FR8 Logistics Ltd v Metal X United Ltd
Reasons for the Urgent Interlocutory Orders of 13 July 2026 holding property in lien.
1. This is an urgent interlocutory application made under Rule 7.5 (1) of the Civil Procedure Rule No. 49 of 2002 that (1) the time for hearing this application be abridged, (2) that pending final determination of the claim for outstanding debt in this proceeding, the cargo consisting of one excavator still held by NISCOL on Santo wharf be held in lien of payment of all outstanding debt due to FR8 Logistics Ltd (FR8) by Metal X United Limited (Metal X ) and (3) that such further or other orders as this Court may consider necessary and that the (4) costs are reserved.
2. This application is heard urgently. Though it is started on exparte basis, the Court directed that Responses be filed by the First Respondent and Second Respondent. The Second Respondent says it will abide by the Court orders. This urgent application is heard, then, inter-partes between the parties on 13th July 2026 as a matter of urgency.
3. The Applicant filed 2 sworn statements on 7 and 8 July in support of the application with a sworn statement of urgency and undertaking as to damages.
4. The First Respondent files a response, submissions and a sworn statement in support of the response on 13 July 2026.
5. I hear counsel for the applicant and the First Respondent based on their respective sworn statements filed in support.
6. The Applicant FR8 is a freight logistics company registered in Vanuatu (FR8). Christopher Kernot is the Managing Director of FR8 (the Applicant).
7. The First Respondent Metal X United Limited (Metal X) is a local company registered in Vanuatu. Peng Zhang (also known as Patrick Zhang) is the PR Manager of the Metal X.
8. The Second Respondent, Northern Islands Stevedoring Company Limited (Niscol) is a local company registered in Vanuatu.
9. The First Respondent, Metal X was granted a prospectus license with the Government of Vanuatu. The First Respondent was authorized to prospect for gold, copper, silver and polymetallic minerals for three years from 31 March 2026 to 31 March 2029.
10. Metal X purchased substantial mining and quarrying machinery from Yunnan Ruizheng Trading Co. Ltd in China. The machinery included two excavators weighing approximately 50 tonnes each. The excavators were acquired for use in construction access roads and undertaking Metal’s X exploration and prospecting activities in remote areas of Santo.
11. An international shipment was arranged through the Chinese freight forwarding company bearing the registered name Shenzhen Weiya International Freight Forwarding Co. Ltd and also trading as Shenzhen FR8 Logistics Co. Ltd (“the Freight Forwarder”) (See company seal in the invoices issued and the Fixture Note provided in Mr. Christopher Kernot’s statements).
The application and statements in support.
12. The Applicant’s sworn statement of 7 July 2026, Annexures 11 - 12, shows a draft Bill of Lading (B/L) showing the shipper: Yunnan Ruizhuheng Trading Co, Ltd, China and the Consignee: Metal X United Limited, Port – Vila, Vanuatu at FR8 Logistics 7 Wharf Road, Port – Vila, Vanuatu. The B/L also shows the Port of Loading: Changshu and the Port of Discharge: Santo and Vila (charter option) (Annexures 11 – 13 of sworn statement of Mr. Kernot of 7 July 2026). The vessel’s name is MV Ever Champion V.V2604. There are also the shipper’s description of goods: 81 packages with a gross weight of 481650 Kg / 2362.118 CBM and a detailed description of the cargo in the name of Metal X United Limited (Consignee). The B/L set out the conditions of carriage and a Fixture Note setting out the particulars of cargo, freight, destination, demurrage fee, detention charges, etc. The Fixture Note sets out the terms and conditions of the charter – party between the Owners and the charteres.
13. During the period of May and June 2026 the First Respondent and the Applicant began discussions concerning the importation of a shipment of quarrying and mining equipment as well as a substantial amount of CKD “container housing” to Port – Vila with a combined cargo value of USD 2,872,903.00 and overall shipping dimensions of 568,710 kg and 3,131,254 m3 (Annexure 6 statement of Kernot).
14. During the discussion, it become clear that a substantial amount of the cargo was destined for Santo not Port – Vila.
15. The shipment charter was organized by Nicole Huang (Nicole) of FR8 Logistics China and a Fixture Note contract arranged, stamped / endorsed by Metal X USD 200 per m3 plus lump sum payment USD 200,000 on the LIFO Terms (This was after the change of Port was arranged prior to loading and the lump sum was for the change of destination (Annexure x14 – x16 statement of Kernot of 7 July 2026).
16. This Fixture Note / contract has specific term including detention charges at clause 9 of USD 28,000 per day, and at clause 10 that all cargo to be delivered / received with suitable / sufficient lifting / lashing points and lugs, special equipment for loading and discharging if required such as lifting spreader beams and / or wire slings for loading / discharging, heavy cargo are to be supplied by the shippers together with the cargo.
17. The Applicant says that it is the First Respondent’s responsibility that the cargo could be safely removed from the ship and that when the ship arrives in Vanuatu, the stevedoring company (NISCOL) could properly do so.
18. It became known that the 2 x 50,000 kg excavators did not have any lifting lugs as prescribed in the Fixture Note / contract at clause 10 and NISCOL were unable to safely discharge the excavators from the ship with the equipment available.
19. Under these circumstances, Metal X sent an email to FR8 on 24 June 2026 (through Janson Claire in FR8 office in Santo) agreeing for FR8 to reduce the weight of the two excavators. The email was sent by Chengwei Wang from Metal X on the following terms:
“Hi Claire
I am giving an approval to you fr8 to reduce the weight of 50 tonnes excavator in any suggestions from your boss in order for the stevedoring company can remove the machine out”.
20. That is the moment when the FR8 was instructed by Metal X to remove the machines (the two excavators).
21. The work to remove the two excavators from the ship was stopped until the demurrage fee was paid in full.
22. It is noted that the FR8 proceeded to arrange to remove the counterweights on the machines in order to remove the two machines safely from the ship and FR8 paid the corresponding charges also of VT 575,000 (see para. 23 sworn statement of Kernot of 7 July 2026).
23. The shipping line stopped work on the vessel demanding payment for USD 94,200 be made before they would let work recommence. Nicole informed Metal X of these and requested their assistance with urgency in order to compel the works in Santo. This request was strenuously denied by Metal X to the point of being understood to be angry with Nicole (para.24 sworn statement of Kernot of 7 July 2026).
24. Nicole and Kernot discussed and could see that with the weekend quickly approaching, and the risk of USD 28,000 per day penalty increasing from the already sum of USD 92,400, and that banks would be unable to transfer money, this would increase the penalty by at least a further USD 84,000 which would be completely unmanageable, and would leave “no end in sight” of the problem (para.25 statement of Kernot of 7 July 2026).
25. Therefore, Nicole and Kernot agreed to combine all funds from all accounts to settle the penalty amount of USD 92,400 on their own, and cleaned out all bank accounts to make arrangements to do so (para.26 of sworn statement of Kernot of 7 July 2026).
26. Finally, the Vessel owner agreed to discharge the final two excavators, Claire arranged for Santo Earthworks to come back on board the ship and remove the counterweights and complete the discharge of the excavators. Nicole and Kernot stayed constantly in contact with Claire to make sure there were no further holdups, and no further costs on the penalty side (para. 27 statement of Kernot of 7 July 2026).
27. The Vessel completed discharge and sailed on the Friday, billing was completed in Vatu and sent to Metal X immediately and the final amount of billing was VT 20,239,048 including a credit given to Metal X because Metal X paid the contractor engaged by the FR8 directly for replacing the counterweights (para. 28 same statement of Kernot).
28. The Applicant said they devoted substantial time, labour and resources to ensuring that the First Respondent’s cargo was successfully discharged and delivered, requiring considerable overtime and late work until 11 pm on Saturday, and other days. (Para. 29 same statement of Kernot).
29. On 5th and 6th July 2026, Mr. Kernot sent Final Demands including both a statement and all the outstanding invoices to Metal X requiring settlement in full prior to midday 7th July 2026 and requesting that the settlement be a mixture of USD 91,400 (which should have read USD 92,400 invoices by FR8 as VT 11,436,348 and the balance in Vatu so that the USD could be put back into the accounts where it belongs in China as well as in Vanuatu (see statement of Mr. Kernot 7 July 2026 Annexures 20 to 28).
30. Despite receipt of the Final Demand, the First Respondent has failed and / or refused to pay the outstanding indebtedness, in particular for the costs paid out in large amount for a contract that FR8 was not a part of (para. 31 statement of Kernot of 7 July 2026).
31. It is noted that after FR8 paid the demurrage fees on behalf of Metal X, Mr. Kernot received an email from Weichen of Metal X dated 2nd July 2026, among other matters, to the following effect:
“Hi Chris,
We are aware that our excavators are being withheld at the Wharf, apparently due to the alleged demurrage or “ship overdue fee” which FR8 / NISCOL claims to have paid. We are very concerned and must make metal X’s position clear.
Metal X did not authorize FR8, Nicole or anyone else to settle, advance or pay any demurrage, charter surcharge, ship overdue fee or similar charge on own behalf …” (statement of Mr. Kernot, Annexures 71).
32. So, the Applicant says, contrary to the First instructions given to Mr. Kernot on 24 June 2026 (Annexures 62-63), at Annexure 71, Metal X denies that the delays were caused by Metal X resulting from the unloading arrangements and the lack of proper preparation by the stevedoring company or other parties involved including the lack of suitable lifting or unloading capabilities.
33. The Applicant says this is a breach of the clauses of the Fixture Note / Contract, Annexure 14 at paragraph 10 of the statement of Mr. Kernot of 7 July 2026.
34. The Applicant further says that at that point, Metal X resiles from the contract and the agreement to allow Mr. Kernot to take over the excavators of the ship. This is the reason why the Applicant is in Court now.
35. FR8 had requested NISCOL that NISCOL held both excavators, however, somehow, one excavator was released (under the pressure said to be from the Vanuatu Government), and there now only remains one excavator on the wharf which may be held in lien against payment (para. 32 statement of Kernot 7 July 2026).
36. On Tuesday 7th July 2026, Mr. Ala Hollingsworth, the General Manager (GM) of NISCOL sent an email to Mr. Kernot to the following effect:
“good morning, Chris
The pressure is mounting not only from Metal X but from others as well in Luganville for the equipment to be released. Without an urgent exparte order from the Court for NISCOL to hold on to the equipment, we have no option but to release the equipment.
Kind regards,
Ala”. (See para.4 statement of Kernot of 7th July 2026, Annexures 7 to 10).
37. The email from Ala Hollingsworth GM of NISCOL of 7 July 2026 is the reason for the urgency in this case, hence, this urgent application.
The Response and statement in support.
38. The First Respondent says the following:
39. That the Freight Forwarder (referred to at para.11 above) is separate from the Applicant, FR8 Logistics Limited (FR8), which provided customs clearance and related local services in Vanuatu;
40. Metal X was initially advised that Port Vila was the only suitable international port in Vanuatu for discharge of the machinery. The shipment was therefore initially arranged on that basis;
41. Metal X paid approximately USD 625,250 for the international shipment and related charges pursuant to invoice issued through the Shenzhen Weiya International Freight Forwarding Co. Ltd and also trading as Shenzhen FR8 Logistics Co. Ltd (“the Freight Forwarder”).
42. Metal X was later advised that the cargo could instead be discharged at Santo. This caused concern because, had Metal X been correctly advised from the beginning that Santo was available and capable of receiving the machinery, the substantial additional cost and arrangements associated with changing the discharge port could have been avoided;
43. The Freight Forwarder represented that its representative had personally attended the Santo port, met with NISCOL management, provided photographs and details of the machinery and obtained confirmation that NISCOL could discharge machinery weighing more than 50 tonnes without difficulty;
44. Nicole Huang from the Freight Forwarder company repeated those matters in her email dated 3 July 2026, which is included in the documents annexed to Mr. Kernot’s statements. In that email, she stated that she had personally travelled to Santo, met NISCOL manager, shown him photographs of the machinery and received confirmation that NISCOL could unload machinery without difficulty;
45. Relying upon those representations, Metal X agreed to the diversion to Santo and paid approximately USD 200,000, together with a further amount of approximately USD 90,000, in connection with the change of port and associated arrangements;
46. Metal X understood that the freight and logistics professionals involved had made the necessary enquiries and had confirmed that the vessel, Santo port and stevedoring arrangements possessed the technical and mechanical capacity required to discharge the excavator;
47. The MV Ever Champion arrived at Santo on or about 20 June 2026. Metal X expected the discharge and customs clearance processes to commence promptly;
48. However, discharge and customs clearance activities appeared not to have commenced until about 22 June 2026. Metal X was not responsible for that delay and was not given a satisfactory explanation as to why the vessel had arrived on 20 June but the discharge process did not proceed promptly;
49. From the communications later produced by the Mr. Kernot, Metal X understood that cargo operations had been interrupted because payments expected by the vessel interests had not been processed or received in time through Transam Vanuatu Limited, Mr. Michael Fung or other persons involved in the shipping arrangements;
50. Metal X did not control those payment arrangements, was not responsible for making those payments and was not consulted before the delay occurred;
51. Metal X was also concerned that the persons responsible for arranging the discharge did not appear to be working continuously or with sufficient urgency to ensure the machinery was discharged within the available period;
52. On about 24 June 2026, Metal X was informed that the two excavators could not readily be discharged using the lifting equipment and arrangements available aboard the vessel and at Santo Port;
53. This was contrary to the earlier representations that the Santo port had been inspected and possessed the capacity and equipment necessary to unload machinery to unload exceeding 50 tonnes;
54. Metal X was not responsible for selecting the vessel’s lifting arrangements, assessing NISCOL’s lifting capacity or planning the technical method by which the excavators would be discharged. Stephen Blade from Transam in his email in Mr. Kernot’s statements, suggested that the fault was with Metal X for not doing adequate due diligence about the Santo port and discharge arrangements. Metal X is very surprised with those statements having already paid substantial sums of money to persons and entities claiming to be shipping experts capable of handling the discharge and shipping arrangements on its behalf. Metal X is simply consignee or receiver of the goods and the obligation to do due diligence laid with those who were paid around USD 900,000 to arrange and ensure efficient and safe shipping and discharge of the goods;
55. Metal X was nevertheless requested to approve the removal of the excavators’ counterweights to reduce their weight and facilitate discharge;
56. Metal X approved that step solely as a practical measure to assist the logistics and stevedoring parties to overcome the difficulties which had arisen and to prevent further delay. That approval did not constitute acceptance of responsibility for the delay or authorization for FR8 to incur additional liabilities on Meta X ‘s behalf;
57. During the discharge of operations, FR8 personal and even the Freight Forwarder through Nicole Huang repeatedly informed Metal X that substantial additional amounts were required for alleged overtime or overdue charges resulting from the vessel remaining at Santo;
58. Metal X was asked to provide approximately USD 90,000 to USD 94,000 towards those alleged charges;
59. Metal X refused that request. We had communicated directly with the vessel captain or vessel interests and were informed, in substance, that:
a. the delay resulted from technical unloading difficulties;
b. the delay was not caused by Metal X;
c. the vessel was prepared to remain while the cargo was discharged; and
d. no additional overtime or detention charge was being imposed upon Metal X by the vessel owner.
60. Metal X therefore did not authorise FR8, Mr. Kernot or any other person to pay, settle or accept liability for the alleged detention or overdue charge on its behalf.
61. Mr. Kernot’s own evidence records that the Metal X refused the request for funds and that he and Nicole Huang thereafter decided to assemble and pay the funds themselves.
62. Metal X was not informed beforehand that FR8 intended to make any such payment and was not asked to approve the amount, the recipient, the basis of calculation or the contractual liability said to justify it.
63. Before the discharge was completed, neither I nor Metal X’s management understood that FR8 claimed to have paid approximately USD 92,400 on Metal X’s behalf.
64. It was only after the discharge operations had been completed that FR8 informed Metal X that it had allegedly made those payments and demanded reimbursement.
65. Metal X did not request that payment, did not agree to reimburse it and has never accepted liability for it.
66. Metal X remains concerned that the alleged payment appears to relate to difficulties cause by the shipping, payment, port planning and discharge arrangements managed by the freight, shipping and stevedoring participants rather that by any act or omission of Metal X.
67. In particular, Metal X did not:
a. cause the delay between the vessel’s arrival and commencement of discharge;
b. fail to make any payment for which it was responsible to the vessel interests;
c. represent that NISCOL could safely unload the excavators;
d. select or provide the lifting equipment used for discharge; or
e. cause the technical inability to unload the excavators as initial planned.
68. Metal X had relied upon the Freight Forwarder, FR8, Transam, NISCOL and the other shipping participants to properly plan, coordinate and carry out the shipment and discharge for which Metal X had already paid substantial sums.
69. Following completion of the discharge operations and payment of the lawful port, customs and statutory charges, NISCOL commenced releasing the machinery to Metal X as consignee and owner.
70. One excavator was released and delivered to Metal X. The remaining excavator continues to be held at Santo port.
71. FR8 thereafter issued invoices to Metal X totalling VT 20,239,048, including the alleged detention payment and various discharge, agency, transport and related charges.
72. Metal X disputes those invoices to the extent that they include amounts which were not requested, agreed or authorized by Metal X and requires proper supporting documents identifying:
a. the contractual basis of each charge;
b. the person who requested or authorised it;
c. the person or company that issued the underlying invoices;
d. the person or company to whom payment was made; and
e. proof that FR8 itself made the alleged payment.
73. Metal X’s position is not that it should avoid any lawful customs clearance or local service charges which it properly requested and received. Its dispute concerns the substantial unauthorized charges and alleged payments now claimed by FR8.
74. FR8’s engagement was for customs clearance and related local services. Metal X never authorised FR8 to alter the international shipping arrangements, assume liabilities under any foreign shipping agreement, settle disputes with vessel interests or encumber Metal X’s machinery.
75. FR8 and Transam subsequently instructed or requested NISCOL not to release the remaining excavator pending payment of the disputed invoices.
76. The remaining excavator is essential to Metal X’s licensed exploration activities, including the construction of roads and access infrastructure required to reach remote prospecting areas.
77. Continued detention of the excavator delays those operations, increases Metal X’s costs and prevents Metal X from fully using machinery which it purchases and imported specifically for its investment and operations in Vanuatu.
78. Metal X maintains offices, employees, machinery and substantial operations in Vanuatu. It has no intention of removing the excavator from Vanuatu, concealing it, disposing of it or placing it beyond the reach of the Court.
79. The excavator will remain on Santo and be used for Metal X’s prospecting and related operations under its Government issued licenses.
Court consideration on the Interlocutory orders sought
80. For the purpose of the Interlocutory orders sought, Mr. Ngwele conceded on behalf of the First Respondent that there is a serious question to be tried.
81. In the circumstances of this present case, I take it that FR8 is acting as a customs broker and the First Respondent (Metal X United Limited) is the consignee (the ultimate receiver or owner of the cargo).
82. On the evidence, Metal X is the buyer (charterer) of the cargo. There is no evidence that Metal X as the buyer of the goods have these goods delivered to a partner company (consignee). It appears that Metal X as the buyer has the goods delivered to themselves, so, Metal X acts as both the charterer and consignee of the cargo / goods.
83. When a customs broker pays demurrage to release a shipment of cargo and the consignee refuses to reimburse them, the broker is in a vulnerable position. Because the broker essentially acted as the third-party payer, the legal and financial responsibility for the charges ultimately rests with the consignee (or the shipper of record).
84. To recoup the money owed (debts), the Applicant (FR8) is entitled to place a broker / forwarder lien on the cargo, holding the goods until the Applicant (FR8) is reimbursed.
85. These are the reasons for the Interlocutory orders the Court made on 13 July 2026.These orders are reproduced below:
“ORDER
The Court orders that:
1. Pursuant to rule 7.5 (1) of the Civil Procedure Rules No. 16 of 2002 (CPR) that the time for hearing this application be abridged.
2. Pending final determination of the Claim for Outstanding debt in this proceeding (of Vt 23,989,048), the cargo consisting of one excavator still held by NISCOL on Santo wharf be held in lien of payment of all outstanding debt due to FR8 Logistics Ltd (FR8) by Metal X United Limited.
3. Order 2 above is subject to the First Respondent Metal X United Limited pay the amount of Vt 23,989, 048 into the Chief Registrar Trust Account within 7 days of the date of this order, failing which order 2 above remains.
4. The Applicant shall file and serve its Supreme Court claim within 10 days ie, by 23 July 2026 with any sworn statements.
5. The First Respondent to file and serve a defence and sworn statements in support by 7 days thereafter, ie, by 31 July 2026.
6. The costs are reserved.”
Dated at Port Vila, this 22nd July, 2026.
BY THE COURT
Hon. Chief Justice Vincent Lunabek