THE CONTAINERS OF MSC ZOE

She’s on everyone’s lips these days. At the beginning of January, one of the world’s largest container ships, the MSC Zoe, lost about 300 containers on her way from Antwerp in Belgium to the German port of Bremerhaven in the German Exclusive Economic Zone, including some with hazardous goods. The search for and salvage of the containers is currently in progress. But who is actually liable in the event of container loss?

90% of the goods traded worldwide are transported by sea. On average, there are around 5-6 million containers at sea every second, and around 130 million a year. Given the volume of containers transported, it is inevitable that containers will get lost at sea. Estimates range from around 500 to 1,600 containers per year, not taking into account major casualties such as the sinking of MOL Comfort. Since the containers of MSC Zoe are not an isolated case, it is worth taking a look at the legal aspects of container loss at sea.

Am I allowed to pick up stranded goods and keep them?

After the abolition of the stranding regulations (Strandungsordnung), the law on finding of the German Civil Code (Fundrecht) applies in Germany. The owner therefore remains the owner of the cargo even if he does not know in detail where the cargo is located. If the cargo is washed up on the beach and found there by third parties, the finder must always report the discovery to the owner or another authorized recipient (e.g. coastguard / authority). If the finder retains the found cargo, he may render himself liable to prosecution for misappropriation in accordance with Section 246 of the German Criminal Code (StGB). However, this is governed very differently on an international level.

Are the owners entitled to compensation for loss or damage?

In principle, carriers/shipping companies or (fixed cost) forwarding agents are liable, regardless of fault, for damage caused by loss of or damage to the cargo during carriage. The owners or cargo interests are therefore generally entitled to compensation claims against the carrier or freight forwarder, which may be limited in amount. The responsible carrier is only exempt from the obligation to pay compensation if it can prove one of the reasons for exclusion of liability provided for in maritime law. The carrier can only invoke bad weather and even storm if the particularly bad weather conditions in this area were not to be expected at this time of year. Given the accuracy of today’s weather forecasts, this is likely to apply only in exceptional cases.

Who is liable for damage to ships that collide with the containers?

Another problem of container loss at sea is the fact that many containers float a few centimeters below the water surface in the sea and do not sink to the seabed. Since the danger is so hardly recognizable, it happens that ships or boats collide with containers. This can have fatal consequences, especially for recreational craft and smaller ships. The owners of ships that are damaged by colliding with containers are generally not deprived of their rights. They may be entitled to claims for damages in tort against the shipping company, the owner of the container ship or the owner of the containers if the containers were not or not properly stowed and secured on the container ship and/or the container ship itself was not seaworthy and/or the salvage of the container was culpably omitted. In such cases, however, it is problematic to identify the container and locate the person responsible.

Who is liable for the clean-up costs/environmental damage?

As a matter of principle, the “Stoerer” (disturber) is obliged to remove the (environmental) damage he has caused. The legally not conclusively defined term “Stoerer” is partly differently understood in the German jurisdiction, so that the determination of the responsible person is possible only with the knowledge of all circumstances of the individual case. In the case of MSC Zoe, the carrier, the shipowner and the owner of the cargo can be considered as obligated parties to remedy the damage.

                                           Maxim Miskewych, Rechtsanwalt