The Contracting Shipper's Strict Liability in the Carriage of Dangerous Goods by Sea

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Title: The Contracting Shipper's Strict Liability in the Carriage of Dangerous Goods by Sea
Author: Thörnroos, Josephine
Other contributor: Helsingin yliopisto, Oikeustieteellinen tiedekunta
University of Helsinki, Faculty of Law
Helsingfors universitet, Juridiska fakulteten
Publisher: Helsingin yliopisto
Date: 2019
Language: eng
Thesis level: master's thesis
Degree program: Oikeustieteen maisterin koulutusohjelma
Master's Programme in Law
Magisterprogrammet i rättsvetenskap
Specialisation: Kauppaoikeus
Commercial Law
Abstract: Pursuant to 13:41 (§ 291) of the Nordic Maritime Codes (NMC) the contracting shipper is strictly liable for damage caused by dangerous goods, where he has handed over the goods to a carrier without informing him of their dangerous properties and where the carrier is not otherwise aware of their dangerous properties. In this thesis the strict liability rule is analysed from both a de lege lata and de lege ferenda point of view. The study reveals that the current liability model is not fully satisfactory as it confers an imbalance between the interests of the contracting shipper and the carrier. It is therefore necessary to review the special liability regime in respect of dangerous goods. The thesis concludes that there are still arguments in favour of maintaining the strict basis of liability, however, the rule must take predictability considerations into account when defining “dangerous goods” and ensure that a sufficient level of care is required by the carrier also when dangerous goods are being carried. The definition of dangerous goods must not necessarily be tied to public safety regulation, such as the IMDG Code. However, there is a need to ensure that the dangerousness assessment performed by the courts in hindsight, where a damage has already occurred, will be based on what was known of the goods at the time of shipment. The perspective shall be that of a prudent contracting shipper. In the author’s view, a more predictable dangerous goods definition is crucial for obtaining a proper balance of interests between the parties to the contract of carriage. Furthermore, the strict liability rule shall also take the constructive knowledge of the carrier into account, meaning that the contracting shipper shall never be strictly liable where it is proven that the contracting carrier was, or ought to be, aware of the dangerous nature of the goods. The carriers must thus actively and to a proper extent acquaint himself with the properties of the goods he is to carry. The thesis also concludes that the contracting shipper’s failure to inform as a separate precondition for strict liability is superfluous and should therefore be abolished. The thesis proposes a new liability model embracing the above aspects. The proposed liability model is aimed at ensuring a proper flow of information along the chain of carriers, as information is the key to prevent damage caused by dangerous goods.

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