Malcolm Hartwell, Master Mariner, Head of Transport Practice, Norton Rose Fulbright
An ever-increasing hazard after 5 000 years of shipping. On 18 May 2021, the fire and resultant probable loss of the brand new container ship, the mv X-Press Pearl, along with all her cargo off Sri Lanka is a timely reminder of the devastating effect of fires at sea on seafarers and ships.
It is also a continuing reminder of the ever-increasing hazard caused by containerised shipping and the failure by regulators to force shipowners to develop ships able to safely carry many containers and extinguish fires before they spread.
The 2021-built vessel with a capacity of 2 700 containers was on passage from India to Singapore when a container caught fire. Despite the best efforts of salvors and firefighting tugs, the fire spread and the crew were evacuated, fortunately without any casualties. Efforts are underway to tow the blazing hulk out to sea to begin oil spill mitigation measures. Some containers have fallen into the sea and it is possible that all of the cargo will be destroyed and the vessel will ultimately declare a constructive total loss.
The shipping and insurance industries have seen numerous fires of this nature over the previous several years on container ships, some much larger than the mv X-Press Pearl. Although fires at sea have been a seafarers’ worst nightmare since the first large wooden vessels were launched by Egyptians several millennia ago, container ships are particularly prone to suffering an extensive loss to cargo and ship due to uncontainable fires.
This is for a number of reasons. Firstly the containers are packed by the shippers of cargo and the owners are reliant on the shippers’ declaration regarding the containers’ contents. Many container ship fires are a result of the mis-declaration or inadequate packing of hazardous cargo. Secondly, the design of container ships with their closely packed massive stacks, rows and tiers of containers make it almost impossible for ships’ crews to get to the seat of a fire in order to control and extinguish it. This problem has been exacerbated by the reduced number of crew, due to automation onboard modern vessels.
Longline of cost – Cargo and shipowners and their insurers carry the risk of loss which includes not only the value of the cargo and ship but also the costs incurred in attempting to extinguish the fire, salvage the ship and cargo, and prevent or mitigate the pollution. In addition, shipowners may have to tranship cargo to its final destination and recover the costs of doing so through the lengthy and costly process of general average.
The resulting litigation involving owners, cargo, salvors and any third parties affected by pollution is protracted and expensive.
Of course, the seafarers, who seem to be invisible to consumers and the world media, face the risk of losing their lives.
Under the various versions of the Hague Rules which are the liability regimes covering most oceangoing cargo, an owner or carrier has a defense to cargo claims caused by fire. To overcome this defense the cargo owner can show that the owners of the vessel failed to exercise due diligence to make the ship seaworthy at the commencement of this voyage and that this failure caused the loss. Evidence of this failure is difficult for cargo owners to gather.
With the fires caused by the misdeclaration of hazardous cargo, the shipowner and other cargo owners may have a claim against the owner of the misdeclared cargo. In practice however such claims may be worthless as the owner of the misdeclared cargo may disappear overnight or not have sufficient assets or liability insurance to meet claims which may exceed USD 100 million.
The reality is that existing ship construction regulations and firefighting equipment regulations were not designed to cater for the particular problems of fires on container ships. In addition to the inaccessibility of most fires on container ships, fixed firefighting systems that enable the crew to flood the ships holds with CO2 simply do not work with container fires. This is because the CO2 cannot get to the seat of the fire to smother it. In addition, the lack of heat resistant boundaries between the large holds on container ships which were designed solely to increase carrying capacity and revenue, means that fires spread quickly throughout the ship.
Classification societies and insurers have developed a number of possible solutions, but none of them has been adopted by regulators. Until ship and cargo insurers force owners to deal with the peculiar problem of container ship fires, it is likely that the mv X-Press Pearl will simply become another item on the long list of catastrophic container ship fires.