Introduction
In late June 2003, I received an email from Daniel Harris, who claimed to be a maritime lawyer in Seattle. He found me through the Internet and asked if I was interested in helping to arrest transhipment cargo in Dalian. I am very excited about this task. I browsed Dan's website [http://www.harrismoure.com] and learned that Dan has a small international law firm called Harris & Moure in Seattle. I immediately replied to him and sent him some relevant regulations regarding the arrest of goods under the Chinese legal system. He was very pleased with my quick and helpful response and we quickly worked on the case. He later told me that he was so impressed with my answer that he picked me up to many other lawyers in China.
Case summary
OOO Bolshoretskoe is a Russian fishery company that sells 400 tons of trout worth about $700,000 to the Danish company Alimex Seafood A / S. The squid plans to be transferred from Dalian to Europe. Alimex has not paid Bolshoretskoe for this product. Bolshoretskoe owes Singapore's fuel supply company Daxin Petroleum Pte, Ltd., with a fuel of about $400,000. M / V IVAN POLZUNOV, a ship carrying a narrow ship, is scheduled to be summoned in Dalian on July 4, 2003. Our mission is to seize the narrowness of Daxin and let Bolshoretskoe pay off the debt.
In July and December 2002, when Daxin supplied fuel products for two Russian fishing boats, TOSNO and PHOENIX, Bolshoretskoe appeared on Daxin's debt. To ensure the safety of these fuels, Bolshoretskoe signed a letter of guarantee to Daxin, in which "Bolshoretskoe appointed F/T PHOENIX Board of Directors to produce, deliver and sell all receivables generated by Salmon or Pollock to support Daxin's fuel supply. In addition, the Bolshoretskoe Agreement stipulates that after processing and/or storing products on PHOENIX, the amount of benton or squid product property belonging to the bunker should be immediately transferred to Daxin.
Daxin did not pay for its two fuel deliveries, and Bolshoretskoe refused to pay. It is estimated that the total amount owed by TOSNO and PHOENIX to creditors is approximately $20 million.
Intensive and orderly preparation of cargo arrests
After studying the relevant documents and analyzing the entire history of the case, we determined that if we arrested the goods in China, Bolshoretskoe or Alimex would pay Daxin. So we are prepared to do so.
First, we have prepared all the necessary legal documents in accordance with Chinese law. Due to the different legal systems and languages involved [China, Russia, Singapore and the United States], our preparations are very time consuming. When we prepared the documents and firm strategy, Dan was also preparing to come to Dalian.
However, the day before Dan left the United States, he learned that the narrowness of the transport ship, IVAN POLZUNOV, had secretly changed its plan to avoid being arrested. It will not call Dalian on July 4, 2003; it will call Qingdao on July 8, 2003. Because all legal documents are prepared for the Dalian Maritime Court, Bolshoretskoe's planned changes also require us to completely change our plan. Since time is so important, we asked Sun Fanlong, who works at Qingdao Wenkang Law Firm, to cooperate with us and transfer all legal documents to him.
Successful arrest of goods
On July 7, 2003, Dan arrived in Qingdao. IVAN POLZUNOV arrived in Qingdao the next day and began to unload 15 narrow containers for transport to Europe. When the judge, Wincon's attorney and Dan saw the container being unloaded on the trailer and transported to the container terminal, they went directly to the dock to deliver the arrest documents to all 15 containers. However, waiting for nearly five hours at the dock and waiting until late at night, only three containers arrived and were arrested. No one seems to know what happened to the other twelve containers. We are concerned that Bolshoretskoe and/or Alimex have learned about our arrest warrant and have hidden the other 12 containers. What worries us is that we now know that Alimex will ship all 15 containers to Europe the next day. We looked around the lost 12 containers. We checked various shipping companies. We checked all the information around the terminal. Occasionally, we learned that twelve containers were always at the dock, but were issued from the first three separate bills of lading and placed in a separate area. We successfully arrested all fifteen containers.
After we had a 12-day intensive email and phone conversation, Dan appeared at Dalian Airport. His high praise for our work expresses his satisfaction with our efficient work. The picturesque and modern urban construction of Dalian and Qingdao left a deep impression on Dan and changed his imagination of this region of China. He likes the food and culture here and talks about one day with his family.
Get a guarantee and cancel the arrest with great success
Since we arrested the squid, we need to keep it frozen at the terminal. Pollock is a precious fish that is costly and risky during arrest. The sooner we resolve the dispute, the faster the fish will be and the better it will be for all parties.
On the second day of our arrest, we received a letter from Alimex's lawyer in Denmark claiming that Alimex had the arrested goods, not Bolshoretskoe, and threatened Daxin with a criminal act. Alimex's lawyer copied the letter to the court and Daxin. Despite this confidence, the threat of this criminal act is not suitable for Daxin. We replied to Alimex's lawyers by teaching Alimex lawyers to Chinese and international law and announcing that Alimex would suffer more if it insisted on seeking litigation rather than cooperation in China. The response of Alimex's lawyer is unstoppable. They wrote me a letter full of anger and derogatory words and said they would never communicate directly with us. The case was deadlocked.
Although Alimex's lawyers were initially tough, we knew we couldn't give up efforts to achieve reconciliation, especially because we knew that the solution was meaningful to all parties. We proposed a tripartite agreement between Daxin, Alimex and Bolshoretskoe, and Alimex will retain its purchase price funds without paying any party to the fish until the dispute between Daxin and Bolshoretskoe is settled through Canadian arbitration. Alimex will then pay the winner of the arbitration the purchase price of the fish. Alimex also agreed not to file any illegal arrest proceedings against Daxin. After signing the agreement, Daxin will lift the arrest of the goods. Daxin obtained a verbal agreement between Bolshoretskoe and Alimex to reach such an agreement.
In order for the fish to go out on the next liner to Europe, Dan and I had to work overtime to draft the appropriate agreement. This time, numerous languages and time zones [China, Russia, Singapore, Seattle and Denmark] tried to slow our speed, and when Bolshoretskoe received a copy of the Russian language agreement, only a few hours left. Pollock needs to be loaded to work in Europe. However, at the last minute, Bolshoretskoe changed his mind and decided not to sign. All our efforts are in vain. We are all exhausted.
The next liner to Europe will leave in six days. During the weekend, we stopped talking to each other and only communicated with Dan and Daxin. We reviewed the case history and analyzed the positions and risks of all parties. We conclude that Bolshoretskoe is the real opponent of Marsh. Bolshoretskoe owes the money and Bolshoretskoe has avoided paying for so long. Bolshoretskoe also withdrew from the verbal agreement. There was no previous conflict between Daxin and Alimex. Although Alimex is listed as a narrow consignee on the bill of lading, it does not actually pay for the fish. Most importantly, Alimex hopes to send Pollock to Europe in order to fulfill its commitment to European buyers.
If we can ask Alimex to provide a deposit or purchase price to Qingdao Maritime Court, we will lift our goods. On the other hand, if Alimex guarantees to pay Bolshoretskoe the purchase price directly, the arrest will continue and Alimex will not be able to fulfill the supply contract with European buyers. Daxin will launch two front-line battles with Alimex and Bolshoretskoe in Chinese courts.
We told Alimex that if it didn't resolve it immediately, we would move the court to ask Alimex to pay the Pollock purchase price to the court and seek to sell Pollock immediately at the auction. A few hours later, we received a contact from a Chinese lawyer hired by Alimex. He told us that they would go to the court to throw away our "illegal" arrest. The court ignored him.
The next liner in Europe is coming to Qingdao on the second day. It will finally start on Alimex. If it wants to send the squid to Europe and its customers, it needs to reach a settlement with us. Intensive settlement negotiations resumed and another verbal agreement was reached. Alimex will guarantee the maximum purchase price of squid to anyone between Daxin and Bolshoretskoe. Alimex also agreed not to file any claim against Daxin for Daxin for allegedly illegally arresting the goods. Drafted a solution...
Orignal From: Analysis of International Debt Collection Cases
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