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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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Thursday, 20 February 14
SUPRAMAX: IN ASIA IS IMPROVING SIGNIFICANTLY AND TURNED FROM APS TO DOP MARKET
Handy
The activity is back in the market after Chinese holidays. Supramax in Asia is improving significantly and turned from APS to DOP market. We ...
Wednesday, 19 February 14
NEWCASTLE PORT SHIPPED 30% MORE COAL WEEK ON WEEK
COALspot.com: In the week ended 17 February 2014, power plant and semi-soft coking coal shipments from the port of Newcastle in Queensland, totalled ...
Tuesday, 18 February 14
PERUVIAN HIGH COMMISSIONER FOR MINING AFFAIRS WILL BE KEY NOTE SPEAKER AT THE COLOMBIAN COAL CONFERENCE 2014
Press Release: The High Commissioner for Mining Affairs in the Presidency of the Peruvian Council of Ministers, General (R) Daniel Urresti Elera, ha ...
Monday, 17 February 14
US COAL PRODUCTION IN 2013 FELL TO ITS LOWEST LEVEL IN 20 YEARS
COALspot.com: U.S coal production for 2013 totaled an estimated 996 million short tons (MMst), 21 MMst (2%) lower than in 2012. It is the first time ...
Monday, 17 February 14
Q1 2015 COAL SWAPS CLOSED $ 2.21 HIGHER THAN Q2 2014 SWAPS
COALspot.com: API 8 CFR South China Coal swaps for average Q2 14 delivery lost 3.16 percent month on month and closed at US$ 76.12 per mt as o ...
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Showing 3846 to 3850 news of total 6871 |
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- Holcim Trading Pte Ltd - Singapore
- Energy Development Corp, Philippines
- Kartika Selabumi Mining - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Georgia Ports Authority, United States
- SMG Consultants - Indonesia
- Gujarat Electricity Regulatory Commission - India
- LBH Netherlands Bv - Netherlands
- Semirara Mining and Power Corporation, Philippines
- Rio Tinto Coal - Australia
- Planning Commission, India
- IEA Clean Coal Centre - UK
- Sindya Power Generating Company Private Ltd
- Heidelberg Cement - Germany
- Tata Chemicals Ltd - India
- Intertek Mineral Services - Indonesia
- Riau Bara Harum - Indonesia
- Simpson Spence & Young - Indonesia
- Indian Energy Exchange, India
- Siam City Cement - Thailand
- Edison Trading Spa - Italy
- Karbindo Abesyapradhi - Indoneisa
- Ministry of Finance - Indonesia
- Xindia Steels Limited - India
- Bulk Trading Sa - Switzerland
- Chettinad Cement Corporation Ltd - India
- Indonesian Coal Mining Association
- Mjunction Services Limited - India
- Mercuria Energy - Indonesia
- Wilmar Investment Holdings
- Electricity Authority, New Zealand
- Sakthi Sugars Limited - India
- Jaiprakash Power Ventures ltd
- Gujarat Sidhee Cement - India
- McConnell Dowell - Australia
- Bayan Resources Tbk. - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Miang Besar Coal Terminal - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Rashtriya Ispat Nigam Limited - India
- Parry Sugars Refinery, India
- Africa Commodities Group - South Africa
- Standard Chartered Bank - UAE
- Anglo American - United Kingdom
- Kalimantan Lumbung Energi - Indonesia
- Romanian Commodities Exchange
- Salva Resources Pvt Ltd - India
- Cigading International Bulk Terminal - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Maheswari Brothers Coal Limited - India
- GAC Shipping (India) Pvt Ltd
- Coastal Gujarat Power Limited - India
- White Energy Company Limited
- Mercator Lines Limited - India
- Oldendorff Carriers - Singapore
- Neyveli Lignite Corporation Ltd, - India
- Meralco Power Generation, Philippines
- Cement Manufacturers Association - India
- Altura Mining Limited, Indonesia
- Wood Mackenzie - Singapore
- Straits Asia Resources Limited - Singapore
- Bhatia International Limited - India
- Sarangani Energy Corporation, Philippines
- Commonwealth Bank - Australia
- Deloitte Consulting - India
- Ceylon Electricity Board - Sri Lanka
- Leighton Contractors Pty Ltd - Australia
- GN Power Mariveles Coal Plant, Philippines
- Banpu Public Company Limited - Thailand
- Electricity Generating Authority of Thailand
- Indian Oil Corporation Limited
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Lanco Infratech Ltd - India
- Alfred C Toepfer International GmbH - Germany
- Independent Power Producers Association of India
- Singapore Mercantile Exchange
- Dalmia Cement Bharat India
- The State Trading Corporation of India Ltd
- Savvy Resources Ltd - HongKong
- Global Business Power Corporation, Philippines
- Bukit Makmur.PT - Indonesia
- Eastern Energy - Thailand
- Orica Australia Pty. Ltd.
- ASAPP Information Group - India
- Economic Council, Georgia
- Videocon Industries ltd - India
- Medco Energi Mining Internasional
- Vedanta Resources Plc - India
- Pendopo Energi Batubara - Indonesia
- Semirara Mining Corp, Philippines
- Power Finance Corporation Ltd., India
- Australian Commodity Traders Exchange
- OPG Power Generation Pvt Ltd - India
- Ministry of Transport, Egypt
- Madhucon Powers Ltd - India
- Directorate General of MIneral and Coal - Indonesia
- San Jose City I Power Corp, Philippines
- Renaissance Capital - South Africa
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Agrawal Coal Company - India
- Borneo Indobara - Indonesia
- Sical Logistics Limited - India
- The Treasury - Australian Government
- Bukit Asam (Persero) Tbk - Indonesia
- Kapuas Tunggal Persada - Indonesia
- SMC Global Power, Philippines
- London Commodity Brokers - England
- Krishnapatnam Port Company Ltd. - India
- Meenaskhi Energy Private Limited - India
- Karaikal Port Pvt Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- ICICI Bank Limited - India
- Thiess Contractors Indonesia
- Essar Steel Hazira Ltd - India
- Samtan Co., Ltd - South Korea
- Directorate Of Revenue Intelligence - India
- Orica Mining Services - Indonesia
- Global Green Power PLC Corporation, Philippines
- Uttam Galva Steels Limited - India
- Bhoruka Overseas - Indonesia
- Aditya Birla Group - India
- Timah Investasi Mineral - Indoneisa
- Asia Pacific Energy Resources Ventures Inc, Philippines
- European Bulk Services B.V. - Netherlands
- India Bulls Power Limited - India
- Star Paper Mills Limited - India
- Bangladesh Power Developement Board
- Latin American Coal - Colombia
- Baramulti Group, Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Larsen & Toubro Limited - India
- Interocean Group of Companies - India
- Grasim Industreis Ltd - India
- Eastern Coal Council - USA
- Goldman Sachs - Singapore
- Sree Jayajothi Cements Limited - India
- PTC India Limited - India
- Kaltim Prima Coal - Indonesia
- South Luzon Thermal Energy Corporation
- Ambuja Cements Ltd - India
- SN Aboitiz Power Inc, Philippines
- Port Waratah Coal Services - Australia
- The University of Queensland
- Ministry of Mines - Canada
- Parliament of New Zealand
- Mintek Dendrill Indonesia
- Malabar Cements Ltd - India
- Indo Tambangraya Megah - Indonesia
- Ind-Barath Power Infra Limited - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Makarim & Taira - Indonesia
- Manunggal Multi Energi - Indonesia
- Kumho Petrochemical, South Korea
- Vijayanagar Sugar Pvt Ltd - India
- Chamber of Mines of South Africa
- Price Waterhouse Coopers - Russia
- Aboitiz Power Corporation - Philippines
- Billiton Holdings Pty Ltd - Australia
- Indika Energy - Indonesia
- Vizag Seaport Private Limited - India
- Attock Cement Pakistan Limited
- Central Java Power - Indonesia
- Kobexindo Tractors - Indoneisa
- New Zealand Coal & Carbon
- Indogreen Group - Indonesia
- TeaM Sual Corporation - Philippines
- Kohat Cement Company Ltd. - Pakistan
- PowerSource Philippines DevCo
- CNBM International Corporation - China
- Asmin Koalindo Tuhup - Indonesia
- VISA Power Limited - India
- Trasteel International SA, Italy
- Globalindo Alam Lestari - Indonesia
- Binh Thuan Hamico - Vietnam
- Minerals Council of Australia
- PetroVietnam Power Coal Import and Supply Company
- Tamil Nadu electricity Board
- Barasentosa Lestari - Indonesia
- AsiaOL BioFuels Corp., Philippines
- MS Steel International - UAE
- Thai Mozambique Logistica
- Coal and Oil Company - UAE
- Marubeni Corporation - India
- PNOC Exploration Corporation - Philippines
- Carbofer General Trading SA - India
- Sojitz Corporation - Japan
- Kideco Jaya Agung - Indonesia
- Global Coal Blending Company Limited - Australia
- Jindal Steel & Power Ltd - India
- Kepco SPC Power Corporation, Philippines
- Toyota Tsusho Corporation, Japan
- International Coal Ventures Pvt Ltd - India
- CIMB Investment Bank - Malaysia
- Metalloyd Limited - United Kingdom
- Therma Luzon, Inc, Philippines
- Bukit Baiduri Energy - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Formosa Plastics Group - Taiwan
- Bahari Cakrawala Sebuku - Indonesia
- Merrill Lynch Commodities Europe
- Central Electricity Authority - India
- Petrochimia International Co. Ltd.- Taiwan
- Bhushan Steel Limited - India
- IHS Mccloskey Coal Group - USA
- Bharathi Cement Corporation - India
- Energy Link Ltd, New Zealand
- Antam Resourcindo - Indonesia
- Petron Corporation, Philippines
- Posco Energy - South Korea
- Siam City Cement PLC, Thailand
- GVK Power & Infra Limited - India
- Iligan Light & Power Inc, Philippines
- GMR Energy Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Australian Coal Association
- Coalindo Energy - Indonesia
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