Guns disguised as lentils raise liability questions

A recent call by a US congressman to consider sanctions against CMA CGM after one of its vessels was found to be carrying arms from Iran for Hamas in the Gaza strip raises several questions around liability. A statement from the line published by IFW explained that the documents prepared by the shipper clearly indicated that the containers were loaded with lentils, when in fact they contained weapons – and that the carrier could not be held liable for the contents of a container loaded by a shipper and delivered sealed to the dockside. Quintus van der Merwe, partner at law firm Shepstone & Wylie, believes that provided the shipping line can show it was not at fault and not negligent, then it should not be liable. He points out that the only way for the shipping line to establish that a declaration that containers are packed with lentils is false and that the containers in fact contain arms, is if every container is X-rayed or physically checked before being sealed – which is logistically extremely onerous. CMA CGM is as much a victim of fraud as anyone else, in Van der Merwe’s view. “That said, in South Africa there are a number of statutes that would be relevant. One would have to trawl through not only the Customs & Excise Act, but the Firearms Controls Act, National Conventional Arms Act, container security provisions and any other possible laws of application to make sure that there is no provision for strict liability. While I would be surprised if there is provision for strict liability, it cannot be discounted unless checked,” he told FTW. The law firm’s head of international transport and trade, Shane Dwyer, however pointed out that liability rulings depended on the jurisdiction. According to Dwyer, under US rules, the carrier is liable in many circumstances, without “fault”, which is why the country has the “long arm” statute regarding exactly this – arms secreted in containers. The onus is therefore on the carrier to ensure that containers are X-rayed at the ports of loading or where containers are transhipped.