Alternative Ports for Libyan Cargo
Information received with thanks from our correspondents BUDD, Algeria and Tunis
Our Algiers and Tunis offices have provided the following information on the possibilities and consequences of diverting cargo bound for Libya to Annaba or Zarzis.
According to local ship agents, no vessels have yet deviated from Libyan ports to Annaba, the Algerian port closest to the Tunisian border. However, they confirmed that Annaba disposes of sufficient storage facilities for grain and general cargoes.
As regards the courts’ position in respect of the possibility to exercise liens in recovery of the additional costs arising from the impossibility to discharge cargoes in Libyan ports, the Algerian Maritime Code does not contain any specific provisions regarding the VOYMAR clauses. The existing provisions however provide that liens can be exercised in recovery of the freight, demurrage, and any other amounts stemming from the contract of affreightment.
The following articles apply:
Article 680: the freighter may refuse to discharge the cargo if the freight, and remuneration in respect of demurrage or other delays have not been paid by the charterer.
Article 681: under the case referred to in the previous article, the freighter may consign the goods, and after having informed the charterers beforehand, may sell them with the consent of the judicial authority, unless a sufficient security has been provided by the charterer.
Article 781: if a fortitious event prevents the carrier from discharging the cargo at the port of destination within a reasonable time limit, he may discharge such cargo at the nearest port, or return with it to the loading port.
The cargo reshipment costs will be borne by the carrier, except in the event that the cause preventing discharge at the port of destination constitutes force majeure.
Article 818: liens on the shipped cargo are authorised in respect of the following:
d) claims in respect of freight or any other remunerations arising from the contract of affreightment or sea carriage contract,…
Thus, in the light of the above legal provisions, the fact that additional costs are due from the charterers in respect of war risks does not make any difference under the Algerian Maritime Law, which entitles the freighter to exercise liens on the shipped cargoes in recovery of freight, demurrage, and any other costs arising from the contract of affreightment, meaning that when such a contract provides for VOYMAR clauses, the freighter can assert the same before an Algerian court to justify a lien on the loaded cargo.
Local specialists indicate that the discharge of certain cargoes is possible in the free zone of Zarzis; it is possible to discharge containers, bagged cargoes, wood, steel…etc. but not dangerous cargo, liquids or bulk cargoes such as cereals as there are no silos in the free zone
Moreover, we also understand that there is a Libyan law which forbids Libyan consignees/receivers to discharge their cargoes in any port outside Libya. For this reason, sea carriers/shipowners should obtain the Libyan consignee’s agreement and authorization to discharge the cargo in the free zone of Zarzis.
In order to simplify the formalities arising from the discharge of cargo in the Tunisian free zone, Budd’s lawyer suggests that it would be best (if at all possible) for suppliers/shippers, in agreement with the charterers, to issue alternative documents for the same voyage mentioning themselves as consignees. In this way, they could discharge the cargo in the free zone under their own name and, once the Libyan consignee has come and collect his cargo, the suppliers/shippers would change the consignee name to that of the Libyan consignee.
This, we believe, would be the solution for the cargoes destined for Libya and discharged in the Tunisian port of Zarzis.
However, our Tunis office reports that on 4 March they received the message below from a Libyan contact:
SO FAR IN TRIPOLI THINGS ARE QUITE DURING THE DAY AND HELL AT NIGHT
THEY ARE TRYING TO OPERATE THE PORT, BUT THERE IS VERY FEW TRUCKS AND PEOPLE ARE VERY SCARED TO WORK
WE HOPE THAT THE D.DAY IS SOON AND ALL THIS WILL BE OVER
Consequently, as may be imagined, maritime and land carriage to Libya via Tunisia are quite impossible in the present period of unrest. It would therefore be preferable for sea carriers/shipowners to discharge their cargoes in the Tunisian free zone until life is back to normal in Libya, at which point the consignees could pick up their cargoes, or the suppliers could sell the cargo to other receivers.