2 April 2021
Details
Vessel: "EVER GIVEN"
Casualty date: 23rd March 2021
Casualty type: Grounding
Vessel type: Container ship
Year built: 2018
GRT: 217612
Voyage from/to: Asia to Europe but container ship so cargo world-wide
Cargo: Containers
Vessel IMO Number: 9811000
As we are fielding so many questions from interested clients, we thought it a good idea to summarise the position in one easy to follow guide.
Update: 1st April 2021
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We understand Owners have declared General Average.
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GA security will need to be provided in order to release the cargo. It is likely that security direct from underwriters will be acceptable. We can advise on the wording of the GA security.
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The investigation into the casualty is on-going, with involvement from the SCA, the Panamanian flag state, and other interested parties.
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The vessel remains at anchor. Initial indications are that the vessel is damaged but is likely to be able to continue the voyage once inspections and investigations are concluded.
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It remains to be seen whether difficulties will be experienced in releasing the vessel from claims brought by the SCA. Press articles indicate they are claiming losses of $1 billion although we are not able to verify whether that is in fact the position.
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In any event, it is likely Owners will have to pay a substantial amount for the salvage efforts, to SCA, Smit, or both. These costs will form part of the GA claim.
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We note that Owners have just today filed a limitation action in the Admiralty Court in London.
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We believe Owners, concerned about claims from large numbers of parties in multiple jurisdictions, have commenced limitation proceedings in the Admiralty Court in London today in order to open a limitation fund here which will serve as a "pot" of money to satisfy any valid claims for loss or damage to property. There will be interesting legal questions as to what claims are subject to limitation.
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If there are losses suffered by cargo interests (for example, if sums have to be paid in salvage) then legal representation will be required to lodge claims within the limitation fund as part of any recovery action. Assuming the GRT of the `"EVER GIVEN" is 217,612, the size of the Fund is approximately 81m SDR (about $114m)
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In such a case, where legal action seems inevitable, clients will benefit from our economy of scale. By way of illustration, we represented well over $100m of cargo on the "MAERSK HONAM" which was a slightly smaller vessel than the "EVER GIVEN".
We are already assisting many cargo insurers. If you have insured cargo on board the "EVER GIVEN" please do contact us.
Update: 29th March 2021
We continue to receive numerous communications from clients on this case.
As you will have seen, thankfully the vessel has now re-floated on the spring tides, mentioned at point 3 of our message of the 26th below.
The next steps are in our view likely to include the following:
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The vessel will be removed to a safe location for assessment.
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Hopefully it is not significantly damaged and will be able to continue the voyage. We have seen reports of some water in the forepeak, and no doubt that will be investigated and it is the case, then if necessary class approval is likely to be sought by Owners to sail.
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In previous cases, we have seen time taken whilst Owners negotiate with the SCA to settle the costs for the assistance provided. It may be the case in this instance, or they may have already made arrangements. In some cases, the salvors have agreed to cover these costs and include them in their salvage claim.
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It is also possible the SCA may levy a fine on the vessel. This in turn could take some time to resolve.
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It seems to be a relatively low probability based on the limited information available at present, but if there is significant damage then the Owners may be compelled to tranship the cargo. Bearing in mind the cost, the lack of alternative tonnage and the sheer size of the vessel which means that port of refuge options are very limited, we anticipate this would be a last resort, but would significantly increase the cost and delay if it transpires it is necessary.
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Clearly substantial costs have been incurred to re-float the vessel. It remains to be seen whether Owners will absorb the salvage costs in the first instance and attempt to recover them in GA, or whether the Salvors will simply claim them directly against all the salved property.
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We anticipate a detailed investigation will follow which will determine the cause. Evidently the cause will impact upon the legal liabilities of the ship and cargo interests.
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If you have insured cargo on board the vessel we are well placed to assist you (along with our existing clients) with any GA, salvage and recovery issues.
Update: 26th March 2021
No doubt you are well aware of the physical situation "on the ground". The key points in our view, from a cargo perspective, are as follows:
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Numerous tugs have to date failed to dislodge the vessel, which remains "firmly aground".
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The tugs provided by the SCA are usually charged at a tariff rate and are extremely expensive. The total expenses likely to be claimed for the tug assistance to date will, we expect, run to millions of dollars.
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A Spring tide is expected on Sunday/Monday which may help the refloating efforts.
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We understand that salvage services are being provided under LOF with Nippon Salvage and Smit being the contractors. Even if the Owners absorb this cost it will almost inevitably result in a GA claim brought by the Owners.
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To date the tug assistance has not resulted in re-floating. It remains to be seen whether the dredger on-site will remove enough material to refloat the ship. Dredging was certainly effective in the "APL PANAMA" grounding off Ensenada. However, this ship is very much larger and would have had considerable momentum when running aground.
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If dredging and excavating the earth around the grounding location does not succeed in re-floating the vessel, then lightering looks far from straightforward. The vessel is fully loaded and we would not expect there to be much ballast to discharge. Removal of bunkers could be another option. If cargo lightering were to be required, for example by floating crane onto barges, the crane would have to have very significant reach bearing in mind the height of the stacks and the breadth of the vessel. In extremis, on the "APL PANAMA" helicopters were used to remove containers, and subsequently a road was built, although a road doesn’t look feasible in this case.
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On re-floating, we can expect the SCA will levy a fine on the Owners as a result of the casualty. Depending on how quickly that can be negotiated, this may be a cause of further delay.
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Of course, there are major knock-on effects for shipping generally as a result of the blockage of the canal. These could well be very significant if the vessel is not swiftly refloated.
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If the vessel is not refloated in short order, it is possible that cargo interests will face claims for salvage, and we consider it likely that there will be claims for General Average.
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Owners of the "EVER GIVEN" may well face claims from owners of other vessels and/or the Suez Canal. There will be complex legal and jurisdictional issues arising in respect of those claims.
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In terms of causation, there were reports of a "power outage". Owners have pointed to "strong winds", which in our preliminary view seems improbable.
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It is likely that a very significant salved fund will be involved. In our past experience of mega container ship casualties, such as the "MAERSK HONAM", where we represented about one third of the total cargo, it is likely the value of the cargo will be in the $4-500m range. The value of the ship may be in the region of $110m. This case may well involve the largest salved fund of any container ship casualty to date.
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We have retained local lawyers "on the ground" in Egypt.
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We have already received instructions to represent cargo interests in respect of this casualty.
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If you have insured cargo and require assistance in dealing with potential claims for salvage, GA and recovery of any losses, please do not hesitate to contact us.
24/03/21
We have received reports that the "EVER GIVEN", a 2018 built container ship, flying the Panamanian flag, has grounded in the Suez canal. Presently the vessel is blocking the channel, touching the banks on both sides. Efforts are being made to free the vessel. In our experience, there will be significant local costs incurred which may well result in a salvage claim and/or find their way into a GA claim.
If you have insured cargo on board this vessel and would like assistance with claims for salvage, GA and/or the recovery of losses, please do contact us. If security is required we can also assist.
There are a number of advantages of instructing us to protect your interests.
Our in-house master mariners are part of our service and their assistance, together with our extensive track record in marine matters (over 1,000 years of collective experience) are key resources in dealing with cases such as these.
We have been involved in more LOF salvage cases than any other law firm.
We have the largest team of marine cargo claims lawyers in the world. We have been responsible for winning many of the leading pro-cargo Court judgments in recent years, including:
i. "VOLCAFE" – the Supreme Court judgement on burden of proof.
ii. "CMA CGM LIBRA" – our clients are the only cargo representatives to successfully defend claims for General Average in the High Court and Court of Appeal.
iii. "MAERSK TANGIER" – A recent key decision on the application of package/weight limitation under the Hague-Visby Rules. We were successful in the High Court and Court of Appeal.
iv. "AQASIA" – a decision from the Court of Appeal (confirming the High Court decision) that Hague Rules limitation does not apply to bulk cargo.
v. "HEUNG A DRAGON" collision with "ELENI", where the recovery obtained for our clients was three to five times that obtained by other cargo representatives.
We are well aware that our assistance needs to be cost-effective, and we will always discuss with clients to ensure our fee is proportionate.
For further information, please contact:
Jay Sharma, Partner, Clyde & Co
jai.sharma@clydeco.com
