TIPIC, our P&I correspondents in Tunisia, has provided us with the following information.
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When cargoes of wheat and barley are destined to state receivers
1/ Present situation
An average of Seven to eight vessels per month transporting a quantities of wheat or barley varying between 5,000 MTs to 27,000 MTs destined for the state receivers “Office des Céréales” to be discharged in to five different TUNISIAN ports from North to South : Bizerta, Rades, Sousse, Sfax and Gabes depending on the receivers sharing plan and program between the Tunisian regions.
The vessels in question in their majority are subject of shortage claims varying between few tons and hundreds tons fixed always as per shore scale figures , being the same figure imposed by shippers to be mentioned on the bills of lading since loading port.
2/ Receivers position
The number of shortage claims has increased importantly since 2010, following the decision of state receivers to no longer accept the criterion of transit allowance of 0.5 % of B/L quantity.
Therefore any shortage claim should be brought before court to see judges stating in the acceptance of principal of transit allowance together with the percentage to be applied.
The full refusal of the principle of transit loss from receiver’s side was strengthened and enhanced following the preference of many shipowners and P&I club to choose the amicable settlement’s option instead of issuing the necessary bank guarantees and defending matters before local tribunal on basis of transit allowance of 0.5 % of B/L quantity, particularly for the minor shortage varying between 1 to 100 M.Ts.
The choice of amicable options by shipowners and P&I clubs are based on the following main reasons :
- The bank guarantee long and excessive charges
- The judicial proceeding expenses
- The lack of trust in Tunisia maritime jurisdiction
The number of bulk vessel loaded with cargoes of wheat and barley with GRT varying between 4000 Tx carrier to 17000 Tx and destined to state receivers office could reach an average of 100 vessels per year.
Among which only few vessels coming from Canadian port have escaped presence of cargo excess during the year 2015.
The shipowners and the P&I clubs of approximately 90% of vessels having suffered a shortage, have preferred to sort out matter amicably by paying the full value of shortage + survey + petties, say full claimed amount.
Only approximately 10% of shortage claim were covered by banks guaranties and dealt with before tribunal.
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According to our last statistics, chance of success to obtain final judgment retaining the criterion of transit allowance could reach a percentage of 75%.
3/ TIPIC suggestions
Since 2010 TIPIC has opted to recommend to ships owners and P&I Club to appoint a sworn judiciary surveyor through tribunal whose main missions will be to conduct unsealing survey if any, draft surveys, calibration of weighing installation, following discharging and weighing operations and most important task to consider in his authentic report to criterion of transit allowance of 0.5 %.
The report issued by judiciary surveyor together with jurisprudence in our hands have been with great interests to defend matter before court and let the local judges convinced to accept the criterion of transit allowance of 0.5 %.
The appointment of judiciary surveyor to protect owners interests is not always and automatically made as we have seen owners often refusing to arrange judiciary survey due to its high costs.
In the same time, the receivers have opted also for each vessel for appointment of judiciary surveyor to consider in his report shore scale figure only without making any reference to transit allowance. The intention of receivers through appointment of judiciary surveyor is to impose the shore figure.
Therefore and after the option of receivers to appoint automatically judiciary surveyor for any vessel, it becomes imperative that vessel’s owners opt also for appointing of judiciary surveyor to avoid that report of receivers surveyor will prevail before court.
The option of appointment of legal surveyor by members is necessary, but becomes not enough to safeguard their interests and to impose the criterion of transit allowance, therefore we suggest for owners to undertake the following additional measures since loading ports:
1/ To try to obtain from shippers/suppliers a certificate confirming that cargoes of wheat or barley ( depending on the shipment on board ), is subject of losses due to its transit from loading to discharging ports , which can reach 0.5 % of B/L quantity.
2/ To insert on the B/L a clause stipulating that : “the loaded cargo of wheat or barley is subject to transit losses due to its nature and transit allowance is to be accepted by receivers which can reach 0.5 % of B/L quantity.
Such clause will enhance owner’s chances of success before local court who in several occasions has retained the sea carrier’s liability because of absence of reserves on B/L, in conformity with article 16 of Hamburg rules.
In case of failure to mention the aforesaid remark on the B/L, it will be advisable to mention same on the C/P together on the mate receipt.
We shall point out that we have seen in some C/P owners imposing an article named “Tunisian clause” inserted on the C/P when vessel is destined to Tunisian ports whatever are the receivers.
Hereafter the clause in question :
In case charterers discharge in Tunisia same to be declared prior loading and following clause to apply which only applicable for this country:
Bill of lading weight to be checked against a joint draft survey at both load and discharge ports. If bills of lading and survey weight are compatible, vessel not to be responsible for any short landing claims made by whomsoever. Master to represent owners in the joint draft surveys.
In case cargo is destined to receivers OFFICE DES CEREALES, in addition with aforesaid clause, we may consider to insert in the B/L or at least in the C/P the following clause/remark : “ the vessel’s owners is not responsible for any claim arisen by receivers relating to cargo quantity or quality.
In addition and to safeguard owners interests the master should insert in the mate receipt the following remarks :
- Quantity loaded as per draft survey performed jointly with receivers/ shippers surveyor, attending surveyor on behalf of owners ( if any ) and master is fixed to ………. MTs
- Cargo of wheat or barley ( depending on the nature of cargo loaded ) is subject of losses due to its transit from loading port to discharging port and transit allowance is to be accepted by receivers reaching 0.5 % of B/L quantity”.
- The vessel’s owners is not responsible for any claim arisen by receivers relating to cargo quantity or quality.
The master should do his best to avoid signing B/L and give written authority to charterers vessel agent at loading port to issue and sign in his place the B/L and to insist in the written authority that charterers vessel agent is asked to comply with the remarks mentioned on the mate receipt.
As far as owners succeed to insert as much as possible of aforesaid remarks in the Bs/L, C/P and mate receipt, then our lawyers will have enough evidences to support the criterion of transit allowance which remains the main argument of defense on which our lawyers can base owner’s defense when matter is brought by claimants before tribunal.
These are some suggestions and contribution from our company to engage discussions and worth thinking with your good members to try to sort out and find solutions regarding the shortage claims and application of transit allowance.
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