В публикации рассматриваются права, которые могут быть защищены против эмитента гарантийного письма.
We very frequently see charterparties in which owners have agreed that they will deliver cargo without production of the bill of lading against an indemnity from charterers. This prejudices an owners’ P&I cover and so the security provided by such an indemnity is doubly important. As we regularly point out to our clients, however, an indemnity is only worth the paper it is written on when provided by a charterer against whom enforcement is difficult or impossible. The case of Great Eastern Shipping v (1) Far East Chartering; (2) Binani Cement [2011] EWHC 1372 (Comm) arose in part as a result of the insolvency of a charterer and provides a cautionary tale. However, in this case, English law was able to find a solution by reference to the Contracts (Rights of Third Parties) Act 1999, which allowed an owner to enforce a LOI given by a receiver to the insolvent charterer.
The “JAG RAVI” was carrying coal from Indonesia to Navlakhi, India. When the vessel arrived at the discharge port bills of lading were not available, and the receivers, Binani, provided voyage charterers, FEC, with a letter of indemnity in order to procure discharge of the cargo without presentation of the bills. The LOI was addressed to “the owners/disponent owners/charterers”.
Although not aware of the LOI, owners discharged the cargo in compliance with FEC’s instructions. The cargo was discharged into the custody of the port authority and owners provided a delivery order in favour of Binani. Disputes later arose between Binani and the cargo sellers up the line about the condition of the cargo, and eventually there was a reduction in the purchase price. The shippers claimed damages from owners for delivery of the cargo without presentation of bills of lading, and proceedings against owners followed in Singapore (following a sister-ship arrest).
Owners, therefore, commenced an action to recover an indemnity from FEC and Binani, but FEC went into liquidation, and so owners were left with trying to recover from Binani. As against Binani, owners argued that they were able to enforce the LOI because in delivering the cargo on FEC’s instructions, they were acting as FEC’s agents, and the LOI extended the indemnity to “servants and agents” of charterers. On that basis, they said they were entitled to enforce the LOI under the Contracts (Rights of Third Parties) Act 1999. The judge agreed. The LOI was issued to FEC, and the cargo was “delivered” to Binani, at the latest, when the port authorities released the cargo to them and they took possession of it. Nor was there any public policy issue or manifest wrongdoing on owners’ part where there was a commercial dispute ongoing between the shippers and the various sales contract parties about whether the bills should be released.
Источник: www.bentleys.co.uk/bentleysBulletin.html