Cargo Owners Should Pay Marine Terminals to Remove Goods from Hanjin Ships, Customs Lawyer Says
Beneficial cargo owners (BCOs) can't retrieve freight aboard Hanjin ships subject to third-party possessory liens without first paying marine terminal operators (MTOs) and other third parties, despite an interim order from a U.S. bankruptcy judge in New Jersey that grants Hanjin temporary Chapter 15 protection, said Ed Greenberg of GKG Law (see 1609090059). “The MTOs have liens, they’re going to assert those liens,” he said Sept. 12 during the National Customs Brokers & Forwarders Association of America Government Affairs Conference in Washington. “Until they get paid, you’re not getting the assets.” Although the order prevents any parties from moving to seize any Hanjin assets, the order doesn’t apply to any existing third-party possessory liens, Greenberg said. Furthermore, no party can terminate any Hanjin lease because of insolvency, but could for another reason, and Hanjin can’t refuse to make the containers available, he said. Also, the interim court order requires Hanjin to cooperate with BCOs, but doesn’t apply to non-vessel-operating common carriers (NVOCCs), as none has appeared before a U.S. bankruptcy court, Greenberg said.
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Under the order, “if you pay Hanjin, you should be able to get access to the containers,” Greenberg said. Parties that have already paid the company can get payment credits for marine terminal operators’ fees or for truck and railroad charges, he said. Parties that have already provided shipment-related payments pre-court order must pay again, because of the continuance of the liens, he said. The court has “specifically refused” to take any position that would require MTOs to turn over cargo.
But courts still have numerous issues associated with Hanjin’s bankruptcy to sort out for the trade community, including how Hanjin containers will get returned, mentioning that one container company initially, after Hanjin’s filing, assessed a $290,000 bill for 84 leased containers aboard a Hanjin vessel, which has since been negotiated down to $40,000 total. “In any event, they’ll get the cargo back,” Greenberg said of the company leasing the container. “But my understanding is, there’s a lot of outbound cargo stuck at the terminals, and so again, this is an issue that I’m going to address” in court. Greenberg said in an email that he plans to submit a petition to bankruptcy court on Sept. 13 or Sept. 14 for more guidance on processes to reconcile issues associated with frozen and unleased containers loaded onto Hanjin ships. “If you’re not talking about leased containers, what do you do?” Greenberg said. “How do you get it back to the terminal? The terminals aren’t taking them. There isn’t a note from the court yet requiring terminals to take them.”