We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
Wednesday, 02 April 14
CHINA: ARBITRATION CLAUSES IN BILLS OF LADING UNDER CHINESE LEGAL PRACTICE - SKULD
 KNOWLEDGE TO ELEVATE
Successful incorporation of a charterparty arbitration clause into the bills of lading is not a straight forward matter under China jurisprudence and recently a Chinese maritime court dismissed the owners' motion to refer the case to arbitration, because it was held that the C/P arbitration clause incorporated into the B/L was not effective. Details of the matter are as follows. Key points following the legal decision are:
- Although the said B/L recorded on the front page that it was: "to be used with charterparty", there was no express statement in the bill terms for incorporating the arbitration clause from the C/P.
- The standard incorporation clause in the back page of the B/L could not constitute a valid incorporation of the arbitration clause under Chinese law and practice.
- If any C/P terms are to be recognised as incorporated then they would be those of the voyage charter to which the cargo receiver was a party - not the head time C/P. This is because the time C/P is in the nature of being primarily a leasing contract .
Facts of this case
The vessel owners concluded a time C/P as with a charterer. One of the rider clauses provided that English law shall be applicable, and a further clause provided that any dispute arising from the C/P shall be submitted to arbitration at the LMAA.
As part of her charter employment, the vessel carried a cargo of iron ore fines from South America to China. According to the B/L, the shipper South American and the receiver was a Chinese Steel Mill.
While on route the vessel was involved in collision with another vessel. The owners appointed salvors to conduct salvage, and concluded a LOF contract. General average was declared. The salvage was successful, and the Chinese Steel Mill (through its insurers) had to provide general average security to the vessel.
The general average apportionment of salvage costs to cargo was significant, and the Chinese Steel Mill commenced proceedings in China for an indemnity against the ship-owner. The owners raised objection to jurisdiction on the basis that the provisions of the time C/P, including the arbitration clause had been incorporated into the B/L, and thus was binding upon the Steel Mill. The expert opinion of English lawyers was put forward to confirm that the terms of the C/P were successfully incorporated in to the bills of lading, including the arbitration clause.
First instance trial before the Chinese Maritime Court
The Maritime Court dismissed the objection to jurisdiction for the following reasons:
- The case was about compensation of ship collision / general average salvage rewards. Hence, the case fell into the scope of the contract of the carriage of goods by sea.
- Although the said B/L recorded on the front page that: "to be used with charterparty", there was no express statement in the bill terms for incorporating the arbitration clause in the C/P. The standard incorporation clause in the back page of the B/L cannot constitute valid incorporation.
- Meanwhile, the C/P which the owner claimed was to be incorporated into the B/L was a time C/P between the owner and the charterer only. The C/P arbitration clause was only there for resolving the disputes arising from the leasing of the vessel. It was not an arbitration clause for purpose of carriage of goods by sea under the voyage C/P.
- The local Maritime Court, as the nearest court at the port of the destination of the said carriage contract, should have jurisdiction over this case.
Appeal judgment High People's Court
The owners then appealed to the High People's Court and the appeal court dismissed the objection to jurisdiction for reason that:
- Although it is stated on the face of the involved B/L that the said B/L should be used with the C/P, the said C/P to be used with B/L shall be the voyage C/P and not the time C/P to which the owner was a party.
- However, the C/P provided by the owners was a time C/P and there was also no record on the face of the B/L regarding the specific C/P concerned and no express acceptance to have the C/P arbitration clause incorporated.
Observation on this case and comment
Chinese courts hold a stringent view concerning the issue of incorporating the C/P arbitration clause into the B/L. In this case, a key issued appeared to be that the C/P terms sought to be incorporated came from the time C/P, instead of a voyage C/P.
It should also be noted that in 2004 the Qingdao Maritime Court also held that a time C/P is primarily a vessel leasing contract, and although it also has some clauses regarding transportation of cargo it is still primary a leasing contract which is very different from voyage C/P.
The Qingdao Maritime Court continued to say that the B/L relationship is different to the time C/P legal relationship, and because of the rooted difference in this respect, the time C/P arbitration clause cannot be incorporated into the B/L.
Although China is not a case law country, the reasoning of Chinese courts in this regard should be paid attention to for handling of other similar cases.
By Philip Peng
Hai Tong & Partners, Beijing
Source: Skuld / Hellenic Shipping
Views and opinions / conclusion expressed herein are personal views of the authors and not that of COALspot.com.
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Monday, 26 May 14
SUB-BIT FOB INDO COAL SWAP Q1' 15 DELIVERIES CLOSED AT US$ 59.40 PER MT
COALspot.com: Indonesian coal swaps for average Q3’ 2014 lost on day, week and on month according to AsiaClear OTC coal swap's reports re ...
Monday, 26 May 14
Q3 14 CFR SOUTH CHINA COAL SWAPS LOST 2.24% MONTH ON MONTH
COALspot.com: API 8 CFR South China Coal swaps for average Q3 14 deliveries lost 2.24 percent month on month and closed at US$ 73.88 per mt as on F ...
Monday, 26 May 14
NEWBUILDING ORDERING ACTIVITY RISES BY 78% IN DWT TONNAGE OVER THE FIRST 4 MONTHS OF THE YEARS, AS OWNERS INVEST$40.5 BN - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
Ship owners have plunged into newbuilding orders during the first four months of the year, as overall newbuilding business ended for the first four ...
Sunday, 25 May 14
FREIGHT RATES FROM SOUTH KALIMANTAN TO EAST COAST INDIAN PORTS WERE ASSESSED AT $9.50/MT
COALspot.com: The BDI was closed at 964 points down by 6.13 pct week on week. The Cape Index was lost 172 points or 11.24% week on week and closing ...
Saturday, 24 May 14
DRY BULK MARKET'S RECOVERY IS JUST AROUND THE CORNER SAYS SHIPOWNER - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
Despite the weaker than expected market sentiment in the dry bulk market over the course of the past few months, analysts and shipowners alike appe ...
|
|
|
Showing 3686 to 3690 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Georgia Ports Authority, United States
- AsiaOL BioFuels Corp., Philippines
- Kaltim Prima Coal - Indonesia
- Baramulti Group, Indonesia
- Semirara Mining and Power Corporation, Philippines
- Interocean Group of Companies - India
- Indonesian Coal Mining Association
- European Bulk Services B.V. - Netherlands
- CIMB Investment Bank - Malaysia
- Economic Council, Georgia
- Energy Link Ltd, New Zealand
- Aboitiz Power Corporation - Philippines
- TNB Fuel Sdn Bhd - Malaysia
- Makarim & Taira - Indonesia
- LBH Netherlands Bv - Netherlands
- Altura Mining Limited, Indonesia
- Indogreen Group - Indonesia
- Sindya Power Generating Company Private Ltd
- Directorate General of MIneral and Coal - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Semirara Mining Corp, Philippines
- Indo Tambangraya Megah - Indonesia
- Mjunction Services Limited - India
- PetroVietnam Power Coal Import and Supply Company
- Parliament of New Zealand
- ASAPP Information Group - India
- Samtan Co., Ltd - South Korea
- Manunggal Multi Energi - Indonesia
- Sarangani Energy Corporation, Philippines
- Thiess Contractors Indonesia
- Binh Thuan Hamico - Vietnam
- Indian Energy Exchange, India
- Xindia Steels Limited - India
- OPG Power Generation Pvt Ltd - India
- Planning Commission, India
- Standard Chartered Bank - UAE
- Toyota Tsusho Corporation, Japan
- Wilmar Investment Holdings
- New Zealand Coal & Carbon
- Goldman Sachs - Singapore
- Indian Oil Corporation Limited
- The University of Queensland
- PNOC Exploration Corporation - Philippines
- Therma Luzon, Inc, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Iligan Light & Power Inc, Philippines
- Energy Development Corp, Philippines
- Attock Cement Pakistan Limited
- Pipit Mutiara Jaya. PT, Indonesia
- Essar Steel Hazira Ltd - India
- Romanian Commodities Exchange
- Thai Mozambique Logistica
- Ind-Barath Power Infra Limited - India
- Globalindo Alam Lestari - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- IHS Mccloskey Coal Group - USA
- VISA Power Limited - India
- Sical Logistics Limited - India
- Orica Australia Pty. Ltd.
- South Luzon Thermal Energy Corporation
- Mercator Lines Limited - India
- Electricity Authority, New Zealand
- Agrawal Coal Company - India
- Bukit Makmur.PT - Indonesia
- Africa Commodities Group - South Africa
- SMC Global Power, Philippines
- PowerSource Philippines DevCo
- Renaissance Capital - South Africa
- Intertek Mineral Services - Indonesia
- Coastal Gujarat Power Limited - India
- Medco Energi Mining Internasional
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Metalloyd Limited - United Kingdom
- Salva Resources Pvt Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Leighton Contractors Pty Ltd - Australia
- IEA Clean Coal Centre - UK
- TeaM Sual Corporation - Philippines
- Kobexindo Tractors - Indoneisa
- Central Java Power - Indonesia
- White Energy Company Limited
- Ministry of Finance - Indonesia
- Karaikal Port Pvt Ltd - India
- Latin American Coal - Colombia
- Madhucon Powers Ltd - India
- Price Waterhouse Coopers - Russia
- Straits Asia Resources Limited - Singapore
- Bhatia International Limited - India
- Aditya Birla Group - India
- Anglo American - United Kingdom
- Port Waratah Coal Services - Australia
- Orica Mining Services - Indonesia
- Heidelberg Cement - Germany
- Chettinad Cement Corporation Ltd - India
- Indika Energy - Indonesia
- The Treasury - Australian Government
- Chamber of Mines of South Africa
- Cigading International Bulk Terminal - Indonesia
- Kumho Petrochemical, South Korea
- Trasteel International SA, Italy
- Banpu Public Company Limited - Thailand
- Krishnapatnam Port Company Ltd. - India
- Kapuas Tunggal Persada - Indonesia
- Electricity Generating Authority of Thailand
- Coal and Oil Company - UAE
- Mercuria Energy - Indonesia
- Malabar Cements Ltd - India
- Mintek Dendrill Indonesia
- GVK Power & Infra Limited - India
- Sinarmas Energy and Mining - Indonesia
- Posco Energy - South Korea
- Bharathi Cement Corporation - India
- Kepco SPC Power Corporation, Philippines
- Kalimantan Lumbung Energi - Indonesia
- Parry Sugars Refinery, India
- MS Steel International - UAE
- Simpson Spence & Young - Indonesia
- Borneo Indobara - Indonesia
- Bulk Trading Sa - Switzerland
- India Bulls Power Limited - India
- Karbindo Abesyapradhi - Indoneisa
- Minerals Council of Australia
- Tata Chemicals Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- Asmin Koalindo Tuhup - Indonesia
- Petron Corporation, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Power Finance Corporation Ltd., India
- Independent Power Producers Association of India
- Bhoruka Overseas - Indonesia
- Ministry of Transport, Egypt
- Australian Commodity Traders Exchange
- Maheswari Brothers Coal Limited - India
- Kartika Selabumi Mining - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Coalindo Energy - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Merrill Lynch Commodities Europe
- Miang Besar Coal Terminal - Indonesia
- Ambuja Cements Ltd - India
- Barasentosa Lestari - Indonesia
- Formosa Plastics Group - Taiwan
- Central Electricity Authority - India
- Ministry of Mines - Canada
- GMR Energy Limited - India
- Neyveli Lignite Corporation Ltd, - India
- Alfred C Toepfer International GmbH - Germany
- The State Trading Corporation of India Ltd
- Siam City Cement PLC, Thailand
- Global Coal Blending Company Limited - Australia
- Pendopo Energi Batubara - Indonesia
- Bukit Baiduri Energy - Indonesia
- Cement Manufacturers Association - India
- London Commodity Brokers - England
- Ceylon Electricity Board - Sri Lanka
- Gujarat Electricity Regulatory Commission - India
- Bhushan Steel Limited - India
- Antam Resourcindo - Indonesia
- Jaiprakash Power Ventures ltd
- GN Power Mariveles Coal Plant, Philippines
- Bayan Resources Tbk. - Indonesia
- Gujarat Sidhee Cement - India
- Wood Mackenzie - Singapore
- Marubeni Corporation - India
- Vizag Seaport Private Limited - India
- Riau Bara Harum - Indonesia
- Rio Tinto Coal - Australia
- Global Green Power PLC Corporation, Philippines
- Vedanta Resources Plc - India
- Carbofer General Trading SA - India
- SN Aboitiz Power Inc, Philippines
- CNBM International Corporation - China
- Holcim Trading Pte Ltd - Singapore
- International Coal Ventures Pvt Ltd - India
- Sojitz Corporation - Japan
- ICICI Bank Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- GAC Shipping (India) Pvt Ltd
- Jorong Barutama Greston.PT - Indonesia
- Star Paper Mills Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Directorate Of Revenue Intelligence - India
- PTC India Limited - India
- Eastern Coal Council - USA
- San Jose City I Power Corp, Philippines
- Singapore Mercantile Exchange
- Dalmia Cement Bharat India
- Commonwealth Bank - Australia
- SMG Consultants - Indonesia
- McConnell Dowell - Australia
- Eastern Energy - Thailand
- Edison Trading Spa - Italy
- Australian Coal Association
- Jindal Steel & Power Ltd - India
- Savvy Resources Ltd - HongKong
- Gujarat Mineral Development Corp Ltd - India
- Tamil Nadu electricity Board
- Rashtriya Ispat Nigam Limited - India
- Videocon Industries ltd - India
- Bangladesh Power Developement Board
- Offshore Bulk Terminal Pte Ltd, Singapore
- Timah Investasi Mineral - Indoneisa
- Oldendorff Carriers - Singapore
- Grasim Industreis Ltd - India
- Deloitte Consulting - India
- Global Business Power Corporation, Philippines
- Sree Jayajothi Cements Limited - India
- Sakthi Sugars Limited - India
- Uttam Galva Steels Limited - India
- Lanco Infratech Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Kideco Jaya Agung - Indonesia
- Siam City Cement - Thailand
- Meenaskhi Energy Private Limited - India
- Meralco Power Generation, Philippines
- Larsen & Toubro Limited - India
|
| |
| |
|
