1. The charterers liability specialists
Claims Service Letter 6 – November 2011 www.charterama.com
Security for claims
This issue deals with two topics related to security for claims. The first The rise and fall of “electronic funds
one concerns a recent amendment to the InterClub Agreement 1996 transfer (EFT) attachments” in New York
and the second one, which has now less impact than about two years ago, Rule B attachments became worldwide well
known when in 2002 it was held in New
concerns Rule B attachments in the USA. York that “EFT’s” from or to a defendant
could be attached in accordance with Rule B.
INTERCLUB AGREEMENT AS Considerations
AMENDED SEPTEMBER 2011 In our first claimsletter (March 2010) we All US Dollar transactions will pass
briefly mentioned some of the differences through an intermediary US Bank, most
Under the ICA 1996 a party seeking between the ICA 1884 and 1996 and of them having their office in New York
recovery under the ICA first had to properly why the older version could be more (Manhattan). As EFT’s were found to be
settle or compromise and pay the original advantageous to charterers. The same attachable property, Rule B attachments in
claim before this party could obtain security applies to the amendment discussed here New York became very popular.
for their claim from the other party, above. If charterers incorporate the ICA in
regardless of whether security had been their C/P, instead of automatically agreeing The decision which caused all this
provided for the original claim. upon “... and any amendments thereto.” commotion was finally overruled in 2009.
or a similar wording, they should keep in The Court held that an EFT was no longer
To illustrate this, if for example a vessel’s mind that not all versions of the ICA are the to be considered as an attachable property.
owner provided security for a cargo claim same and that an older version might be Economical reasons and complaints of the
which the B/L holder lodged under the more beneficial to them. NY banks will no doubt have played a role
B/L with the owner, under the ICA 1996 in reversing the 2002 judgement, which
the owner is not entitled to get a counter- UNITED STATES - RULE B is of course a big relief to defendants of
security from charterers until the owner ATTACHMENTS maritime claims.
properly settled the claim under the B/L.
In the US, for the purpose of obtaining The present position
The International Group of P&I Clubs security, Rule B makes it possible to seize Although EFT attachments are history,
found this unsatisfactory and decided to property of a party against whom the Rule B attachments are still there. Rule B
incorporate a new provision in the ICA claimant has a maritime claim. traditionally allows for the attachment of
which has the following effect: If one There are a few requirements: assets in the US such as vessels, bunkers,
of the parties to the C/P had to put up • Claimants need to show that they have a cargo and bank-accounts.
security for the original cargo claim, this maritime claim. Claims under a B/L or
party is entitled to get security from the C/P will meet this requirement. However for many shipping companies the
other party on the basis of reciprocity. • The defendant cannot be found within only threat caused by Rule B was a possible
This is understood to imply that the party the jurisdiction of the relevant Court seizure of electronic US Dollar transfers.
demanding security will, upon request (the defendant has no office within the Since October 2009 this is one concern less.
of the other party, provide an acceptable district).
security to the other party for an equivalent • The defendant has, or will have, assets For further information please contact:
amount. within this jurisdiction. Gerald Buist
An attachment under Rule B is permitted +31 10 7410741
without any notice to the defendant. gerald.buist@charterama.com
This letter has been drafted with the utmost care on basis
of information which is believed to be correct but which
cannot be guaranteed by Charterama.