SOLAS ORIENTATION

EXISTING LAW – OSHA, 29 CFR 1918.85 – Containerized cargo operations

Occupational Safety and Health Act (OSHA) Part 19 – Longshoring standards
Accurate gross weight of all export containers must be made known to equipment operators at U.S. ports before the containers are lifted
OSHA places the burden of obtaining accurate container weights on the employers of the equipment operators

§ 1918.85 states in pertinent part:

(2) For a loaded container:

(i)The actual gross weight shall be plainly marked and visible to the crane or other hoisting equipment operator or signalman, or to every supervisor or job boss on site and in charge of the operation; or
(ii) The cargo stowage plan or equivalent permanently recorded display serving the same purpose, containing the actual gross weight and the serial number or other positive identification of that specific container, shall be provided to the crane or other hoisting equipment operator and signalman, and to every supervisor and job boss on site and in charge of the operation.
Every outbound container received at a marine terminal ready to load aboard a vessel without further consolidation or loading shall be weighed to obtain the actual gross weight, either at the terminal or elsewhere, before being hoisted.
(i) When container weighing scales are found at a marine terminal, any outbound container with a load consolidated at that terminal shall be weighed to obtain the actual weight before being hoisted.
(ii) If the terminal has no scales, the actual gross weight may be calculated from the container’s contents and the container’s empty weight. The weights used in the calculation shall be posted conspicuously on the container, with the name of the person making the calculation, and the date.

29 CFR § 1917.71 Terminals handling intermodal containers or roll-on roll-off operations.

(b)(3) Every outbound loaded container which is received at a marine terminal ready to load aboard a vessel without further consolidation or loading shall be weighed to obtain the actual gross weight, either at the terminal or elsewhere, before being hoisted.
OSHA regulations do not define “actual gross weight”
No reported decisions addressing the criteria for compliance with “actual gross weight” requirement
OSHA regulations do not expressly provide that estimated weighbridge weight constitutes “actual gross weight” (OSHA) or “verified gross mass” (SOLAS

NEW LAW – AMENDED SOLAS

AMENDMENTS TO THE INTERNATIONAL CONVENTION FOR THE SAFETY OF LIFE AT SEA (SOLAS), 1974, AS AMENDED
CHAPTER VI CARRIAGE OF CARGOES AND OIL FUELS
Part A General Provisions
Regulation 2 – Cargo information
The following new paragraphs 4 to 6 are added after existing paragraph 3:
- “4 In the case of cargo carried in a container*, except for containers carried on a chassis or a trailer when such containers are driven on or off a ro-ro ship engaged in short international voyages as defined in regulation III/3, the gross mass according to paragraph 2.1 of this regulation shall be verified by the shipper, either by:
  1. weighing the packed container using calibrated and certified equipment; or
  
  2. weighing all packages and cargo items, including the mass of pallets, dunnage and other securing material to be packed in the container and adding the tare mass of the container to the sum of the single masses, using a certified method approved by the competent authority of the State in which packing of the container was completed.

Regulation 2 – Cargo information

5. The shipper of a container shall ensure the verified gross mass** is stated in the shipping document. The shipping document shall be:

.1 signed by a person duly authorized by the shipper; and

.2 submitted to the master or his representative and to the terminal representative sufficiently in advance, as required by the master or his representative, to be used in the preparation of the ship stowage plan***.

6. If the shipping document, with regard to a packed container, does not provide the verified gross mass and the master or his representative and the terminal representative have not obtained the verified gross mass of the packed container, it shall not be loaded on to the ship.

PURPOSE OF AMENDED SOLAS – INCREASED SAFETY

Mis-declared container weight can affect the stability of trucks, terminal equipment and vessels, putting equipment and equipment operators in danger.
Not uncommon for accident investigations to reveal inaccurate weight information disclosed by shippers which are shown on cargo manifests.
The purpose of SOLAS Chapter VI, Regulation 2 is to ensure that all container weights are declared accurately to reduce the occurrence of accidents, especially those caused by overweight containers.

VERIFICATION OF LOADED CONTAINER WEIGHT IS MANDATORY

As of 1 July 2016, loaded container weight must be verified before the container may be permitted to be loaded on board ship under SOLAS.
The container weight may be determined by two methods:
1) weighing the container after it has been packed or
2) weighing all the contents of the container (including pallets, dunnage, and other packing material) and adding the container’s tare weight. OCEMA tariff item – carrier’s will stand by weight painted on their containers.

ESTIMATED WEIGHTS NOT PERMITTED

SOLAS does not provide that estimated weight is permissible and implanting guidelines expressly state that estimated weights are prohibited.
There is no provision in SOLAS for any margin of error or tolerance.
Approval and certification of weighing equipment is not uniform, in Florida only commercial scales (used for goods sold by weight) are regulated by Florida Bureau of Weights and Measures

PROVIDING ACCURATE WEIGHTS IS THE SHIPPER’S RESPONSIBILITY

The shipper (or a third party under the shipper’s responsibility) is required to provide accurate weight to the carrier and terminal, either electronically or on paper.
Weighing equipment must meet national certification and calibration requirements.
Weight verification must be ‘signed’: a specific person must be named and identified as having verified the accuracy of the weight calculation on behalf of the shipper.
The information and signature may be transmitted electronically, and the signature may consist of the last name of the responsible person in capital letters.
A carrier may rely on this signed weight verification as being accurate.

WHO IS THE “SHIPPER”

The shipper’ is a legal entity or person named on the bill of lading or equivalent multimodal transport document as shipper, and/or who (or in whose name or on whose behalf) a contract of carriage has been concluded with a shipping company

THE SHIPPER MAY BE ANY OF THE FOLLOWING:

The beneficial cargo owner (i.e. the owner of the goods, the exporter);
The non-vessel-operating common carrier;
Consolidator
NVOCC’s are shippers and carriers at the same time. They need to pass on to the VOCC carrying the goods the verified weight provided to them by the shipper identified in the bill of lading they issue.
LCL – shipper’s provide VGM to NVOCC
Costs associated with repacking etc. borne by shipper who provided inaccurate VGM

VGM AGENTS

Where the ‘shipper’ identified in the bill of lading does not have control over the cargo it must make arrangements to obtain and provide a verified gross mass in compliance with Amended SOLAS.

CONSEQUENCES OF NON COMPLIANCE FOR SHIPPERS

Commercial and operational penalties including:
- shipping delays
- demurrage charges
- administrative charges
- repacking costs
- weighing costs

CONSEQUENCES OF NON COMPLIANCE FOR SHIPPERS

Containers without a verified gross mass loaded on board can result in the detention of the container by the U.S. Coast Guard.
Containers with a false or inaccurate verified gross mass certificate loaded on board can result in the detention of the container by the U.S. Coast Guard.
No direct action or fines against the shipper by the US Coast Guard, commercial penalties only.

CONSEQUENCES FOR CARRIERS

Containers without a verified gross mass loaded on board can result in the detention of the vessel or detention of non compliant containers.
SOLAS VGM compliance will be the responsibility of vessel charterers under most charter parties, such as the following clause contained in the New York Produce Exchange charter party:
- Prior to loading, Charterers or their agents shall furnish Master in good time, before cargo operations with shippers’ declared weights for containers. Charterers also to be responsible for any damages, consequences, delays and expenses as may arise in port or at sea from lack of container weights and/or discrepancies between manifest and actual container weights.

CALIBRATED, CERTIFIED EQUIPMENT – CERTIFICATION OF SCALES BY FLORIDA BUREAU OF WEIGHTS AND MEASURES AND SCALE MANUFACTURERS

Florida Bureau of Weights and Measures periodically audits calibration of commercial scales (used to weigh materials sold by weight).
Warehouse scales up to 5,000 lbs are not considered commercial.
Scale owner/operators rely more on regular certifications issued by scale manufacturers such as Fairbanks, Rice Lake and Mettler Toledo, which are more up to date.
Scales can be affixed to cranes, forklifts, top picks, but scale manufacturers have indicated that they will not certify the accuracy of scales affixed to hydraulic top picks.
FBW&M certification does not expire- sometimes takes them more than a year to update testing of scale calibration.
FBW&M has no certified method for calculating container VGM other than simple arithmetic of adding weights of contents to container tare weight.

USCG ENFORCEMENT OF SOLAS

U.S. Coast Guard is responsible for enforcing SOLAS
The container weight verification law to be enforced in the same way USCG enforces other aspects of SOLAS:
- 1) the Coast Guard would detain cargo found without a VGM on a foreign-flag vessel until it is cleared by the country of origin or
- 2) the USCG Captain of the Port could hold U.S. export cargo if it didn’t include an accurate VGM or had no VGM.
The Coast Guard could weigh containers at U.S. ports and compare that weight against the VGM received by the carrier in foreign or U.S. ports.
A container without a VGM could be put a hold until a VGM is obtained.
No USCG action against the shipper, but the carrier would pass on to the shipper the costs it has incurred.
U.S. Coast Guard may ensue if carrier does not have verified gross mass for each loaded container on board its ship.

VERIFICATION OF LOADED CONTAINER WEIGHT

There are no certified “weighers” under SOLAS
SOLAS does not require any assessment or registration of a scale operator
Calibration certifications can be obtained from scale manufacturers

SHIPPER PREPARATION

Identify vendors (warehouses, terminals, ports) with appropriate weighing equipment.
Florida Bureau of Weights and Measures can identify vendors with certified calibrated equipment
Ask carriers, terminals, truckers, and forwarders about VGM weighing charges
Consult with freight forwarders, NVOCC’s, carriers, terminals and truckers to determine if they have access equipment that is calibrated and certified
Review transportation contracts (with shippers, carriers, NVOCC’s, forwarders, truckers) to identify who is responsible for weighing the cargo / loaded container and associated charges
Inquire whether the port or the terminal operator will provide VGM of loaded containers passing through their gates on behalf of shippers or whether they will only provide weight to the shipper without verification
Review insurance coverage to determine additional coverage to protect against damages arising from inaccurate VGMs.

INSTRUCTIONS TO SHIPPERS:

Booking confirmations should include notification to shippers that they are responsible for providing the VGM document to their forwarder / NVOCC / carrier before the vessel loading date
The VGM document will include container number, seal number, number of pieces loaded, tare weight of container and total weight of all material inside the container – the total is the Gross Mass of the container.
The scale used for weighing the cargo must have a current certificate of calibration from scale manufacturer, a copy of which should be on hand to if the accuracy of the weight is questioned.
Remind shippers that there are two ways of calculating the VGM:
- 1) Weigh the container after it is loaded;
- 2) Weigh all packages, packing and dunnage material and add the tare weight of the container.

VGM SUBMISSION METHODS

EDI through VERMAS (Verified Gross Mass Message)
Carrier Web Portal
Email/Fax

USCG EQUIVALENCY BULLETIN

Agreement must be reached with weighing vendor that it is authorized to provide VGM to carrier on behalf of shipper.
Shipper still obligated to provide VGM, if violation of SOLAS found because estimated weight provided shipper will be liable. Indemnification provision in agreement with weighing vendor would be required to extend liability to weighing vendor for certifying the weight as VGM.

CMA CGM

Tolerance – 1 ton difference between shipper VGM and terminal weight will be allowed.
The shipper’s VGM will be utilized in stow plan unless there is more than a 1 ton difference from the terminal weight.
VGM must go to the carrier, cannot be transmitted by shipper to terminal directly
Extra charges associated with SOLAS compliance may include additional THC (if terminal weight is to be relied upon); trucking if trucker is to go to private weighbridge to obtain weight ticket; weighing charge.

SOUTH CAROLINA PORTS AUTHORITY – 5/5/16

Port will provide shippers estimated weight, backing out estimated weight of truck, fuel, genset for a $25 fee
SCPA does not certify the accuracy of the weight it provides
SCPA will not provide VGM to carrier on behalf of shipper
Shipper retains the obligation to provide certification of verified weight to ocean carrier
3^rd Method of calculating VGM – using estimated weight from weighbridge. This position is based on SPCPA’s belief that such an estimated weight complies with the OSHA regulation cited in the USCG equivalency bulletin
Defers to carriers to determine whether to use Method 3 over Method 2 (which should be more accurate as it does not include any estimated weight)
Does not comment on whether ocean carrier can justifiably accept a VGM from a terminal or scale operator knowing that it is an estimated weight – USCG is silent on this issue

INSURANCE

Check with broker as to coverage for VGM liability
Expanded general liability, errors and omissions, defense, demurrage and freight, and third party liability coverage may be needed
No coverage for intentional mis-declaration of VGM (VGM declared less than true weight to avoid detection of overweight container)

FORWARDER COMPLIANCE WITH AMENDED SOLAS

Receive documented VGM from the shipper.
Identify by name the ‘authorized person’ from the shipper.
Transmit completed VGM message or form to the carrier .
Maintain documents of showing VGM backup provided by the shipper or
Procure written instructions from the shipper to weigh the loaded container or the cargo and packing materials .
Arrange to have the cargo and packing materials or the loaded container weighed and receive documentary evidence of the verified weight.
Identify by name the ‘authorized person’ from the shipper.
Transmit completed VGM message or form to the carrier.
Maintain documents of showing VGM backup provided by the shipper.

CO-LOADING

If a container is packed by multiple parties or at different locations, the shipper that will be shown on the bill of lading is responsible for obtaining documents verifying the weight of the cargo and packing materials from each party or location.
Shipper should receive from any third party that has done some or all of the container loading verified weights of all the items the third party has loaded and backup documentation proving scale calibration and accurate weight.
Good practice to get document from third parties showing date and time identifiable items (cargo, dunnage, securing materials, etc.) were loaded and weighed using the identifiable certified and calibrated equipment.

NVOCC – Less than Container Load cargo

Obtain the documented VGM from the shippers
Obtain the name of the ‘authorized person’ from the shipper
or
Weigh all cargo on receipt before loading into container

NOTICE OF FEES OR CHARGES FOR WEIGHING SERVICES

Carriers and NVOCCs must provide customers 30 day notice of new charges
New administrative charges associated with SOLAS compliance and charges for weighing services should be published in carrier tariffs by June 1 to be effective July 1

TRUCKERS

Ask whether VGM was provided to carrier
If not provided, procedure at port terminal for receiving container without VGM
Require notation on dispatch that VGM was provided by shipper to carrier
Amend tariff to include charges for stop at weigh bridge; weighing at terminal

IMPORTERS

Make seller / shipper aware of responsibility for delays, demurrage, all costs if container is not loaded due to lack of VGM
Include VGM requirement in Purchase Order terms

INDEMNIFICATION AGREEMENTS

NVOCC and Freight Forwarder terms and conditions should include indemnification provisions addressing VGM requirement of SOLAS
NCBFAA terms and conditions have been updated to address SOLAS VGM requirements to indemnify forwarder or NVOCC – communicate those new terms to customers.
VGM indemnification provision of NCBFAA Terms & Conditions of Service can only be utilized by NCBFAA Regular Members or those who have paid an annual license fee of $1,000 to the NCBFAA.
Master Service Agreements should identify party responsible for performing and documenting VGM.

NOTICE TO CUSTOMERS

Whether or not weighing service will be provided for LCL cargo received for consolidation
If so, maximum cargo weight and dimensions available scale can handle
Charge for weighing service
List of alternative weighing options for cargo that exceeds scale weight, dimension capacity
VGM deadlines, i.e. FCL – day of loading at customer’s facility; LCL – day truck picks up cargo from customer’s facility