[Maritime and Logistics Division]
Debt collection and protection in maritime, logistics and trade - Key points explained by lawyers who specialize in these fields

Although logistics is an important concern for companies, it is easily affected by social and economic issues, and various practical problems arise.
He is the head of our maritime and logistics department.Attorney at Law, Yuji Oguchicites a recent consultation case involving logistics problems caused by the armed conflict between Russia and Ukraine.

For example, if a Japanese corporation sells goods to a Ukrainian corporation, and the Ukrainian corporation refuses to accept the goods during sea transport, causing the transportation to be abandoned, if the freight is to be paid later, the question arises as to who will bear the freight if payment cannot be expected from the Ukrainian corporation, the recipient of the goods.
Attorney Oguchi explains, "Since a transportation contract is essentially a contract between the shipper and the carrier, the carrier will have to consider recovering the money from the shipper (a Japanese corporation). This is also in line with Article 581, Paragraph 3 of the Commercial Code."

As such, a basic understanding of transportation contracts and related laws and regulations is essential to respond appropriately when disputes or problems arise regarding logistics.
The book written by Oguchi Attorney is a great place to learn about such basic legal understanding."Q&A: Maritime, Logistics, and Trade Contract Practices and Crisis Management - Comprehensive Coverage from Basic Practice to Contracts of Carriage, Charter Parties, Bills of Lading, and Response to Maritime Accidents"(Chuokeizaisha).

This time, we asked him to explain the key points of ``collection and preservation of debts.''

Issues and procedures for debt collection 

When collecting debts, we consider the following: 

⑴ Governing law (and jurisdiction) 

The interpretation will change depending on which country's laws apply, so firstGoverning law (and jurisdiction)In the author's experience, many companies assume that Japanese law applies without checking this point. 
When foreign law is the governing lawAppointments with overseas lawyersHowever, lawyers who specialize in logistics usually have connections with overseas lawyers in various countries, so you can rest assured. 

⑵ Grounds and causes for the claim, right holder, obligor 

Next, determine whether you are seeking contractual or non-contractual liability (such as tort), and then consider who is making the claim against whom, on what basis and cause, and what relevant evidence and counterarguments are available. 
For example, when pursuing contractual liability for cargo damage,If a bill of lading has been issued, the right holder is usually the lawful holder of the bill of lading, and the obligor is the person named as the carrier in the carrier's signature section of the bill of lading.You can think of it this way.

⑶ Consideration of settlement 

After considering the above (2),Prediction of how likely you are to win if you go to courtHowever, it may be difficult to predict this unless you are a lawyer. 
In light of this predictionPossibilities and levels of settlementIf you try to resolve the issue through legal means, the costs of legal fees and other expenses will skyrocket, so if you can resolve the issue through discussion at a reasonable level, that would be the better option. 

Debt collection methods 

As a means of debt collection,Negotiation,Enforcement of security rights and set-off,Litigation and arbitration. 

⑴ Negotiated recovery 

Although it is generally called recovery through negotiation, there are various methods,It is necessary to use them according to the situation. 
For example, face-to-face negotiations may be beneficial because you can get information from the other person's facial expressions and tone of voice, butSince it is a verbal negotiation, there is a possibility that what is said may be reversed later.If you negotiate by email, you can reduce that risk,Writing things down makes it difficult to move the negotiations forward because you are too cautious.There is also a thing. 

Whether or not it is advisable to negotiate through a lawyer will depend on the case.The matter can be resolved immediately by sending a certified letter in the name of a lawyer.On the other hand, it can also be a trigger forThe other party's attitude hardensThis is also possible. 

⑵ Enforcement of security rights and set-off 

If you owe money to the other party, you can offset it against your own debts to create a situation similar to debt collection.Perspectives on making good use of debtI hope you will have this. 
Security rights can be established by agreement between the parties,In the world of maritime, logistics and trade, there are also security rights that arise based on legal provisions, as will be explained later.. 

(3) Litigation and arbitration 

If a settlement through negotiation is difficult, we will consider recovering the money through litigation or arbitration.Even if you win the lawsuit, if the other party does not have any significant assets, it is just a pipe dreamTherefore, before initiating a lawsuit or arbitration,Provisional attachment of the other party's assetsIn some cases, the provisional attachment itself may put pressure on the other party, leading to an early settlement. 

Security Interests in the Maritime, Logistics and Trade World 

The following explanation is based on Japanese law, but foreign law may also apply, so be sure to consider the applicable law first. 

⑴ When the other party is a shipping company

When collecting from the shipping company,Enforcement of rights against shipsis effective. Ships are built at great expense, and shipping companies earn considerable income by operating them. If the operation of a ship is halted due to the exercise of rights against the ship, it will result in a huge loss, and this is a situation that shipping companies want to avoid. In some cases, settlement can be reached simply by notifying the parties that the rights will be exercised, even if the rights are not actually exercised. 
For example, When a shipper suffers damage to cargo due to a maritime accidentIt is,Maritime liensWe will consider using the security right to collect the debt.Companies that supplied fuel, equipment, etc. to the shipAndThe company that inspected and repaired the shipmay also exercise a lien against the vessel. 

⑵ When the other party is a cargo-related party

When collecting from cargo parties,Enforcement of cargo rightsis effective.If a carrier, a lien on the cargoHowever, when exercising a lien, care must be taken as it is necessary to take into account the storage location and costs. 
If there is an outstanding payment between the parties to the sale of goods, the seller has a lien on the goods.However, please note that this must be exercised before the buyer resells or delivers the property. 

What to do in normal times to protect your debt 

Here are some points to keep in mind under normal circumstances to prevent debt collection problems from arising, or to make them easier to resolve if they do arise. 

⑴ What to do before signing a contract with the other party

From the perspective of debt protection,Contract drafting is crucialHowever, I get the impression that many companies do not conduct legal checks.Clauses that are as favorable to your company as possibleIf you do this, even if a problem arises, the other party may be more likely to agree to a settlement, as they may think that any counterarguments they make are unlikely to be accepted. 
In addition, Communications with the other party are saved from the contract negotiation stageYou should do this.Oral exchanges are also documented and saved in the form of minutes, etc.We recommend that you do so. There are cases where doubts arise about the interpretation of a transaction many years after the start of a transaction, and the original thinking of the company's representative becomes an issue. Sometimes the person in charge has left the company and you can't talk to them, but even if they are still with the company, they often don't remember it because it was many years ago. 

⑵ What to do after signing a contract with the other party

One of the key points in resolving disputes (including debt collection) is to act as quickly as possible.If the response is delayed and the other party faces bankruptcy, the bankruptcy law may restrict debt collection. 
From that point of view,Even after the contract is signed, we continue to communicate with the other party and occasionally visit the company.It's a good idea to gather information by visiting the company. You may be able to see things by visiting the company. You may also gain something by having a meal or drink together and getting to know the company. 
Companies are made up of people, so even if a problem arises, it can sometimes be resolved by saying, "If Mr./Ms. XX says so..."Good interpersonal relationships make it easier to resolve issues beyond the law. 

Important points regarding debt collection and preservation

In the fields of maritime affairs, logistics and trade, 

1. Highly specialized 
2. Knowledge of international trade and English skills are essential 
3. Connections with overseas lawyers from various countries are necessary 
4. There are many special laws and treaties 
5. Practice and law are closely related, so it is necessary to know the practice. 

For these reasons, it is a specialized field that is not often handled by general lawyers.The most important thing for companies is to have connections with lawyers who specialize in this field and have a system in place where they can easily consult with them at any time.I think so. When you do find yourself in trouble, you may not be able to find one right away, and even if you do find one, you may be told that they don't accept phone consultations, or even if you try to schedule an appointment, the lawyer may be so busy that it's difficult to get an appointment. To avoid this, it's best to enter into a consulting contract in advance, but at the very least, it's a good idea to build a relationship with them during normal times. 

Another option is to have connections with multiple law firms and use them depending on the case. 

【2025.7.22】