Still newsworthy and for a long time plainly visible from the Dorset coast, the Napoli is one of the most significant casualties in the British Isles in recent years, and any review of the familiar likely liability regime prompts reflection that the cargo might have been bulk oil or some other lasting pollutant.
Almost on the anniversary of the Napoli incident, within the same busy Channel shipping lanes and giving rise to similar concerns, in the early hours of 15 January this year the timber-carrying Ice Prince sank about 26 miles southeast of Portland Bill.
In a typical marine casualty, the cargo owners and insurers might incur expense following loss of or damage to the goods, and also under a guarantee to the salvors. Later, pursuit of the vessel’s interests for recovery will usually be under their carriage contract, urging that the ship was unseaworthy for lack of due diligence to make her so, and resisting any of the permitted defences (most commonly negligent navigation and perils of the seas) and any countervailing claim in general average, an ancient maritime doctrine where all involved proportionally share any sacrifice for the common good.
Often difficult in principle, liability in an incident like that involving the Napoli can become a babel in application. There may be common ownership among some of the containers, but as a single one can host several owning and insuring interests the aggregate of claimants is potentially huge and the casualty and claim logistics commensurately difficult.
In respect of thousands of containers a very great many cargo owners and insurers must first be contacted, and any salvage and general average security quantified and either agreed or compelled.
At the same time many involved will prepare for what may follow by trying to obtain helpful evidence on the condition of both vessel and cargo. This necessitates access for surveyors and others on behalf of these competing interests, all of which must dovetail with the changing complexities of managing and responding to an ongoing casualty, which in port or coastal waters can also involve local and sometimes government bodies.
This large legal and administrative exercise continues almost throughout the recovery claim, and though common interests are grouped where possible, it is inevitable that a very large number of individual claimants will emerge, often first of all seeking their own security from the vessel’s interests, and sometimes arresting or threatening to arrest related assets in order to get that.
There may be a great many defendants, too, as each separate carriage contract could be with the owner of the vessel or with a charterer of all of it, or part of it - with a container vessel such is the familiar slot charterer. For each claimant the correct target must be identified and approached, first as to security and then as to settlement of the claim. If this cannot be done, the individual parties must progress whatever formal dispute resolution means is stated in the contract. Such may stipulate court action or arbitration, or (increasingly, as prelude to either) some other process.
It is likely that, amid so many separate contracts, a number of different jurisdictions will be specified, and there may be similar variety as regards governing law, all of which must be addressed sensibly if a single forum is to be agreed and near global action avoided.
Several P&I Clubs or other insurers of vessel interests might be involved, and on all sides there will be continued linkage with surveyors, brokers, loss adjusters and sometimes overseas correspondent lawyers.
The salvors will be represented, as will the vessel’s hull and machinery insurers if she is damaged or ultimately lost or treated as such. With interests to protect and often duties to perform, port, harbour or other local or government authorities might also instruct lawyers, and (though less likely with a container vessel) any allegation as to unsafe berth or port might involve the charterers’ liability insurers.
As with the Napoli, the fuel oil on the Ice Prince immediately raised environmental concerns, prompting press commentary and, doubtless, immediate mental images of blackened coastlines, stricken wildlife and lengthy remedy.
The great damage potential of cargo and fuel oil and other hazardous materials has given rise to extensive and still developing UK and European Commission law regulating many aspects of carriage and requiring procedures in the event of spillage, imposing (largely, strict) liability and prescribing national and international measures for coordination of clean-up operations, often involving direct action by empowered individuals and bodies. All this can add new and very significant dimensions to a marine casualty, in terms of a much more extensive liability regime, far greater potential costs and immediate government intervention in the public interest under executive powers.
According to their own nature, many organisations have developed and often rehearse casualty response plans of various kinds, but nothing works without sensible communication and the timely provision of information where it is needed. All appreciate the economies of scale and will try as far as possible to achieve commonality, but there will usually be numerous trained and motivated representatives, all seeking best advantage for their principals and honing a competitive edge.
As such, with thousands of entities involved, hundreds of issues arising, scores of matters to address and tens of priorities within a complex legal and administrative framework, in any major marine incident common sense and co-operation are key.
Within an active casualty occasioning media interest and needing instant response to rapidly changing events and liaison with many other parties, merely organising the various interests in relation to, perhaps, tens of thousands of bill of lading or charter-party contracts is a skilled and complex job.
That such a Byzantine matrix becomes manageable is due partly to frequent and enduring co-operation between the parties’ representatives, but most of all to those within the various instructing bodies who perform the core task of collating and supplying information at the earliest possible moment.
Tim Stephenson is a partner in the marine division at Hill Dickinson in London.
