Статья посвящена вопросам, связанным с гарантированием обязательств путем наложения ареста на определенное имущество, указанное в долговом инструменте, и ареста всего имущества (груза) должника в случае неуплаты долга, в отличие от ареста (удержания), распространяющегося на конкретный актив. При этом автор раскрывает практику английских судов и принципы английского права, которые регулируют отношения по поводу удержания активов.
With the current economic problems, lines of credit are becoming increasingly stretched and invoices can remain unpaid for longer periods of time. For logistics companies, forwarders and carriers (“operators”) looking to minimise bad debt, the lien can be an effective tool in credit management; whether by the simple threat of exercising a lien or going ahead and doing so. For buyers of logistics services, the exercise of a lien can result in goods being delayed and potentially missing a market.
The temptation for an operator is to view a lien as an all singing, all dancing debt solver, but do they work and against whom?
Operators trading under the most common industry standard terms and conditions (T&Cs) might well think that their debt position is well protected but the rights to lien contained within these standard terms can sometimes not work as well in practice as might be thought. We discuss the different types of lien commonly seen and how they might work in practice.
The particular lien
A particular lien is the most basic type of lien commonly used and seeks to allow an unpaid operator to exercise a lien over goods for the debts due in respect of those goods only. However, unless the operator is contracting on payment of freight against delivery, or terms of credit have been rescinded, carried goods are often delivered to the consignee before payment of freight becomes due. Once goods have been delivered to the consignee, or are out of the operator’s possession or control, the lien is extinguished.
A particular lien also has a fairly obvious shortfall in that it cannot be used to try and recover debts due in respect of other consignments. For the operator who handles many shipments for a single customer every month, this may represent only a fraction of the debt due. For the buyer of logistics services, the positive news is therefore that the scope for withholding delivery of goods by the operator is restricted to those consignments on which money is owed – also meaning that, rather than having to settle the full debt owed to an operator, they only have to pay the carriage charges on the particular goods to get them moving again – something which may be countenanced even if the outstanding charges are disputed, just to ensure that the goods are delivered on time.
If an operator’s T&Cs do not contain provisions for a particular lien, all is not necessarily lost. Under English common law a carrier has a particular lien and a forwarder can have a particular lien in certain circumstances. In addition to this common law right to lien, those involved in the international carriage of goods which are subject to the CMR Convention may also have a form of particular lien by virtue of Article 13 (1) of the Convention.
The general lien
A general lien is a more versatile lien and, used properly, can put an unpaid operator in a very strong negotiating position – buyers beware! A general lien seeks to allow a lien to be exercised over goods in respect of any unpaid debts due from the owner of the goods. Pursuant to a general lien, a logistics buyer may face the prospect of having goods withheld from delivery and a demand for payment of a debt far in excess of the value of the goods in order for them to be released.
The BIFA 2005 conditions and RHA 2009 Conditions of Carriage both contain the right to exercise a general lien (at clauses 8(A) and 14 respectively), also giving the operator relying on those terms and conditions the power to sell the goods and apply the proceeds towards satisfaction of the outstanding debt (with any surplus being accounted for to the owner of the goods). Many liner and NVOC bills of lading also include general liens and rights of sale. The power of sale is not something that exists at common law and it requires a contractual provision entitling the operator to do so.
Is the general lien binding?
Many European and US retailers and manufacturers (buyers of logistics services) with a strong buying power purchase goods on FOB terms and put an operator in charge of their supply chain management, relying on them to arrange carriage of goods from the port of loading in the country of origin to the high street store or factory, often with consolidation and warehousing services in between. The operator will usually contract directly with the UK retailer/manufacturer and will seek to incorporate their own T&Cs into their dealings with the retailer.
If a logistics buyer defaults on agreed credit terms, the operator might look to use its general lien to recover unpaid debts only to find the logistics buyer arguing that the operator’s T&Cs have not been successfully incorporated – and both parties may find themselves getting into age old “battle of the forms” arguments.
Consider the situation where the logistics buyer is unable to pay its debts. The operator may then look to enforce their power of sale only to find third parties, such as the original manufacturer or a sourcing agent, claiming an interest in the goods and disputing the right to lien the goods. The third party may not have been paid for the goods by the original purchaser and, whilst they are trying to make other arrangements for the sale of the goods, they might find themselves being asked to settle the original logistics buyer’s debt. Will the general lien by binding upon these third parties?
In short, the answer is that it will be fact dependant. If the operator issued its own house bill of lading to the vendor then there will be an argument that the vendor is bound by any lien clause in the bill.
An operator might also be able to argue that the vendor is bound by his T&Cs by virtue of previous notice/dealings i.e. that the third party seeking to challenge the validity of the lien was or should have been aware that the operator operated under T&Cs which include a general lien and is therefore bound by the same. One of the ways of putting FOB vendors on notice is to ensure that origin agents of customers make vendors aware of the operators role and T&Cs (by forwarder’s cargo receipts for example).
There can, however, be cases where a general lien can be defeated; an operator involved in international carriage of goods subject to the CMR Convention, whilst they may have the right for a general lien included into their own standard terms, will not be able to rely on it in carriage of goods subject to the CMR Convention. This was considered in 2007 where an English court held that a general lien would derogate from a consignee’s right to obtain delivery of the goods in exchange for payment of freight due on that consignment (Article 41 prevents any derogation from the provision of the Convention) and therefore the general lien contained within the RHA Conditions of Carriage 1998 was held to be invalid (T. Comedy (U.K.) v E.M.T. Limited). In those circumstances, the carrier was only entitled to the particular lien granted by Article 13(1).
Exercising a lien
Prior to exercising a lien, an operator should ensure that they are entitled to do so or at least have a good arguable case. Where the logistics buyer or owner of goods considers that a lien is unlawful, they are able to apply to the court for delivery up of the goods.
If there is a good arguable case that the operator is not entitled to exercise a lien, the courts will often order that the goods are delivered, subject to the owner of the goods providing suitable security for the unpaid debts, often by giving an undertaking to the court or making a payment into court. If the matters are not resolved, the court would be asked to consider the validity of the lien and, if it considers that the operator was not entitled to exercise a lien, may find the party that thought it had a lien guilty of conversion of the goods, leading to a possible claim for damages from the logistics buyer/owner of the goods.
Given the possibility that T&Cs may not have been properly incorporated, other concerns as to the limitations of a lien and the potential for facing a claim for damages, a cautious operator may be well advised to apply to the court before exercising its power of sale – this would help ensure that no nasty surprises arise at a later date. Many operators will, however, take a more robust approach depending on their risk appetite.
Summary
Whilst the particular and general lien can be effective weapons, anyone seeking to rely on them should give serious thought as to whether the right to lien the goods is effective against the person demanding delivery.
Buyers of logistics services should be aware of the lien provisions contained within their chosen operator’s T&Cs, and also those of their subcontractors (who may be unpaid by the operator and exercise their own lien, causing the logistics buyer a headache not of his own making).
As always, these potential problems are best dealt with before they become an issue, whether by tidying up T&Cs or ensuring that you are winning the battle of the forms with your contractual partners; for an operator, discovering the limitations of their lien only when they are put into practice can be frustrating and expensive, for the buyer of logistics services, a lien can disrupt even the best supply chains.
Автор: Matthew Wilmshurst, Associate, on +44 (0)20 7264 8115 or matthew.wilmshurst@hfw.com, or your usual contact at HFW.