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Saturday, 08 March 14
LETTERS OF INDEMNITY - SKULD
KNOWLEDGE TO ELEVATE
In today's trading market, owners are frequently requested to accept a letter of indemnity (LOI) in exchange for complying with charterers' or shipper's request to take on risks which can fall outside the contractual demands normally placed on a carrier. These can also fall outside the scope of standard insurance coverage, and hence deserve careful attention.
Key points of advice
- Taking a LOI against a request may create obligations outside of the basic contractual agreement;
- These may impact on standard insurance coverage;
- Careful consideration needs to be had of the nature and terms of the request;
-nature and terms of the request
-terms of the LOI
-party making the request
-authority of the signor of the LOI
-enforceability of the LOI
It is best to address these issues, if foreseeable, at the outset of the fixture, with suitable charter terms and LOI templates included as addenda to the charterparty
Owner's obligations
Owners' basic obligations are very closely connected with the three functions of a negotiable Bill of Lading (B/L), in particular as a:
- Receipt of the goods, which operates as prima facie evidence of the goods' quality and condition
- Evidence of / being the contract of carriage, which gives to the parties of the sales transaction rights against the carrier in regard to the safe carriage of the goods and their delivery at destination
- Document of title which is subject to transfer and endorsement and gives a right to demand delivery
Market practice
The owner's obligations are set down in law, and are also the basis for the insurance coverage for cargo claims, yet in practice parties may seek to adopt alternative practices that aim to address commercial considerations that arise from time to time.
The most common way of dealing with traders' requests outside the contractual obligations are closely related to the use of letters of indemnity (LOIs). These should contain, effectively, a straight forward promise: if you do what I ask, I will make sure that you do not suffer any loss.
Main types of LOI situations
Broadly speaking, LOIs can be distinguished between those related to shipment and those related to discharge.
Shipment LOIs
In general terms, LOIs requested upon shipment are closely connected with a request to the Master to issue a B/L that contains a representation, which was made knowingly or without belief in its accuracy, about matters such as the nature, condition or quantity of the cargo – BUT which are not correct.
For example, B/Ls with an incorrect description of goods (quality and / or quantity), a failure to mention defective packaging or incorrect dates of shipment (Antedated or Postdated B/Ls).
Discharge LOIs
On the other hand, LOIs at discharge are usually related with a request to the Master to deliver the goods in good faith without the production of the original Bs/L and/or at a port other than the one stated on the B/L.
Other LOI situations
There are, however, various other occasions where an LOI may be the only commercial way to deal with charterer's requests, which go beyond contractual and insurance limits.
For example there may be a request for co-mingling of liquid bulk cargoes or mixing of dry cargoes which obviously raise various problems in relation to the description of the "new" cargo and issuance of new set of B/Ls. There can also be incidents where an Owner needs to serve a request for issuing split B/Ls or substituting a B/L with an amended one and it may not always be possible to have the original returned before the new set is issued. Again on those occasions the pragmatic solution can be found in a provision of an LOI.
Considering a LOI request
When an LOI is to be accepted, special consideration should be given to the terms and the extent of liability in order to provide sufficient protection to the carrier. The reality is that many anticipated pitfalls can be forestalled through careful drafting of the LOI wording; thus reducing the risks involved.
The key features of the IG recommended wordings are the provisions for "indemnity for any liability, loss, damage to expense of whatever nature arising out of complying with the request" as well as the issuer's obligation to provide sufficient funds to defend any claim and arrange the placement of adequate security to any third party.
It is always best to consider such matters at the outset of a fixture, and to pre-arrange suitable contract terms and LOI templates rather than seek to agree these ad hoc, often under urgent time pressure.
Risks
It is indeed quite evident that acceptance of an LOI is not a risk free exercise. What it is important to keep in mind is that the security is only as good as the person granting it and hence it is important to carefully assess the financial standing of the issuer.
Moreover, the clubs will recommend that the guarantee should be countersigned by a first class bank in order to provide the carrier with a safety net when trying to enforce the LOI. The reality though is that the majority of the traders tend to resist such a request, and LOIs are often issued without such countersignature.
Furthermore, the scope of the indemnity needs to be kept as wide as possible and preferably not to include any time limit.
In a nutshell, what needs to be considered and carefully assessed when seeking to minimize the risks related to LOIs is the creditworthiness of the issuer, the authority of the person signing the LOI and at last but not least the prospects of enforceability.
A particular point to note is that for instance there is no reciprocal recognition between P.R. China and the United Kingdom of Court Judgments, but both nations apply the New York Convention on Arbitration Awards. Therefore care needs to be taken when considering the applicable law and jurisdiction of the LOI.
Authority to issue the letter of indemnity
In addition to carrying out a risk assessment exercise to ascertain the creditworthiness of the issuer before accepting an LOI, it is equally important to carefully scrutinize the original document and check the authority of the person signing it.
The LOI should be in a form of an original signed document on the issuer's headed notepaper (fax or e-mail may be sufficient) and should be signed by a clearly identified signatory accompanied by an express statement that he/she is authorized to sign on behalf of the issuer. Needless to say, the original LOI should be sent out to the owners as soon as possible.
In case of doubt or concern, a senior officer of the company, such as a director of the board, should be asked to either sign the LOI or delegate the authority to a designated person, backed by a clear board resolution given the authority.
Straight indemnity clauses
Most issues that arise when an actual LOI is to be provided can be sorted out at the outset by incorporating a "straight indemnity clause" in the charterparty.
Such a clause provides for charterers to indemnify owners where the cargo is discharged without production of the B/L or at a place other than the one stated in the B/L.
In practice such a clause can help to ensure fast resolution of requests, as no separate LOI wording needs to be negotiated or considered. Furthermore the basic law and jurisdiction provisions of the charterparty will apply, which again speeds up the process.
It is important, however, to ensure such clause retains discretion for the owners to refuse a request to deliver without the original bill and the indemnity included needs to be worded sufficiently widely. The former is important so that the owner can protect himself in case there are suspect circumstances at the delivery port.
Enforceability
The rule of thumb that one needs to bear in mind is that an LOI which is accepted in return of issuing a B/L which is not accurate, may be unenforceable as it has the effect of potentially prejudicing an innocent party. Indeed, under English law, it may actually be held to be a fraud on the 3rd party.
Nevertheless, enforceability will always depend on the jurisdiction which either is designated for the dispute resolution, or which is seized of the matter.
The ethical dilemma is that both the carrier and the charterer are parties to the same situation and LOI device, and if the carrier is not permitted to eventually invoke the LOI against the charterer because of the perceived "fraud", the charterers is thus indirectly permitted to benefit from the situation. The concern for a court, however, would typically be the innocent 3rd party that may have been disadvantaged, and both owner and charterer will be taken to have taken a calculated commercial risk and will have to take on board the consequences.
A LOI may be enforceable, however, if there is a genuine doubt about the underlying situation such as whether or not the cargo is damaged when loaded onto the vessel, or the precise quantity laden. Also, a LOI for delivery without production of original B/L and/or change of destination should be to be enforceable, if the owner can show he had no reason to suspect that there was any underlying foul play involved, and it was just – ostensibly – a genuine matter undertaken for commercial convenience.
Duration of the LOI
As far as the duration of an LOI is concerned, it is obvious that there are indeed conflicting interests between owners and the LOI issuer.
The usual time limit under English law for a contractual claim is six years while the time bar limit for claims against the carrier under the Hague-Visby Rules is one year from the date of delivery or the date when the cargo should have been delivered.
The owner is obviously better protected if the LOI is either without a time limit or it is clearly stipulated therein that the LOI will expire after seven years.
The relevant provisions included in the IG LOI wordings provide that liability is to be terminated only when the original B/L is delivered to the carrier, if not, liability continues.
P&I considerations
As within the frame of todays' demanding market there is a wide recognition of the commercial pressure faced by carriers. Nevertheless, it is common ground between all P&I clubs that the principle of mutuality needs to be maintained and hence all members must comply with the Rules.
A LOI is an alternative to P&I cover as it applies to situations where the carrier needs to operate outside the scope of the rules. However, the clubs are always willing to offer assistance with the drafting of LOIs for non-production of B/L or change of destination as well as to discuss any other issue related to a situation where a request for an LOI is to be considered.
The association invites all members to consult the individual claims handlers whenever an LOI related issue comes up for discussion within the scope of their vessel's trading operation.
Source: Skuld / Hellenic Shipping
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Friday, 07 March 14
US PRODUCED 19.4 MMST OF COAL IN PAST 7 DAYS, SAYS EIA
COALspot.com – United States the world’s second largest coal producer, produced approximately 19.4 million short tons (mmst) of coal in ...
Thursday, 06 March 14
PANAMAX MARKET IS STRUGGLING IN BOTH HEMISPHERES - FEARNRESEARCH
Handy
The Handy/Supra market experienced a rate increase in the Pacific. The activity itself is not too big, but spot tonnage is clearing up and ow ...
Wednesday, 05 March 14
THE BIG BULKERS HAVE IN FACT WITNESSED SIGNIFICANT IMPROVEMENTS IN BOTH BASINS
The BDI continues to gain back some of the lost ground, although in reality there isn't a lot to celebrate abou ...
Wednesday, 05 March 14
LEAVE IT TO CAPES TO CHANGE THE DIRECTION OF THE DRY BULK MARKET - INTERMODAL
Chartering (Wet: Stable- / Dry: Stable+)
Leave it to Capes to change the direction of the Dry Bulk market. The big bulkers managed to drag the BDI ...
Tuesday, 04 March 14
AUSTRALIA'S NPC TO SHIP 11.85 MMT OF COAL IN MARCH
COALspot.com: In the week ended 3 March 2014, power plant and semi-soft coking coal shipments from the port of Newcastle in Queensland, total 3.15 m ...
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Showing 3816 to 3820 news of total 6871 |
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- Kapuas Tunggal Persada - Indonesia
- Rio Tinto Coal - Australia
- Xindia Steels Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- VISA Power Limited - India
- Sakthi Sugars Limited - India
- Kepco SPC Power Corporation, Philippines
- GMR Energy Limited - India
- Simpson Spence & Young - Indonesia
- Bharathi Cement Corporation - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Bhoruka Overseas - Indonesia
- Malabar Cements Ltd - India
- Maheswari Brothers Coal Limited - India
- India Bulls Power Limited - India
- McConnell Dowell - Australia
- Power Finance Corporation Ltd., India
- Krishnapatnam Port Company Ltd. - India
- Kobexindo Tractors - Indoneisa
- Kalimantan Lumbung Energi - Indonesia
- PowerSource Philippines DevCo
- Meenaskhi Energy Private Limited - India
- Barasentosa Lestari - Indonesia
- The State Trading Corporation of India Ltd
- Indogreen Group - Indonesia
- Global Green Power PLC Corporation, Philippines
- Gujarat Sidhee Cement - India
- TeaM Sual Corporation - Philippines
- Lanco Infratech Ltd - India
- London Commodity Brokers - England
- Deloitte Consulting - India
- Neyveli Lignite Corporation Ltd, - India
- Indo Tambangraya Megah - Indonesia
- Bukit Makmur.PT - Indonesia
- Thiess Contractors Indonesia
- Planning Commission, India
- Pipit Mutiara Jaya. PT, Indonesia
- Wilmar Investment Holdings
- Kideco Jaya Agung - Indonesia
- Oldendorff Carriers - Singapore
- Therma Luzon, Inc, Philippines
- Price Waterhouse Coopers - Russia
- Ceylon Electricity Board - Sri Lanka
- Georgia Ports Authority, United States
- Semirara Mining Corp, Philippines
- Global Coal Blending Company Limited - Australia
- LBH Netherlands Bv - Netherlands
- IHS Mccloskey Coal Group - USA
- Thai Mozambique Logistica
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Eastern Energy - Thailand
- Indika Energy - Indonesia
- Energy Development Corp, Philippines
- Straits Asia Resources Limited - Singapore
- Jorong Barutama Greston.PT - Indonesia
- Tata Chemicals Ltd - India
- Kaltim Prima Coal - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Riau Bara Harum - Indonesia
- IEA Clean Coal Centre - UK
- Formosa Plastics Group - Taiwan
- Offshore Bulk Terminal Pte Ltd, Singapore
- Kartika Selabumi Mining - Indonesia
- Salva Resources Pvt Ltd - India
- Agrawal Coal Company - India
- SMC Global Power, Philippines
- Karaikal Port Pvt Ltd - India
- Mjunction Services Limited - India
- San Jose City I Power Corp, Philippines
- Carbofer General Trading SA - India
- Mintek Dendrill Indonesia
- Sree Jayajothi Cements Limited - India
- Meralco Power Generation, Philippines
- Chettinad Cement Corporation Ltd - India
- Chamber of Mines of South Africa
- Bulk Trading Sa - Switzerland
- Attock Cement Pakistan Limited
- SN Aboitiz Power Inc, Philippines
- Timah Investasi Mineral - Indoneisa
- Independent Power Producers Association of India
- ASAPP Information Group - India
- Sical Logistics Limited - India
- Videocon Industries ltd - India
- White Energy Company Limited
- Trasteel International SA, Italy
- Romanian Commodities Exchange
- Semirara Mining and Power Corporation, Philippines
- Sarangani Energy Corporation, Philippines
- Indian Oil Corporation Limited
- Karbindo Abesyapradhi - Indoneisa
- Bhatia International Limited - India
- Borneo Indobara - Indonesia
- CIMB Investment Bank - Malaysia
- CNBM International Corporation - China
- Tamil Nadu electricity Board
- Coalindo Energy - Indonesia
- Wood Mackenzie - Singapore
- Toyota Tsusho Corporation, Japan
- PetroVietnam Power Coal Import and Supply Company
- TNB Fuel Sdn Bhd - Malaysia
- Banpu Public Company Limited - Thailand
- PTC India Limited - India
- Ministry of Finance - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Altura Mining Limited, Indonesia
- Bukit Baiduri Energy - Indonesia
- Ambuja Cements Ltd - India
- Madhucon Powers Ltd - India
- Binh Thuan Hamico - Vietnam
- Standard Chartered Bank - UAE
- Jaiprakash Power Ventures ltd
- Larsen & Toubro Limited - India
- Manunggal Multi Energi - Indonesia
- Eastern Coal Council - USA
- Samtan Co., Ltd - South Korea
- South Luzon Thermal Energy Corporation
- Electricity Generating Authority of Thailand
- Interocean Group of Companies - India
- Kohat Cement Company Ltd. - Pakistan
- Intertek Mineral Services - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Coal and Oil Company - UAE
- AsiaOL BioFuels Corp., Philippines
- Coastal Gujarat Power Limited - India
- Pendopo Energi Batubara - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Vijayanagar Sugar Pvt Ltd - India
- GAC Shipping (India) Pvt Ltd
- Globalindo Alam Lestari - Indonesia
- Medco Energi Mining Internasional
- European Bulk Services B.V. - Netherlands
- Australian Coal Association
- The Treasury - Australian Government
- PNOC Exploration Corporation - Philippines
- Edison Trading Spa - Italy
- Electricity Authority, New Zealand
- Latin American Coal - Colombia
- International Coal Ventures Pvt Ltd - India
- Siam City Cement - Thailand
- Bank of Tokyo Mitsubishi UFJ Ltd
- OPG Power Generation Pvt Ltd - India
- Makarim & Taira - Indonesia
- Cement Manufacturers Association - India
- Energy Link Ltd, New Zealand
- Vedanta Resources Plc - India
- Orica Mining Services - Indonesia
- Bangladesh Power Developement Board
- Ministry of Transport, Egypt
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Petrochimia International Co. Ltd.- Taiwan
- Baramulti Group, Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Jindal Steel & Power Ltd - India
- Parry Sugars Refinery, India
- GVK Power & Infra Limited - India
- Alfred C Toepfer International GmbH - Germany
- Dalmia Cement Bharat India
- Sindya Power Generating Company Private Ltd
- Mercator Lines Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Indonesian Coal Mining Association
- Orica Australia Pty. Ltd.
- Star Paper Mills Limited - India
- MS Steel International - UAE
- Rashtriya Ispat Nigam Limited - India
- Parliament of New Zealand
- Renaissance Capital - South Africa
- Bahari Cakrawala Sebuku - Indonesia
- Kumho Petrochemical, South Korea
- Petron Corporation, Philippines
- Grasim Industreis Ltd - India
- Australian Commodity Traders Exchange
- Posco Energy - South Korea
- Goldman Sachs - Singapore
- Economic Council, Georgia
- Port Waratah Coal Services - Australia
- Siam City Cement PLC, Thailand
- Savvy Resources Ltd - HongKong
- Antam Resourcindo - Indonesia
- Mercuria Energy - Indonesia
- Directorate Of Revenue Intelligence - India
- Metalloyd Limited - United Kingdom
- Aboitiz Power Corporation - Philippines
- New Zealand Coal & Carbon
- Gujarat Electricity Regulatory Commission - India
- Commonwealth Bank - Australia
- Central Electricity Authority - India
- Central Java Power - Indonesia
- Aditya Birla Group - India
- Cigading International Bulk Terminal - Indonesia
- ICICI Bank Limited - India
- Sinarmas Energy and Mining - Indonesia
- Vizag Seaport Private Limited - India
- Sojitz Corporation - Japan
- Minerals Council of Australia
- Billiton Holdings Pty Ltd - Australia
- Heidelberg Cement - Germany
- Bhushan Steel Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Essar Steel Hazira Ltd - India
- Ministry of Mines - Canada
- Global Business Power Corporation, Philippines
- Ind-Barath Power Infra Limited - India
- Merrill Lynch Commodities Europe
- Iligan Light & Power Inc, Philippines
- Marubeni Corporation - India
- Uttam Galva Steels Limited - India
- Indian Energy Exchange, India
- Singapore Mercantile Exchange
- Bayan Resources Tbk. - Indonesia
- The University of Queensland
- Africa Commodities Group - South Africa
- Anglo American - United Kingdom
- GN Power Mariveles Coal Plant, Philippines
- SMG Consultants - Indonesia
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