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, 19 May 14
API 8 CFR SOUTH CHINA COAL LOST 2.49% MONTH ON MONTH
COALspot.com: API 8 CFR South China Coal swaps for average Q3 14 deliveries lost 2.49 percent month on month and closed at US$ 74.35 per mt as on F ...
Sunday, 18 May 14
FREIGHT RATES ARE EXPECTED TO BE FIRM NEXT WEEK
COALspot.com: The freight market was steady with the BDI was closed slightly higher at 1027 points or up 3.00 pct week on week.
The Cape ...
Friday, 16 May 14
KOMIPO IS LOOKING FOR 60K MT OF LOW VOLATILE BITUMINOUS COAL
COALspot.com : Korea Midland Power Co., Ltd. has invited bids through International open bidding for 60,000 Metric Tons (MT) of low volatile bitumi ...
Friday, 16 May 14
U.S. COAL PRODUCTION TOTALED APPROXIMATELY 18.9 MMST
COALspot.com – United States the world's second largest coal producer, produced approximately 18.9 million short tons (mmst) of coal i ...
Thursday, 15 May 14
PANAMAX : SHORT PERIOD UP TO ONE YEAR REPORTED IN THE 12.000-12.500 RANGE - FEARNRESEARCH
Handy
The Supra and handy market seems to be affected by the recent holidays in Singapore which still relatively quiet. There are some Indo / ...
|
|
|
Showing 3701 to 3705 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- London Commodity Brokers - England
- Eastern Coal Council - USA
- Kideco Jaya Agung - Indonesia
- Makarim & Taira - Indonesia
- Australian Commodity Traders Exchange
- Binh Thuan Hamico - Vietnam
- Global Green Power PLC Corporation, Philippines
- Siam City Cement PLC, Thailand
- CNBM International Corporation - China
- Trasteel International SA, Italy
- GAC Shipping (India) Pvt Ltd
- Ministry of Mines - Canada
- Semirara Mining Corp, Philippines
- Madhucon Powers Ltd - India
- PetroVietnam Power Coal Import and Supply Company
- The Treasury - Australian Government
- Thai Mozambique Logistica
- Videocon Industries ltd - India
- Heidelberg Cement - Germany
- Bukit Makmur.PT - Indonesia
- Indian Oil Corporation Limited
- Rashtriya Ispat Nigam Limited - India
- Krishnapatnam Port Company Ltd. - India
- Altura Mining Limited, Indonesia
- Pendopo Energi Batubara - Indonesia
- Global Business Power Corporation, Philippines
- Aditya Birla Group - India
- Mintek Dendrill Indonesia
- Miang Besar Coal Terminal - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- SMG Consultants - Indonesia
- McConnell Dowell - Australia
- Iligan Light & Power Inc, Philippines
- Savvy Resources Ltd - HongKong
- Therma Luzon, Inc, Philippines
- Meralco Power Generation, Philippines
- OPG Power Generation Pvt Ltd - India
- Directorate General of MIneral and Coal - Indonesia
- Indian Energy Exchange, India
- Sojitz Corporation - Japan
- Kohat Cement Company Ltd. - Pakistan
- Jindal Steel & Power Ltd - India
- The University of Queensland
- Economic Council, Georgia
- Bahari Cakrawala Sebuku - Indonesia
- Toyota Tsusho Corporation, Japan
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Medco Energi Mining Internasional
- Posco Energy - South Korea
- IEA Clean Coal Centre - UK
- Sinarmas Energy and Mining - Indonesia
- India Bulls Power Limited - India
- Kobexindo Tractors - Indoneisa
- PNOC Exploration Corporation - Philippines
- Billiton Holdings Pty Ltd - Australia
- Mjunction Services Limited - India
- Orica Australia Pty. Ltd.
- Directorate Of Revenue Intelligence - India
- Uttam Galva Steels Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Pipit Mutiara Jaya. PT, Indonesia
- Ceylon Electricity Board - Sri Lanka
- Antam Resourcindo - Indonesia
- Central Electricity Authority - India
- Planning Commission, India
- South Luzon Thermal Energy Corporation
- Electricity Authority, New Zealand
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Straits Asia Resources Limited - Singapore
- Meenaskhi Energy Private Limited - India
- Romanian Commodities Exchange
- ASAPP Information Group - India
- Leighton Contractors Pty Ltd - Australia
- Renaissance Capital - South Africa
- Gujarat Sidhee Cement - India
- Rio Tinto Coal - Australia
- Bhushan Steel Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Mercuria Energy - Indonesia
- Vizag Seaport Private Limited - India
- Australian Coal Association
- Goldman Sachs - Singapore
- Coalindo Energy - Indonesia
- Interocean Group of Companies - India
- Kaltim Prima Coal - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Anglo American - United Kingdom
- Carbofer General Trading SA - India
- Power Finance Corporation Ltd., India
- Standard Chartered Bank - UAE
- Energy Development Corp, Philippines
- Maharashtra Electricity Regulatory Commission - India
- White Energy Company Limited
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Bhatia International Limited - India
- Tamil Nadu electricity Board
- Electricity Generating Authority of Thailand
- Merrill Lynch Commodities Europe
- Offshore Bulk Terminal Pte Ltd, Singapore
- Edison Trading Spa - Italy
- Maheswari Brothers Coal Limited - India
- Commonwealth Bank - Australia
- Georgia Ports Authority, United States
- Timah Investasi Mineral - Indoneisa
- Baramulti Group, Indonesia
- Siam City Cement - Thailand
- Kepco SPC Power Corporation, Philippines
- Sree Jayajothi Cements Limited - India
- Port Waratah Coal Services - Australia
- Star Paper Mills Limited - India
- Eastern Energy - Thailand
- Simpson Spence & Young - Indonesia
- Parry Sugars Refinery, India
- Oldendorff Carriers - Singapore
- Bharathi Cement Corporation - India
- Bhoruka Overseas - Indonesia
- SN Aboitiz Power Inc, Philippines
- Karbindo Abesyapradhi - Indoneisa
- Thiess Contractors Indonesia
- Jaiprakash Power Ventures ltd
- Borneo Indobara - Indonesia
- Ambuja Cements Ltd - India
- Karaikal Port Pvt Ltd - India
- Vedanta Resources Plc - India
- Formosa Plastics Group - Taiwan
- GMR Energy Limited - India
- PowerSource Philippines DevCo
- Bayan Resources Tbk. - Indonesia
- Ministry of Finance - Indonesia
- Coal and Oil Company - UAE
- Intertek Mineral Services - Indonesia
- Manunggal Multi Energi - Indonesia
- Marubeni Corporation - India
- Alfred C Toepfer International GmbH - Germany
- GVK Power & Infra Limited - India
- Essar Steel Hazira Ltd - India
- Metalloyd Limited - United Kingdom
- International Coal Ventures Pvt Ltd - India
- Bukit Baiduri Energy - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Barasentosa Lestari - Indonesia
- Indogreen Group - Indonesia
- PTC India Limited - India
- European Bulk Services B.V. - Netherlands
- Indika Energy - Indonesia
- Larsen & Toubro Limited - India
- AsiaOL BioFuels Corp., Philippines
- Bulk Trading Sa - Switzerland
- Riau Bara Harum - Indonesia
- Africa Commodities Group - South Africa
- Gujarat Electricity Regulatory Commission - India
- Sarangani Energy Corporation, Philippines
- Energy Link Ltd, New Zealand
- Malabar Cements Ltd - India
- IHS Mccloskey Coal Group - USA
- Orica Mining Services - Indonesia
- TeaM Sual Corporation - Philippines
- Neyveli Lignite Corporation Ltd, - India
- Indo Tambangraya Megah - Indonesia
- The State Trading Corporation of India Ltd
- VISA Power Limited - India
- Singapore Mercantile Exchange
- Kumho Petrochemical, South Korea
- Global Coal Blending Company Limited - Australia
- Kapuas Tunggal Persada - Indonesia
- CIMB Investment Bank - Malaysia
- Tata Chemicals Ltd - India
- GN Power Mariveles Coal Plant, Philippines
- Vijayanagar Sugar Pvt Ltd - India
- SMC Global Power, Philippines
- Salva Resources Pvt Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- Chettinad Cement Corporation Ltd - India
- Independent Power Producers Association of India
- Lanco Infratech Ltd - India
- Coastal Gujarat Power Limited - India
- Mercator Lines Limited - India
- Sical Logistics Limited - India
- Dalmia Cement Bharat India
- Xindia Steels Limited - India
- Grasim Industreis Ltd - India
- Price Waterhouse Coopers - Russia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Indonesian Coal Mining Association
- Aboitiz Power Corporation - Philippines
- Banpu Public Company Limited - Thailand
- Sindya Power Generating Company Private Ltd
- LBH Netherlands Bv - Netherlands
- ICICI Bank Limited - India
- Ind-Barath Power Infra Limited - India
- Bangladesh Power Developement Board
- New Zealand Coal & Carbon
- Holcim Trading Pte Ltd - Singapore
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Central Java Power - Indonesia
- Petron Corporation, Philippines
- Sakthi Sugars Limited - India
- MS Steel International - UAE
- Agrawal Coal Company - India
- Parliament of New Zealand
- Chamber of Mines of South Africa
- Latin American Coal - Colombia
- Globalindo Alam Lestari - Indonesia
- Cement Manufacturers Association - India
- Samtan Co., Ltd - South Korea
- Asmin Koalindo Tuhup - Indonesia
- Minerals Council of Australia
- Gujarat Mineral Development Corp Ltd - India
- Semirara Mining and Power Corporation, Philippines
- Kartika Selabumi Mining - Indonesia
- Deloitte Consulting - India
- Attock Cement Pakistan Limited
- Ministry of Transport, Egypt
- Wilmar Investment Holdings
- San Jose City I Power Corp, Philippines
- Wood Mackenzie - Singapore
|
| |
| |
|
