Dangerous Goods Liability in the Age of Containerization—Warning: This Comment May (or May Not) Self-Destruct

Joseph Z. Cavanah | Comment

Containerization significantly altered the risks and benefits associated with the global shipping industry. The rules governing the industry, however, have not evolved in lockstep with newer technology. Rather, courts and businesses apply dated rules to modern and sometimes very dangerous risks. This Comment examines rules that govern dangerous goods and surveys a sample of leading interpretations of those rules. Through its analysis of recent disasters, this Comment illustrates the need for a uniform rule that accounts for the gap between technology and dated legal regimes. As one preeminent maritime law scholar noted over thirty years ago, the “difficulties created by the present lack of uniformity are . . . formidable,” and lawyers must “consider whether it is possible to simplify the present system in the direction of greater uniformity.” Instead of rigid adherence to rules that the judiciary and industry struggle to apply, this Comment offers a few solutions that the judiciary, Congress, or the shipping industry should consider to promote a uniform approach to the regulation of the shipment of dangerous goods.

The following hypothetical illustrates the legal issues surrounding the shipment of dangerous goods: A carrier and shipper agree to ship dangerous goods, but neither party knows the goods are dangerous. Damage results from the shipment. Who is liable: the carrier or the shipper? The shipper is liable and the carrier is immune. If, however, one or both parties know the goods are dangerous, then the analysis becomes complicated. Circuit courts interpret the issue differently. Until recently, most courts agreed that any knowledge on behalf of the carrier was sufficient to hold the carrier liable for damages arising out of dangerous goods. This rule follows from the proposition that if a carrier knows cargo is dangerous, then the carrier should take steps to prevent mishaps. However, some courts now analyze the sufficiency of a carrier’s knowledge with respect to the dangerous goods.

In other words, instead of simply asking “did the carrier know or not know,” some courts now ask “how much did the carrier know?” Given an increased reliance upon containerization and an abundance of chemicals and dangerous goods shipments, these recent decisions signal both a need for change and lack of uniformity in the maritime law.