Prepare for new obligations to weigh containers
2015 June: Overweight containers and incorrectly declared weight have been a problem for ports, shipping lines and others in the global supply chain since the beginning of the container revolution in 1956.
In that year the mv Ideal X became the world’s first containership with a cargo including 56 containers from New York to Houston. At present, almost 60 years later, more than 130 million containers are crossing oceans. The declared weight of more than 30% of that volume is inaccurate.
Misdeclared container weight carries significant adverse consequences. Ports and terminals have been particularly hard hit. Incidents of collapsed containers stacks; damage to forklifts and chassis; containers falling onto the wharf; cargo liability claims, as well as personal injury or death to port workers made this problem one that had to be addressed and urgently.
A recent survey conducted by International Association of Ports & Harbors (IAPH) showed that of the ports sampled, more than 90% had indicated that accidents on the terminal was the main risk caused by misdeclared container weight. Guidelines recommending shippers and terminals to verify the weight of containers have been developed. However, due to their non-binding nature, many shippers and terminals in the Caribbean and around world do not verify the weight of containers before they are loaded onto ships.
There is yet no international legal framework for regulating ports. This may account for the apparent low level of compliance. In order to fill this gap, the International Maritime Organisation (IMO), the United Nations specialised agency for the regulation of international shipping, has had to extend the legal instruments, which it has adopted from the ship-to-ship port interface.
The International Convention on the Safety of Life at Sea, 1974 as amended, commonly known as SOLAS Convention, is a typical example of an international shipping convention, which has come ashore. The first SOLAS Convention was adopted in the wake of the sinking of the Titanic in 1911. It addressed ship safety concerns such as life-saving appliances, fire prevention and distress communications. However, subsequent amendments to the convention have led to the adoption of the International Ship and Port Facility Security Code and the International Maritime Dangerous Goods Code (IMDG Code). Both codes have introduced new rights and obligations for operators of port facilities, which cannot be avoided as the codes are legally binding on all parties to the Convention.
In November 2014 the IMO took one step further inland with adoption of amendments to the SOLAS Convention. This required the weighing of packed export containers and that the weight (gross mass) be verified before they are loaded onto ships. The obligation to verify the weight of the container is placed on the shipper who is required to state the weight in the shipping documents accompanying the container and to provide this information to the terminal representative and or the shipping company. Prior to the amendment, the shippers’ obligation was limited to providing appropriate information on the cargo with sufficient time in advance of loading to allow the implementation of precautions, which may be necessary for proper stowage and safe carriage. However, this obligation was essentially unenforceable.
Two methods of establishing the weight of a container are now being prescribed: weighing the packed container using calibrated equipment; or, weighing the packages in the container and then adding the dunnage and packing material and the weight of the container itself.
These amendments become effective in July 2016, at which time they become legally binding.
The verification of the weight of a container is a critical element in the preparation of a ship’s stowage plan. And the adoption of the above-mentioned amendments was triggered by the casualty involving the container vessel MSC Napoli which suffered structural failure due in part to undeclared container weights. The vessel subsequently broke up off the coast of the United Kingdom in 2007 with 114 containers being lost. Some were carrying dangerous goods.
In 2013, the 8110 teu MOL Comfort also broke in two and sunk off the coast of Yemen. A major cause of the incident was reportedly overweight containers.
At common law, ports are treated as bailees, with their primary duty of care being to deliver the goods in their charge to the person lawfully entitled to accept same, in the same condition in which it was received by the port. Ports therefore have no legal obligation to weigh or verify the weight of containers received for export. Notwithstanding, port operators may find themselves having to invest in scales, weighbridges or other lifting equipment used to determine the weight of a packed container. This is because most stuffed cargo containers delivered to port facilities for export are not weighed prior to their delivery to the port and many shippers in the Caribbean will not be prepared or be in a position to acquire such equipment.
Ports will also have to develop procedures to prevent containers being accepted by the port without the proper accompanying shipping documents. The national legislation, which will be passed to implement the amendments will very likely have a clear provision prohibiting the loading of such containers on board with attendant penalties.
When containers have been rejected by ships due to undeclared weights, ports will be exposed to costs associated with non-loading, demurrage, storage and eventual return of the containers. And such costs will have to be recovered from the shipper or freight forwarder.
Arrangements will have to be put in place with both the carrier and the shipper to ensure that information about the weight of the container is received well in advance of the time of loading and to provide for the recovery of the (above-mentioned) costs without having to resort to the courts.
It is in the interest of ports to comply with the new regulations. Some of the larger ports in the region already have container lifting and repositioning equipment with built-in technology to verify the weight of loaded containers and so the additional investment should not be significant for them. For smaller ports however this could be a challenge.
The July 2016 deadline, a year away, should however give ports, shippers and governments enough time to establish the regulatory framework and commercial arrangements to facilitate the smooth implementation of the new regulations. 
by Bertrand Smith*
* Bertrand Smith is Director of Legal Affairs at the Maritime Authority of Jamaica