terça-feira, 28 de julho de 2015

LETTER OF INDEMNITY AND “RETLA” CLAUSE ON LOADING STEEL CARGOES


LETTER OF INDEMNITY AND “RETLA” CLAUSE ON LOADING STEEL CARGOES

Before the enactment of law 8.630 / 93 in Brazil,  the Maritime Agencies hired directly with the carrier whereas the sale term was "full liner" or "Liner in" and being appointed as responsible for carrying out the shipment of goods on board vessels, usually ships "Tramp" [1]. So were called Stevedoring Entity. It was known as golden age of  Maritimes Agencies, once they could act as agents of the ship-owner, Charterer, Carrier,  as well as stevedoring Entity.

After the advent of Law 8.630 / 93 which appeared in the concession and port leasing arrangements, the agencies lost their influence and predominance. Then emerging figure of the Port Operator, which as a rule is the lessee of the public ports, and must to comply with all requirements and goals imposed by the Port Authorities, Docks companies(Companhia DOCAS) known as Landlord system. However maritime agencies have not disappeared as stevedoring entity and still works in public ports, on behalf of third-party under cargoes shipping contracts.

Calls to point out that the law 8.630 / 93 considered as the Brazilian ports milestone, was revoked by act 12,815 at 2013, this one remained the main achievements and innovated in relation to third cargoes and hiring own labor by private terminals without the intervention of OGMO ( manager of ports labours)  temporary dock worker or so-called TPA's. (Stevedoring, Tally clerks repairman etc.).

Nevertheless, common procedure in shipment of steel products (steel plates, steel blades, hot and cold coils, steel billets, wire coils "wire rod" and other steel materials) usually an inspection on  pre shipment cargoes was held, by “ad hoc”surveyor [2] which was  appointed by the shipowner or sea carrier, also by the importer, in order to protect themselves against possible legal claims regarding to cargoes loading conditions.

It happens that on  the survey report issued, depicted the actual condition of the goods at the warehouse or yard, ie; warped parts, rust, safety strip broken, cracks, etc. Although these remarks were entered in Mate's Receipt in any way should appear on the set of B/L (Bill of Lading) as the exporter did not agree with the remarks, once the B / L must be "clean" or contain the expression "Clean on Board"  In case a set of  B / L was not "clean" would be prejudice  the letter of credit and subsequent the bank payment release.

In order to solve this imbroglio, the exporter dealt with the ocean Carrier the  acceptance of  a "Letter of Indemnity" or indemnity Letter "exempting the carrier against any future claims , case the importer entered in court alleging defects, faults or damage of the goods received. The subject is controversial as the courts abroad, particularly the arbitration courts and the common Law in London has refuted vehemently "LOI" even clubs of P & I [3] have guided its members not to accept this type of document under penalty of incurring fraudulent and criminal sanction under international law.

In fact, issuing a "LOI" is no guarantee of protection to the shipowner or sea carrier. Even the addition of "RETLA clause" (possible replacement of the B / L), the fact is that the English courts have restricted the acceptance of these formalities and the decisions have not been favorable to shipowners and or carriers. View case of
“The importance of the RETLA Clause in Bills of Lading has been highlighted in the recent Breffka & Hehnke GMBH & Co KG and Others v Navire Shipping Co. Ltd and others (The SAGA EXPLORER) [2012] EWHC 3124 (Comm) “

In some cases the US courts hás uphold such clause, but it is not a general consensus, anyhow before the RETLA clause decision, its well advised to consult a good lawyer or vessels P&I.



Author full details:

Paulo S.Silvano Oliveira
Advogado / Lawyer (maritime expertise) 
Extensão em Direito marítimo (transporte marítimo, oil & gás, avarias, etc)
“Expertise” em portos – tendo atuado por 10 anos em portos da VALE.
Consultoria em Empresas de Comércio Exterior, Armadores e Afretadores, Empresas de reparos navais, etc.
Linkedin: BR.linkedin.com/in/paulosilvano


1 Tramp: Ships that does not obeying any regular route, depending on cargoes offer.
2 Surveyor: A kind of cargo inspector before the shipment.
3 P&I (Protecting and Indemnity) Owners association to protect and secure membership against
any claims.

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