MV EVER GIVEN: Analyzing conflict of laws scenarios under Panamanian law
The MV EVER GIVEN has captivated the news and public opinion since its Suez Canal grounding on March 23, 2021. The discussion will now continue in the courts and the case will likely be analyzed in colleges and universities in years to come.
The case at hand has multiple angles and issues which must be determined, one of which arises from the manifold nationalities of the parties involved. The MV EVER GIVEN herself is a Panama-flagged vessel, owned by Shoei Kisen Kaisha, a subsidiary of the Japanese giant Imabari Shipbuilding Co., Ltd., and is currently time chartered by Taiwanese Evergreen Marine, under technical management by German Bernhard Schulte Shipmanagement. The initial plaintiff in the matter is the Egyptian Suez Canal Authority and coverage for the vessel is provided by the British UK P&I Club. Cargo interests, currently in play due to the General Average, varied in their nationalities, represent numerous potential claims due to the MV EVER GIVEN’s capacity as one of the largest container ships in the world.
In analyzing the current and any forthcoming maritime claims, one of the first issues to be determined is the dispute’s applicable substantive law. Panama’s Maritime Procedure Law sets forth a set of special principles of private international law, which are to be employed in determining said applicable law. Except as otherwise provided by international treaties ratified by the Republic of Panama, in any claim filed in Panama’s Maritime Courts, the rights and obligations of the parties will be determined in accordance with the following principles (we list the most relevant):
With respect to the tradition and principles of publicizing the ownership of the vessel, in accordance with that provided by the laws of the country of registry.
With respect to the real rights and liens that affect the vessel, in accordance with that provided by the laws of the country of registry.
With respect to the real rights and liens on cargo or freight, the laws of the Republic of Panama, unless there is an express agreement to the contrary.
With respect to the extinction of rights of the creditors of a vessel, whether they are lienholders or not, the laws of the vessel’s country of registry and, with respect to creditors of cargo or freight, the laws of the Republic of Panama.
With respect to the determination of the type of average affecting the vessel or its cargo and the proportion of general average contribution which they must bear, unless there is an agreement to the contrary, the law of the vessel’s country of registry.
With respect to the effects of carriage contracts for cargo, including bills of lading, unless there is an express agreement to the contrary, the laws of the country where the cargo was loaded.
With respect to the effects of voyage and time charter parties which affect all or part of the vessel and whether or not they exclude control and operation thereof by the shipowner, unless there is an express agreement to the contrary, the laws of the vessel’s country of registry.
With respect to the existence and determination of shipowner's limitation of liability, the laws of the vessel’s country of registry, and with respect to the existence and determination of the cargo owner’s limitation of liability, the laws of the Republic of Panama.
As mentioned, the MV EVER GIVEN case has multiple angles and determining the applicable substantive law for the claims is one of those. The forthcoming disputes and claims will likely involve several jurisdictions and will keep maritime lawyers busy and attentive for the coming years.
Article first published in Shiparrested News - May Edition 2021