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The debate over whether terminals should accept any responsibility for mis-declared container weights is getting more heated.

The World Shipping Council, BIMCO, International Chamber of Shipping and the governments of Denmark, the Netherlands and the US in June issued a proposal on the issue, in response to an invitation from the International Maritime Organization’s Dangerous Goods, Cargoes and Containers sub-committee.

According to the TT Club, the key part of the joint-proposal is the inclusion of the phrase “terminal representative” in its proposed amendments to current Safety of Life at Sea (Solas) regulations. Under existing legislation, shippers are legally responsible for correctly declaring the weight of their loaded container to the shipping line, but no partner in the supply chain has a legal responsibility for verifying that that declaration matches the actual weight of the container.

As a result, there have been several high-profile accidents that have been at least partly attributed to the mis-declaration of weights.

The WSC/ICS proposed amendment reads: “A freight container loaded with cargo may not be stowed aboard a ship to which the present Solas regulations apply, unless the master or his representative and the terminal representative have the verified actual gross weight of the container in advance of vessel loading.”

Following legal advice provided Holman Fenwick Willan, the TT Club has concluded that while the proposed amendment may increase terminals’ liability if an overweight or mis-declared container is loaded aboard a vessel and subsequently discovered to have caused an accident, the advantages to the supply chain of assigning some degree of responsibility to terminals outweigh the disadvantages to terminals themselves.

Holman Fenwick Willan studied what effect the amendment would have under English law – under which many shipping cases are heard and which would also be broadly mirrored in Hong Kong, Singaporean and Australian jurisdictions – and discovered that it has the potential to be a “game-changer” in the relationship between terminals and shipping lines, as well as terminals and shippers.

While terminals are currently free from any obligation to weigh containers, the WSC/ICS amendment would make the existence of an “implied term” (where terminals are obliged to verify container weights) much more likely, which could in turn lead to a change in the nature of terminal handling contracts between shipping lines and terminals.

Additionally, shippers with cargo damaged due to being on board a vessel that suffered an accident as a result of mis-declared container weights, could claim negligence on the part of a terminal that had not weighed the container at fault.

“Cargo owners (whose cargoes are damaged) or ship owners (whose chartered-out ships are lost) may seek to argue the existence of a duty of care in negligence on a terminal to verify the weight of containers or actually weigh containers if they can prove that the failure to weigh was causative.  On balance, we think the argument would currently fail but we cannot exclude the possibility that it would succeed. If the WSC/ICS amendment is implemented, we think that there would be a much stronger argument that a duty exists,” HFW wrote.

The underlying opinion at the law firm is that terminals ought to use the amendment as an opportunity to provide a service to carriers and shippers which allows them to comply with the new requirements, and recoup the investment in weighing technologies – whether in the form of a weighbridge or a weighing mechanisms on crane spreaders – through some form of terminal handling surcharge. A view that the WSC/ICS proposal also supports.

Similarly, TT Club was confident that insurance policies could be easily devised that would protect terminals, noting “underwriters generally are adept at accommodating legislative revision”, and it also added that the introduction of the amendment would bring carriers reluctant to tackle errant shippers into line.

“This creates a ‘level playing field’ by which all ships will have to adopt a common standard. Anecdote would have us understand that cargo rejected by one line may historically have been accepted by another. As such, global legislation should resolve any commercial sensitivities.”

In an earlier interview with The Loadstar, TT Club’s risk management director Peregrine Storrs-Fox said: “My reading of the WSC/ICS proposal is that it’s realistic, and its likely to be about four years before actual implementation – by the time it has been through all proper committee processes it will deliver results that are measurable.”

But many terminals remain fundamentally opposed to the idea. One terminal manager in Germany told The Loadstar: “I cannot understand why they are looking at the ports to do this. The ports are seldom the first place to handle a box. The shipper should know how many boxes he has put into a container, and he should know that each one weighs X, and therefore the container should weight that times the number of boxes – it’s not hard.

“It’s criminal for a shipper not provide the proper weight – after all, it’s the same sequence of events as hazardous cargo. So, go after the guys that mis-declare and fine them – and do that for five weeks and then you are home… don’t set up a system that transfers the responsibility to the ports.”