A furniture importer disputes its freight forwarder’s invoices for last year’s shipments. The forwarder, which holds three containers that arrived at Le Havre last week, refuses to release them until the arrears are paid. The shop is waiting for the goods for the sales season.
A broad lien
The French Commercial Code grants the freight forwarder (commissionnaire) a lien over the value of the goods it holds and over the related documents (Article L. 132-2 of the Commercial Code). Its distinctive feature is its scope: it secures all claims arising from forwarding against the principal, including claims arising from earlier transactions. The forwarder may therefore retain goods from a shipment that has been paid for in order to recover an older invoice.
The limits of the lien
Capacity as commissionnaire. The lien belongs to the commissionnaire, who acts in its own name on behalf of another. A mere agent acting in the client’s name cannot rely on it on that basis. Characterisation is therefore the first ground for argument.
The principal. The lien secures claims against the principal. If the goods belong to a third party, for instance a buyer who has already paid the seller acting as principal, the question arises whether the lien can be enforced against that third party.
Possession. The lien presupposes that the goods or documents are in the forwarder’s hands or at its disposal.
The amount. The forwarder may retain goods only for claims that are certain in principle. A seriously disputed invoice weakens its position.
Getting the goods released
Several routes are open to the importer. Pay under protest and claim afterwards, where commercial urgency prevails. Deposit the disputed amount with an escrow holder in exchange for delivery. Apply to the summary proceedings judge (juge des référés) for delivery against a deposit where the retention appears disproportionate or the claim relied on is seriously disputable. Each day of retention also adds to the storage charges, which will later have to be apportioned.
What the firm checks first
- The provider’s capacity: commissionnaire or agent.
- The invoices relied on: nature, date, dispute.
- The owner of the retained goods.
- The demurrage and storage charges accruing.
- Whether a deposit or summary proceedings are possible.
For the firm’s services, see Liability of the sea carrier.
Further reading
- Freight forwarder, forwarding agent, NVOCC: whom to sue after cargo damage?
- Unpaid freight: can the carrier retain the goods?
- Container demurrage: challenging the shipping line’s invoice
This analysis is part of the firm’s work in maritime law.
Frequently asked questions
Can the forwarder hold goods for old invoices?
If it is a commissionnaire, its lien also covers claims arising from earlier transactions (Commercial Code, Article L. 132-2).
How can the goods be recovered quickly?
By payment under protest, a deposit or summary proceedings.
Does the lien apply if the goods belong to a third party?
The question of its enforceability arises; it is assessed in the light of the contracts and of ownership.