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, 14 April 14
CHINA'S MEASURES TO STIMULATE ECONOMY'S GROWTH COULD OFFER ROOM FOR STABILITY IN SHIPPING MARKETS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
Since the outbreak of the 2008-crisis, the shipping industry, in most of its aspects, i.e. dry bulk and tanker markets alike, has been dealing w ...
Sunday, 13 April 14
INDONESIA TO INDIA FREIGHT MARKET DECLINE CONTINUES
COALspot.com: The freight market continued to drop this week and BDI almost touched 1000 points. BDI closed at 1002 points fell 16.85 pct week o ...
Saturday, 12 April 14
HOW DO YOU CALCULATE LOSS OF EARNINGS FOLLOWING A COLLISION? - INCE & CO
KNOWLEDGE TO ELEVATE
The recent case of Astipalaia vs Hanjin Shenzhen [2014] EWHC 120 (Admlty) has revisited the existing case law on asses ...
Friday, 11 April 14
US COAL PRODUCTION IN MARCH INCREASED 9.69% TO 82.6 MMST MONTH ON MONTH
COALspot.com – United States the world's second largest coal producer, produced approximately 19.10 million short tons (mmst) of coal ...
Thursday, 10 April 14
DRY BULK MARKET IS RISING CLAIMS BIMCO - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
Despite the recent fall of the Baltic Dry Index (BDI), when one compares the first quarter of 2014, to similar quarters of the recent past, it i ...
|
|
|
Showing 3756 to 3760 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Rashtriya Ispat Nigam Limited - India
- Mjunction Services Limited - India
- Gujarat Sidhee Cement - India
- Makarim & Taira - Indonesia
- Straits Asia Resources Limited - Singapore
- Indonesian Coal Mining Association
- Bhoruka Overseas - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Anglo American - United Kingdom
- Vijayanagar Sugar Pvt Ltd - India
- Bukit Makmur.PT - Indonesia
- New Zealand Coal & Carbon
- SN Aboitiz Power Inc, Philippines
- Neyveli Lignite Corporation Ltd, - India
- Bangladesh Power Developement Board
- Kalimantan Lumbung Energi - Indonesia
- TeaM Sual Corporation - Philippines
- Economic Council, Georgia
- OPG Power Generation Pvt Ltd - India
- Independent Power Producers Association of India
- Meenaskhi Energy Private Limited - India
- Australian Commodity Traders Exchange
- Krishnapatnam Port Company Ltd. - India
- Larsen & Toubro Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Singapore Mercantile Exchange
- GAC Shipping (India) Pvt Ltd
- PTC India Limited - India
- Directorate Of Revenue Intelligence - India
- Indika Energy - Indonesia
- Global Coal Blending Company Limited - Australia
- Tata Chemicals Ltd - India
- Aboitiz Power Corporation - Philippines
- Formosa Plastics Group - Taiwan
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- South Luzon Thermal Energy Corporation
- PowerSource Philippines DevCo
- CIMB Investment Bank - Malaysia
- Medco Energi Mining Internasional
- Wilmar Investment Holdings
- AsiaOL BioFuels Corp., Philippines
- Siam City Cement - Thailand
- SMC Global Power, Philippines
- Billiton Holdings Pty Ltd - Australia
- International Coal Ventures Pvt Ltd - India
- Chamber of Mines of South Africa
- Miang Besar Coal Terminal - Indonesia
- Oldendorff Carriers - Singapore
- Kartika Selabumi Mining - Indonesia
- Bhushan Steel Limited - India
- Eastern Coal Council - USA
- McConnell Dowell - Australia
- Simpson Spence & Young - Indonesia
- Therma Luzon, Inc, Philippines
- Rio Tinto Coal - Australia
- Antam Resourcindo - Indonesia
- Semirara Mining and Power Corporation, Philippines
- ASAPP Information Group - India
- Coastal Gujarat Power Limited - India
- Vedanta Resources Plc - India
- Mercuria Energy - Indonesia
- Bhatia International Limited - India
- PNOC Exploration Corporation - Philippines
- Planning Commission, India
- Pipit Mutiara Jaya. PT, Indonesia
- Indian Oil Corporation Limited
- The Treasury - Australian Government
- Price Waterhouse Coopers - Russia
- Kohat Cement Company Ltd. - Pakistan
- Siam City Cement PLC, Thailand
- Petrochimia International Co. Ltd.- Taiwan
- Global Green Power PLC Corporation, Philippines
- Georgia Ports Authority, United States
- Timah Investasi Mineral - Indoneisa
- Mercator Lines Limited - India
- Thiess Contractors Indonesia
- Manunggal Multi Energi - Indonesia
- Goldman Sachs - Singapore
- Africa Commodities Group - South Africa
- GN Power Mariveles Coal Plant, Philippines
- Samtan Co., Ltd - South Korea
- Maheswari Brothers Coal Limited - India
- Intertek Mineral Services - Indonesia
- Agrawal Coal Company - India
- Petron Corporation, Philippines
- Savvy Resources Ltd - HongKong
- Bulk Trading Sa - Switzerland
- Australian Coal Association
- Offshore Bulk Terminal Pte Ltd, Singapore
- The University of Queensland
- Thai Mozambique Logistica
- Trasteel International SA, Italy
- Merrill Lynch Commodities Europe
- Kaltim Prima Coal - Indonesia
- Interocean Group of Companies - India
- Parliament of New Zealand
- Karbindo Abesyapradhi - Indoneisa
- Indogreen Group - Indonesia
- Latin American Coal - Colombia
- Eastern Energy - Thailand
- Ind-Barath Power Infra Limited - India
- Baramulti Group, Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Bukit Asam (Persero) Tbk - Indonesia
- Star Paper Mills Limited - India
- Kumho Petrochemical, South Korea
- Sarangani Energy Corporation, Philippines
- Bharathi Cement Corporation - India
- Global Business Power Corporation, Philippines
- The State Trading Corporation of India Ltd
- Globalindo Alam Lestari - Indonesia
- Videocon Industries ltd - India
- Salva Resources Pvt Ltd - India
- White Energy Company Limited
- SMG Consultants - Indonesia
- London Commodity Brokers - England
- Orica Mining Services - Indonesia
- Central Electricity Authority - India
- Electricity Generating Authority of Thailand
- Xindia Steels Limited - India
- Ministry of Mines - Canada
- Renaissance Capital - South Africa
- India Bulls Power Limited - India
- Pendopo Energi Batubara - Indonesia
- Meralco Power Generation, Philippines
- Sinarmas Energy and Mining - Indonesia
- Sical Logistics Limited - India
- PetroVietnam Power Coal Import and Supply Company
- Minerals Council of Australia
- Madhucon Powers Ltd - India
- Indian Energy Exchange, India
- GMR Energy Limited - India
- Banpu Public Company Limited - Thailand
- Lanco Infratech Ltd - India
- Directorate General of MIneral and Coal - Indonesia
- Orica Australia Pty. Ltd.
- Wood Mackenzie - Singapore
- Jindal Steel & Power Ltd - India
- MS Steel International - UAE
- Bayan Resources Tbk. - Indonesia
- LBH Netherlands Bv - Netherlands
- Grasim Industreis Ltd - India
- IHS Mccloskey Coal Group - USA
- Uttam Galva Steels Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Jaiprakash Power Ventures ltd
- GVK Power & Infra Limited - India
- Binh Thuan Hamico - Vietnam
- IEA Clean Coal Centre - UK
- Edison Trading Spa - Italy
- Barasentosa Lestari - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Mintek Dendrill Indonesia
- Karaikal Port Pvt Ltd - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- VISA Power Limited - India
- Iligan Light & Power Inc, Philippines
- Maharashtra Electricity Regulatory Commission - India
- ICICI Bank Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Sindya Power Generating Company Private Ltd
- Toyota Tsusho Corporation, Japan
- Electricity Authority, New Zealand
- Altura Mining Limited, Indonesia
- Indo Tambangraya Megah - Indonesia
- Cement Manufacturers Association - India
- Essar Steel Hazira Ltd - India
- Central Java Power - Indonesia
- Commonwealth Bank - Australia
- Bahari Cakrawala Sebuku - Indonesia
- Parry Sugars Refinery, India
- Energy Link Ltd, New Zealand
- Ministry of Transport, Egypt
- Deloitte Consulting - India
- Borneo Indobara - Indonesia
- Carbofer General Trading SA - India
- Tamil Nadu electricity Board
- Posco Energy - South Korea
- Bukit Baiduri Energy - Indonesia
- Ministry of Finance - Indonesia
- Kepco SPC Power Corporation, Philippines
- Cigading International Bulk Terminal - Indonesia
- Kobexindo Tractors - Indoneisa
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Semirara Mining Corp, Philippines
- Dalmia Cement Bharat India
- Standard Chartered Bank - UAE
- Aditya Birla Group - India
- Port Waratah Coal Services - Australia
- Attock Cement Pakistan Limited
- CNBM International Corporation - China
- Sojitz Corporation - Japan
- Romanian Commodities Exchange
- Leighton Contractors Pty Ltd - Australia
- European Bulk Services B.V. - Netherlands
- San Jose City I Power Corp, Philippines
- Malabar Cements Ltd - India
- Holcim Trading Pte Ltd - Singapore
- Coal and Oil Company - UAE
- Heidelberg Cement - Germany
- Energy Development Corp, Philippines
- Marubeni Corporation - India
- Sakthi Sugars Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Ambuja Cements Ltd - India
- Vizag Seaport Private Limited - India
- Power Finance Corporation Ltd., India
- Chettinad Cement Corporation Ltd - India
- Gujarat Electricity Regulatory Commission - India
- Metalloyd Limited - United Kingdom
- Sree Jayajothi Cements Limited - India
- Coalindo Energy - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Riau Bara Harum - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Kapuas Tunggal Persada - Indonesia
- Kideco Jaya Agung - Indonesia
|
| |
| |
|
