很多客户向我们咨询伊朗和叙利亚制裁的相关问题。现在所知的情况是：违反制裁所导致的后果仍具有不确定性,并且可以极为严重。
船东或管理公司违反制裁可能导致的后果包括：
- 船东或管理公司旗下的所有船舶可能会上黑名单，被禁止进入某些国家
- 船东或管理人的银行账户可能会被冻结，资金被扣留
- 船舶可能随时被扣留，以配合其可能涉及违反制裁的调查
- 船东或股东可能会被列入警告名单,进而被禁止进入某些国家
- 船舶可能被有关政府没收并拍卖
相关的案例是,’Greek Fighter’轮违反制裁而被没收。2001年’Greek Fighter’号由于涉嫌违反欧盟关于不得与伊拉克进行贸易的制裁而被阿拉伯联合酋长国（UAE）海岸警卫队扣押。之后被没收，并于2003年被公开拍卖。
船东向租家索赔其损失的船舶,认为租家违反了租约中以下条款的规定：
- 货物合法性保证条款
合法货物保证条款是保护船东的条款，该保证属于租家的绝对义务，不管船东是否知道其所运货物是违禁品，都并不影响该条款的效力。
- 租家补偿条款
租约中租家保证条款通常规定，租家指派船舶去执行的航次或去装载的货物不能使船舶因此被相关政府扣留或查封。船东由于执行租家指令导致的后果应当是默示适用补偿条款的，当然要确定适用补偿条款，租家的指令必须被定性为损失的近因。期租下，合同双方对于风险承担问题就需要仔细考虑了。如果船东事前已经同意承担某项风险，那么就无法向租家索赔补偿。换句话说，船东在订约前应该克尽职责，确定前往伊拉克的贸易和货物装载是否可能违反制裁，否则船东的不作为会被认为是故意行为，从而等同于船东已经同意承担该非法航次可能的危险。
- 安全港保证条款
法院认为安全港保证条款在本案中并不能支持船东的索赔。假如货物是合法的，那么租家便不会违反安全港保证。由于没有证据可以证明其他船舶在类似情况下也会被扣留和没收，本港口不能被认定为不安全港。
结论：
- 船东违反制裁可能会导致巨大的损失和严重的财务后果，例如船舶被没收。
- 船东按照租约中租家赔偿条款的规定向租家索赔相关损失时，船东需要证明其并没有打算承担非法航次的风险，并且已经克尽职责检查航次的合法性。上诉事实对于确定船舶航行前往受制裁国家时保单是否有效也有指导作用。
- 如果租家指令船舶前往被制裁的国家，考虑到船舶可能被没收，船东需要确保租家有足够的经济能力满足船东相关的索赔。
以上由 ANDREW LIU & CO.,LTD 编译，应以英文为准！
详细信息请参阅附件。
Consequences to owners of breach of a sanction could be extreme
We receive numerous enquiries on sanctions imposed on Iran and Syria. The consequences arising from a breach of sanctions remain uncertain and can be extreme.
Some of the possible consequences are :
- The vessels belonging to the owner or management could be blacklisted from entering countries.
- The bank accounts of the owners or managers could be frozen and monies seized.
- Vessels could be detained indefinitely pending investigations into possible alleged breaches of sanctions.
- The beneficiary shareholders or owners could be placed on the alert list and banned from entering countries.
- Vessels could be confiscated by Governments and auctioned.
An example of the draconian measures arising from breach of sanctions, is the case of the MV ‘Greek Fighter’ which was detained in 2001 by the coast guard of UAE. The vessel was subsequently confiscated and sold at public auction in 2003 as the vessel had contravened the UN sanctions on trade with Iraq.
The owners claimed the loss of their vessel from the charterers on the grounds of breach of the following charterparty provisions :
- Lawful cargo warranty
The lawful cargo warranty was held in favour of the owners. The warranty was absolute so it made no difference whether or not the owners knew the cargo was contraband.
- Charterers’ indemnity provision
The charterparty included a clause which provided that no voyage shall be undertaken nor any cargoes loaded that would expose the vessel to capture, seizure by any governments. There was also the usual implied indemnity against the consequences of owners complying with the charterer’s orders. In order for the charterer’s orders to be the subject of an indemnity, the proximate cause of the loss must be identified. It is necessary to consider the distribution of risk between the parties under the time charterparty. If the risk was one that the owners had agreed to bear, they could not now claim an indemnity from the charterers. In other words it is important for the owners to carry out due diligence to check whether the trade and loading of cargo to Iraq may have amounted to a breach of sanctions, otherwise the owners’ lack of action may be considered an intervening act and the illegal voyage tantamount to a risk which the owners had agreed to bear.
- Safe port warranty
This ground of claim was not held in favour of the owners. Had the cargo been legitimate, the charterers would not have been in breach of the safe port warranty and as there was no evidence that other vessels had been detained and confiscated in similar circumstances, the port could not have been unsafe.
Conclusions :
- The loss and financial consequences to the owner arising from an alleged breach of sanctions could be extreme such as confiscation of the vessel.
- In order for the owner to seek recourse of his loss such as the vessel from the charterer under the indemnity clause in the charterparty, it is important the owner shows that he did not intend to assume the risk of illegal trading the vessel and exercised due diligence to check the voyage was lawful. This exercise is in an event necessary in order for the owners to first obtain confirmation the vessel’s insurances cover would not be prejudiced when trading to a country subject to sanctions.
- In view the owner’s vessel may be confiscated, it is important for the owner to ensure the charterer has the financial resources to meet such a claim, when the charterer orders the vessel to countries subject to sanctions.
See attached file : ALCO20120047 Consequences to owners of breach of a sanction could be extreme.pdf
