With the arrival of container ship Ever Given in the port of Rotterdam on Thursday, a years-long battle for compensation for the cargo can actually begin. An advertisement in NRC announced the stakes last week: £84,005,005 and 12 pence. Converted just under 100 million euros.
“That amount in the advertisement is based on the tonnage or size of the ship,” says emeritus professor of maritime law Maarten Claringbould (Leiden University). „Based on the maritime principle of global limitation thus limiting the liability of the ship owner.”
Exactly four months ago, the ship of the Taiwanese shipping company Evergeen was pulled free from the bank of the Suez Canal. After lengthy negotiations with the Egyptian authorities about compensation, the container ship with its 15,000 containers was able to sail towards Rotterdam. A start was made there this Thursday with the removal of a large part of the cargo, after which the thousands of cargo owners can see for themselves what is left of their furniture, machine parts, diaries or clothing that has already gone out of fashion ordered in Asia. .
Many ifs and buts
Those who have damage can hope for a share of the available £84 million. But it will take a lot of lawsuits before it is clear who gets what as compensation. And there are quite a few ifs and buts. It is a pity for the companies that have fashionable dresses or diaries for the coming school year in one of the containers, but the months of delay are no reason for a benefit. “The carrier is not liable for delay damage,” Claringbould said. “If the goods arrive in good condition, you cannot claim delay damage.”
This is different if there is damage and moisture has affected the furniture in a container, for example. Then the carrier may be liable. “Possibly, but you are only liable if a mistake has actually been made. An exception to this is a navigation error: this does not lead to liability.”
The carrier is not liable for delay damage
Maarten Claringbould emeritus professor of maritime law
So the question needs to be answered as to whether the Suez Canal jamming was the result of a navigational error. And according to Claringbould, there are more reasons to be found, as a result of which the ship owner does not have to pay anything. Force majeure can also release you from liability. The Ever Given was caught in a sudden sandstorm. Wasn’t that force majeure?”
Money from the limitation fund
Should the owner nevertheless have to pay compensation for the damage, then the aforementioned 84 million pounds is the maximum payment. If the damage to the cargo is greater, claims will only be partially honoured. Until September 21, the advertisement stated last week, claims can be submitted in London to the so-called limitation fund. Other parties who have suffered damage as a result of the stranded Ever Given, such as the many ships that were held up in the Suez Canal for a week, can also submit a claim to the fund.
It is sufficient material for lawyers, and there is also the general average phenomenon. A concept that was already known in classical antiquity and obliges cargo owners to contribute to the rescue costs of ship and cargo. “This is a thorny issue that stakeholders have been working on for months,” said Claringbould. „The ship owner can try to get a part of the paid aid wage through average averages [de reddingskosten, red.] getting back. But then he must prove that no culpable mistakes were made on board. That gets incredibly complicated.”
It is also unclear how high the aid wage is. Parties such as Boskalis can in any case count on being paid for the full 100%. But less clear is the position of Egyptian authorities, who reportedly demanded and received hundreds of millions of dollars before the salvaged ship was released. “They say this is for helping, but I doubt it very much. Rather, it is compensation for reputational damage, among other things. That is of course not aid wages,” Claringbould said.
In any case, owners who are left with a now worthless load do not have to pay for the rescue costs. The companies that receive their goods undamaged, but too late in the coming days, may have to pay. Like the owner of the school diaries. Claringbould: “That’s no joke, especially if your cargo isn’t insured. But before that happens, there will be years of litigation.”
Also read: Container ship Ever Given arrives in Rotterdam port