As the situation starts to stabilize, at least to the point where Hanjin vessels are now able to berth and unload cargo, there are so many other issues up in the air. As companies go about trying to get their hands on their cargo, it is important to keep in mind the major and costly headaches paying the wrong party could cause to individual shippers.
The job of the bankruptcy trustee is to maximize the bankrupt estate for the benefit of the creditors. As such, beside what could happen with service contract shortfalls and just how much of those dollars might be recoverable, there are other factors that could cause the burning of big holes in shippers’ wallets.
1) The Hanjin bill of lading terms and conditions undoubtedly include a provision stating that all the charges associated with a given shipment are due as soon as the shipment is tendered to Hanjin. So, if the shipper ends up paying money to a third party to get his goods, such as a port, railroad or warehouse, the amount diverted to pay the third party could still be claimed by the bankruptcy trustee as owed to Hanjin.
2) With the containers, there are two possibilities. The first is the leasing companies have language in their agreements which provides them with a lien and so the right to, in effect, repossess the containers for charges unpaid by Hanjin. However, if there is no such clause in their agreements, then the leasing companies could end on the wrong end of a claim in the bankruptcy case of taking Hanjin assets improperly. Either way, the leasing companies could find themselves answering to the bankruptcy court because they are taking action without bankruptcy court approval. There is an automatic stay in place meaning creditors are not supposed to take any sort of collection or enforcement action until the bankruptcy court rules on their claims and repossession assets is not likely to be something the bankruptcy court will be happy about.
3) Another major area where this could be dicey is for nvoccs. If the goods were shipped freight collect and the nvocc does not pay the collect amount directly to Hanjin, they, too, could find themselves having to reimburse the bankrupt estate the amounts paid to third parties. Additionally, if money is paid twice for the same service, (such as on a freight prepaid shipment which included the rail movement, and the nvocc pays the railroad directly) it is possible the FMC would take the position that unless the nvocc bills and collects from its customers the amounts paid the third parties, there could be fines imposed by the FMC for failing to charge in accord with the nvoccs’ tariff.
By no means a detailed list, these are just some of the non-admiralty issues to keep in mind as you go about getting your cargo, whether newly being unloaded or stuck in transit.