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as the Brazilian ports milestone, was revoked by act 12,815 at 2013, this one remained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
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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