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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
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Monday, 21 April 14
DRY BULK MARKET UPS AND - MOST RECENTLY - DOWNS OFFERS NO ROOM FOR RELAXING AMONG DRY BULK SHIP OWNERS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
The dry bulk market's latest demise, with the market retrating once again, since the end of March, has come at a time, when most ship owners ...
Sunday, 20 April 14
FREIGHT RATES END WEEK ON WEAK NOTE - VISTAAR
Wish you all Happy Easter.
The freight market continued to its downwards as BDI was fell 7.187 percent to 930 points week on week.
The ...
Friday, 18 April 14
US WEEKLY COAL PRODUCTION DECLINED BY 1% TO 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, 17 April 14
DRY BULK MARKET ON RETREAT MODE, WHILE NEWBUILDING ORDERING ACTIVITY STALLS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
The dry bulk market has kept on retreating this week, a pattern which emerged since late March. Yesterday the BDI (Baltic Dry Index) ended yet a ...
Wednesday, 16 April 14
INDONESIA'S FEBRUARY 2014 COAL EXPORT VOLUME FELL 2.41%
COALspot.com: Indonesia, the world 4th largest coal producer and the global largest multi grade coal exporter shipped around $1.77* billio ...
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- Georgia Ports Authority, United States
- Parliament of New Zealand
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- Electricity Authority, New Zealand
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- Kepco SPC Power Corporation, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
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- Uttam Galva Steels Limited - India
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- Tamil Nadu electricity Board
- Bulk Trading Sa - Switzerland
- Heidelberg Cement - Germany
- Mjunction Services Limited - India
- Thiess Contractors Indonesia
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- Eastern Energy - Thailand
- Oldendorff Carriers - Singapore
- Kobexindo Tractors - Indoneisa
- Independent Power Producers Association of India
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- Savvy Resources Ltd - HongKong
- Planning Commission, India
- San Jose City I Power Corp, Philippines
- Global Business Power Corporation, Philippines
- London Commodity Brokers - England
- McConnell Dowell - Australia
- ASAPP Information Group - India
- LBH Netherlands Bv - Netherlands
- IHS Mccloskey Coal Group - USA
- The University of Queensland
- GN Power Mariveles Coal Plant, Philippines
- Central Electricity Authority - India
- Port Waratah Coal Services - Australia
- Siam City Cement PLC, Thailand
- Mercuria Energy - Indonesia
- Bhatia International Limited - India
- South Luzon Thermal Energy Corporation
- Aboitiz Power Corporation - Philippines
- OPG Power Generation Pvt Ltd - India
- SMC Global Power, Philippines
- India Bulls Power Limited - India
- Riau Bara Harum - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Altura Mining Limited, Indonesia
- Australian Commodity Traders Exchange
- Sree Jayajothi Cements Limited - India
- Central Java Power - Indonesia
- Vizag Seaport Private Limited - India
- Bukit Makmur.PT - Indonesia
- Maheswari Brothers Coal Limited - India
- Power Finance Corporation Ltd., India
- Iligan Light & Power Inc, Philippines
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- Miang Besar Coal Terminal - Indonesia
- Attock Cement Pakistan Limited
- Bayan Resources Tbk. - Indonesia
- The State Trading Corporation of India Ltd
- Meralco Power Generation, Philippines
- Aditya Birla Group - India
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- Essar Steel Hazira Ltd - India
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- Larsen & Toubro Limited - India
- Ceylon Electricity Board - Sri Lanka
- Formosa Plastics Group - Taiwan
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- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Deloitte Consulting - India
- Coal and Oil Company - UAE
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Petron Corporation, Philippines
- International Coal Ventures Pvt Ltd - India
- Coalindo Energy - Indonesia
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- GAC Shipping (India) Pvt Ltd
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- Indogreen Group - Indonesia
- CIMB Investment Bank - Malaysia
- Mintek Dendrill Indonesia
- Globalindo Alam Lestari - Indonesia
- Coastal Gujarat Power Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- VISA Power Limited - India
- Electricity Generating Authority of Thailand
- GVK Power & Infra Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Parry Sugars Refinery, India
- White Energy Company Limited
- Renaissance Capital - South Africa
- Global Green Power PLC Corporation, Philippines
- Indika Energy - Indonesia
- Australian Coal Association
- Kaltim Prima Coal - Indonesia
- MS Steel International - UAE
- PNOC Exploration Corporation - Philippines
- Energy Development Corp, Philippines
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- Minerals Council of Australia
- Bhushan Steel Limited - India
- Meenaskhi Energy Private Limited - India
- Grasim Industreis Ltd - India
- Kalimantan Lumbung Energi - Indonesia
- European Bulk Services B.V. - Netherlands
- New Zealand Coal & Carbon
- Sindya Power Generating Company Private Ltd
- Sinarmas Energy and Mining - Indonesia
- TeaM Sual Corporation - Philippines
- Billiton Holdings Pty Ltd - Australia
- Intertek Mineral Services - Indonesia
- Ministry of Finance - Indonesia
- Sojitz Corporation - Japan
- Ministry of Mines - Canada
- Malabar Cements Ltd - India
- Jorong Barutama Greston.PT - Indonesia
- Price Waterhouse Coopers - Russia
- Borneo Indobara - Indonesia
- PowerSource Philippines DevCo
- Straits Asia Resources Limited - Singapore
- IEA Clean Coal Centre - UK
- Bhoruka Overseas - Indonesia
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- Offshore Bulk Terminal Pte Ltd, Singapore
- Jaiprakash Power Ventures ltd
- ICICI Bank Limited - India
- Romanian Commodities Exchange
- Directorate General of MIneral and Coal - Indonesia
- The Treasury - Australian Government
- Kumho Petrochemical, South Korea
- Neyveli Lignite Corporation Ltd, - India
- Banpu Public Company Limited - Thailand
- Thai Mozambique Logistica
- Chettinad Cement Corporation Ltd - India
- Carbofer General Trading SA - India
- Simpson Spence & Young - Indonesia
- Chamber of Mines of South Africa
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- Alfred C Toepfer International GmbH - Germany
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- Bangladesh Power Developement Board
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- Vedanta Resources Plc - India
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- Posco Energy - South Korea
- Pipit Mutiara Jaya. PT, Indonesia
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- Gujarat Sidhee Cement - India
- Orica Mining Services - Indonesia
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- Edison Trading Spa - Italy
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- Kohat Cement Company Ltd. - Pakistan
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- Indian Oil Corporation Limited
- Maharashtra Electricity Regulatory Commission - India
- Kideco Jaya Agung - Indonesia
- Trasteel International SA, Italy
- Bukit Baiduri Energy - Indonesia
- Lanco Infratech Ltd - India
- Commonwealth Bank - Australia
- SN Aboitiz Power Inc, Philippines
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- Wood Mackenzie - Singapore
- Goldman Sachs - Singapore
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- Economic Council, Georgia
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- Energy Link Ltd, New Zealand
- Petrochimia International Co. Ltd.- Taiwan
- Indonesian Coal Mining Association
- Eastern Coal Council - USA
- Binh Thuan Hamico - Vietnam
- Antam Resourcindo - Indonesia
- Leighton Contractors Pty Ltd - Australia
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