WITH SEVERAL shippers caught up in legal problems surrounding arrested ships and detained containers in recent weeks, FTW decided to investigate what avenues are open for them to reclaim their boxes.
The first thing, said Alan Rolf, operations manager of MSC and president of ASL (Association of Shipping Lines), is that there is no way to guard against such things.
Lines and agents which have been accepted by the marketplace have already gained trust, and there aren't often any signs of problems about to happen.
The cargo owner has no guarantees in such a legal predicament, and it is too early to be thinking about insurance.
At this stage, we'd advise the client to appoint an attorney, and try to get the cargo released, said Dave Keeling, of Cigna Insurance and chairman of AMUSA (Association of Marine Underwriters of SA).
Claims all depend on why a vessel or a container is arrested. If it's insolvency of any of the parties there could be an insolvency exclusion. And there's also the standard delay exclusion in terms of Institute Clause (a).
There are also other frilly clauses in the market which could apply. You don't know until all the legal facts are made clear.
And getting cargo released would seem to be a happy hunting ground for the legal profession.
According to Andrew Robinson, one of the seagoing partners at attorneys Deneys Reitz of Durban, there are all sorts of ifs and buts in the two cases (neither of which he is handling).
Provision can be made for the owner of the cargo to have his cargo discharged, he told FTW. But, with the ship sitting in the roads, this is difficult.
The problem here is that it must be presumed that the shipping line doesn't want to move the ship anywhere but onward on its intended voyage. They don't want to lose the freight rates.
To get the ship back to a container terminal berth might, therefore, require all the cargo owners to agree to charter the vessel for the trip from its anchorage to the berth. Hypothetical, but a possibility.
Even if it returns to its berth, there are all sorts of legal complications surrounding the next step. The cargo owner's container is there, but where? How do you legally get to it? Have the whole ship unloaded, or what?
And, even more importantly, who would be liable for the costs?
In the case of boxes being attached things seem a bit more clear cut, according to Robinson.
If there's no impediment to the owner getting the container unvanned, he said, he can remove his cargo.
On costs, he might have action rights against the container operator.
But here again, Robinson throws in a legal curved ball. In attaching a container, he said, the complication is the question: Who owns the box?
The agents don't. The shipping line seldom does - usually chartering or leasing its container fleet.
A right royal legal puzzle, with, as Robinson agrees, the cargo owner haplessly caught in the middle.
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