Key Points:
Everyone in the supply chain is required to be familiar with the legislation governing the transport of dangerous goods by air.
In the light of a recent incident involving the shipment of a dangerous cargo across three continents on two passenger flights, it is probably timely to remind all involved in such shipments to check the procedures they have in place for handling dangerous cargo.
In this particular case, there was a lack of proper care on the part of the shipper, freight forwarder and airline.
The packing list prepared by the shipper correctly identified the cargo as "dangerous goods" by reference to the Proper Shipping Name, UN Number, Hazard Class (5.1 – Oxidising Substances) and Packing Group (I – Great Danger). However, the commercial invoice did not identify the cargo as dangerous.
The Air Waybill issued by the airline's freight forwarder also failed to mention the dangerous nature of the cargo. As a consequence, the cargo was shipped on two passenger flights instead of on the required cargo-only flights and also handled by ground crew at the connecting airport unaware of the dangerous nature of the consignment. In fact, the description of the goods on the Air Waybill produced by the airline's agent did not accord with the description on either the packing list or the commercial invoice and would not have alerted anyone as to the nature of the goods.
The cargo in question explodes on contact with water. However, there was probably little likelihood of a serious incident occurring because the containment vessels would have had to be breached and then the outside packaging. In addition, there would need to have been water present in the aircraft cargo hold.
The point is, though, that carelessness at several stages gave rise to a potential risk to airline passengers and aircraft.
What is the law on shipping dangerous goods?
It is important to note that, regardless of who prepares the Air Waybill, it is the shipper who states:
"Shipper certifies that the particulars on the face hereof are correct and that insofar as any part of the consignment contains dangerous goods, such part is properly described by name and is in proper condition for carriage by air according to the applicable Dangerous Goods Regulations."
From a global perspective, Annex 18 of the Chicago Convention contains the policy on the carriage of dangerous good by air. This is supplemented by ICAO Technical Instructions for the Safe Transport of Dangerous Goods, which have been implemented in Australia. In many cases, airlines follow the IATA Dangerous Goods Regulations, which improve on the ICAO instructions in some aspects.
The relevant Australian legislation is the Civil Aviation Act 1988 and Regulations made under that Act. Section 23 deals with the consignment of dangerous goods on board aircraft, while section 23A concerns statements concerning the contents of cargo.
What you need to do
Everyone in the supply chain is required to be familiar with the legislation governing the transport of dangerous goods by air.
Purely from a risk management point of view, shippers need to pay particular attention to their procedures for:
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identifying and describing dangerous goods
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labelling dangerous goods
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packing dangerous goods (and double-checking if an external contractor is being used for this purpose)
They also need to ensure uniformity in identifying and describing dangerous goods across all relevant documentation, including packing slips and commercial invoices, as well as in Customs, insurance and other related records.
Whether the shipper or carrier is using a freight forwarder, the shipper needs to double-check the correctness of the Air Waybill. This is even more important now that electronic signatures are widely used. The reason for this step should be obvious.
Finally, carriers need to ensure themselves, as happens in shipping, that the goods are correctly described, properly packed and correctly identified as dangerous or not.
Normally, only the Air Waybill is carried by the airline, but surely it is a better practice to keep a set of documentation together, which may become a useful tool when the airline is undertaking its checks prior to loading the cargo.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.
