Could someone please help with theirs thoughts, expert opinion.
We are a freight forwarder. We have shipped one FCL to Vietnam back in 2010. The cargo was not claimed by the consignee due to lack of some import permit. The cargo was ultimately seized by Customs, for auction.
The shipping line notified the exporter (who is the shipper on the BL) of the outstanding demurrage and storage charges at destination port.
Our Forwarding company is shown as "Forwarding Agent" on the BL.
My question is, as a forwarder, what is our liability in this situation? Can the shipping line take a legal action against the forwarder in this case?
Does the "general lien" clause apply in this case, in case we use this shipping line for our future shipments?
Thanks in advance.
As a forwarder you may be acting as a principal or as an agent. In the case you describe, as the documents were not in your name, you were potentially only acting in the capacity of agent and IF you are only an ‘agent’, you will have limited liability (and you should easily be able to deflect any claim made by the line against you – I would even challenge their general lien as when acting as an agent you have no direct connection to the debt due on the FCL in question.)
However at law, it is always how you ‘act’ rather than what you ‘claim’ which is important – so I would ask you to look at how the FCL was ‘booked’ – did you, for example, complete the booking form and if you did, did you complete it ‘as agents for (naming the shipper)’ or did you book it in your own name? If you booked it in your own name, for example, then you are possibly now NOT acting as an agent, but as a principal – in which case the claim against you (and the lien) are both legitimate.
If this was the case, I would suggest you counter-claim against your client in terms of the contract you have with them.
If, on the other hand, you booked ‘as agents’ and otherwise acted in that capacity only – then it is the shipper alone who should be facing the line’s claim.
When abandoned goods are seized by customs for auction, it can only be after the shipper has abandoned their interest too – I take it this did happen and if conducted correctly, your client should at that moment at least have known what their liability was. The line cannot just allow the auction without first trying to get disposal instructions from the shipper (e.g. to return the goods or onward ship them) and further (if abandoned by the shipper) the shipping line must claim the due debt thorough the auction i.e. customs will try to recover the duties, state incurred debts and third party debts in that order. The line’s first action was to make the debt known to the auctioneer. If they failed to do this, again you (or your client) would have grounds to repudiate.
But, as always, the devil is in the detail and you really need to be speaking to a lawyer who has access to the whole file (as you’ll not get anything other than a – rather worthless – ‘opinion’ on the internet....me included, of course)
Still, some ideas for you – good luck with this
"In the kingdom of the blind, what you see is what you get"
Many thanks for your detailed reply. Highly appreciate it.
We were just the booking agents on this one, and the BL was issued directly by the shipping line in the name of the actual exporter/shipper and their consingee.
Regarding obtaining a booking, we are just required to send an email to the line, and once the container is loaded, we send another email with the BL instructions. So, we don't need to fill out any forms here.
The booking is issued in our name, but only as agents, acting on behalf of the shipper. The booking was accepted and approved by the shipper. The shipping line has a proof that the shipper accepted the booking.
I hope this gives out some more info to get some additionals thoughts.
IMHO, I wouldn't think the exporter nor the forwarder should be responsible for any charges due to the fact that the consignee didn't collect the goods.
However as a manufacturer, we have had to delay shipment until the consignee had conformed to their own customs regulations. And we only knew about this through open communications directly with the customer.
I look forward to another friend's experienced advise with this.