous goods are carried on board vessels, invariably on deck. The shipping industry will tell you the reason for this practice is to protect both the ship and crew: it is better to lose such cargoes overboard in times of distress than risk losing the ship, her crew or both. However, as far as the environment is concerned. the fact that the lost cargo consisted of 80 drums and not a full tanker does not make the cargo any less hazardous. In fact, a small amount of Dinoscb or similarly toxic substances may be just as hazardous, at times even more hazardous, than a full tanker of oil. Thankfully, the incident involving the Dutza

Optimu ended without serious damage to the ship. her crew or even the environment. However, the potential for disaster was great, perhaps greater than that experienced in Halifax in 1917.

A recent Canadian report into the subject of marine pollution concluded that over 340 known chemical spills occur in Canadian waters every year and that the environmental and health hazards they pose are largely unknown. In the same report the US Coastguard was reported as saying that chemical spill cleanup may be five times as lengthy and up to ten times as costly as the cleanup of an equivalent volume of oil.’ The report’s comments and the tale of the Datzu Optima suggest that this area of vessel-source pollution warrants attention. The focus of this paper is to ascertain to what extent the international community and Canada in particular have addressed this problem to date. Has the law been able to keep pace with technology; has the international and

“Edgar Gold, Canadian Admiralty Law, In- troductory Materials, Dalhousie University, Halifax, Canada, 1990, p W-7. “K.A. Gourlav, Poisoners of the Sea, Zed Books Londdn, 1988, p 137. “Public Review Panel on Tanker Safetv and Marine Spills Response Capability, ‘Protecting our waters’, Final Report, Minister of Supply and Services, Canada, 1990.

MARINE POLICY July 1992 307

Canadian response been :idequ:ite: is there more the internationzrl

community or Canada could or should bc doing’?

The international regime

Water knows no hounds. ;~nd ;IS ;I result shipping tends to bc ;I global industry not restricted by jurisdictional tics in the s:rnie way ;IS I;ind-

based industries. The ownershipiopcration of the Torry~~ (‘w~~~~rr illus-

trates this well. In 1967 the Tomy Cut~yo/l MYIS ;I ircl:ltively new 67 000

ton t:unker owned by ;I Bermuda-register~~l company which in turn was ;I subsidiary of ;I US oil company. -The vessel ~;IS registered in Monl-oviil.

flew the Liberian flag and wxs crcwcd by It:rliirns. At the time the vcs\cI grounded upon the Seven Stones, between (‘ornwall and the Stilly Isles. she was on charter to ;I UK Company and WIS cat-rying ;I c:rrgo of oil

from the Persiirn Gulf to South WLIIC’~.” Such globA diversity tends to be

the norm in the shipping industry r:rther th:tn the exception. :ind thu\ ;I

regulatory system which is intcrnation:rl in fl;lvour rather th;ln nation:tl

tends to he favoured.

States ha\/e been known to ;ict unilatcrxlly when consider-ing pollution

prevention, hut when they do it is usu:rlly in relation to ;I particular

problem :rnd a particular locale.’ The m:tjoi-ity of St:ites h:tve tended to concentrate their focus :lnd efforts through the internatiomtl commun-

ity, and in px-ticulnr \uch organizations ;IS the International Maritime

Orgnnization (IMO) :~ncl the LJnitcd Nation\ (UN). Convcntionx hirve been held under the :tuspices of both bodies which hate created rules ol international law binding upon the States parties to them. It is then left

to the governments of Ihose States to implenicnt the terms of the

conventions through n:ltiomll legisl;rtion. Given the global nature of shipping. the international approach. hc it

multilateral, regional or e\‘en bilateral. is the correct one. Action h\s the

international community tends to be ;I t-e4pon4c to national demands. It ;I particular problem is pcrccived x ;I n:rtion:rl problem in respect to

shipping it will probably be pcrccived :IS an internntional problem given

the nature of the busincx. Whereas. it’ ;I p;trticul:tr pr-oblcm i\ not

perceived xi ;i national px~bleni. it bvill rarely be pcrccivcd ;IS ;in intcrnationnl one. ‘I‘his, the writer would contend. has hccn the problem

besetting the carriage of dangerous goods b! se21 for :I number of yc;11-\. Marine oil pollution has been rccognizcd over the yc;lrs ;IS ;I n:ttion;il

problem by various flag and coastal Stittes uarr;rnting internatiomrl

;ittention. while dangerous goods h:~\,c only rcccntly been \ccn ;IS ;I national problem and thus have only recently w;Irr;lnted intern;itional

focus.

International conventions cicaling with the carriage of d:tngerous

goods by sea may be subdivided into thi-ee bro~id c:rtegorics for the

purposes of discussion:

‘For a full account of the demise of the Torrey Canyon in March 1967, see G.W

(1) those focusing upon pollution end its prevention. reduction and

Keeton, ‘The lessons of the Torrey Can- control: yon: English law aspects’, Curreni Legal Problems, 21, 1968, pp 94-l 12.

(2) those focusing upon the safety xpects of such carri:qe; and

7Canada took such a move in 1970 in (3) those focusing upon issues of liability ;ind compensation - ‘the

relation to the Arctic when it enacted the tools of social engineering’.” Arctic Waters Pollution Prevention Act, RSC. 1985. c A-12. Whilst subdividing these arex for the purpose of discussion, it should be c . . ‘E.D. Brown, ‘The lessons of the Torrey and it would therctorc bc Canyon: international law aspects’, Cur-

appreciated that AI three arc linked.

rent Legal Problems, 21,1968, pp 113 and impossible to mention one without reference to the others. ?The

116. subdivisions ;Irc the author’s own.

308 MARINE POLICY July 1992

Huzardous goods ut sea

International conventions dealing with the carriage of dangerous goods by sea, focusing upon pollution of the marine environment

Various international conventions were convened prior to 1973 to discuss the subject of marine pollution, but all unfortunately focused upon the subject of oil.” However, by 1972 the international community was beginning to realize that oil was not the only pollutant that was causing problems to the world’s oceans. In June 1972 at the UN Conference on the Human Environment in Stockholm it was declared

that:

States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, damage amenities or to interfere with other legitimate users of the sea. “’

This gradual realization that oil was not the lone enemy continued in 1973, with the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL).” MARPOL’s aim was to control all forms of international pollution of the world’s oceans from vessels, other than by dumping. Ocean dumping was considered by the international community a year earlier in 1972 in London and was the subject of a separate convention.” MARPOL’s difference was that it proposed to address the majority of pollutants entering the marine environment while not focusing solely on oil. MARPOL adopted a definition for ‘harmful substances’ similar to that contained in the Stockholm Declara- tion. The Convention is split into five annexes covering topics such as oil, noxious liquid substances in bulk (chemicals), harmful substances carried in packaged form or in containers, sewage and garbage. For the purposes of this paper. Annexes II and III of MARPOL are relevant.

Annex 11, that dealing with noxious liquid substances in bulk,

contains specific requirements for the discharge of such substances into either port reception facilities or into the sea itself. Discharge into the

sea must meet certain conditions, and discharges into the Baltic and Black Seas, designated by MARPOL as ‘specific areas’ are prohibited. The annex lists various substances divided into four categories according to the threat they pose to the resources/amenities of the marine environment and human health. The annex also considers design and construction of vessels and the use of cargo record books.

Annex III, that dealing with harmful substances carried in packaged

form, concerns movements by freight container, portable tank and road/rail tank wagons. The annex addresses such safety issues as prohibitions, packaging, empty receptacles, marking, labelling, stowage, quantity limits, documentation and notification to port authorities. One criticism of Annex III has been that it is too general, preferring instead to leave the specifics to other regulations such as the Interna- tional Maritime Dangerous Goods Code (IMDG Code).”

MARPOL, like all ‘package’ conventions, was a compromise. No one

State received all that it wished for but each participating State obtained something. Coastal States obtained effective new anti-pollution measures: maritime trading nations found themselves with better, safer and more modern operating requirements; while IMO found its position strengthened as MARPOL became the centerpiece of the organization’s ‘safe ships and clean seas’ principle. Unfortunately, it was not all plain sailing for MARPOL, as Annexes II to V proved a stumbling block to adoption of the convention. Many States simply did not have the

“International Convention for the Preven- tlon of Pollution of the Sea by Oil, 1954, and the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution, 1969. “11 ILM 416 (1972). “For a comprehensive analysis of MAR- POL, see Edgar Gold, Handbook on Marine Pollution, Assuranceforeningen Gard, Norway, 1985, p 58. For the full text of MARPOL 73 see 12 ILM 1319 (1973). ‘“International Convention on the‘ Dump- ing of Wastes at Sea, 1972 (London Dumping Convention), 11 ILM 1291 (1973). ‘%e Times Aflas of the Oceans, Times Books, London, 1983, p 244.


‘“J. Guy, ‘Clean seas or complex rules?‘, fairplay, 20 April 1989, p 15. “/bid. ‘“28 ILM 649 (1989). ‘7Simllar Issues were raised In 1984 by the Organization for Economic Co-oper&on and Develooment - see OECD Council Decision anb Recommendation on Trans- frontier Movement of Hazardous Wastes, 23 ILM 214 (1984). “Edgar Gold, ‘Dangerous hazardous and noxious cargoes: a new role for maritime arbitration?‘, Marine Policy, Vol 14, No 5. September 1990, pp 378-384. lgGunther Handl, ‘The 1989 Base1 Con- ventton on the Transboundary Movement of Hazardous Waste: a preliminary assessment’, paper presented to the Annual Meeting of the Canadian Council on International Law, 1989, Conference, p 367. “Criticism by Greenpeace, quoted by Mary A. Gade, ‘Exporting trouble, the case for a total US ban on hazardous waste exports’, paper presented to the Annual Meeting of the Canadian Council on Inter- national Law, 1989 Conference, p 324

technology to comply with thcsc annexes. The irony i\ that for once

technology was out of step with the la\v. To overcome sonic of the

difficulties, IMO adopted ;I protocol to MARPOL in 1975. in which ;I

tiered introduction to the convention was pr~q>scd. Annex I. that

dealing with oil, had to bc accepted; Annex II. that dealing with bulk

chemicals, had its entry into force delayed to allow St:rtes more time to

overcome some of the perceived technological difficulties: hvhile

Annexes 111 to V became optional. To tlatc, mos;t of MARPOL i$ in

force and is becoming increasingly familiar. Sadly. Anticx II has 1101

been uniformly applied, as many countries still lack adequate reception

facilities; Annex III has lost some of its ‘punch’ to the IMDG Code: and

Annex IV remains unratified. t’

One area not considered by MARPOL was pollution by dry toxic

cargoes carried in bulk. It has been conceded that there art’ tcu such

cargoes, but nevertheless the gap i\ apparent, has been recognized 1~~.

the international community, and is prcscntly being considered as an addition to MARPOI_ (Annex VI) by IMO.” The catalyst for such

discussions was the Bnsel Convention on the C’ontrol of ~I’ranshoLtnd~try

Movements of Hatrdous Wastes and their Disposal. IOSC). I” The B:rscl

Convention took place under the \v;ttchf‘uI cyc of the united Nation\ Environment Programme (UNEP). the same body which ovcrh;tw the

‘Regional Seas Programmc (referred to below).

While MARPOL is aimed at controlling various forms of pollution

from ships, the Besel Cnnvcntion attempts to regulatci~tllocat~ responsi-

bility for the transboundary movement of ha/artlous \vastcs bctwcen the

various States involved, bc they import or export.

The subject of hazardous waste. like that of mat-ine pollution, is not

llC!W, and the re:tdcr will recall rcccnt CIISCS. such as the repatriation b\,

Italy of w:tstes carried on the FR German freighter KrrrV/l B. waste that

had initially been dumped in Nigeria. and the repatriation of ;i cargo of

PCBs by C;tn:tda, after British stevedores refused to unload the cargo at

;I UK port. The B:tscl Convention is very much ;I political document. It regulates

trade and pits domestic issues such ;IS so\ ercignty against international issues such as protection of the developing world, relationships bctwcen

States and protection of the environment. It recognizes that various

States generate substantial amounts of ha/artlous waste, that such

wastes are subject to transhound~try movcmcnts. that \uch movcmcnts

are justifiable in the search for efficient and environmentally 4ound

management techniques, that States ha\r ;I sovereign right to tnanagc

hazardous wastes within their own jurisdictions and that such tt-an\-

boundary movements have serious implications for the protection of our

environnicnt. ” The Basel Convention has received ;I mixed response. It has been

termed ‘;I remarkable new environmental instrument which should be

closely studicd by all in the shipping industry’:‘” ;I compromise docu-

ment that reflects the wide divcrgcnce of national pcrspecti\,es on the

transboundary movement of hazardous \v;tstc:t” ;I convention which

‘will do more to institutionalize the waste trade than it will to prevent it’:~ll and ;I first step in the right direction. Nevertheless, the Bawl

Convention is ;I welcome addition in the fight to S;IV~ the cnvirontncnt from the ravages of marine pollution. The convention has the potential

to rcducc the movement of hazardous waste on the world’s OCC;IIIS. or at

least to regulate them. It also adds anothet- small piece to the jigsaw

MARINE POLICY July 1992

Huzurdous goods ul SPU

puzzle of the international conventions on the subject as it dovetails MARPOL, the London Dumping Convention,” and various regional

agreements by virtue of Article Il. The convention is. however, by no means perfect and requires further work. Its definitions are loose, and it has deferred the subject of liability and compensation for damage caused by transboundary movements to a later date.?’

No discussion would be complete if mention were not made of the Third United Nations Conference on the Law of the Sea (UNCLOS

III), and the subsequent Law of the Sea Convention (LOS Convention)‘3 which opened for signature in Montego Bay, Jamaica on 10 December 1982. The LOS Convention represents years of discussion into every aspect of the world’s oceans. and has been regarded as ‘the most far-reaching agreement on the peace-time conduct of nations ever

attempted’.” Like MARPOL, the LOS Convention was a ‘compromise’ document. It encompassed so many different aspects of the oceans that States invariably found themselves bargaining between those aspects considered vital to the State’s interest and those that were felt to bc negotiable. In this respect, the LOS Convention was very much a political document. To date, the LOS Convention is not in force, primarily because of disagreement over Part XI, that dealing with deep sea-bed mining, and the world thus finds itself in a transitional period between the old oceans regime based upon the Geneva Conventions on the Law of the Sea of 1958, international customary law and the new regime based upon the LOS Convention.

Despite the setback. the provisions of the LOS Convention. other than Part XI, arc strong and felt to be enforceable in the world community as part of international customary law. The old regime based upon the Geneva Conventions does not directly address the subject of marine pollution, although occasional references arc made to oil pollution. The LOS Convention’s approach to marine pollution is more comprehensive. Part XII of the Convention deals with the ‘protection and preservation of the marine environment’, and Article 192 stipulates that ‘states have the obligation to protect and preserve the marine environment’. All sources of marine pollution are dealt with, not just oil pollution, and this fact in itself is to be welcomed. Part XII considers pollution from land-based sources, vessels. sea-bed activities both within and outside areas of national jurisdiction, from or through the atmosphere and by dumping. In contrast to MARPOL, the LOS Convention does not differentiate between vessel-source pollutants. Oil and other harmful substances are viewed as one, all worthy of attention by the world community.

Article 192 of the LOS Convention advocates cooperation by States on a global or regional basis. The suggestion is that marine pollution is an international problem. and should be approached as such. Unilateral

acts by States in this field have limited effect. The article refers to ‘competent international organizations’ as a means to further such global, regional cooperation, and in so doing supports efforts by IMO and similar organizations. Article 197 envisages conventions such as MARPOL, Base1 and the various regional agreements negotiated under the UNEP Regional Seas Programme (discussed below). It is in this light that the LOS Convention is viewed by some as the cornerstone in the future regulation of the world’s oceans.

All three of the international conventions discussed up to this point provide a very effective base when considering the fight against pollu-

“Op tit, Ref 12. “Liability and compensation is a topic treated separately and discussed below. “3The Law of the Sea. Official text of the United Nations Convention on the Law of the Sea, United Nations, New York, 1983. %omment by the New Yorker, quoted by Clyde Sanger, op tit, Ref 2.


tion of the world’s oceans. Sadly, neither Hascl nor the LOS Convention are in effect to date, and MARPOL has only limited application on ;I

global basis. More successful in combating the threat of pollution have been

various regional agreements under the auspices of the UNEP Regional

Seas Programme. While focus at the international Icvcl has tended to concentrate on oil and the threat of oil. these regional agreements have focused on all harmful substances entering the m:lrine environment.

Regional agreements have allowed the international community to

focus upon particular problems associatccl with particular locales. One

of the criticisms levelled at global agrccmcnts is that such agreements

tend to be too general in focus. They offer skclcton framework\ which

provide a barest of minimums. This criticism is gcnuinc :~nd can bc

avoided by regional agreements which focus ~ipoii a p;irticular arca of

concern; they have the flexibility to a&i a little flesh 10 the skeleton.

In lY74. representatives from the \,arious States bordering the Baltic

Sea met in Helsinki to discuss the ‘Baltic Sea Area’, it% environment

and. among other things. the introduction into the arca of various hazardous substances. It should be noted that, while meeting all the

criteria of the UNEP Programmc. the agrcenient fell outside the

programtnc’s scope. and the Baltic has not been cleaignated ;I I;NEP

Regional Sea.

Areas that do cc>tne within the amhit of the progt-amme include the

Mediterranean. Persian Gulf, West and Central Africa, the South

Pacific, the Red Sea and the Crulf of A&n. the C’arihhean, East Africa,

the South-west Atlantic and the South Asian Seas. Each of thcsc

regional agrccmcnts focuses upon prohlctns particular to the ai-ca, and

as such can be more specific than COLIIC~ ;I simil:rr global crgreemcnt,

Some regions have been successful in their ende;lvours. others have not.

To date, the Mcditcrrancun aerccmcnt i\ an cxwlple of how successful

;I regional action plan can he,” while the Persian Gull agrccmcnt is in

tatters at the moment as ;I result of the Gulf War-.

Chemicals, and othcl- similat- hazardou\ substances, are dangerous 17)

virtue of their properties. This inherent danger GILISC~ problem\ not

only for the marine environment but also for the ship and crew who

transport the commodity from Point A to Point B. CoupIcd with this

inherent danger is the fact th:lt todiry ;~n inci-c;Isin, 0 number of chcniic;ils

are transported :rround the globe 1~): modes of transport that can

include. but are not limited to, XXI movements. This increase in the

modes of transportation has caused the internation;d communit) to

consider laws and regulations which to \cjme extent harmoni_x these

various modes. %arcelona Convention for the Protection of the Mediterranean Against Pollution,

Such issues were considered at :I number of inttzrnatiotxd conventions

1976. For a discussion of this convention over the wursc of the 31th century. notably those concerning the safety

and the other regional agreements men- of lift at sea (SOLAS Conventions).‘” Eat-ly SOLAS conventions. in tioned, see op tit, Ref 11, p 41 and op tit, Ref 13, pp 244 and 245.

pnrticular those in IYlJ and IYZY, conccntratcd on the danger the

““For a more detailed discussion of this carriage of dangerous goods nosed to the safety of the ship, its crew ancl

area of international law. see C.E. Henrv. nassenpers. Carriage of such carpoes was pertnitted so lone as various The Carriage of Dangerous Goods by Sea: The Role of the International Maritime Organization in International Leqislation,

1

precautions wet-c taken.

cargoes could have on

Ncithcr convention considered the effect such

the marine environment. While international

St-Martin’s Press, New York, 1985. awareness increased somewhat after the second world war, the focus


“‘Op tit, Ref 11. “‘The class structure adopted by the IMDG Code is identical to that adopted in Chap- ter VII. SOLAS 1960.

continued to concentrate on the ship and crew. SOLAS 194X recognized

a need for international uniformity in safety precautions and recommended that a marking system be developed using distinctive colours and symbols which would indicate the kind of danger prcscntcd by various cargoes. SOLAS lY60 specifically addressed the subject of

dangerous goods in Chapter VII of the convention. Chapter VII applied to all ships of 500 gross registered tons (grtj and above, engaged in international voyage, and covered ship’s stores and equipment or particular cargoes transported in ships specifically built for or converted for the purpose of carrying dangerous goods, such as tankers. Like previous SOLAS Conventions, the carriage of dangerous goods was prohibited except in accordance with the convention. The focus was again on the safety of the ship and crew. Chapter VII divided the various types of dangerous goods into nine classes as follows:

Class 1. Class 2. Class 3. Class 3.

Class 5.

Class 6.

Class 7. Class 8.

Class 9.

Explosives

Gases; compressed, liquefied or dissolved under pressure

Inflammable liquids

(a) Inflammable solids

(b) Inflammable solids or substances which are liable to apontaneous-

ly combust

(c) Inflammabk solids which emit inflammable gases when they come

into contact with water

(a) Oxydizing substances

(b) Organic Peroxides

(a) Poisonous (toxic) substances

(b) Infectious substances

Radioactive substances

Corrosives

Miscellaneous dangerous substances

This last class was seen as a ‘catch-all’ provision. The class was intended to apply to any substances which did not fit into any of the preceding classes.

Other provisions in Chapter VII dealt with packaging, lahelling, marking, documentary and stowage requirements. and the carriage of explosives on board passenger ships (Annex III of MARPOL” discussed similar issues). The convention applied to both dangerous goods carried in bulk and those carried in packaged form.

Resolution 56 of the convention. intended as a supplement to Chapter

VII, recommended that governments partics to the convention should adopt a uniform international code for the carriage of dangerous goods by sea. Special attention was to be paid to the classification. description and labelling of the various dangerous goods and to the shipping documents required for such carriage. The code was also to take into account further issues of packaging, packing. container traffic. stowage and the segregation of incompatible substances. Such a code was adopted by the international community in lY65, and is commonly referred to as the International Maritime Dangerous Goods Code (IMDG Code). The code, published by IMO, is designed to assist States in complying with Chapter VII of SOLAS lY60, and as such incorpo- rates a very flexible procedure for amending the standards incorporated in the various classes of substances.‘” This flexible approach is felt to be essential by supporters of the code as it permits the code to keep abreast of developments in a field which is constantly changing in light of new technologies.


“Marine Pollution Bullelin, Vol 20, No 5, May 1989, p 252. 301AEA, Maritime Carriage of Nuclear Materials: Proceedings of a Syfnposium in Stockholm, l&22 June 1972, IAEA, Vien- na, 1973. 3’Op dt, Ref 19, p 381. 320p tit, Ref 31, p 252. 33For a more detailed discussion of the IMDG Code, see op tit, Ref 28.

The code was consolidated in 1977. incorporating the nine classes ot

dangerous goods in a four-volume loose-leaf edition. which is presently being updated by IMO.‘U The code. at last count, included some 10 000 pages of advice relating to issues of packing, stowage, marking, lahelling, segregation, handling and documentation. The code also devotes space to various details about each known substance according to its class grouping.

Class 7 of the IMDG Code deals with radioactive substances. This class supplements regulations developed under the auspices of the International Atomic Energy Agency (IAEA) for the Safe Transport of Radioactive Materials, 1973. As a general rule, radioactive materials have been treated quite separately from other dangerous goods. ah a result of their unique character and the fact that the IAEA has a jealous monopoly over such goods.“’

The IMDG Code has been termed *the most comprchcnsivc intcrna- tional code relating to all aspects of the sea transportation of dangerous goods in existence today’“’ and as a result the shipping industry has been quick to note its benefits. It should be noted. however, that while the IMDG Code supplements SOLAS, th e code dots not form part of the convention and as such does not possess its legal force. The code remains a mere recommendation, to bc adopted or refused by States as they wish. This fact has both critics and supporter\. Critics wo~~lcl say that ;I mere recommendation places the initiative with individual States and the industry itself which have the option to adopt or refuse the code

as they choose; such decisions being subject to the usual restraints of business, dollars, etc. Supporters of the code point out that the mcrc spcctre of the law has a tendency to escrcisc ;I pnralysing effect and that

making the code mandatory may impair its flexibility to keep lx~cc with technology.

Indeed, in its present recommendatory form the IMDG Code has been adopted by some 37 States worldwide. Those statcs adopting the code represent most of the players in the +ipping busincsa, and include traditional maritime nations. flag of convenience States. developing countries and cvcn land-locked Statcs. Each State appears to have adopted the Code because it represents ;I practical and readily accessible source of information. It aids business. Howcvcr. the IMDG Code is bq no means perfect, and IMO has spent the last five to six years revising it.“’ IMO’s revisions to the code tend to shift the needle on the spectrum slightly from safety towards pollution prcvcntion. The aim of the present IMDG Code is to reduce the dangers on board the ship produced by the carriage of dangerous goods. The new rules. while maintaining that aim. also address the subject of pollution pre\,ention in the cvcnt of an accident: ;I welcome addition. The revised code is

expected to enter into force late in IFQ.” Chapter VII of SOLAS I%0 was replaced by Chapter VII of SOLAS

1974. The replacement WIS in name only. ZIS the sulxt~lIlce of the

provisions in the chapter remained virtually unchanged. SOLAS 1974 did however include provisions in respect of precautions felt necessary because of the presence of incompatible cargoes. SOLAS 197-1 also took note of the fact that the carriage of dangerous goods was not solely

confined to movements by sea, and strcsscd the need therefore 01 ensuring the safe transport of dangerous goods through the unification of rules governing carriage, stowage and handling by ~11 modes of

transport.


Hazardous goods al sea

The concept of multi-modal transport pivots around the ‘container’. It has been recognized by the international community that containers provide an ideal haven for the movement of dangerous, hazardous and noxious substances in packaged form and that such havens have the potential to cause serious safety and pollution problems. Thus, at the Convention for Safe Containers, 1972’” the international community discussed how containers were constructed and packed. and guidelines were established for such. The better the construction and the safer the packing, the less chance there was for a problem at any stage of the container’s movement. Although pollution was mentioned, the convention focused primarily on the safety of the ship and crew.

A number of other international conventions have touched upon the subject of dangerous goods while focusing upon safety aspects of the shipping industry as a whole, and in this respect have only an indirect application for our purposes. Such conventions include the lnternation- al Convention on Load-Lines 1966, the Convention on the International Regulations for Preventing Collisions at Sea, 1972 and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978.35 All three conventions consider. respectively, issues of overloading, a desire to keep vessels apart while they transit the oceans, and the human element of the industry which is so often criticized. All three seek to raise shipping standards. and thus reduce and prevent pollutants, including dangerous goods, from entering the world’s oceans.

The IMDG Code is not the only recommendatory code the international community has issued over the years in respect of dangerous goods. Other such codes include the International Code for the Con- struction and Equipment of Ships carrying Dangerous Chemicals in Bulk, the International Code for the Construction and Equipment of Ships carrying Liquefied Gases in Bulk? Recommendations on the Safe Transport, Handling and Storage of Dangerous Substances in Port Areas. Emergency Procedures for Ships carrying Dangerous Goods, Recommendations on the Safe Use of Pesticides in Ships and a Manual on Chemical Pollution. In conjunction with the World Health Organiza- tion (WHO) and the International Labour Organization (ILO), IMO has issued a Medical First Aid Guide for Use in Accidents involving Dangerous Goods, and in conjunction with ILO, IMO has also issued Guidelines for Training in the Loading of Cargo in Freight Containers. As the names suggest, the majority of the above codes are concerned with safety of the ship, its crew or passengers and not with the marine environment.

While the above conventions/recommendatory codes focus upon the safety aspects of the marine venture, it should not be forgotten that these conventions/codes also have an indirect effect on pollution

,‘40p tit, Ref 11, p 50. prevention. The safer the venture, the less likely that accidents will

.‘5For a further discussion of these three occur; if accidents are less likely to occur, the likelihood of pollution is

conventions, see ibid, p. 49-50. reduced. The same can be said of those conventions focusing upon “6Both the International Code for the Con- pollution prevention. Pollution prevention, reduction or control can be struction and Equipment of Ships carrying Dangerous Chemicals in Bulk, and the

achieved through improving standards, thus making the venture safer.

International Code for the Construction As a result, conventions such as MARPOL encompass both safety and and Equipment of Ships carrying Liquefied pollution prevention, both aspects being inter-related. This inter- Gases in Bulk have recently been given treaty effect through an amendment to

relationship is perhaps best epitomized in the IMO principle ‘safe ships

SOLAS, and are thus no longer recom- and clean seas’. mendatory (op tit, Ref 18, p 381). Traditionally, the carriage of dangerous goods by sea has been a


37For a discusslon of the Canadian approach to carriage of goods, see op at, Ref 3, p IX-l, and for a discussion of the British approach see British Shipping Laws, Vols 2 & 3; Raoul Colinvaux, ed, Carver’s Carriage By Sea, 13th ed. Stevens, London, 1982. 380p tit, Ref 3, p ix 26. 39Martin Dockrav. Cases and Materials on the Carriage of goods by Sea, Profession- al Books, Abingdon, Oxon, UK, 1987, p 769. %elevant article In both the Hague and Hague-Visby Rules is Article IV, 6. “‘Op tit, Ref 39, p 779. @Op at, Ref 26, p 99.

private law issue between two parties: ii carrier who under-take5 to

transport the goods from Point A to Point B. and ;I shipper who

provides the goods to be transported.” However. given the global

nature of the shipping industry, the international community has. OWI-

the years, become involved in the private law relationship between

carrier and shipper.

In 1X4 an International Convcnlion for the Unification of Curtain

Rules relating to Bills of Lading, commonly referred to as the Hague

Rules, was signed by various maritime countries in Brussels.‘” Dissatis-

faction with the Hague Rules led to various amcnciments in Ic)hti.

commonly referred to as the Hague-Visby Kulcs. Unfortunntcly. these

:imendments failed to silence all of the critics, anti further amcnclmcnts

wet-e proposed in 1978 at the United Nations Convention on fhc

Carriage of C~oods by Scn. commonly refel-red to as the Hamburg

Rules.” To date. both the Hague anti the HagueVish), Rules arc in

force. whereas the I lamhurg Rules arc not,

The Plague-Vishy amendments did not alter the Hague provisions

relating to the carriage of dangerous g~~ds.~” The 1 laguc Rules do not

define dangerous goods. they merely refer- to goods of an int’l~~mmahle.

cxplosivc or dmgerous n:lture. The ~acncc of the rule is that goods of ;I

dangerous nature should not he loaclcd on hoard without the carrier’s

knowledge as to the nature and charactcr of the goods. If they >IK!, the

shipper is to hc liable for all damages and uspcnscs directly or indirecti>

arising out or resulting from such shipments. Such ;I provision \o~~nds

promising for the ship. its crew and the environment. Coupled with this

provision is one that allows the carrier to clispo\e of the clangerou4 goods

it’ they have txxn shipped without his knowledge or, it’ shipped with hi\

knowledge, they pose a danger to the ship oi- cargo dur-ing the \‘~~yapc.

‘Dispose of’ within the provision of the article contemplates loading the

goods at any place heforc tlischai-gc. destruction or rendering them

innocuous. One wonders if jcttisuninf them o\~erhoard into the marine

cnvironmcnt fits into the fir41 category’! Again. in an indirect way. the

safety of the venture COIIIL’S to the t’orefront.

Article I3 of the Hamburg Rules rcl’ers to dangerous goocls. The

article. although worded differently from that in the Hague Rules, hears

;I strong similarity to the earlier I-LII~. Hamburg, like Hague, provides no

definition of dangerous goods. merely stipulating that ‘the shippt‘r must

make or label in ;I suitable manner clangcrous goods ;IS dangcro~~s’.~’

The rules continue to insist that the prcscncc of dangerous goods hc

brought to the carrier’s attention. and it’ not tlonc the shipper is liable

for any damage I-esulting therefrom. In allowing the cari-icl- to clisposc ol

such goods hefore discharge. Hamburg goes one step further Ihan

I laguc. Whel-c ;I carrier has knowledge of the goods. he may dispcx 01

them during the voyage whet-e they post ‘an actual clangcr to lift or

property .‘, Hamburg has incluclcd the \vord ‘lift‘, tipping the

halance again toward5 the safety of the \‘enturc and in particular. the

safety of the crew oi- lxissengcrs. Sadly. the environment is conspicuous

by its absence in the test.

One criticism of these conventions is that they provide no definition

of dangerous goods. and it has heen suggested that Hamburg should at

least have made some reference to the IMDG C’~cie.~’

Article 13 of the Hamburg Rules was r-estuted virtually verbatim :rt

the United Nations Convention on International Multimodal Transport

of Goods, IWO, Article 2.3; the only difference was that the term


Huzurdous goods ut srcr

‘shipper’ was replaced by the word ‘consignor’. Article K of the

convention also stipulated that the shipping documents should contain an express statement as to the dangerous character of the goods, similar to Article 15 of the Hamburg Rules.

The various international conventions/recommendatory codes of practice discussed so far have tended to concentrate upon the safety aspects of the venture and a desire not to pollute the marine environment. They are therefore preventive measures. However, accidents occur, and in the shipping industry seem to do so with alarming regularity. Names such as Torrey Clrr~yor~. Amoco Cadiz, Epic Colocot-

rotzi,s, Khurg V and Exxorz Vuldez, to name but a few, trip off the tongue. Hazardous substances, including oil. have been known to enter the world’s oceans despite the various preventative measures discussed above. As a result, the international community has had to consider the subjects of liability and compensation over the years. These discussions

over the ‘tools of social engineering“” are particularly relevant when considering the carriage of dangerous goods by sea.

Itttertzatiot~al cotlvention,s dealing wih he curriuge of datlgerous goods

by seu, focusing 011 issues of liability mtid competisurion

Issues of liability and redress for damage caused by marine pollution, have over the years been best left to individual States, rather than to the international community as a whole. Incidents occurring within the bounds of a particular state are best dealt with by the legal system of that State. Problems however, arise in that shipping is not a national industry, it is an international industry spanning the globe.

The demise of the Torrq Canyon in 1967 and the Amoco Cudiz in 1978 illustrate this point well. The Torrey Canyon grounded outside UK waters. The resultant pollution damage occurred to both the British and French coasts. As mentioned above, the vessel itself was a myriad of Bermudian, US, Liberian, Italian and UK interests.” The Amoco

Cadiz, like the Torrey Catlrotl, was owned by a US company, flagged by Liberia and crewed by Italians. The vessel grounded inside French waters, its cargo damaging the French coast.J’ In both cases, the question arose - in which jurisdiction should the aggrieved parties sue‘? In the case of the Torrey Catzyott. the UK was felt to be the appropriate forum, while in the case of the Amoco Cadiz the USA was chosen. The choice of forum is not a decision that can be taken lightly nor quickly. The choice is determined by both the legal issues and procedural issues involved.

‘%p tit, Ref 8. 440p tit, Ref 6. “‘For the legal analysis of the demise of

calculated; what price do-you attribute to a dead seabird. or to a stretch

the Amoco Cadiz, see [1984] 2 Lloyds Law of coastline such as Long Beach on the west coast of Vancouver Island,

Reports 304. For a ‘readable’ account of British Columbia?

When considering the legal issues involved. the question of fault arises: whose fault was the accident - the shipowners, the shipbuilders or the vessel’s designer? Is the tort of negligence the proper basis to found the action? What about the tort of nuisance? Was the damage suffered by the aggrieved parties foreseeable? Sadly, the issues do not end here. Other questions raise the issue of identification, such as who may sue; can damages be confined to physical damage, or can they extend to further include pm-c economic loss; how are the damages to be

the’accident, see Rudolph Chelminski, Su- perwreck: Amoco Cadiz: The Shipwreck

Procedural issues can be equally as complex. One of the most

that had to happen, William Morrow, New valuable procedural rights given to aggrieved parties in Admiralty law is York, 1987. the ability to proceed against the ship by an action ‘in rem’: the ability to


‘YJntil 1 February, 1992 no such right of ‘sister-ship’ arrest existed in Canada. Changes to the Federal Court Act R.S.C. 1985 c.F-7 now allow the Federal Court to exercise its jurisdiction against ‘any ship that at the time the action is brought is beneficially owned by the person who is the owner of the ship that is the subject of the action’ (Section 43 (8)). 47Harold A. Turner, (Enc V.C. Alexander, ed) The Principles of Marine Insurance, 7ed, Stone & Cox, London, 1986, p 95. 48See Fanti and Padre /s/and [1990] 2 AIIER 705 (H.L.). @See op tit, Ref 3, W-65. “The rule has had varied application in jurisdictions throughout the world. In Cana- da, In recent years, the rule has been restricted somewhat (The Jervis Crown, unreoorted Decision. Federal Ct Trial Divi- sion, 14 April 1989, Action #T-551-88), or rather was until the Supreme Court of Canada rendered iudqement on 20 De- cember 1990 in the c&e of Whitbread v. Wallev 119901 3 SCR 1273. 77 DLR (4th) 25. fhi case has injected some flesh interest and support for the rule in Canada by the highest court in the land. S’Discussed further at op tit, Ref 6. “Op tit, Ref 23.

arrest the ship. Coupled with this right is the ability in some jurisdictions

to arrest not only the offending vcsscl but its sister-ships as well. should

they visit the jurisdiction. The UK govcrnmcnt. ~mable to arrat the

Totwy c‘mptt given the fact that she WIS rendered :I tot;rl loss after the

grounding, waited some four months before arresting one of her two

sister-ships, the Lake PoloittrlcJ, in Singapore. The arrest continued until

the shipowner deposited adequate security to meet the LJK claim against

the Totwy Car~yon.‘“’ The reply to these rights has been the ‘birth’ of

one-ship companies. Thus. when a vessel sinks or is rendered ;I tot:11 loss

it becomes increasingly difficult to lure the shipowner in question into

the jurisdiction in an effort to seek redress. Onc-ship companies also

have a tendency to affect the insurance market. Today. most of the

world’s tonnage is insured against third-party liabilities. such as pollution, through mutual associations of shipowners known ;IS ‘Protection

and Indemnity’ Clubs (P&I Clubs).” The tlouse of Lords in the LJK.

the country’s highest court, has recentI\. ruled that aggrieved partie\

have no right of direct ;~ccess to P&l Clubs in the event th;lt ;I one-ship

company is insolvent.” While the decision may h:~ve I’& I Club manor-

get-s smiling. it is ;I step backwards for aggrieved partic\ aeeking r-cdre\s

for pollution damage.

Providing the aggrieved party has successfully negotiated the \,arious

legal and procedural hurdles mentioned above. one last hurdle csists to

frustrate them ~ the traditional maritime concept that ;I shipowner can

limit his liability to ;I person suffering loss OI- damage through the

negligent navigation of the vc‘sscl.“’ The I-ule is very much one of public

policy, being state support for the shipping industry. The rule essentially

limits how much ;I shipowner has to p;~y in the event of pollution

damage. ‘\‘I

All of these legal, procedural i’ hurdlcs- frustrate, delay and somewhat

limit the redress that should be available to those partics seeking

relief/damages as ;I result of pollution. Not only arc individual State

rules confused, but when applied in an international setting the I-ulcs

become terribly complex. Ideal for the lawyers, but sadly no OIIC else! It

is thus up to the internationd community to coopcrate and somehow

strcamlinc or east some of these confusions. ‘Intern~ltionali~~ltion’ ot

the industry should engender intern~ltion~llizwtion of the liability re-

gimes.

Article 2.35 of the LOS Convention suggests such an approach:

(1) (2)

(3)

States shall ensure that recourse is available in accordance M ith their legal

systems for prompt and adequate compensation or other rclicf in re\pc‘ct of

damage caused hy pollution of the marine environment hv natural OI-

juridical persons under their jurisdiction.

With the objective of assuring prompt did acleqiiatc compens;~tion in

respect of all damage caused by pollution of the marine environment. state\

shall co-operate in the implementation of existing international law and the

further development of international law irelatin g to responsibility and

liability for the assessment of and conipcnsation for damage and settlement

of related disputes3 as well ax. whcrc appropriate, clevelopmcnt of criteria

and procedures for payment of adequate compensation. such as compulsory

insurance or compensation funds.”

The various national legal and procedural measures discussed above do

not by any stretch of the imagination fall within the words ‘prompt and


Hazardous goods at sea

%uch issues were also raised by the oil industry itself in Tanker Owner’s Voluntary Agreement Concerning Liability for Oil Pollution, 1969 (commonly refered to as TOVALOP), and Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution, 1971 (commonly refered to as CRISTAL). For further discussion of these Industry agreements and the Inter- national Convenions, see op tit, Ref 11 and E.D. Brown. The Leaal Reoime of HydroSpace, Stevens, London, 7971, p 163. j40p tit, Fief 16, Article 12. “‘Article 8. For the full text of the convention, see US Congress, Office of Technolo- gy Assessment, Polar Prospects: A Miner- a/s Treaty for Antarctica. OTA-C-428 (Washington, DC, US Government Print- ino Office, September 1989). “%LC 69 allowed claims to be brought directly against an insurer or other person providing financial security. “7CLC 69 was a direct result of the Torrey Canyon grounding which occurred outside UK territorial waters.

adequate’, and if States are going to fulfil their obligations under LOS

Convention, issues of liability and compensation need to be discussed. To date, the LOS Convention is not in force, but despite this the international community has made progress in discussing the issues raised in Article 235. Liability and compensation issues in respect of oil pollution damage were discussed at the International Convention on Civil Liability for Oil Pollution Damage 1969 (CLC 69), the Internation- al Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 (Fund 7l).5” Similar issues were also raised in respect of nuclear materials at the Internation-

al Convention relating to Civil Liability in the field of Maritime Carriage of Nuclear Material, 1971 (Nuclear 1971).

Unfortunately, none of these conventions discusses liability/ compensation for damage caused by dangerous cargoes other than oil/nuclear materials, and this is a serious flaw which requires rectifica- tion. Some States have advocated that new regimes covering liability for damage caused by substances other than oil/nuclear materials are needed, and discussions in this respect have taken place in the international forum. IMO convened a Diplomatic Conference in 1984 to discuss a drufr International Convention Relating to Liability for the Carriage of Hazardous and Noxious Substances at Sea (HNS Conven- tion, 1984). At present, the Legal Committee at IMO has before it a druft International Convention on Liability and Compensation for Damage in Connection with the Carriage of Dangerous Goods by Sea. Similar issues have also been discussed at Base]‘” and at the Convention on the Regulation of Antarctic Mineral Resource Activities, 1988.s5 The discussions that have taken place remain discussions and draft proposals, nothing more. As such, should a maritime accident involving dangerous, hazardous or noxious substances other than oil or nuclear materials occur tomorrow and damage result, the injured parties involved will have to negotiate the various legal and procedural hurdles mentioned earlier. Claims arising from the damage will have to be met by the vessels’ P&I Clubs.

Prior to discussing the various proposals before the international community concerning liability and compensation for damage by dangerous cargoes other than oil/nuclear materials, it is worth digressing momentarily to consider those conventions that have been enacted by the international community for oil and nuclear materials.

Under CLC 69, liability for damage is placed upon the ship-owner who is deemed to have operational control of the vessel. This liability is strict; thus there is no requirement to prove fault or negligence - thereby avoiding some of the legal hurdles mentioned above. Defences exist for the ship-owner, such as acts of war. natural phenomena of an exceptional, inevitable and irresistible character, wrongful acts or negligence by the victim/government authorities, and he may limit his liability if he is not at fault or privy to the negligent act. The convention requires that vessels be covered by insurance or other financial security, and that they carry evidence of such.‘” CLC 69 covers damage resulting from the escape or discharge of oil as well as the costs of preventative measures to mitigate damage, occurring in the territory or territorial sea of a contracting State regardless of where the initial spill occurred.57 Claims may be brought in the courts of the State or States in which damage has been suffered, and the shipowner must establish his limitation fund with such a court.


58Previously, in accordance with the Inter- national Convention Relating to the Limita- tlon of the Liabilitv of Owners of Sea-Goinq Vessels, 1957, conduct barring IimItation required the shipowner’s actual fault or orivitv (a lower test). Both conventions are biscksed in op ot] Ref 11, pp 123-l 24. ““Article 1. NUCLEAR 1971. For a full account of this convention, see R.W.S. Bradley, ‘The insurance of the carrier or shipowner for damage to third parties (including damage to the cargo)‘, paper presented at IAEA, Maritime Carriage of Nuc- lear Materials: Proceedings of a Sympo- sium in Stockholm, 18-22 June 1972, IAEA, Vienna, 1973, p 273. “‘E.D. Brown, op c/t, Ref 53, p 163.

Dissatisfaction with the limits proposed by CLC 60 cnuscci the

international community to consider FUND 7 1. This convention estah-

lished ;I t’und financed by levies on persons importing or receiving oil

shipments in the contracting States. It was seen as ;I wry of providing

supplementary compensation for pollution damage which was not

adequately compensated under C‘LC 60.

Concerns were expressed that both CLC’ 6c) and FUND 71 were

unable to meet the demands of a major pollution incident. as their limits

were too low. The 1984 Protocol to C‘LC’ thus raised the limits. and if

proven damages exceed the shipowners’ liability, the I%4 Protocol to

FUND 71 would provide additional compensation. Both of the 1984 protocols follow the Convention on Limitation of Liability for Maritime Claims. 1976 which as a compromise/tr~Idc-off document increased

limits of liability but in so doing made the Iimitation h;irdeI- to break.

Conduct barring limitation must now/ bc proven to bc ;I ptzrson;il act 01

omission carried out intentionally and recklessly and with knowledge

that loss would result.is To date, neither of the protocols i4 in for-cc.

IJnder Nuclear 71. liability for damage is placed upon the operator of

the nuclear installation from or to which the nuclear material in qucation

is being carried. The liability is. unlike CLC. absolute: that is. no

defcnccs exist for the operator. Like CLC’, liability may bc limited to an

amount per incident. The international community felt Nuclear 71 was

necessary to chonncl liability for clamage caused hy the carriage 01

nuclear materials. Two earlier con\,cntions. the Paris Convention on

Third Party Liability in the field of Nuclear Energy Ic)60 and the Vienna Convention on Civil Liability for Nuclear Damage 1%3. phccd li:ibility

for damage upon the operator of the nuclear- install:ition. /Zt the sa~~~c

time, both conventions rcferreti to other maritime conventions \vhich

placed liability upon the carrier, in effect cstahlishing a dual liability. It

was thus the aim of Nuclear 71 to eliminate this dual liability, channel

absolute liability back to the operator , and place ttic carrier in the s;i~iic

position as other suppliers (Ii g00d\ and \cr-\,iccs to nucleai

inxt~illations.“’

While considering issues of liability and dress for damage caused by

oil and nuclear materials, the international community wcrc also

considering similar issues for dnmagc caused by other dangerous,

hazardous and noxious substances transitting the world’s oceans as

cargo. It is interesting to note that the subject shared the limelight with

oil in 1067. The terms of reference on the question of liability adopfcd

by IMC’O (IIOM’ IMO). which ultimately hccame CLC 69. referred to:

Sadly. somewhere between the terms of refcrcncc in 1067 and the final

convention in 1060. the words ‘or other noxious or hazardous sub-

stances’ were lost.

By lW4 liability and compensation in connection with the carri:lge of

h:~znrdous and noxious substances by sea was one of the items on the

agenda of the IMO Diplomntic C‘onferencc - the other two items that

ycx wcrc protocols to CLC 69 and FUND 71. Unfortunately, after

some three weeks of discussion the IMO Diplomatic Conference ran out

of time. concluding that:


Huzardmc goori.~ ut SC~I

it would not be feasible, in the time available. to resolve the many complex issues in the draft convention and reach broad agreement on the treaty instrument which would receive wide acceptability among states.”

However, in referring the draft convention back to IMO for further work, the conference optimistically recognized that despite the setback the issue should not be neglected as the conference was:

. . conscious of the risks posed by the carriage of hazardous and noxious substances by sea and the need to adopt uniform international rules to deal with issues of liability and compensation in respect of damage caused by such

substances.”

It would be incorrect to term the HNS draft convention of 1984 a failure.6’ The draft convention raised issues which simply could not be

given justice in the time frame alloted. As mentioned above, the carriage of dangerous goods by sea has

increased steadily over the years. As it has done so, the focus of international regulation has shifted subtly from the safety of the ship and her crew to the environment. The discussion of liability and compensation for damage caused by such cargoes has been caught up in this gradual shift in focus. Some States have commented that accidents involving such cargoes have been rare and as a result it would be inappropriate to rush discussions on the subject, preferring instead to concentrate on oil. which, as we all know. is an area subject to maritime accidents with alarming regularity. This is a very dangerous position to adopt, and thankfully the majority of States in the international

community have recognized that:

it would be undesirable and dangerous to wait for ;I major catastrophe before taking action.“’

States thus approached the IMO Diplomatic Conference in 1984 recognizing that the carriage of hazardous and noxious substances by sea was of serious concern. and that the gap in the international regulatory field between CLC 69 and the nuclear conventions could possibly be filled by a convention such as HNS. Sadly, these States left the Diplomatic Conference continuing to recognize the serious nature of the problem, but having failed to fill this gap.

Like CLC 69, the HNS convention channelled liability to the shipowner, the liability in question being strict. However, the convention did not stop there. When considering dangerous. hazardous and noxious substances, there has been over the years considerable support in the international community for some kind of shipper’s liability, similar to the nuclear conventions. The feeling is that the danger posed by the HNS cargoes is not solely in the carriage, but is also inherent in the commodity itself. The HNS convention recognized such concerns and incorporated a mixed, two-tier system, whereby primary liability was channelled to the shipowner and excess liability was placed on the shipper. The shipper’s liability was to ‘kick-in’ if the injured party was unable to obtain full compensation for the damage from the shipowner because the owner could limit his liability or was financially incapable.

Both the shipowner and the shipper could limit their liability in accordance with the Convention on Limitation of Liability for Maritime Claims, 1976; that is, providing the party could prove that the damage did not result from his personal act or omission, committed with the intent to cause such damage or recklessly and with knowledge that such damage would probably result. As mentioned above. this test makes

‘“Aline F.M. DeBievre, ‘Liability and compensation for damage in connection with the carriage of hazardous and noxious substances by sea’, Journal of Maritime Law and Commerce, Vol 17, 1986, p 72. “‘Ibid, p 73. “3Edgar Gold, ‘Legal aspects of the transportation of dangerous goods at sea’, Marine Policy, Vol 11, No 3, July 1986, p 190. R40p tit, Ref 61, pp 6566.


“‘Article I. For a full text of the convention, see 23 ILM 150 (1984). =/bid. “70n 13 March 1989 the Panamanian- registered coaster, Perintis, capsized in heavy weather in the English Channel. Part of the lost cargo included a container packed with Lindane, a persistent and bioaccumulative organochlorine, 12 drums of Permethrin, and 5 drums of Cyper- methrin - all the pesticides were extremely toxic. Marine fo//ution Bulletin, Vol 20, No 5, May 1989, p 201-202, 252 and 362- 363.

limitation virtually unbrcakahle. To offset such ;I test, the international

community tends to favour higher limitation limits which in turn tend to

be resisted by the insurance community. The identity of the \hippcr also produced problems :lt the conference. The rlrofi wording defines ;I

shipper as ‘21 person on whose beh:rlf OI- by whom ;IS ;I princip;ll the

hazardous substances ;Ire delivered for c;u-ri;lgc’.hi Given the commcr-

cial nature of the shipping business and the fact that cargoes c:rn change

hands ;I number of times before discharge. determining the identity of

the shipper ;It the time of the loss/damage could prove difficult. Like CLC (,c) the convention requires that both shipowner and shippet

be coved-cd by insur;lncc OI- other form of fimlncial security and thnt

cvidcncc of such is produced in the form of ;I certificate. The concept ot

ciircct ;ICCCSS for claimants to insurers \\;I\ rejected outright I,> the

insurance interests rcprcsented :rt the cc~nfercncc. Before an!; cl]-aft HNS

convention is adopted. it is obvious th:it the insur;incc inciustry niu\t bc

supportive. ;IS it is they who. at the end of the d:~y. ;Irc expected to 17~11

the bills.

Another stumbling block at the I%4 Diplom:ltic Conference WIS the

definition of ‘hazardous substance\‘. ivhich:

The convention is thus limit4 to 1HNS cargoes carriccl in bulk. The list

of substances in the ;IIIIWX includes ;I mcrc 15 commodities. t:tken from

the Bulk Chemicals Co&, the Gas C:rrI-icl- Code :rnd Annex II of

MARPOL 73. Of these 15 commodities, I7 clo not regularly transit the

world’s OCL’:I~S. Howcvcr, :rll wcrc capable of c:iusing &image outside

the confines of the ship to the environment or other \hips through

pollution, toxicity :~nd/ot- fir-c. explosion or both. Should the conference

have decided to exclude fire 21nti cxplo\ion from the scope of the

Convention the list of comnioditics in the annex would h:r\v totallcd i0.

Perh:lps the most surprising aspect of the dr:lft convention is th:lt it is

limited to bulk shipments. This seem\ pcculi:ir. given the fiict that small

quantities of 11NS have the potcnti:rl to C;ILISC’ serious ;rnd substanti:rl

damage. When considering I iNS. volume has no correlation with

damngc. unlike oil. Indeed. incidents involGng small quantities of’ 1 INS

in pack~rged form seem to be on the incl-ciisc. (17

The convention :lpplictl to dam:rgc c;rused in the territory, including

the territorinl sea. of the contracting Stiltc :~nd to prevcntativc mca-

sures. wherever t:ikcn. to prevent or niinimizc the damage: similar to

CLC (,Y. The convention :ilso pro\,idecl that :ictiony for compensation

could orl!\s bc brought in the courts of the contr;rcting State(s). In

contr:lst. CLC hC) uses the word ‘ma!,‘. theI-cby establishing ;I rccom-

mcndatory provision rather than ;I mandatory one.

C’LC 6c) and HNS M3 ;Irc in sonic respects simil;ll-. That fact in itself

should not be surprising HIS both conventions ;Irc attempts by the

international community to ovcrconic sonic of the legal :md procedul-:il

hurdles mentioned :~bovc. With such ;I focus, it should not have mattered thcrcfore whcthcr the pollut:lnt being discussed WIS oil.

nuclear miltcrials or HNS. Unfortunately. it has. The world’s pre-

occupation, to date. \vith oil means C‘LC‘ 60 is in effect and HNS SJ was

returned to IMC> for further discussion.

The further discussion recommentied by the 19X3 Diplom:ltic Confer-


6”(1868) LR 3 HL 333 (English House of Lords). ‘“The position of salvors and persons tak- Ing preventative measures was considered exhaustively at an IMO Diplomatic Confer- ence in 1989, entitled The International Convention on Salvage. For a detailed dlscussion of this convention see Edgar Gold, ‘Marine salvage: towards a new re- game’, Journal of Maritime Law and Com- merce, Vol 20, 1989, p 487. ‘“The latter presumably accommodating recent US legislation - Oil Pollution Act, 7990 [Pub L lOl-3801 - which has increased the limit of liability considerably.


Huzardous goods al SW

ence has produced a draft Convention on Liability and Compensation for Damage in Connection with the Carriage of Dangerous Goods by Sea, 1991. The draft convention was submitted to the 64th session of the Legal Committee at IMO for its consideration in January 1991. The 1991 draft is very different from that considered in 1984.

The first noticeable change in the draft is the name. The title no longer refers to ‘Hazardous and Noxious Substances’, preferring instead the term ‘dangerous goods’. The suggestion is that the term ‘dangerous goods’ has wider implications; indeed, as illustrated by Rylarzds 1’ Fletcher6’ even water is dangerous given certain circumstances. One of the problems with dangerous goods is that there are so many differing types, and their effects are, to date, largely unknown. Given such ambiguity a wide definition such as provided by the 1991 draft may well be desirable. In comparison oil is a very homogeneous product.

The 1991 draft, like CLC 69, channels strict liability to the shipowner.

The usual defences, acts of war, acts of God, etc, have been expanded by one: no liability shall attach to the owner if he proves that the consignor or any other person failed to inform him of the dangerous nature of the goods, and that neither he nor a particular person as listed either knew or ought to have known of their nature. Those persons listed include, inter alia, servants/agents of the owner, a pilot, any charterer, salvers, and any persons taking preventative measures.“”

The draft allows contracting States to choose provisions allowing the shipowner to limit his liability. Limitation may be wholly or partly determined by the provisions of the Convention on Limitation of Liability of Maritime Claims, 1976, the International Convention relating to the Limitation of the Liability of Owners of Sea-going Vessels. 1957, the International Convention for the Unification of certain Rules relating to the Limitation of Liability of the Owners of Sea-going Vessels, 1924 or provisions in national law.‘” The draft also makes provision for a supplementary fund in situations where the shipowner is entitled to limit and the limits are insufficient to pay all the claimants in full. Once a fund has been established, claimants are unable to exercise any proprietary rights such as sister-ship arrest against the shipowner, providing the claimant in question has access to the court-administered fund and the fund is actually available to the claimant. The draft requires that the shipowner maintain insurance or other financial security and that the vessel carries evidence of such. The draft also provides a right of direct access by claimants to insurers or those persons providing financial security.

The draft amends the definition of ‘dangerous goods’ in Article 1, which:

means any substance included in the categories which is carried on board a ship or loaded on a vehicle carried as cargo on board a ship.

Thus, the draft covers dangerous goods carried both in bulk and in packaged form. The categories mentioned include oils carried in bulk as listed in Annex 1, MARPOL 78 other than oils covered by the 1984 Protocol to CLC 69; noxious liquid substances listed in Annex II of MARPOL 73; dangerous liquefied substances carried in bulk as listed in the Code for the Construction and Equipment of Ships carrying Dangerous Chemicals in Bulk; dangerous goods included in the IMDG Code, with the exception of nuclear substances; liquefied gases as listed in the Code for the Construction and Equipment of Ships Carrying

323

liquefied Gases in Bulk; substances with particular flashpoints and

substances with explosion risks from the previous carriage in bulk of oil.

liquefied gases and substances capable of giving off ;I gas with :I

flashpoint of less than (,O centigrades. The definition mentioned is bcttcr

than that contained in the 1984 convention, ;IS it is more specific.

Claimant’s lawyers may tend to disagree - ;I vague definition of

dangerous goods may help :I client in the event of ;~n acciclcnt.

The draft’s definition of ‘damage’ is intcrcsting as it contains ;I specific

reference to the environment. Loss or darnage hy contaminatioI1 of the

environment caused by dangerous g00ds woulci be covered by the tlr;ift.

provided that compensation for impairment of the environment i\

limited to the cost of rcasonahle measures of reinstatement :rctually

undertaken or to be undertaken.” The draft covers damage cauxd in

the territory. including the territorial W;I and the cxclusivc economic

zone, or whcrc none is claimed out to the 300 nautical mile limit. ;IS well

as the cost of prcvcntativc measures whercvcr taken. l>ikc the I%+l

convention, actions for compensation for damages IIINJ OH/J be brought

in the courts of the contracting States.

To placate those who believe the shipper should be involved in the

carriage of dangerous goods by SC;I because of the cargo’s inhcrcnt

danger. the 1991 draft contemplates ;I supplemental fund, Gmilar to

FUND 71, entitled ‘The Internatiomll D;tngerous (;r)ods Scheme’

(IDGS). The aim of the scheme is to pro\Gde compens:ltion for damage

in situations where the protection provideci by the shipowncr is inade-

quate or unavailable; that is. situations where the damage cxcccds the

limitation. where the shipowner is fimlncinlly inc:lp;lblc or where the

shipowner has ;I villid dcfcnce to liability. The achcmc may he CXOIIC’IF

ated in situations where the claimant is wholly or partly to hlamc for the

&rmagc. The fund is to be financed through the USC‘ of ‘danger-011s goods

certificates’. Such certificates ;irc to bc issued by contracting States to

the shipper of any contributing cargo and the owner of ;tny contributing

ship, parties purchasing such certificates. The certific:ltc\ ;irc to be

policed by contracting States, who will :llso make initial contributions to

the fund. The draft thus ;rdvocatcs shipowner liability. supplemented by ;I fund

p;lrtially financed by cargo interests. The draft certainly de:lls b\ith the

legal and procedural hurdles mentioned carlicr in the irrticlc. but it also

leaves plenty of room for discussion. It is to hc hopd that this time IMO

will allocate more than three weeks to the discussions, and that ;I

concerted effort is mnde to adopt the draft.

The Antarctic Minerals Treaty, 198X” and B:rsel“’ have also consi-

7’ In Commonwealth of Puerto Rico et al v &red the issue of liability :md compensation. The Antarctic treaty took The SS Zoe Colocotroni et al 628 F.2d 652, the US Court of Appeals defined such

an environmental approach irnd held the operator of the mincrnl

measures as the cost reasonably to be resource activity strictly liable for damage to the Antarctic environment,

incurred by the sovereign or its designated its dependent and ;lssociatcd ecosystems. Sadly. the treaty did wh:lt

agency to restore or rehabilitate the environment in the affected area to its pre-

could bc dcscribcd as ;I minimal job on linbility and compensation,

existing conditions, or as close thereto as prefering to leave &tailed provisions to ii later date.” Base1 did exactly

is possible without qrossly disproportion- the same thing. To dirte. WC have yet to see such provisions from either. ate expenditures’. For further di&ussion of this case, see E.D. Brown, ‘Making the polluter pay for oil pollution damage to the

Slir?mlrJ

environment: a note on the Zoe Coloco- The international community has not deliberately neglected the subject tronl case’, [1981] 3 LMCLQ 323. “Op tit, Ref 55, article 8. 730p tit, Ref 16, article 12. 740p tit, Ref 55.

of the carriage of dangerous goods hy sc;~. What it has done however, is

tended to concentrate its focus upon the safety aspects of the vcnturc.

expressing an understandable concern for the ship :md her crew/


Hazardous goods at seu

75The Provinces of Alberta and Saskatch- ewan. 7hOp n’t, Ref 5, p 103. “Op tit, Ref 2, p 113. ‘“For a more exhaustive discussion of this subiect. see Robin Churchill, ‘Whv do maLine pollution conventions take so* long to enter into force?‘, Marifime Policy Man- agement, Vol 4, 1976, p 41. 7gNow Part XVI, Canada Shipping Act, RSC 1985, c S-9, as amended by RS 1985 c 31 (1st Supp); RS 1985 cl (2nd Supp); RS 1985 c 27 (2nd Supp); RS 1‘985 c 6 (3rd Supp); RS 1985 c 40 (4th Supp); 1989c3and1989c17. “‘RSC 1985 c A-l 2. “Statutes of Canada. 1970-71-72. Chao-

*‘The reasons for Canada’s reluctance to ratifv CLC 69 and FUND 71 are also discussed in, Alfred H.E. Popp, ‘State responsibility and the environment (with specific reference to liability and compensation for oil pollution caused by ships)‘, paper presented to the Annual Meeting of the Canadian Councrl on International Law, 1989 Conference, p 142. H3Also known as the British Norfh America Act 1867. “4This residual power, in the USA, is con- fered upon the States themselves, and the federal government is limited to enumerated powers. For a further discussion of thus area see Peter W. Hogg, Constifufion- al Law of Canada, 2 ed, Carswell, Toronto, 1985, and A.S. Abel, Laskin’s Canadian Constitutional Law, 4 ed Carswell, Toron- to. 1975.

passengers. It may well be that today such a narrow focus is inappropriate and recently the focus has shifted, as there has been an increasing interest in the protection of the marine environment. Coupled with this has been a growing interest in the subjects of liability and redress for damage done by third party claimants. Whether this trend will continue depends very much on how IMO considers the draft Convention on Liability and Compensation in Connection with the Carriage of Danger- ous Goods by Sea presently before it, and how the world deals with the LOS Convention.

Canada

Over the years the international community has prepared and/or enacted a plethora of conventions/agreements in respect of the marine environment, pollution and the shipping industry in general. As mentioned earlier, each convention/agreement has tended to be a response to national demand, and to be effective relies upon individual States to implement the international provisions in national legislation. Without such implementation, the international provisions can have very limited application; they can remain mere discussion. Thus, this part of the article will focus upon Canada and how it has approached the subject of dangerous goods, and their carriage by sea.

Canada is unique in two respects: the first is geographical, the second political. Canada is a coastal nation; it has the largest coastline of any nation in the world, is bordered by three of the world’s oceans - the Atlantic, the Pacific and the Arctic - and of its ten provinces and two territories, only two are landlocked.75 As a nation, Canada can be further subdivided into six maritime regions - Newfoundland and Labrador, the Maritimes, the St Lawrence River, the Great Lakes, the Arctic and the West Coast.‘” Despite this, Canada’s merchant marine is small, and the country is not seen globally as one of the world’s maritime trading nations. Yet, on the international stage, Canada has been very active. Indeed, Canadian diplomats played a major role at UNCLOS III.” It is rather ironic, therefore, to find that Canada’s record, domestically, in implementing international conventions is poor. It has a tendency to participate and sign, then drag its heels over ratification. Admittedly, there can be many reasons why a State chooses not to ratify a convention it has already signed.‘” For example, CLC 69 and FUND 71 entered into force in 1975 and 1978 respectively, yet only became part of Canadian law as of 24 April 1989.” Canada’s reluctance to ratify CLC 69 and FUND 71 can be attributed to the existence of the Arctic Waters Pollution Prevention Act (AWPPA)“” and Part XX of the Canada Shipping Act;“’ two pieces of legislation which will be discussed below .”

Politically, Canada is a confederation of states, with jurisdiction over various areas divided between the federal and various provincial governments. These areas of jurisdiction are enumerated in Sections 91 and 92 of the Constitution Act, 1867.“j Section 91 deals with federal powers, while Section 92 is concerned with provincial powers. Section 91 also confers upon the federal government a residual power to ‘make laws for the peace, order and good government of Canada, in relation to all matters not . . assigned exclusively to the . provinces’.“’ The transportation of dangerous goods is an area of both federal and provincial jurisdiction in Canada. Extra-provincial transportation. be it


by sea. ar or rail, between Canada and a foreign ct~lntry or hctween

13rovinces is an arca of federal jLlris~ii~ti(~li, by virtue of Ssction 91(Z). trade and commerce; subsection ( IO), navigation and shipping; and subsection (13) fcrrics between ;I province and any British or foreign

country or between two provinces. Fcdcrd jurisdicticjn could also 1~

invoked by virtue of Section 02( 10) and Section C,1(3). which should he read togcthcr. These sections confer power on the fccieral ~~)v~rnli~~ilt

over such fields as ‘lines of steam or other ships. railways. nm:~ls . .* which are extra-13rovincial. The transportation of dangerous goods by

road or by railway, confined to ;I particular province. is a ‘property and

civil right within the province ’ and by virtue of Section 09( 13) is a matter

of provincial jurisdiction. Road movtmcnts within the confines of the

province cl0 not pose ii prol3leni. but cxtr-~i-l3r”“irici~~l ~~i(~~~~~~~iit of

dangerous goocis by road can pose ;I problem. The mov~mcnt of nuclear

materials is treated slightly differently, ~ (riven the unicluc nature of the

commodity. Thus, extra and intra-provincial movcmcnts of thcsc goods

are treated as a matter of federal ,jurisdiction. and the 13rtGnccs in

Canada have to date not challcngcd such fcdcral compctcncc. If they

did, the federal ~~~v~rilrn~iit, as well as rcl~ing q301i Section 9 l(2), ( IO) mci (l3), could presumably rely upon the residual peace. order and

good government power

02 IO). This national division of powers can have an cfl’ect upon ( c

and the declaratory power under Section

Canada’s international obligations, and may lx another reason wh> fanacia has a poor track record in iiill?l~l~i~titiii~ i~~t~r~~~~ti~)n~~l COIIVCII-

tions. The courts have held that thcrc is no such thing as ;a tr-caty-

implementing 13ower. Canada’s ability to cnuct international obligations

is thus determined by the subject matter of the treaty. If the subject

matter falls within ;I Section c)I enumerated head. the federal govern-

ment can t’nact treaty obligations by virtue of that cnumcratcd head of

power. If the subject matter falls within a Section +Q head, inll3l~~~~~~~t~~-

tion of the trcnty is only possible with l?re.Gnci:rl agrccmcnt.s5

The transportation of dangerous goods hv scz. being extra-13rovilici~tl.

falls within federal jurisdiction. For Icgialativc purposes. Canadi;m

waters arc divicicd. Waters south of hO”N arc decmcd ‘Canadi;~n

Non-Arctic Waters’ and art the subject of the C’anada Shipping Acts.

Waters north of 6O”N ;lrc clecmccl ‘Canu&tn Arctic Waters’ and arc the

subject of the Arctic Waters Pollution Procntion Act.“‘ It is primarily

through these two picccs of legislation that Canada implcmcnt\ those

intermltionnl conventions it aclopts.

Tho Arctic is unique and has been ;I concern for C’anatla for many

ycars.s7 US claims to the North-west Pnssagc, antI in particular the

vctyagc of the SS ~~~~~tl~~[~rt~l~? in the summer of 1%‘). caused Canncia to

take unil;tteral action and enact the Arctic Waters Pollution Prc\:cntion

Act, lV70. Coupled with the US threat was ;I general dissatisfaction M.ith the result of CLC’ 60. At the time, tho Vanadion view was that:

Conventions( 119371 AC 326 Wp cif, Ref’80. 87Professor Doualas M. Johnston of Dalhousie Law Sclhool believed the Arctic to be ‘the highest priority of all for Canada at UNCLOS Ill‘. Op cif, Ref 2, p 113. “Up tit, Ref 1, p 219.

As cvidenccd by the voyage of the SS Mtrrrhuttrrrr, the LISA. ;IITTO~~

others. is also interested in the Arctic. Thu largest oilficld in the USA is

sited in Prudhoc Bay, Alaska, while the centrcpiecc of the current US

energy plan is ;I proposal to develop natural rcscturces in the Arctic

National Wildlife Refuge in Northern Alxka. Such ctmnlcrcial iiitcrcst


Hazardous goods al sea

H9For a full text of the Canadian declara- tion, see Cynthia Lamson and David L. VanderZwaag, Studies in Polar Research: Transit Management in the Northwest Pas- sage, Problems and Prospects, Cam- bridge University Press, Cambridge, 1988, p 309. “‘CRC Vol III c 353, p 2237. “‘These regulations made pursuant to the Canada Shipping Act are discussed below. ‘“0~ tit, Ref 79. “3For present day purposes the Governor- In-Council is deemed to be the Cabinet.

begets an increase in transportation. The voyage of the Polar Sea in 1985 caused Canada to rethink its position on the Arctic. As a result, with effect from 1 January 1986, Canada established a straight baseline around the outer perimeter of the Canadian Arctic archipelago, declaring the waters to the landward side of this line internal waters. In declaring the baseline, Canada stated:

The policy of this government is to exercise Canada’s full sovereignty in and over the waters of the Arctic archipelago to encourage the development of navigation in Canada’s Arctic waters.”

Such navigation was however to be subject to control, principally through the AWPPA. The act is aimed at preventing pollution, and creates absolute liability on both the shipowner and the cargo-owner, with minor exceptions. Evidence of financial responsibility is required either by way of insurance or an indemnity bond, and the act provides for direct access to insurers by claimants, thus avoiding some of the legal/procedural hurdles mentioned earlier.

The act divides the Arctic waters into 16 shipping safety zones, wherein some 14 classes of vessel are restricted in movement according to construction design and ice-thickness. Within these zones, pollution prevention officers have wide powers to board vessels, conduct inspec- tions and ultimately order vessels out of the zones which do not comply with the required standards. The inspectors may also deem such an exit necessary in the interests of safety.

The ‘teeth’ of the legislation can be found in the regulations made pursuant to the act - the Arctic Shipping Pollution Prevention Regulations.“” These regulations consider issues such as construction, navigation equipment, manning requirements and Arctic Pollution Prevention Certificates. With respect to the transportation of dangerous goods in Arctic waters, Section 19 of the regulations stipulates:

No ship shall navigate within any zone unless it complies with the Dangerous Goods Shipping Regulations. as if it wcrc a ship to which those regulations apply and within waters to which those Regulations apply.“’

Canadian waters south of WNorth, and those north of the line not

covered by the AWPPA, are subject to the provisions of the Canada Shipping Act (CSA).“’ The legislation has its roots in the UK Merchant Shipping Act 1894 and deals with a myriad of subjects ranging from, infer alia, registration. certification, manning levels, safety. salvage, navigation, limitation of liability, pollution. civil liability and compensation. Through the provisions in the CSA. Canada has implemented various international conventions including, inter rrliu, the Load Line Convention 1966, SOLAS 1974 and the Collision Regulations 1972.

Part V. Sections X11-421, of the CSA deal with safety. and in particular a vessel’s operation, construction and equipment. Dangerous goods are considered specifically in Sections 389-390. For the purposes of the act, dangerous goods are defined as:

goods that by reason of their nature. quantity or mode of stowage are either singly or collectively liable to endanger the lives of the passengers or imperil the ship, and includes all substances determined by the Governor-in-Council. in regulations made by him, to be dangerous goods.“’

Section 389( 1) allows for regulations prescribing the method of packing and stowing dangerous goods; the quantity that may be carried; the place(s) on board a vessel in which the goods may be stowed; the


94SOR179~90, 14102179, p 369n. 9”SOR/81-951, 09/12/81, p 352r. 960p ot, text at Ref 28. “‘The provisions of CLC 69 and FUND 71 can be found in Part XVI of CSA g8O1) cit. text at Ref 28. 99The relevant provisions are now Part XV, entitled ‘Pollution Prevention and Control’. ““Op tit, Ref 82, p 160. “‘/b/d. See also Rui M. Fernandes and Christopher Burke, The Annotated Canada Shipping Act, Butterworths. Toronto, 1988, p 319.

markings to be placed on any p~~ckagcicont~~i~~~r holding 4uch goods;

handling precautions and the powers of the steamship inspector in

respect of such goods. The act prohibits the carriage of dangerous goods

except in accordance with the regulations.

The position of the relevant sections in the act. and indeed. the

wording of the provisions, illustrate that the primary focus of the

Canadian legislation is on the safety of the vcnturc. This focus is evident

in Section 389(25), which allows ;I mastcr/ow,ner to jettison overboard

cargo shipped contrary to the regulations without threat of civil or

criminal liability. Subsection (5) thus placc~ the marine environment

second in line to the safety of the shipicreu.

The regulations made pursuant to the act include. inter alia. the

Chemical Carrier (Steamship) Regulations,“’ and the Dangerous Goo&

Shipping Regulntions.‘” The former regulations apply to alI ships that

arc adoptcci or constructal to carry ;I clangc~-ous chemical as cargo or at-c‘

engaged in the carriage of ;I dnngcrous chemical. other than ships

carrying dangerous chemicals in packogcd form. freight containers.

portable tanks or road/rail tank wagons. A\ well ;I\ construction design

the regulations arc also concerned with the operation of the \,cssel.

handling of the cargo and the various piece of safety cquipmcnt carried

on board. The Inttcr regulations, on the other hand. arc concerned with

packing. stowage, carriage. marking and inspection of dangerous goods

in packaged form on ships. They do not apply to the carriage of

dangerous goods in bulk. The latter regulations implement international

standards as stipulated in the IMDG Code.‘”

Amendments to the Canada Shippin, ~1 Act in 1987 resulted in the

implementation of CLC 69. FUND 7 1 “’ and certain IMO codes relating

to the carriage of dangerous goods ~ those codes included the Code for

the Construction and Equipment of Ships carrying Liquefied Gascs in

Bulk. the Code for Existing Ships carryin g Liquefied Gases in Bulk and

the Code for the Construction and Equipment of Ships carrying

Dangerous Chemicals in Bulk.

Canada also usecl the 1c)X7 amendments to the C’SA to lay the

groundwork for eventual accession to MARPOL. which i\ expected

Inter in l%Q.“”

Prior to 1’4x7, pollution was dealt Lvith in the CSA hy Part XX.“” As

mentioned. Part XX of the act was one of the reasons advanced hy

Canada justifying the refusal to ratify (‘LC 00 and FUND 71. In Canadian eyes, Part XX wis very similar to CLC 69. if not better. I””

Like CLC. the regime imposed by Part XX was one of \tr-ict liability.

although in contrast to the international convention, the Canadian

legislation sought to mnkc both the shipowner and the cargo-owner

liable. The geographic scope of the Canadian provision was also wider

than that proposed hy CLC. as it applied to Canadian fishing Lone‘s

which were carried out to 200 miles in 1987. The scope of the AWPPA is

also wider than that of CLC in that it applies seaward of the archipelago

baseline to ;I distance of 100 nautical milts. Section 736 of Part XX

stipulated, like CLC. tl L t 1.1 vessels hc covered hy insurance or other

financial security and that they carry cvidcnce of such. The section, like

CLC, also allowed direct action by claimants against insurers. “”

By virtue of the 19S7 amcnciments to the CSA, Part XX has hccn

repealed. During it4 short lift, two prohlcms persisted. The insurance

community. having fought the concept of ‘direct action’ at the Brussels

Conference which adopted CLC 69. was not prepared to submit to


Hazardous goods at .sea

‘direct action’ in the unilateral Canadian legislation outside the context of CLC. Thus, section 736 never became an accepted part of international law, nor did the concept of cargo-owner liability.

By 1987 Canada decided to adopt CLC 69 and FUND 71. Part XV of the amended CSA defines a pollutant as;

any substance that, if added to any waters, would degrade or alter or form part

of a process of degradation or alteration of the quality of those waters to an

extent that is detrimental to their use by man or by any animal, fish or plant that

is useful to man .I”’

Such a definition is capable of including hazardous and noxious substances, other than oil. Sadly, it does not. Part XV and XVI of the amended CSA only apply to oil.

It has been recognized that this creates a gap in existing Canadian

law. “” Were a chemical spill to occur in Canadian waters tomorrow, not only could the country not contain it, but the liability and compensation scheme in place pursuant to the CSA would be unable to respond to potential claimants. The funds presently available to claimants under the Ship-Source Oil Pollution Fund (SOPF) are, as the name suggests, only available to claimants seeking redress from oil pollution, not a

chemical spill. I()’ At present, claimants seeking redress after a chemical spill must first approach the party responsible. who in turn will approach the insurance market. Claimants are therefore faced with the various legal and procedural hurdles mentioned earlier.

It has been suggested by a recent Canadian report that this gap in the legislation could be filled by the draft HNS convention presently before the Legal Committee at IMO and that as this draft is an important development, Canada should do everything possible to encourage its ratification.“‘5 The writer tends to agree with this view, but hopes that any ratification does not take as long as the CLC.

Like the international community, Canada has a tendency to wait for a disaster before taking action. On the international stage, the catalysts were, amongst others, the Torrey Canyon and the Amoco C&z. For Canada, the catalyst was the Mississauga train derailment in 1979.

At about midnight, on 10 November 1979 a goods train derailed in Mississauga whilst travelling from London to Toronto, Ontario. Of the 24 tank cars that derailed, 19 were carrying dangerous commodities. Fire subsequently caused three of the cars carrying propane to explode, while one car carrying chlorine developed a leak. The derailment, although it caused no casualtics, did cause property damage in Missis- sauga and resulted in one quarter of a million people being evacuated from their homes for approximately five days.

As a direct result of the Mississauga derailment, the federal government enacted the Transportation of Dangerous Goods Act, 1980. The act applies to the transportation of dangerous goods in:

any road or railway vehicle, aircraft. waterborne craft, pipeline or any other

contrivance that is or may be used to carry pcrsons or goods whether or not the

goods are in packaging or containers.“‘”

The act does not apply to the transportation of dangerous goods in bulk, in vessels within the meaning of the Canada Shipping Act.

Like the Canada Shipping Act. the Transportation of Dangerous Goods Act (TDG) prohibits the handling. offering for transport or transport of dangerous goods except in accordance with the regulations. The applicable regulations, the Transportation of Dangerous Goods

“‘Op tit, Ref 79, Section 654. ‘03O~ cit. Ref 5. a 94. ““Ob tit, Fief 79: Section 702. 1050p tit, Ref 103. “‘RSC 1985, c T-19, Section 2


‘07SOR/85-77, 06/02185, p 383r. ‘O’For a further discussion of the directorate’s function, see Marjone K. Matthews, ‘An overview - support programs for risk assessment in the transport of dangerous goods’, ed Sam Yagar Transport Risk Assessmenf, University of Waterloo Press, Waterloo, 1984, p 77. ““Op tit, Ref 108. ““A 24 hour a day emergency advice centre, CANUTEC, operated by Transport Canada is available to provide information on the regulations, properties of chemicals and advice regarding actions to take in emergency situations. “‘Unreported decision, Supreme Court of Ontario, 31 July 1989, Action #RE1071/ 89. “‘See Dangerous Goods Transportation Act, RSNS 1989, c 119; Motor Vehicle Act. RSBC 1979, c 288, Section 208; Railway Act RSBC 1979, c 354, Sections 203 and 204; and the Highway Act RSO 1980 c 198, Sectlons 95 and 159(l)(d). ‘13RSC 1985, c A-l 6. “4SOR183-740, 29/09/83. “‘RSC 1985, c E-17. “‘RSC 1985, c S-l. ‘17RSC 1985, c C-27.

Regulations,“” prescribe the classification. documentation. safety marks and standards for the handling and transportation of dangerous goods. whether or not the goods originate from or are destined for any place(s) in Canada. The regulations also apply, subject to certain exceptions, to the transport of dangerous goods by ship or aircraft registered in Canada, whether the conveyance is in or outside (‘anada.

The classes of dangerous goods stipulated in the schedule to the act beat- a strong resemblance to the IMDG Code, as do the prescribed markings in the regulations. One point to note with respect to the exceptions mentioned, is that the regulations do not apply to the transportatiori of an international consignment of dangerous goods. other than by aircraft. if such transportation is made in accordance with the IMDG Code. The exception is designed to facilitate the interface between national and international legislation and does so very well.

Like other Canadian legislation. the aim of the TDG Act is ‘to

promote public safety’. To further this aim, the Dangerous Goods Directorate of Transport Canada was given a mandate to oversee the workings of the TDG Act. I”’ The main thrusts of the TDG Act and the

directorate are to ensure that goods identified as dangerouc a~-c mark4 as such during transportation, and that they art’ packaged and handled

so as to avoid accidental release. ““’ The act prescribes an inspection

system, while the directorate provides :I mechanism that cnsurcs

information needed in an emergency is readily available. ’ I” The directorate is of the opinion that the act and its regulations are

working well; since IYXO accidents involving dangerous goods have heen declining in number. Whether this same trend is evident in the marine

field is questionable, as the CSA bulk exception prevents the Dangerous Goods Directorate from collectin g data 011 accidents involving such

commodities. The TDG Act hit a slight stumbling block in Ic)Sc) in the Supreme

Court of Ontario in the case of R I‘ OMI lrlrcrrrrrriorlrtl ((‘rrrlatlrr) ltlc. ” ’ The case involved the transportation of dangerous goods by road in the province of Ontario. Charges for violations of the TDG Act were quashed by the court on the basis that the act had not been proclaimed in force in respect of the mode of transport at issue. Coupled with this was a constitutional question - the unclear application of the ‘I‘DG Act throughout Ontario raised a Charter dcfencc given the fact that the act carried criminal law penalties. At the end of the day. the court declined

to address the constitutional issue. content to quash the charge4 on the basis of the proclamation error. Transport Canada is prcscntly revising the TDG Act in light of the decision.

The transportation of dangerous goods is also regulated by the provinces. However, provincial jurisdiction tends to be restricted to movements by road or railways situated totally within the province. ‘I’ As mentioned. the transportation of nuclear materials. be it estra- OI- intra-provincial is subject to federal jurisdiction pursuant to the Atomic Energy Control Act.’ ” The act provides that any shipment of radioactive materials must comply with the requirements of the Transport Packaging of Radioactive Materials Regulations. ’ ” These regulations establish criteria for packaging, marking of radioactive material prcp:l- ratory to transportation. Other federal legislation that impacts upon the carriage of dangerous goods includes the Explosives Act.’ I5 the Safe Containers Convention Act,“” and the Carriage of Goods by Water

Act.“’ The Explosives Act is concerned with the safety of those persons


Hazardous goods at SW

“8RSC 1990, c 44.


engaged in the transportation of explosives; the Safe Containers Con- vention Act implements the 1972 international convention of the same name, and aims to formalize structural requirements to ensure safety in the handling, stacking and transporting of containers in the course of normal operations; while the Carriage of Goods by Water Act implements the Hague Rules, Article IX, Section 6 of which relates to the shipper’s obligations in respect of dangerous goods. One further piece of legislation worthy of note is the Canadian Laws Offshore Application Act.‘lX The act extends both federal and provincial, civil and criminal law to offshore areas, both in the Arctic and elsewhere. While this Act will probably not affect the transportation of dangerous goods in any way, it may have an effect on pollution in that remedial measures available under provincial law may be extended into an area of federal jurisdiction. Time will no doubt tell.

With the exception of the AWPPA, Canadian legislation in respect of the transportation of dangerous goods has tended to focus upon safety, be it safety of the vessel itself, her crew and/or passengers, the cargo itself or any other cargo carried on board the vessel or stored in close proximity. Such a focus is understandable and can indirectly benefit the environment. Making sure dangerous goods are secure means they are less likely to escape the bounds of their confinement, and thereby cause damage to the environment.

Accidents do, however, occur and while Canada is currently a member of CLC 69 and FUND 7 1, liability and compensation provisions in the legislation, in respect of dangerous goods other than oil, are notably conspicuous by their absence. The draft HNS convention, currently before IMO, gives both Canada and the international community in genera1 a good opportunity to remedy this gap in the law. One wonders whether they will take it, and if so how long Canadians will have to wait before their country ratifies any such convention.

Conclusion

While writing this article, a number of shipping accidents in the Mediterranean have focused world attention once again on oil. One of the accidents, involving the Cypriot-registered oil tanker Haverz, threatens to be of greater significance than even the grounding of the Exxon Vuldez in March 1989,.

Throughout this article, reference has been made to the fact that both the international community and Canada focus, to a great extent, on the safety of the venture. Respect for human life makes this a very laudable objective. However, respect for marine life and the environment are also important. The two do not have to be mutually exclusive.

An ever-increasing number of dangerous cargoes are now transitting our globe; given our lifestyle it seems unlikely that such shipments will ever stop - they may even increase. The events in the Mediterranean have again shown that shipping accidents occur with frightening regularity and it may only be a matter of time before the polluting cargo is a highly toxic chemical rather than oil. The current focus upon safety alone is not enough. Pollutants will invariably find their way into the world’s oceans and Canada, and the rest of the world, must thus find ways to contain such spills when they occur. An effective response must

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bc made to these inevitable spills. At the same time a quick and cfficicnt

compensation system should be available, coupled with ;I liability

regime. be it absolute or strict. which allocates responsibility to help claimants seek redress for pollution damage.


hazardous goods at sea: are safe ships and clean seas mutually exclusive? a canadian perspective

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