Ever Given Stranding: Who Is Responsible For Carrier And Freight Forwarder Delays?
The grounding of the container ship Ever Given in the Suez Canal caused considerable congestion for many other ships that were trapped on both sides of the canal. As such, the interests of the freight – such as the respective freight insurers of the shippers and recipients, as well as the ocean carriers of the respective vessels and the original (multimodal) carriers and freight forwarders – face damages as a result of these delays. .
Carriers, freight forwarders who have agreed to fixed freight and sea carriers are liable under general civil law, as German maritime law does not provide for liability rules in the event of delay.
When determining liability, a key consideration is whether the transport has actually been delayed (i.e. whether the shipment has arrived or will arrive after an agreed delivery date). Usually no fixed delivery date is agreed in international shipping; carriers instead indicate an estimated time of arrival (ETA). However, German judgments consider that the arrival of a ship is delayed if the ETA is delayed by half of the usual travel time. For example, if an ETA of April 1, 2021 is cited and the usual time for the sea voyage from the port of departure to the port of destination is 30 days, the arrival at the port of destination will be considered delayed from the 15 April 2021..
What should freight interest do?
Once a ship is delayed (for example, after April 15, 2021 in the example above), cargo interests should send a delay notice to the carrier claiming delivery within an additional time (for example, five days). However, the absence of such an overdue notice could be overcome by arguing that it was superfluous. There are good arguments that this is the case when the carrier has no way to speed up the shipment anyway, but it should ultimately be decided by a judge. Therefore, freight interests should send a delay notice to the carrier in order to avoid further discussions.
If the vessel still has not arrived after the time limit set in the delay notice, cargo interests are usually entitled to claim compensation for damage caused by the delay. This can lead to high claims including pecuniary damages (eg machine downtime) and penalties, as general civil law does not provide for limitations of liability in the event of delay.
How can carriers limit their liability?
There are two main ways that carriers or freight forwarders can escape or limit their liability.
First, carriers can prove that the delay is the result of a circumstance for which they are not responsible under Article 286 (4) of the Civil Code. It is the carriers’ responsibility to prove the exclusion of liability, that is to say that the acts and omissions of their enforcement agents or subcontractors are not attributable to the carrier. The circumstances which led to the grounding of the Ever Given could be considered as a fault of third parties for which the carriers (of the delayed vessels, and not the Ever Given itself) are not responsible nor even a force majeure incident. However, the longer the delay, the weaker the carrier’s argument. On the one hand, as Ever Given only blocked the Suez Canal for six days, it should at least be obvious that a change of course via the Cape of Good Hope was not a good option. On the other hand, carriers will also have to explain any delays occurring in the rest of the shipment, with possible additional congestion at the port of destination. Ultimately, it will depend on:
- the facts of each case;
- the possibilities for carriers to prove that they are not responsible; and
- the judge’s opinion if legal proceedings are instituted.
In other words, there is a risk of liability for the interests of the freight and their respective carriers and freight forwarders under German law and it is essential that the parties involved obtain appropriate legal advice.
Second, carriers could rely on limitations of liability they have agreed upon with the interests of the cargo either in written contracts of carriage or general conditions. In particular, the 2017 general conditions of German freight forwarders (ADSp 2017) could give rise to a limitation of liability for a carrier or a freight forwarder. However, this is also not obvious, as unclear clauses in the general conditions could be considered null and void and the wording of specific clauses in ADSp 2017 could be problematic.