Some issues about legal regulation regarding handling dangerous goods in maritime traffic

This paper analyses Ordinance on handling dangerous goods, the conditions and method of transport in maritime traffic, loading and unloading of dangerous goods, bulk and other cargo in ports and the method of preventing the spreading of oil spills in ports especially in the segment of the definition of dangerous goods, the supporting documents accompanying the handling of dangerous goods as well as supervision of the application of protective and safety measures. The author also discusses the terminological inconsistencies of important conceptual definitions while highlighting possible solutions. The paper also researches the role of the professional service, i.e., the qualified person who supervises handling dangerous goods in ports and who as such, is considered as the responsible person. The possible duality of the legal regulation of handling dangerous goods with regard to the Act on Transport of Dangerous Goods is also being researched. The last part highlights the contribution of the European Maritime Safety Agency (EMSA) and the achievements of the Republic of Croatia in establishing a system for the exchange of data on dangerous goods. In conclusion, the author gives an assessment of the compliance of the Croatian legal norm on the handling dangerous goods with international and EU solutions and makes appropriate proposals.


Introduction
The issue of handling and transport of dangerous goods by sea has always been the focus of the work of international organizations, especially the International Maritime Organization. As a result of its work, appropriate international conventions and regulations have been adopted, completely or partly regulating the transport, and handling dangerous goods by sea. At the international level, handling dangerous goods is regulated by the International Convention for the Safety of Life at Sea (SOLAS), Chapter VII -Carriage of dangerous goods. [6] In addition to the International Convention for the Safety of Life at Sea (SOLAS), depending on the manner in which dangerous goods are transported, the relevant international codes re also in force, namely: International Maritime Dangerous Goods (IMDG) Code These legal regulations are important because they represent the basis for defining dangerous goods, the procedure for handling dangerous goods and the application of protective and safety measures. Certain national legislations, including the Croatian maritime law system, do not explicitly provide a definition of dangerous goods, but simply in general provisions refer to the application of all relevant international sources as well as sources of the European Union.
The handling of dangerous goods in the Republic of Croatia is regulated primarily by the Ordinance on handling dangerous goods, the conditions and method of transport in maritime traffic, loading and unloading of dangerous goods, bulk and other cargo in ports and the method of preventing the spreading of oil spills in ports (hereinafter: Ordinance on handling dangerous goods) adopted in 2005, but it is in the continuous process of being amended and supplemented, with the latest amendment done in 2020. [9] The need for amendments is partly due to the implementation of international conventions and codes as well as the regulations of the European Union, and partly due to the adaptation to new technologies. It is important to point out that the Ordinance on the handling of dangerous goods is a complete regulation containing provisions on the handling of dangerous goods in packaged form and the transport of dangerous and/or polluting goods by specially built ships, namely ships for transport of oil, chemicals and liquefied gases. Considering the fact that this is a complex and extensive ordinance, in this paper the author analyses the so-called general provisions applicable to the handling of all classes and types of dangerous goods. In addition to the analysis of the Ordinance on handling of dangerous goods, the paper will also examine the possibility of applying the Act on Transport of Dangerous Goods and the relation between the Ordinance on handling dangerous goods and bylaws governing the delivery of data and documents during arriving and departing of ships from the Croatian ports.

Definition of dangerous goods
When it comes to the transport and handling dangerous goods in maritime traffic, it is essential to know the definition of dangerous goods. Knowing the definition of key terms is necessary to understand the legal position of persons who directly or indirectly participate in the performance of the transport and handling of dangerous goods or to apply appropriate regulations that monitor the traffic of this type of goods. Furthermore, the paper analyses the laws and bylaws that to some extent refer to these issues, all in order to determine whether there is a uniform and unique definition of dangerous goods in the Croatian legal system. It is certainly necessary to start from the Maritime Code as a lex generalis of maritime legal regulation. Among the basic conceptual terms, the Maritime Code does not contain a definition of dangerous goods nor does it contain special provisions on handling dangerous goods, but the provision of Art. 56.c paragraph 1 stipulates that handling dangerous materials and other goods in ports, as well as conditions and the procedure of loading and unloading of dangerous and toxic goods, bulk and other cargo in ports, as well as the means of preventing pollution shall be prescribed by the Minister. [7] Pursuant to this provision, the Ordinance on handling dangerous goods, the conditions and method of transport in maritime traffic, loading and unloading of dangerous goods, bulk and other cargo in ports and the method of preventing the spreading of oil spills in ports was adopted in 2005. Prior to the analysis of the Ordinance on handling dangerous goods, the author will refer to the relevant bylaws that do not directly relate to the handling of dangerous goods but refer to them in an appropriate manner. This is certainly the Ordinance on certificates, documents and data on maritime traffic, and on their delivery, collection and exchange, and on the method and conditions of granting approval for free pratique along coast, which prescribes the procedure for acceptance and dispatch of ships in Croatian ports, as well as those which transport dangerous goods in whole or partly. [8] As the only possible and correct solution, it turned out that this Ordinance does not enter into the substance of the definition of dangerous goods but refers to the application of regulations on handling, loading, unloading and transport of dangerous goods in maritime traffic (Article 3, paragraph 1, item 23.) thus ensuring the uniformity of legal terminology and the consistent application of the same definition. Of course, this also avoids the need to amend the ordinance, which does not originally deal with the issue of handling dangerous goods, and such amendment would be conditioned by changes in the domain of handling dangerous goods. The next ordinance that specifically applies to the handling of dangerous goods is the Ordinance on the terms and methods of maintaining order in ports and other parts of the internal sea waters and territorial sea of the Republic of Croatia, which also refers to the application of regulations on the transport of dangerous goods by sea (for example when imposing an obligation on ships entering ports with dangerous goods to submit a Declaration of Dangerous or Polluting Goods) without giving an interpretation of what is to be considered dangerous goods. 1 [10] As previously indicated, the Ordinance on handling dangerous goods has been amended several times since 2005. Among the provisions that have undergone through a change in their content is the one relating to the definition of dangerous goods. The big innovation was redefining the scope of the application of the law so that it no longer applies to maritime traffic. It was expected that the definition from the Ordinance on handling dangerous goods would be harmonized with the new provision, but this was omitted, therefore, in the Ordinance on Amendments to the Ordinance on handling dangerous goods from 2010 we still have a reference to the Act on Transport of Dangerous Goods. Despite the fact that it has not undergone a substantive rewriting in that part, the new definition still changes the conceptual definition of dangerous goods in order to be in line with the change in international rules on the handling of solid bulk substances. The so-called BC Code was omitted from its application, and the IMSBC Code began to be applied, thus changing the definition of dangerous goods in the Croatian legal system.
The last change of the definition of dangerous goods is in the Ordinance on Amendments to the Ordinance on handling dangerous goods from 2020 reads as follows:  [9] If we compare this definition with the previous ones, we may notice that it contains certain improvements in such a way that the reference to the Act on Transport of Dangerous Goods is omitted and it is more precisely determined what are considered to be dangerous goods according to the IMSBC Code. According to the definition of dangerous goods, a brief review will describe the conceptual definition of handling dangerous goods. In accordance with Article 2 paragraph 1 item 4. of the Ordinance on handling dangerous goods, it exhaustively states which actions are subject to the handling of dangerous goods, namely: loading, unloading and reloading from a ship or vehicle, storage, removal from storage and transport of dangerous goods in the port area and thus does not leave room to characterize some other activity as handling dangerous goods, and as such is necessary for the handling itself. In order to eliminate this shortcoming, the Ordinance on Amendments to the Ordinance on handling dangerous goods from 2020 changes the definition of handling dangerous goods in such a way as to leave the possibility of 'bringing' other activities under the handling dangerous goods. 2 In conclusion, it can be pointed out that the Croatian legal system provides a unique definition of dangerous goods contained only in the Ordinance on handling dangerous goods that it is harmonized with the concept in international regulations and as such is appropriate, which definitely contributes to the legal certainty when interpreted and applied in practice.

Certificate of fitness for ships carrying dangerous goods
The ship's ability to transport a certain type of dangerous goods shall be proved by a Certificate of fitness for ships carrying dangerous goods issued by a recognized organization or an authorized body of the flag State of the ship, which is valid for five years. The provision of Article 146 paragraph 1 of the Ordinance on handling dangerous goods also envisages the possibility of having an appropriate certificate of compliance with the provisions of the IMDG Code. [9] Certificate of fitness for ships transporting dangerous goods must be delivered together with the ship arrival notice at least 24 hours before the ETA or at latest after leaving the previous port if the navigation took less than 24 hours or if the destination port is not known at the moment when the ship leaves the previous port or has been changed during the navigation as soon as that information is known. 3 If the Certificate of Fitness of the Ship for the Transport of Dangerous Goods is not submitted or the ship itself does not own it, the Harbour Master's Office shall prohibit the ship from entering the port.

Declaration of Dangerous or Polluting Goods
One of the documents used in the process of handling dangerous goods is the Declaration of Dangerous or Polluting Goods. The Declaration of Dangerous and/or Polluting Goods is submitted to the port authority, and it is submitted by different persons depending on whether dangerous and/or polluting goods are brought by vehicle or ship. If dangerous and polluting goods are loaded on a ship from a vehicle, the Declaration shall be submitted by the shipper. In the event that dangerous or polluting goods are unloaded from the ship or are on board the ship in transit, the Declaration shall be submitted by the shipowner, master, or maritime agent. The third case is related to the loading of dangerous and / or polluting goods from the port warehouse, and then the Declaration is issued by the concession holder. The information on who is obliged to submit the Declaration of Dangerous and/or Polluting Goods is also important because that person bears the costs incurred due to the inspection of dangerous goods. Therefore, the criticism is directed at the solution contained in Article 12 paragraph 4 of the Ordinance on handling dangerous goods, which prescribes the following: 'Before the ship enters the port, the Harbour Master's Office may inspect dangerous goods' all because a similar provision is not provided for the transport of dangerous goods by vehicles, therefore, Ordinance on handling dangerous goods should be amended as described above. [9]

Plan for stowing cargo on board, the Manifest/Cargo list
In addition to the Declaration of Dangerous or Polluting Goods, onboard also has to be a document that will contain a list and detailed information on dangerous goods on board and their location or stowage plan on board. Various names are used in various laws and bylaws for this document, so that we can talk about the Plan for stowing cargo on board, the Manifest/ Cargo list. The 2010 Ordinance on Amendments to the Ordinance on handling dangerous goods uses the term Manifest/Cargo List and defines it as 'a ship's document containing the list and stowage of dangerous goods on board;' (Article 1). [9] Article 13 of the Ordinance on handling dangerous goods from 2005 stipulates the content of this document and the document shall contain the following information: UN number, class of substance, location of the goods on board the ship, quantity of the goods, 'Booking reference' number, packing group, subsidiary risk, flashpoint temperature in (°C), Marine pollutant and EmS -'Emergency Schedule Number'. [9] The document is handed over both on arrival and departure of the ship from the port. The question is within what time period the document should be submitted and what are the consequences if it is not submitted or submitted with incomplete information. The Ordinance on handling dangerous goods stipulates that the Manifest/ Cargo list is submitted not later than 48 hours before calling at port, i.e., immediately before issuing the ship departure permit. 4 [9] Although the Ordinance on handling dangerous goods does not explicitly define what happens to a ship if it does not submit the Manifest/Cargo list on time, it can be concluded that the ship will not receive an 4 Article 13, paragraph 2. of the Ordinance on handling dangerous goods. approval for free pratique or the ship departure permit. The Ordinance on handling dangerous goods uses the term 'ship departure permit'. At this point, it is proposed to harmonize the terminology used in the Ordinance on handling dangerous goods with that used in the Ordinance on certificates, documents and data on maritime transport, and on their delivery, collection and exchange, as well as the manner and conditions of issuing approval for free pratique, having in mind that this is a by-law adopted for the purpose of regulating the accommodation and dispatch of ship, and the Ordinance on handling dangerous goods should use the terms 'approval for free pratique' and 'permit for departure of the ship'.

Safety Checklist for Handling Dangerous Goods
In order to ensure the application of appropriate protective measures when handling dangerous goods and thus prevent possible accidents, persons on behalf of the ship and the port area shall sign an appropriate document, which is a Safety Checklist for handling dangerous goods, except tankers. As it can be seen from the very title of that list, it is not used when handling dangerous goods transported by tankers. The Safety Checklist is a key document in the process of handling dangerous goods because without its certification the action of loading and/or unloading of dangerous goods cannot be initiated (Article 19, paragraph 3 of the Ordinance on handling dangerous goods). [9] The Safety Checklist is completed (filled) before the start of handling dangerous goods and signed on behalf of the ship by the master or authorized officer on board and the qualified person in the port under whose supervision the handling of dangerous goods is performed. It is expected that by completing the Safety Checklist the number of misunderstandings that arise as a result of incomprehension or misinterpretation of terminal staff intentions by authorized ship officers and vice versa, will be avoided or at least reduced. However, the existence and completion of an appropriate form will not make the expected results if its users do not understand its content or if the content itself is questionable or gives the possibility of different interpretations. In order to avoid such cases, it would be recommended to also publish the instructions for its completion together with the document itself; that would ensure the uniform application. The Ordinance on amendments to the Ordinance on handling dangerous goods from 2020 had done it, but only in case of handling solid bulk cargoes in accordance with the BLU Code. The author considers that the same solution should be applied in case of filling in the Safety Checklist for dangerous goods.
Considering that the handling of dangerous goods is done in a certain part of the port area managed by the competent port authority, the Ordinance on handling dangerous goods stipulates that the Safety Checklist must be approved by the port authority (Article 19, paragraph 2) and port authority is obliged to deliver one copy to the harbourmaster office. [9] Article 19 paragraph 5 of the Ordinance on handling dangerous goods does not stipulate a deadline for delivery, but uses the term 'immediately', which can be very questionable in application. The use of such terms should be avoided, which is also stated in the provision of Article 39 paragraph 2 of the Uniform Rules on the Methodology and Legislative Technique for the Drafting of Acts Enacted by the Croatian Parliament, which states: 'When drafting legislation, it is necessary to avoid as much as possible the usage of common but imprecise qualifiers, such as: immediately, without delay, timely, as a rule and the like. [1] Furthermore, the Ordinance on handling dangerous goods does not define the legal nature of the delivery of this document to the Harbour Master's Office, so the preparatory actions for amendments to the Ordinance on handling dangerous goods should certainly consider amending the provision.

Certificate of verified gross mass of cargo container
Resolution MSC.380 (94) of the International Maritime Organization amended the International Convention for the Safety of Life at Sea, which stipulates the obligation to verify the gross mass of containers before boarding a ship in a port of embarkation, entering into force from 1 July 2016. [11] Although not exclusively applicable to the transport and handling dangerous goods, but to all goods transported in containers, it is an extremely important provision because it primarily prescribes the obligation to submit data on verified gross mass of cargo containers and defines person responsible for its delivery. The importance of this provision should be seen in the context of the preparation and drafting of the Ship Stowage Plan, especially when considering the rules on how to load and stack containers with 'ordinary cargo' and containers with dangerous goods. The provision of Resolution MSC.380 (94) has been implemented in our legal system by the Ordinance on Amendments to the Ordinance on handling dangerous goods from 2016. Provisions on the obligation to submit data on the verified mass of cargo containers are contained in Article 174. a of the Ordinance on handling dangerous goods. The shipper is obliged to submit the appropriate certificate, and the shipowner is obliged to inform the shipper about the deadline for delivery of data on the verified gross mass of the container in order to timely prepare the Ship Stowage Plan for stacking and securing the containers. If the shipowner does not receive a certificate with data on the verified mass of the cargo container, the shipowner must not load the container on the ship (Article 174 a, paragraph 1). [9] 4 Supervision of the application of safety and protective measures when handling dangerous goods In order to make the implementation of safety and security measures as effective as possible, Article 5 of the Ordinance on handling dangerous goods stipulates the obligation of Port Authority to establish a surveillance service. Ordinance on handling dangerous goods does not provide a definition of a professional service or describe which tasks it should or may perform. The only provision that speaks about the role of the professional service is in Article 143 of the Ordinance on handling dangerous goods, which states the obligation to inform the professional service in case of damaging dangerous goods located in the port warehouse. The question arises as to why the obligation is not general or applicable in all cases of detection of damage to dangerous goods.
Supervision over handling dangerous goods and the implementation of safety and protection measures is also carried out by a qualified person. According to the Ordinance on handling dangerous goods from 2005, a qualified person is every person who has been professionally trained for handling specific dangerous goods and who has been appointed as such by the legal person registered for handling dangerous goods (Article 2, para-s (Article 2, para-(Article 2, paragraph 1, point 3). [9] The concept of a professional defined in this way is subject to certain criticisms for two reasons. The first refers to the professional training of a person because it is not prescribed in what way and according to which program the qualified person is trained. This shortcoming has been partially eliminated in the part of the Ordinance on handling dangerous goods which contains provisions on common safety measures for handling dangerous goods in packaged form or in solid form in bulk and stipulates that a qualified person shall also hold a Certificate of Competence for handling dangerous goods (D-22) where there is a noticeable substantive error in stating the abbreviation of the program in the way that instead of D-22 should be written D27, all in accordance with the Regulations on titles and certificates of competency of seafarers. [12] Another shortcoming refers to the part of the provision that deals with the appointment of an qualified person 'who has been appointed as such by the legal person registered for handling dangerous goods' because it can be concluded that the port authority is not obliged to appoint a qualified person, but such obligation exists only for those legal entities registered for the activity of handling dangerous goods in the area managed by the Port Authority. This last shortcoming has been remedied by the 2010 Ordinance on Amendments to the Ordinance on handling Dangerous Goods. 5 [9] Additionally, the word 'professional' that appears in Article 12 paragraph 4 of the Ordinance on handling dangerous goods may make additional confusion. From the description of duties and course of action it can be concluded that the qualified person and the professional are 5 Article 1 of the Ordinance on handling dangerous goods: 'Qualified person is every person who has been professionally trained for handling specific dangerous goods and who has been appointed as such by the port managing authority or the legal person registered for handling dangerous goods.' the same person, but it would certainly be more advisable to consistently use a certain terminology in a legal act to avoid possible misinterpretation of the rules, especially since the responsibility of the qualified person is great because among other things, he/she fills in and signs the Safety Checklist which determines the procedures and safety measures for handling dangerous goods, and is also authorized to terminate the procedure for handling dangerous goods if there is a violation of the prescribed procedures and measures.

Exchanging data on dangerous goods
The share of dangerous goods in whole maritime traffic is constantly increasing. Unfortunately, as the amount of dangerous goods transported by maritime ships increases, so does the number of maritime accidents that involve dangerous and/or polluting goods. Another problem is the fact that the competent authorities involved in the process of investigating maritime accidents and determining both the reasons and the responsible persons, do not have the adequate and complete information on the type and properties of cargo. For this reason, in 2018 the European Maritime Safety Agency (EMSA) published Guidelines on reporting Hazmat in SafeSeaNet system. [5] The objective of these Guidelines is to improve the quality and accuracy of dangerous and polluting goods (HAZMAT) reporting in SafeSeaNet (SSN) through harmonization between the Member States. In order to achieve this, it is necessary to determine which data need to be sent, the data on the physical and chemical properties of the substance must be accurate, complete and taken from the relevant international conventions and regulations and provisions of the European Union.  [4] as well as using FAL Form 7. What has been shown to be a weakness is the fact that people involved in the process of handling dangerous goods are not sufficiently aware of the importance of sending and disposing accurate and complete data, which entails the need to organize certain forms of education and share of good practice among stakeholders. These are certainly all those persons who are responsible for the production and placing certain goods on the market, as well as freight forwarders, logistics operators and shippers who organize the transport of that cargo to the final destina-tion. Special attention should be paid to the obligation to enter accurate and complete data by those stakeholders who issue the so-called operating instructions for a specific type of cargo (shippers) as well as other transport documents that accompany handling dangerous goods. Based on these documents, masters, and naval agents, when accommodating a ship into port and dispatching a ship from port, submit data on the ship and cargo and make them available to port representatives and inspection services. The Republic of Croatia, as a signatory to the Convention on Facilitation of International Maritime Traffic (FAL) and a member of the European Union, has harmonized its legislation with the relevant regulations, so that, among other things, it applies the information system, the so-called CIMIS which enables electronic exchange of data between individual stakeholders in maritime traffic. The opinion of the authors is that it is extremely important for the Republic of Croatia to follow the reports and recommendations of EMSA from which one can read the reasons for improper sending and flow of information on dangerous goods that can ultimately lead to a maritime casualty. This opens the possibility of taking appropriate corrective measures to prevent the occurrence of future maritime accidents or damage to cargo, or to initiate proceedings to amend positive legal norms if they prove to be deficient and ineffective.

Conclusion
The handling of dangerous goods in the Republic of Croatia is primarily regulated by the Ordinance on handling dangerous goods adopted in 2005, but it has been amended several times to date (last amendment in 2020) in order to harmonize Croatian law on the handling dangerous goods with those at international and European Union level. One of the objectives of this paper was to analyze the relevant provisions of the Ordinance on handling dangerous goods, especially in the segment of the definition of dangerous goods, documents accompanying the handling dangerous goods, monitoring the handling dangerous goods and establishing an effective data exchange system, as well as proposals of future solutions. After analyzing the essential provisions of the Maritime Code, the Law on the Transport of Dangerous Goods, the Ordinance on certificates, documents and data on maritime traffic, and on their delivery, collection and exchange, and on the method and conditions of granting approval for free pratique along the coast, and the Ordinance on handling dangerous goods, the author concludes that in the Croatian legal system there is a unique definition of dangerous goods contained only in the Ordinance on handling dangerous goods, that it is harmonized with the conceptual definition in international regulations and that as such it is appropriate, which certainly contributes to legal certainty in the interpretation and application in practice. In the part related to documents accompanying dangerous goods, the author points out that provisions of relevant international regulations have been incorporated into national legislation, but also points out the existence of conceptual inconsistency for a document that appears under several names, so we have a Manifest/Cargo List, Plan for stowing cargo on board and Plan of loading cargo onboard.
Furthermore, it is proposed to publish instructions for completing the Safety Checklist for dangerous goods as done by the Ordinance on Amendments to the Ordinance on handling dangerous goods from 2020 for the case of handling solid bulk cargoes in accordance with BLU Code which as such, ensures the uniform application.
In the transport of dangerous goods, it is extremely important to have complete and accurate data; this was recognized by the European Maritime Safety Agency (EMSA) and in 2018 it published Guidelines on reporting Hazmat in SafeSeaNet. The activities of EMSA were encouraged by the research results and recognized problems and obstacles that arose in the daily implementation of the data submission procedures and the further actions of the relevant stakeholders guided by the data submitted in such manner. Therefore, these recommendations aim to improve the quality and accuracy of the transmission of information/reports on dangerous goods and/or pollutants in the SafeSeaNet system by harmonizing these reports within the Member States. The Republic of Croatia, as a signatory to the Convention on Facilitation of International Maritime Traffic (FAL) and a member of the European Union, has harmonized its legislation with the relevant regulations, so that, among other things, it applies the information system, so-called CIMIS which enables electronic exchange of data between individual stakeholders in maritime transport. The author is of the opinion that it is extremely important for the Republic of Croatia to follow the reports and recommendations of EMSA from which one can read the reasons for improper sending and flow of information on dangerous goods that can ultimately lead to cargo damage and maritime accidents.