Facts
A cargo of
coal was transported from Colombia to Italy under a voyage charterparty. The
coal was destined for the Italian cargo receiver, the bill of lading holder, in
Civitavecchia.
The
charterparty provided that the charterer had to pay the owner the 10% freight
balance within 30 days of completion of the discharge, and that any demurrages
had to be paid within 30 days of the presentation of the final invoice, along
with the timesheet and statement of facts.
While
discharging operations were underway, the charterer informed the owner that an
application to open insolvency proceedings had been filed with the competent
court.
When the
discharging operations were about to end, the owner applied to the
Civitavecchia Tribunal, pursuant to Article 437 of the Code of Navigation, to
exercise the maritime lien on a quantity of coal carried on board the carrying
vessel to secure its credits for the freight balance, demurrages and expenses
towards the charterer and, at the same time, obtain permission to deposit the
cargo ashore under judicial authority. According to Italian law, a maritime
lien can be exercised by the vessel owner only with the permission of the local
court.
The owner
served the lien application to the cargo receiver and the charterer. Both the
cargo receiver and the charterer opposed the claimant's demand.
The
charterer replied that:
- the owner's credit for the freight balance and demurrages had
not yet arisen when it had filed the lien application because of the
contractual provision deferring payment of such sums after a certain
period from discharge;
- by agreeing to the deferred payment of the balance freight and
demurrages, the owner had implicitly waived its right of lien;
- the lien clause invoked by the carrier could not be considered
valid under Italian law as, under the Italian system, the only existing
liens are those established by the law; and
- the bill of lading contained no specific reference to the
voyage charterparty. As such, the owner's credits arising from the voyage
charter were not enforceable against the bill of lading holder.
The
claimant counterargued that, in any case, the credit for freight and demurrage
had become immediately due as a consequence of the manifest insolvency of the
charterer, as per Article 1186 of the Civil Code.
The
tribunal granted the opponents' defense, thereby dismissing the lien
application brought by the owner.
Preliminarily,
the judge observed that Italian law applied in accordance with the Italian
rules of private international law, which state that actions relating to
proprietary rights and rights in rem in movable and immovable property are
regulated by the law where the goods are located (ie, lex rei sitae).
Therefore, it excluded the application of English law as argued by the cargo
receiver.
Further,
the court stated that the carrier was not entitled to claim a lien on cargo
according to Article 437 of the Code of Navigation as security for its credits
of freight and demurrages arising from the voyage charter when payment of such
credits was contractually payable after the discharge of goods.
According
to Article 437, the prerequisite for filing an application with the local court
requesting permission to discharge and deposit a sufficient quantity of carried
goods to secure the carrier's credit for freight and demurrage is that such
credit must be outstanding (ie, payment failure must be established). In the
present case, the parties had agreed in the voyage charter that payment of
outstanding freight and demurrages was due only after discharge. Therefore, the
credit to be secured could not be deemed outstanding.
Moreover,
as per Article 564 of the Code of Navigation, the maritime lien set out under
Article 561(4) of the code expires 15 days after discharge if the lien
application is not presented beforehand. The court stated that the contractual
provision according to which the balance freight and demurrage were payable 30
days after discharge amounted to an implied waiver of the abovementioned
maritime lien and the right to place a lien on cargo for the carrier's credit.
Further,
the court rejected the owner's argument that the credit was deemed outstanding
in light of Article 1186 of the Civil Code – specifically, that the credit for
freight and demurrage was considered accelerated in light of the charterer's
patent insolvency. The court stated that the charterer's insolvency had been
known to the parties even before the carriage contract was agreed between the
parties and could not amount to a supervening circumstance.
As far as
the existence of contractual lien was concerned, the court decided that the
charterparty provision which set out a contractual lien was inconsistent with
the provisions making the outstanding freight and demurrage payable 30 days
after discharge.
The court
found that the right of lien set out under the charterparty could not be
claimed against the cargo receiver. The bill of lading did not incorporate a
full reference to the lien clause or the specific charterparty, as it simply
contained a generic reference to "all the terms and conditions of the
voyage charter", which could not incorporate the lien clause contained in
the charterparty.
In light of
the above, the carrier's lien application was dismissed.
This
decision was based on two 1980 precedents of the Genoa Court and reinforces the
principles that under Italian law, a lien on cargo can be placed under the
authority of only the local courts which, before granting such lien, will
strictly verify the existence of the legal requirements set out under Italian
law. These can be briefly summarized as follows:
- A lien on cargo can be placed to secure claims listed under
Article 561 of the Code of Navigation.
- The bill of lading must expressly incorporate the charterparty
from which the claim for unpaid freight or demurrages arises.
- In light of Article 564 of the Code of Navigation, according to which a maritime lien expires 15 days after discharge, contractual provisions making freight and demurrage payable more than 15 days after discharge may amount to an implied waiver of the right of lien on cargo.
