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26 March 2014
If a forwarder files for insolvency or is unable to pay the freight to the carrier, the carrier may decide to invoke a right of retention in respect of the goods in its custody based on a contractual or statutory lien. If this is admissible, another option for the carrier may be to get payment of the outstanding freight from the consignee or shipper or by way of public sale of the goods. However, if the carrier has no lien, there is a high risk that it will be held liable for the cargo value and financial losses. Consequently, the carrier should be certain of the legal situation.
In the course of modernising the shipping law (which entered into force on April 25 2013), the legal regulations on carriers' liens were amended in Section 440 of the Commercial Code for Road Carriers and Section 495 of the Commercial Code for Sea Carriers.
The carrier has a statutory lien on the goods for claims directly connected with the shipment of the lien object. Consequently, the land and sea carrier is entitled to invoke a lien if the particular shipment of the lien object has not been paid.
In respect of other claims which arise from former contracts of carriage and are unconnected with the particular carriage, the carrier has a lien on the goods only when:
If the contracting party of the carrier is a freight forwarder which is obviously not the owner of the goods, the carrier will be unable to prove in good faith that the freight forwarder is the owner of the goods.
As a result, the road and sea carrier has a statutory lien only for:
The legal situation for contractual liens is the same as for statutory liens. Therefore, it is likely that the courts will consider broader stipulations on liens in general terms and conditions of the carrier as null and void.
If a carrier exercises an invalid lien, cargo interests have the possibility to release the cargo by an interim injunction, which must be applied for at the local court where the goods are situated. Another option for cargo interests is to sue the carrier for unjustified enrichment, claiming for compensation of the cargo value and financial losses.
Today, carriers often have to exercise a lien in an attempt to put pressure on the parties involved. This might result in quick payment of unpaid freight charges in connection with a particular shipment. However, if the carrier aims for payment of other freight charges unconnected to the transport of the lien object, the carrier should examine the legal situation carefully, as it will otherwise face a high risk of being held liable. The carrier should therefore seek legal advice before exercising a lien.
For further information on this topic please contact Steffen Maelicke or Marco G Remiorz at Dabelstein & Passehl by telephone (+49 40 31 779 70), fax (+49 40 31 779 777) or email (email@example.com or firstname.lastname@example.org). The Dabelstein & Passehl website can be accessed at www.da-pa.com.
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