A transport carrier – whether by sea, land or air – has the right to refuse to carry dangerous goods if a shipper has not properly declared them as such.
This is according to Freek van Rooyen, partner at law firm Shepstone & Wylie, who used case law to illustrate the legal definition of dangerous goods at a recent FTW/JCCI breakfast seminar on the handling of dangerous goods.
He said that while there was no clear legal definition, the 1916 case law – Mitchell, Cotts & Co versus Steel Brothers & Co – states that “goods may be regarded as dangerous not only if of a kind that could endanger the ship, its crew or anyone else on board, or cause damage to any of the parties engaged in the voyage, or other cargoes on board, but also if they are liable to subject the ship to forfeiture or delay”.
Van Rooyen pointed out that although in this case reference was made to goods transported by sea, it applied to all modes of transport. He said the shipper of the goods was under an implied obligation not to ship without notifying the carrier of the danger and obtaining the carrier’s consent to carry such goods.
“When dangerous goods are loaded without a carrier’s consent, the carrier company has the right to offload them, destroy them or take measures to render them innocuous.” He said that the carrier would also not be liable for the costs or for paying compensation to the shipper for its actions.
“The shipper will be liable for all damage and expenses arising out of such shipment,” Van Rooyen said. He suggested that shippers familiarise themselves with the National Road Traffic Act (RTA) 93 of 1996, which currently governs the road transportation of dangerous goods.
Failure to comply with the provisions of the RTA could result in a hefty fine or even imprisonment, depending on the nature of the offence and the consequential losses which could result, he added. “This poses significant risk to a shipper and could result in closure of their business.”
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Failure to comply with the provisions of the RTA could result in a hefty fine or even imprisonment. – Freek Van Rooyen
