Caution in the Cargo Hold - The Updated Carriage of Dangerous Goods on board Aircraft

Published 3 febrero 2022

The Covid-19 virus and its subsequent variants coupled with the continuing worldwide delays in the transport of shipping containers by sea has forced an explosive growth in online shopping and a corresponding increase in the global shipment of cargo by air.  As a consequence, concern regarding the safety and security of the carriage of dangerous products and materials on board aircraft has significantly increased.  This has been especially true in respect of the carriage of potentially hazardous lithium batteries used in the modern manufacture of consumer electronics.

The Transport of Dangerous Goods

The definitions of which goods are considered to be “dangerous” in terms of their transport are broad and they are carefully categorised by legislation and regulation.  Fundamentally, regulated dangerous goods are considered to be substances, materials or articles that pose risks to people, animals or the environment.  Included within the regulatory definitions are many common consumer products that present potential risks whilst being transported.

The supply chain for dangerous goods encompasses an array of different interests.  These include manufacturers, sellers, packers, shippers and freight forwarders of dangerous products.  It also includes transport operators across a wide range of modes of transportation who are contracted to carry dangerous goods.  When dangerous goods are transported on board aircraft further concerned parties may include aircraft crew and, potentially, passengers.

There has been a surge in the production, availability and use of consumer goods that have the potential in certain circumstances to be dangerous, most notably consumer electronics containing lithium batteries.  This has necessitated greater awareness of their possible hazards whilst being transported.  The global chain of supply of dangerous goods presents potential threats along its entire length – from original manufacturer to end consumer.  It also creates the potential for serious liability arising from any damage which may be caused during the transport of dangerous goods.  Further, this liability might occur across several jurisdictional lines - subject to both international and national regulations and unique civil and criminal enforcement and justice systems.

By way of example, a lithium battery manufactured in Quebec may be shipped along with other lithium batteries by rail across Canada to Vancouver where it is loaded into a shipping container.  The shipping container is then transported by sea to China where it is installed in a mobile phone.  The mobile phone is then flown by cargo aircraft to Germany where it is stored in a warehouse with other potentially dangerous goods before being sold online, packaged and posted by road to a consumer in England.  The English consumer then travels on a passenger aircraft, with the phone on their person in the cabin or in their baggage in the aircraft cargo hold, on a holiday to the United States.

The single lithium battery, being considered a dangerous good with the potential to explode and cause fire, carries with it the risk to cause harm during each stage of its shipment and storage described above.  In addition, each individual mode of transport brings its own specific risks and concerns.  Further, each jurisdiction the lithium battery is transported through presents its own regulatory and judicial environment - be it the national rules and regulations of an individual country, the separate requirements of a regional alliance such as the European Union, or the varying unique laws between different states or provinces in countries such as the United States or Canada. 

Regulatory and legal environments can be vastly different from one another, impose significant commercial burdens and, very importantly, determine potential liability and damages in the event of an incident, including civil and criminal penalties.  Further, each jurisdiction brings its own administrative and judicial processes, which may be completely unfamiliar to the parties involved in the transport of dangerous goods.  

Moreover, the integration of a component such as a lithium battery within another manufactured product can compound the problem of ensuring adherence to the current regulatory standards because the existence of that specific dangerous good may be, to some extent, masked by the declaration or description of the overall finished product in which it is installed.

There are currently comprehensive international and national regulations in place applicable to the various transportation modes employed to carry dangerous goods.  Along with the increased manufacture, availability and use of dangerous goods, there is also a corresponding increase in the parties involved in their transport running afoul of regulators and opening themselves up to investigation - and potentially serious penalties, including criminal prosecution.

The Carriage of Dangerous Goods Regulations

The transport of dangerous goods, including that of seemingly innocent consumer products, such as cosmetics, fragrances, aerosol cans, consumer electronics, and even, famously, Christmas crackers, involves an often confusing and conflicting labyrinth of international and national regulations and authorities.

The international regulations are considered to be all-inclusive and wide-ranging rules intended to supplement and complement each other and which are subject to frequent updates responding quickly to new developments.  Yet, in practice, the rules often contradict each other, clash with local regulations and result in serious misinterpretation.  Further, the technical complexity of the international regulations, including their alphabet soup of acronyms, necessitates specialised training and experienced individuals in order for interested parties to properly implement the regulatory requirements.  

The primary international regulations and guidelines which shippers and carriers must strictly abide by are determined by mode of transport.  These include international agreements for the carriage of dangerous goods by road, rail, inland waterways, oceangoing vessels and on board aircraft.

In respect of the carriage of dangerous goods by air, Annex 18 to the Convention on International Civil Aviation (the Chicago Convention 1944) sets down the broad principles for the safe transport of dangerous goods by air, including the requirement for dangerous goods to be carried in accordance with Technical Instructions for the Safe Transport of Dangerous Goods by Air (the Technical Instructions) issued by the International Civil Aviation Organization (ICAO).  The Technical Instructions are then embodied in Dangerous Goods Regulations (DGRs) issued by the International Air Transport Association (IATA).  The most recently updated and amended versions of these rules can be found in the 2021/2022 edition of the ICAO Technical Instructions (applicable from 1 January 2021 to 31 December 2022) and the 63^rd (2022) edition of the IATA DGRs.

The international rules are implemented and supplemented by individual countries through their own national legislation.  These local regulations ordinarily also provide an additional layer of oversight.  Importantly, national legislation also often provides for civil and, in many instances, criminal enforcement measures.  Through the national regulations, local transportation and dangerous goods regulators, and other enforcement authorities, including the police, are also afforded strict investigative and prosecutorial powers.

The various regulatory schemes have established myriad requirements that must be met by all parties engaged in the handling, packaging, shipment, and carriage of dangerous goods.  Among these obligations are duties to properly label and package dangerous goods, ensure certain classes of dangerous goods are shipped in specific packaging designed to their nature (i.e. protective layering) and/or in a proper position (i.e. upright), ensure proper shipment documentation, provide detailed training to employees, place placarding and other safety notices, provide proper safety equipment, adopt measures to ensure the security of dangerous goods from theft or misuse, and many, many, many more responsibilities.

As discussed in the previous section, the transport of a single lithium battery from its manufacture to end use could fall within any number of regulatory regimes and be subjected to varying stringent technical requirements.

Shippers who use many different modes of transport to ship dangerous goods must navigate a maze of often inconsistent and technically confusing international and national legislation.  This already muddy environment also brings with it the threat of investigation and potential prosecution in instances of noncompliance.

Carriers accepting dangerous goods for shipment must abide by the same regulatory burdens as others along the chain of supply -  along with the added risk of actual harm to persons and property posed by the dangerous goods during transport.  For understandable reasons, the shipment of dangerous goods by air is of particular concern because of the inherent latent hazards these goods might pose to an aircraft in flight carrying flight personnel and, potentially, passengers.

Carriage of Dangerous Goods by Air

Concerns about the carriage of dangerous goods by air are not a recent development.

Perhaps the most well-known incident involving the carriage of dangerous goods by air occurred when ValuJet Flight 592 crashed shortly after take-off from Miami on 11 May 1996, killing all 110 persons on board.  Investigators determined that the passenger aircraft was improperly carrying undeclared chemical oxygen generators as cargo.  During take-off, the oxygen generators were activated, creating a sudden and quick-spreading fire in the cargo hold.  As a result of this tragic incident, much stricter controls over the carriage of potentially dangerous goods on aircraft (particularly passenger aircraft), were put in place, including significant amendments to the international regulations discussed above.

Unfortunately, incidents involving the carriage of dangerous goods have continued to occur.  On 7 October 2013 a fire was discovered in the rear hold of an Airbus A330 shortly after it had arrived in Manila following a passenger flight from Singapore. The subsequent investigation found that the source of the fire had been dangerous goods carried in checked passenger baggage, specifically chemicals used in the sport of kayaking which should never come in contact with each other had become mixed during the flight due to having been improperly packed.  Later that same year, on 6 December 2013, a Boeing 737-800 passenger aircraft flown from Amman to Dubai was found to have been carrying chemical oxygen generators (similar to those carried on ValuJet 592) which are prohibited from carriage on passenger aircraft without the flight crew having been made aware.

In response to these incidents and others, ICAO and IATA have further amended the Technical Instructions and DGRs whilst also issuing specific guidelines and alerts, and working with national authorities and air carriers to prevent further incidents from occurring.  The primary focus of the regulations is on tightening controls on the handling of dangerous goods on the ground before they are loaded on aircraft.

By way of example, in recent years, the United Kingdom has seen an increased interest in the carriage of dangerous goods on aircraft by the Civil Aviation Authority (the CAA). The CAA provides resources and engages with shippers, including major retailers, and carriers, including Royal Mail, to ensure that dangerous goods are handled in strict compliance with the regulations - ideally before they are ever loaded onto an aircraft.

However, full regulatory compliance has proven very difficult to achieve.  As a result, on several significant occasions, the CAA has had to use its full investigative and prosecutorial powers in response to regulatory breaches.  The CAA Dangerous Goods Office has investigated and criminally prosecuted passengers, aviation companies and major international retailers for causing dangerous goods to be delivered for carriage in an aircraft.  These prosecutions have resulted in hefty fines against the guilty parties and could have resulted in imprisonment for responsible individuals, including corporate directors.

Carriage of Dangerous Goods by Air: Lithium Batteries

As touched upon above, there are increasing concerns specifically regarding the carriage of lithium batteries on board aircraft, either as cargo or as installed components in passenger personal belongings.  As a result, regulators, carriers and others along the supply chain have developed responses to meet the growing risks associated with their increased presence on aircraft.

Lithium batteries themselves are of two types: lithium metal batteries and lithium ion batteries.  Both present potential hazards.  Lithium batteries of either type are used in many electronic devices, including cameras, cell phones, hearing aids, laptop computers, medical equipment, power tools and electronic toys.  In most instances, passengers carrying these commonly used items would not be aware themselves of any potential hazards.

While the majority of lithium batteries would be considered safe in most circumstances, there have been notable instances of lithium batteries overheating and catching fire.  Once ignited, an individual lithium battery can also cause any other nearby batteries to ignite as well.  Due to the chemical substances involved, lithium battery fires are notoriously difficult to extinguish and can also produce dangerous fumes.

In addition, imitation and no-brand lithium batteries are of increasing concern. These so-called “counterfeit” batteries may not have been properly tested, and may be of poor design and manufacture with little in the way of safety components.  In recent years, of particular concern have been counterfeit lithium batteries manufactured for individual sale or installed in mobile devices in Hong Kong.  Passenger airlines operating from Hong Kong have reported passengers seeking to carry baggage on outbound flights exclusively made up of inexpensive mobile devices intended for onward sale at the point of destination – effectively, this creates a cargo of potentially hazardous counterfeit lithium batteries carried in bulk and closely packaged together disguised as passenger baggage.  The author has advised several airlines operating out of Hong Kong on how to respond to these increased risks and rapidly changing regional rules.

The threat posed to aircraft by lithium batteries is very real and there have been numerous incidents involving lithium batteries carried on board cargo and passenger aircraft, both as cargo and as personal belongings, and in the hold of the aircraft as well as in the passenger cabin.

Early and dramatic examples include, in 2010, a cargo flight operated by UPS crashed after take-off from Dubai while carrying a large shipment of lithium batteries. This incident prompted the US Federal Aviation Administration to issue an advisory to operators on the potential dangers of carrying lithium batteries as cargo.  Similarly, in 2011, a cargo flight operated by Asiana Airlines reported a fire on the main flight deck soon after take-off from Incheon, Korea, before crashing into the sea.  Investigations concluded that two adjacent pallets on the main aircraft deck containing lithium batteries and flammable substances were the origin of the fire. 

More recently, on 27 October 2019, a fire warning went off in the flight deck of a Boeing 737 just before take-off at Paris-Charles de Gaulle Airport. However, there were no signs of any fire in the passenger cabin or following an external inspection of the aircraft. After a cautionary disembarkation of the passengers, the aircraft baggage hold was opened revealing significant fire damage which was later linked to an overheated lithium battery in a passenger’s electric wheelchair.

The risk of heat, smoke, fire and explosion associated with mobile devices carried by passengers was perhaps most widely brought to public attention in 2016 when the then newly-released Samsung Galaxy Note 7 phone was banned from passenger airline flights due to its increased potential for catching fire.  The Federal Aviation Administration (the FAA) in the United States and the Air Accidents Investigation Branch (the AAIB) and CAA in the UK have reported hundreds of incidents involving these devices. 

For example, in April 2021, the AAIB issued a warning after a mobile phone became stuck in an aircraft’s automatic seat mechanism and caught fire on a passenger flight from Miami to London Heathrow.  In fact, the CAA reports that mobile devices becoming trapped in passenger seats has become a frequent event in the last five years and that many of these incidents have resulted in fire or smoke.  Further, in August 2021, an Alaska Airlines passenger flight experienced an in-flight passenger cabin fire which required an emergency landing at Seattle-Tacoma Airport and deployment of the aircraft emergency slides to evacuate the 128 passengers and 6 crew on board.  The originating cause was traced to a mobile phone lithium battery.  Similar incidents have become frequent enough that the FAA maintains a full list of incidents involving lithium batteries on its website:

https://www.faa.gov/hazmat/resources/lithium_batteries/media/Battery_incident_chart.pdf

Because of the increased risks associated with lithium batteries, their carriage by air has also come under close scrutiny from ICAO and IATA.  ICAO formed a Working Group on Lithium Batteries under the aegis of its Dangerous Goods Panel (DGP).  In April 2014, the DGP proposed that the transport of cargo lithium batteries be restricted to cargo aircraft only.  This prohibition on the carriage of lithium batteries (not packed or contained in equipment), coupled with other comprehensive ICAO guidelines (e.g. a requirement that they are shipped at not more than a 30 percent state of charge and shipped in accordance with specific packing instructions), followed and continue to be amended in response to further incidents and concerns.

The ICAO lithium battery provisions within the recently updated Technical Instructions provide strict guidelines on the packaging, marking and carriage of lithium batteries as cargo and by passengers.  However, these provisions also create their own concerns because they use very technical language and base certain restrictions on the type and nature of the lithium batteries intended for carriage.  These provisions can be intimidating and unclear to a layperson.  Further, the provisions are subject to frequent amendment which requires constant attention in order to ensure compliance.

IATA has also issued comprehensive Lithium Battery Shipping Guidelines which provide guidance for shippers, freight forwarders, ground handlers, airlines and passengers to comply with the provisions applicable to the transport by air of lithium batteries as set out in the DGR, including restricting their carriage as cargo or passenger baggage.  Airlines are now required to ask passengers if they are travelling with lithium batteries (such as a replacement laptop battery) and have adopted baggage restrictions depending upon the type of lithium battery being carried.  This places additional obligations on carriers and their customers.

Of particular concern in the ICAO and IATA guidelines are provisions which restrict the carriage of lithium batteries when carried by passengers as baggage. The guidelines require that only batteries which have successfully met UN-mandated testing parameters may be carried. Most batteries will comply if they have been manufactured, distributed, or sold by reliable entities; however, some replacement batteries, and certainly counterfeit batteries, may not meet this standard – and many passengers will be unaware of this requirement – making compliance and enforcement difficult.

The current regulations will continue to be developed and amended by ICAO and IATA.  As the regulatory scheme evolves, shippers, carriers, and even passengers will have to be aware of the changes and comply swiftly in order to avoid liability and potentially strict enforcement measures. 

Conclusion

The continued threat of Covid-19 and its variants, unrelenting global shipping delays, and the increased manufacture and consumer use of dangerous goods have magnified the potential risks dangerous goods can pose when carried on board aircraft. The current regulations are evolving to address these significant risks - and regulators are employing the strict tools available to them in order to ensure full compliance.

Navigating the complex regulatory environment requires knowledge, experience, and flexibility to quickly respond and adapt.  Shippers, carriers and their insurers should have in place the necessary people and procedures to meet their regulatory obligations.  In the meantime, legal assistance and advice may be necessary to ensure compliance and to respond in the event of an investigation or prosecution.