Law Watch – Dangerous Goods

In November 1992, handlers loaded a cargo container onto a Qantas passenger aircraft at Qantas’ cargo hangar in Los Angeles. A package burst into flames. Airport emergency services were called to control the blaze. The package in question contained a small chemical oxygen generator. The package was incorrectly labelled as aircraft parts and was also incorrectly packed in bubble wrap inside a cardboard box. Fortunately, the incident had not occurred later as it may have led to a mid air disaster.

These are just some of the reported incidents resulting from the incorrect packaging and handling of dangerous goods shipped or carried on aircraft around Australia and internationally.

It would be readily acknowledged by members of the industry that unreported violations occur frequently, many involving the movement by shipping companies of dangerous goods that have not been declared.

So what is regarded as dangerous when it comes to air transport? A list of common dangerous goods, some of which are probably in your aircraft, either in the cargo hold or carried by passengers would certainly include the fol- lowing: emergency flares, aerosols (flammable and non- flammable), cigarette lighters, alcohol, matches (book, card or strike on box), paint, hydrogen peroxide, infectious sub- stances, pesticides, batteries, disinfectants, dyes, cosmetics or drugs (containing aerosols or flammable liquids), carbon dioxide solid (dry ice), life saving equipment that is self inflating, and tyre assemblies inflated (unserviceable, dam- aged or inflated above maximum rated pressure).

Common sense would indicate that most of the above items should receive special handling. And yet many pilots or operational people who do not handle “cargo” on a regular basis, fail to realise that these items are classified as dangerous goods by international conventions and Australia’s Civil Aviation Regulations. They are also probably unaware of the basics of proper storage and packaging.

The Civil Aviation Act provides the conditions under which dangerous goods may be consigned and carried, the statement of contents of cargo consignments required and dangerous goods training requirements.

Conditions for Carrying Dangerous Goods

The consignment and carriage of dangerous goods must be in accordance with the Civil Aviation Regulations including any conditions specified in the Regulations. Dangerous goods must be in accordance with the Civil Aviation Regulations including any conditions specified in the Regulations. Dangerous goods may also be carried and consigned with the CAA’s written permission, but the CAA may impose conditions. The CAA may permit, under certain circumstances, the consignment or carriage of dangerous goods normally forbidden or in a manner contrary to the prescribed procedures.

A shipper or an operator could face a penalty of two years imprisonment or a substantial monetary fine for breaching the Regulations’ conditions. A court may impose a penalty of seven years imprisonment or a substantial monetary fine if a shipper or an operator knowingly or recklessly breached the conditions.

Statement of the Cargo’s Contents

A person consigning cargo to be carried on an aircraft must make a written statement about the consigned cargo. The statement may describe the cargo’s contents or simply state that the cargo does not contain any dangerous goods. It is a practical and workable mechanism intended by the CAA to reduce the incidence of dangerous goods being included in normal cargo consignments. False statements about the contents of consigned cargo carry a hefty two year imprisonment penalty.

The Regulations specify what the statement must say but not the manner in which the statement must be made. A standard industry practice is for an original shipper of cargo to make the statement on the consignment note airwaybill.

Whatever means are adopted, the operator or freight forwarder should satisfy itself that it complies with the Regulations’ requirements. The written statement may be required later in court as evidence supporting a prosecution or in defence of a shipper, freight forwarder or operator.

The statement also serves an additional purpose. When that cargo is offered to another freight forwarder or operator, another statement of contents must be made. The ensuing shipper may often base its statement on the faith of the statement made by the cargo’s original shipper. Generally, by this stage, all the cargo would be consolidated by the freight forwarder and only on statement is required for that consolidation.

As a word of caution, freight forwarders or operators should have their consignment notes or airwaybills reviewed by their legal advisors to ensure that the statement of contents section meets the Regulation’s requirements. The idea here is to make the consignment notes or airwaybills as simple and as “user friendly” as possible for staff. Documents that are seen as “needing a lawyer to fill them out” will be ignored or filled in haphazardly. The subsequent legal consequences to the freight forwarder or operator can only be imagined, not to speak of the more immediate danger that undeclared dangerous goods are be carried.

Dangerous Goods Training

The regulations require persons handling or involved in the handling of cargo being carried or consigned to be car ried on an aircraft to have dangerous goods training. For instance, an operator accepting cargo from a freight forwarder or any other persons commits an offence if that freight forwarder or other person lacks the dangerous goods training required by the Regulations. Similarly, a freight forwarder accepting cargo from a person required by the Regulations to have dangerous goods training commits an office if that person does not have the necessary training. A penalty of $3000 may be imposed for each offence. This self-regulating system provides some incentive for operators and freight forwarders to ensure that they accept cargo from companies in compliance with the Regulations.

Certainly there is a difference between a freight forwarder or operator handling cargo on a daily business and the individual operating his own personal aircraft. And yet, surprisingly, individuals receiving instruction for a private pilots licence or a commercial pilots licence have not been required to receive dangerous goods training as part of their instruction.

Still Not Convinced?

If you are still not convinced of the need to be able to identify dangerous goods, consign them correctly and ensure they are handled by people with proper training, consider what might happen in an incident involving such goods. Fire is the major concern of course. The larger carriers that handle cargo on a daily basis are equipped for any emergency. But what about a private aircraft transporting common items? Would the freight emergency equipment be available before serious damage occurred to the aircraft? Aside from fire, other effects of an accident or incident Ansett involving dangerous goods may include extensive corrosive damage to an aircraft fuselage or destruction of or damage to flight critical control systems.

And while it is true that incidents and accidents involving dangerous goods will occur, knowledge of the types of goods which can cause problems and adequate training in dealing with such goods will certainly go a long way towards avoiding what could be a major disaster.

Kim Todt is an aviation law specialist.