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There have been a number of dramatic incidents at sea in the past two decades involving major fires and explosions on container ships, resulting in significant damage or even sinking, and crew injuries, sometimes fatal. These incidents have frequently been linked to the carriage of packaged dangerous goods and one particular substance has featured in many of them. Whilst it is the incidents and their immediate aftermath that grab the headlines, there is eventually often a legal judgment as to liability and one such judgment was recently published.
At about 0230 local time on 30 December 1998, an explosion took place in #3 hold of the ‘Aconcagua’, a 2,216 TEU container ship on a voyage off the coast of Ecuador. The fire caused the crew to abandon ship and widespread damage was caused to the ship and the cargo it was carrying. The cause of the explosion was the self-ignition of 334 kegs of Calcium Hypochlorite
(CH) which were stowed in a container. Although widely used around the world to purify swimming pools and to provide potable water in emergency disaster areas, amongst other things, it has three UN Numbers allocated to it and is placed in class 5.1 (oxidising agents) of the IMDG Code. In particular, it is heat sensitive in the concentrated form in which it is shipped and care is
needed in how it is packaged and stowed within the container, as well as where it is stowed on the ship. This consignment was UN 1748 and ‘its critical ambient temperature of decomposition may be as low as 60 degrees Celsius’. This meant that it was safe to be carried in containers and on or under deck in container ships.
This particular container was stowed in a hold next to a fuel tank and, as such bunkers have to be heated to enable the fuel to be used, the apparently inevitable happened and the CH exploded.
The company that was both the time-charterer and the carrier under the bill of lading admitted negligence due to the incorrect stowage and made payments to the ship owner in settlement of the claims for damages arising from the explosion. However, based upon expert evidence the court found things were somewhat different. At the time of loading of the ship in Busan, it was not the intention to use any of the fuel in the tank in question during that part of the voyage and it was only on 22 December that it was decided by the ship’s officers to heat the tank and transfer some of its fuel to a settling tank. The fuel was heated to and kept at 55 degrees Celsius. Even then, due to the level of fuel in the tank falling below the tank top by 25 December, the maximum temperature that the container would have been subjected to would have been in the high thirties Celsius.
It was concluded, therefore, that the fact that the CH self ignited and exploded was not due to it being stowed against the fuel tank and UN 1748 as declared should not normally have ignited at the temperatures experienced. That of itself indicated that the chemical may have been abnormal. In fact, tests carried out on samples indicated that the manufacturers of the chemical
could on occasions produce CH with an abnormally low critical ambient temperature (CAT).
Accordingly, the judge concluded that the CAT of the cargo shipped on ’Aconcagua’ was probably below 35 degrees Celsius and, had it not had an abnormally low CAT, the explosion would not have occurred. It was in effect a rogue material. Applying this conclusion to the relevant provisions meant that the charterer was entitled to an indemnity from the shipper for damage to the ship arising from the explosion.
Since 1998, and following further major incidents at sea, the form of packaging, the maximum weight contents of each package and the number of packages in a container have all been more closely specified by the IMDG Code. Regretfully, incidents still occur and shipping companies are increasingly and reluctantly deciding to refuse to carry this cargo.
The lessons of the final judgment on this incident are that manufacturers of CH must be much more careful in the quality of the product that they ship and at all times correctly classify and declare it. Shipping companies need to have well found systems for checking the declarations (CH has many different trade names) and for ensuring that any containers carrying CH are stowed in the most appropriate position in the ship.
The much wider implication is that shippers can be held to be responsible and liable for accidents at sea – which may leave freight forwarders and NVOCs exposed where recourse or enforcement against the actual shipper is not possible. Where a ship is badly damaged or even sunk, such liability can result in substantial damages and in this instance it amounted to more than USD27 million.
