The potential liability of the “ Ever Given ” incident suggests claims worth millions
Determining the causes of the accident will make it clear who can claim from whom, where, what procedure to use and the applicable law. Parallel claims are foreseeable, including possible recovery actions with the various insurance companies concerned. Currently, the vessel and its cargo are under arrest.
In the early hours of March 29, 2021, around ten tugs managed to partially refloat the Never given, which had run aground 6 days earlier in the Suez Canal, blocking the movement of ships in both directions. the Never given is one of the largest mega-container ships in the world, measuring 400 meters long, 59 meters wide, 15.7 deep and capable of carrying over 20,000 TEUs.
The enormous media attention to Never given History has once again reminded public opinion of the crucial importance of maritime transport (which accounts for around 90% of world trade) in keeping supply chains running and providing food, energy, raw materials, as well as manufactured products and components of all kinds all over the country. world. Emphasis was again placed on the global and strategic importance of the Suez Canal, which is used for around 10% of global maritime trade. And likewise, it has rekindled media interest in the megaship debate and whether bigger ships carry greater risk.
Several theories have been put forward on the causes of the incident. Some blame the strong winds and the “sail” effect of the ship and its cargo. Others, engine failure resulting in loss of control of the vessel. Other sources report human error on the part of the crew. And in some circles the finger is pointed at the pilots and tugs who have helped and supported the ship. Finally, a few have even argued that it was caused by the interaction of waters in a narrow channel.
Note that none of these possible causes are mutually exclusive, so it could have been a combination of all or a few of them to a greater or lesser extent. In addition, other possible causes could arise from ongoing official and private investigations. When the final cause (s) or the component causes of the accident are known, this would clarify, if there are indeed any claims to be made, who can claim from whom, where (country), the procedure to be followed (arbitration or judicial proceedings). ) and applicable law (international or national). In any case, several parallel claims worth several million are expected, including potential cases of recovery action from the various insurance companies concerned.
Despite the measures taken in Egypt to stop the EGiven worm ship and its cargo, the owner declared general average. Considering the thousands of freight interest and the high cost of the salvage bill, it will most likely take several years to settle. Consequently, the recipients of the goods transported on the EGiven worm will not receive them until they or their insurers (if applicable) have contributed to the declared general average.
Regarding the potential allegations of possible delays in the delivery of goods carried by the large number of vessels which had to be diverted along alternative routes, due to the blockage of the Suez Canal, it should be clarified that in principle , under the York Antwerp Rules, this would all be outside of declared general average.
The Hague-Visby Rules, which apply in the vast majority of cases to the carriage of goods by sea around the world, do not expressly consider that delays in the delivery of goods are compensable, in the sense that they are only provide for compensation for loss or damage to the goods transported. While the Hamburg minority rules, which have been ratified by very few countries, and the Spanish law on maritime navigation expressly consider that delays in the delivery of goods are compensable. It should be explained that, although Spain ratified the Hague-Visby rules, the subsequent maritime navigation law expressly considered that delays were compensable, establishing a system of liability in this regard which is clearly taken directly from the Hamburg rules.
Liability for delay as defined in the Hamburg Rules and in the Maritime Navigation Act is limited to 2.5 times the freight payable for the delayed goods, but cannot exceed the total freight payable under the contract of transport. If liability is incurred for vessel failure and for delay, overall liability for both is limited to the figures determined to limit liability for loss or damage. However, the limitation of liability described above will not apply if it is proven that the delay concerned was caused intentionally by the shipper / carrier or recklessly and with the knowledge that damage would likely result.
These comments must be duly taken into account by the recipients of the goods delivered late and by any insurer who has covered this delay, in case they consider claiming it. In practice, however, many assets are generally uninsured and, if they are, policies generally do not cover delays with a few exceptions, so any possibility of suing property insurers would, in principle, be , exceptional and limited.