Source: Hanjin
Are the parties from the fresh produce sector at risk due to the financial problems of Hanjin?
“The largest risk is that there will be a delay in the delivery of the shipped products. According to a report from Reuters, several foreign harbours have refused entry to Hanjin ships because of concerns that Hanjin will renege on harbour fees. These ships will have to wait or move to other harbours, resulting in more delays. This can have disastrous consequences, especially for fresh produce.”
Can Hanjin be held responsible for such damages?
“As a carrier, Hanjin is responsible for damage or loss during transport. But it is not certain if Hanjin is actually liable for damage as this depends on the appropriate transport conditions. This could include legal provisions as well as contractual conditions in the transport agreement. Damage caused by delay, in the case of transport overseas, will hardly qualify for compensation. If the Dutch rights were applicable to this situation, the eighth book of the Civil Code states that a carrier should transport products without delay, but this regulation is just a regulatory law. That means that the carrier can deviate from this regulation in the transport agreement. Liability for damage caused by delay could be excluded in the transport agreement. This will almost always be done by the carrier in reality.”
Can the damage be recovered from the insurance policy?
“To cover the risk of damage or loss of products during transport, many carriers make an insurance contract.” Whether the insurance also covers damage caused by delay due to the financial problems of Hanjin, is completely dependent on the policy conditions of the insurance concerned. Often, such a specific risk will not be covered by a standard cargo transport policy and an additional insurance module has to be taken.”
We have heard that there have been interim proceedings. What was that all about?
“That is correct. The industry associations TLN/FENEX, EVO, and Fenedex have conducted a lawsuit against container terminal ECT. They had retained Hanjin containers, which they would only release after a compensation payment of €1000 to €1500 was paid. The industry associations felt that ECT had no right to charge them for releasing the containers. A judge from the Rotterdam courthouse made a verbal ruling on 2 September this year that ECT has the right to retain the containers until further notice but not to demand the previously mentioned fee for releasing the containers. They can charge the industry associations for the actual handling costs, in addition to a storage fee of €25.”
In the meantime, ECT terminal has set up a new procedure, after consultation with EVO, Fenex, TLN, Fenedex, allowing the containers to be retrieved from the terminal. The retrieval is bound by regulations such as the times when they can be retrieved, and only with trucks. In addition, a security deposit has to be paid. For Reefers that is 600 euro.