Hanjin Shipping Co Ltd files for receivership – consequences for shippers (a Belgian point of view)

The possible bankruptcy of carrier Hanjin Shipping would have serious consequences for shippers as terminal operators are relying on their right of retention / pledge on the containers which they are currently retaining at their respective terminals.

Reuters article

Nieuwsbladtransport article

Several Belgian receivers have already received confirmation from Belgian terminal operators that due to the financial situation of Hanjin Shipping Co Ltd, all containers and their content shall remain in their possession as security for any and all claims they are having on (or will have) towards Hanjin Shipping Co Ltd. Taken into consideration their alleged right of retention / pledge, several terminal operators have nevertheless stated that containers could be released under the condition of payment of a proportional part of the outstandings. Depending on the terminal operator and their claim towards Hanjin, such payment could consist of amounts up to 2.000 – 2.500 € per container.

Whether terminal operators are allowed to rely on such right of retention / pledge on the container and their content would depend on the contractual situation and whether it depends in – or outgoing cargo.

  1. Outgoing cargo.

    Due to the fact that outgoing cargo is normally shipped upon the risk and costs of the shipper up till the moment the goods are taken on board by the carrier, it is very unlikely that terminal operators could rely on such a right of retention or pledge. In such event, the right of retention / pledge could be unlawful.

  2. Incoming cargo.

    Whether the terminal operators are entitled to rely on their right of retention on both container and content in case of incoming cargo, would depend on (a) the contractual situation between Hanjin and the terminal operators, and (b) the knowledge of the terminal operators who would be the (most likely) owner of the goods. In the latter event, the terminal operator could (possibly) assume that the carrier (Hanjin) is the owner of the containers, or at least the disponent owner; but such assumption could be rejected with regard to the content of the containers. Whether or not the right of retention / pledge could be called upon the content of the containers could be the subject of a serious legal discussion.

  3. Factual situation.

    In order to assess whether cargo beneficiaries are entitled to an action towards terminal operators, or whether a commercial solution is possible, our firm would be more than willing to provide you with specific advice as to which would be the most viable and pragmatic way to release their cargo.

    For more information, do not hesitate to contact our office.

    Christophe Van Mechelen
    Partner
    christophe.vanmechelen@vlvm.be
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