Cedric Chatteleyn, Director of claims at Thomas Miller Hellas, provided insight into the “SOLAS Verified gross mass (VGM) Challenge” at his presentation during the 2016 SAFETY4SEA Conference & Awards. Following a recent amendment to SOLAS, it is now a condition for loading a packed container on a ship that the container has a verified gross mass (VGM). The shipper should provide a verified gross mass to the carrier and the carrier is entitled to refuse to load if this information has not been provided. This requirement became mandatory on 1st July 2016 and applies globally. It is therefore now a violation of SOLAS to load a packed container onto a ship if the ship operator or the terminal operator does not have a verified gross mass.
Following the grounding of the MSC Napoli in 2007, it was found that 20% of the cargo weight differed from the declared manifests. The MAIB investigation concluded that this eliminated the safety margin although the grounding had not been caused by these issues. Around the same time, MARIN – a Dutch institute conducted a research project called “Lashing@Seaproject”- which came to a similar finding concluding that variability in cargo weight undermined safe stowage and securing. Both findings were reported to the IMO who created a Working Group and eventually drafted the amendment to SOLAS.
SOLAS is globally binding and the latest amendment came into force in July 2016 and in Greece a month later by way of presidential decree. The changes to SOLAS are expected to have a major impact on the practices of companies involved in the container business. Although SOLAS relates to safety at sea, the VGM amendment is likely to have consequences on shore activities as well.
In the context of this new regulation, the gross mass is the content of the container i.e. the cargo, the dunnage and the securing equipment plus the tare, being the weight of the container. The VGM can be obtained by two methods under this legislation; either by 1) weighting the packed and sealed container or by 2) weighting all its constituent parts and adding them up. The VGM is sent by the shipper to the carrier and the loading terminal who use this information in the stowage planning. If no VGM is produced by the shipper, the carrier is entitled not to load the container.
The key aspect of the latest amendment to SOLAS is that the shipper is responsible under either method 1 or method 2 when it comes to weighting the cargo. Both methods can be delegated to a third party but both methods also require a certified and calibrated weighing equipment. In addition, estimation is not permitted. The shipper may rely on others but he will ultimately remain responsible. The carrier’s role is limited to receiving a signed VGM from the shipper.
The following questions are often being asked concerning this legislation:
Who is the shipper in this context?
Under SOLAS the shipper is the person who is described as such on the B/L. This means that whoever puts his name on the B/L as shipper will be responsible. There is another definition by the Maritime Safety Committee, which is slightly wider: ‘’the Shipper is the legal entity named on the B/L or the seaway B/L or an equivalent multi modal transport document and/or Contract of Carriage.’’ However, due to the complexity of the supply chain in the container trade, the shipper on the B/L may not have direct control over the key elements which will allow him to determine the VGM. The shipper should therefore be aware of his responsibilities and ensure that arrangements are in place to provide VGM in compliance with the international regulations. Commercially, the parties should also agree under the Contract of Sale to determine who should provide the VGM and how.
Is there an agreed format to communicate VGM?
The IMO has left it to the parties to decide on the format they wish to adopt. The same information concerning the verified gross mass should be provided under Method 1 and Method 2 and the VGM should be signed by the shipper. The information can be transmitted electronically provided it is signed in capital letters with the name of the shipper. There are new EDI messages which have been created for VGM, one of them is called VERMAS and there is a similar system in the US. More broadly and at a commercial level the parties should discuss and agree on the form and the precise substance of the information provided.
Is there a deadline to provide VGM?
This has also been left at the discretion of the parties as the new legislation is silent on this issue. The shipper should therefore liaise with the carrier and the Terminal to find out what the cut-off time is for loading.
Is there an obligation on the carrier to verify the VGM and report to the authorities if there are any discrepancies?
There is no obligation on the carrier to verify or report to the authorities. However, if a container is weighted by the terminal and there is difference with the VGM, it is up to the carrier and the terminal to put together a procedure to determine which value should prevail.
What is the margin of error?
National authorities should determine the level of accuracy. Although there are no international standards, there are some recommendations and guidelines by “The Organization of Legal Metrology”. Accuracy is the only concept the shipper should be concerned about as he may be exposed to sanctions under the applicable national legislation.
Should factors influencing the weight be taken into account, such as humidity?
Humidity is unlikely to affect the overall mass and therefore it should not be a safety concern.
What will be the level of penalties for misdeclaration or non-declaration?
The penalties will be at the discretion of the national authorities. In addition, there will be commercial implications if the container is rejected as this may delay the whole shipment for which the shipper may be responsible as well.
What if a weight bridge does not issue tickets, is the driver’s consignment note acceptable?
There is no obligation under SOLAS for the weight bridge to issue a ticket. The only thing that SOLAS requires is that the shipper communicates the VGM in a shipping document that can be part of shipping instructions. Either way, the document should highlight the VGM and be signed by someone authorized by the shipper or the shipper himself who should have used certified and calibrated weighting equipments.
What about a situation where the port container handling equipment is accurate to within 5%. Is this acceptable?
The acceptable margin will be defined by the local authorities but a margin of 5% is unlikely to meet the applicable standards.
Who will pay for the weighting process?
This is a commercial issue and the parties will have to agree as to who will pay.
What about a situation where a freight forwarder loads a container less than container load, meaning that he does not fill up the entire container?
Again this will depend on his contract with the co-loading freight forwarder and who enters into the Contract of Carriage and becomes the shipper under the B/L. If it is acceptable under the contract with the master freight forwarder, the forwarder may use the second weighting method and pass the information to the party completing the packing who will remain responsible as shipper under the B/L.
What about a situation where the shipper delivers to the freight forwarder without knowing the mass and he asks the Freight Forwarder to issue the VGM?
This situation will again depend on the terms of the contract. If the freight forwarder is the shipper under the Bill, he should weigh the cargo using certified equipements and issue the VGM. If the VGM is obtained from the Freight forwarder, the shipper who will appear on the Bill will remain responsible, so he will have to trust the method used by the freight forwarder.
What if the tare is lacking or inaccurate due to wear and tear?
The tare mass is normally marked on the exterior of the container when manufactured and the shipper should only rely on this information. Where it is missing or damaged, the shipper should contact the container operator to rectify the problem.
While IMO focuses on safety in relation to loss of container at sea and stowage issue, it is likely that the latest amendments to SOLAS will have greater benefit for the road and rail sector. In a broader context, work continues when it comes to container safety with ISO 3878 in relation to handling and securing of containers, revisions to the Container Safety Convention, revisions to the Packing Code and the MSC due diligence circular which deals with best practices for selection of contractors which is relevant to VGM and general cargo packing services
For further information, the UK P&I and TT Clubs have compiled a number of publications in response to industry questions which can be found here
The views presented hereabove are only those of the author and not necessarily those of SAFETY4SEA and are for information sharing and discussion purposes only.
Cedric Chatteleyn, Claims Director, Thomas Miller Hellas
Cedric obtained a Masters in International Private Law and an LLM in Maritime Law which culminated with a dissertation concerning Incoterms and charter parties. He worked for a short period for a Marine Insurance Broker placing cover in the Lloyds Market. He joined the London office of UK P&I Club in 1996 where he dealt with mainly French, Spanish and Italian Members. After 4 years in London, he relocated in 2000 to join Thomas Miller Hellas the Greek office of the UK P&I Club. Cedric advises ship owners and charterers and handles a wide range of both P&I and FD&D claims and disputes. This includes on the P&I side, B/L issues, cargo claims, dock and collision damages together with unrecoverable GA claims and salvage cases. Over the years, Cedric has been involved in numerous negotiations which included trips in difficult jurisdictions to assist in the resolution of disputes. On the FD&D side, Cedric deals with time or voyage charter party disputes, MOA and has been involved in Seminars organised by the Defence Club for its Members