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.
|
|
Tuesday, 04 March 14
HIGHER PRICES AND STEADY FREIGHT RATES LEAD SHIP OWNERS TO TEMPORARILY HALT SECOND HAND VESSEL PURCHASES - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
As the dry bulk market has kept on improving, but at a very slow rate, ship owners have elected to take a step back from the flurry of the S&P m ...
Monday, 03 March 14
SUB-BIT INDONESIA COAL SWAP (FOB) FOR AVERAGE Q115 CLOSED AT $60.28, $ 1.70 HIGHER THAN 2Q14
COALspot.com – Indonesia, the world’s largest exporter of the thermal coal's swaps for delivery April - June 2014 slightly corrected do ...
Monday, 03 March 14
API 8 CFR SOUTH CHINA SWAPS: Q4' 2014 DELIVERY CLOSED US$ 1.40 HIGHER COMPARED TO Q2' 2014 DELIVERY
COALspot.com: API 8 CFR South China Coal swaps for average Q2 14 deliveries lost 1.90 percent month on month and closed at US$ 76.27 per mt as on Fr ...
Monday, 03 March 14
COSTS LIABILITY PASSING DOWN A CHARTERPARTY CHAIN - SKULD
KNOWLEDGE TO ELEVATE
Provided that charterparties are on back to back terms, and the claim is successful, liability for costs incurred shoul ...
Sunday, 02 March 14
THE FREIGHT MARKET WAS STEADY TO FIRM THIS PAST WEEK - CAPT. REDDY
COALspot.com: The freight market was steady to firm this past week. The BDI was up 7.06 pct and closed at 1258 points and the cape index was also fi ...
|
|
|
Showing 3821 to 3825 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Singapore Mercantile Exchange
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Global Coal Blending Company Limited - Australia
- MS Steel International - UAE
- Mercator Lines Limited - India
- Larsen & Toubro Limited - India
- Makarim & Taira - Indonesia
- Thiess Contractors Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- SN Aboitiz Power Inc, Philippines
- Wood Mackenzie - Singapore
- Ceylon Electricity Board - Sri Lanka
- White Energy Company Limited
- Latin American Coal - Colombia
- Bharathi Cement Corporation - India
- Bayan Resources Tbk. - Indonesia
- San Jose City I Power Corp, Philippines
- GN Power Mariveles Coal Plant, Philippines
- Maheswari Brothers Coal Limited - India
- Independent Power Producers Association of India
- Aboitiz Power Corporation - Philippines
- Power Finance Corporation Ltd., India
- Indian Oil Corporation Limited
- Rio Tinto Coal - Australia
- Kumho Petrochemical, South Korea
- Deloitte Consulting - India
- Orica Mining Services - Indonesia
- Kepco SPC Power Corporation, Philippines
- Madhucon Powers Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- Pendopo Energi Batubara - Indonesia
- Aditya Birla Group - India
- Intertek Mineral Services - Indonesia
- Ministry of Finance - Indonesia
- Coastal Gujarat Power Limited - India
- Africa Commodities Group - South Africa
- Therma Luzon, Inc, Philippines
- Iligan Light & Power Inc, Philippines
- Bukit Baiduri Energy - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Karbindo Abesyapradhi - Indoneisa
- Barasentosa Lestari - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Lanco Infratech Ltd - India
- Bangladesh Power Developement Board
- Ministry of Transport, Egypt
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Directorate Of Revenue Intelligence - India
- Australian Commodity Traders Exchange
- Edison Trading Spa - Italy
- Gujarat Electricity Regulatory Commission - India
- Essar Steel Hazira Ltd - India
- European Bulk Services B.V. - Netherlands
- IHS Mccloskey Coal Group - USA
- Sarangani Energy Corporation, Philippines
- Timah Investasi Mineral - Indoneisa
- Billiton Holdings Pty Ltd - Australia
- Samtan Co., Ltd - South Korea
- Australian Coal Association
- PetroVietnam Power Coal Import and Supply Company
- SMC Global Power, Philippines
- Chettinad Cement Corporation Ltd - India
- ASAPP Information Group - India
- Manunggal Multi Energi - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Electricity Generating Authority of Thailand
- Dalmia Cement Bharat India
- Asmin Koalindo Tuhup - Indonesia
- Sical Logistics Limited - India
- Kideco Jaya Agung - Indonesia
- Xindia Steels Limited - India
- Kapuas Tunggal Persada - Indonesia
- Bhushan Steel Limited - India
- India Bulls Power Limited - India
- Carbofer General Trading SA - India
- Interocean Group of Companies - India
- Ministry of Mines - Canada
- Energy Link Ltd, New Zealand
- Planning Commission, India
- Maharashtra Electricity Regulatory Commission - India
- Goldman Sachs - Singapore
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Toyota Tsusho Corporation, Japan
- International Coal Ventures Pvt Ltd - India
- Siam City Cement PLC, Thailand
- SMG Consultants - Indonesia
- Star Paper Mills Limited - India
- PTC India Limited - India
- Electricity Authority, New Zealand
- Chamber of Mines of South Africa
- Sinarmas Energy and Mining - Indonesia
- Eastern Energy - Thailand
- Directorate General of MIneral and Coal - Indonesia
- Vizag Seaport Private Limited - India
- Orica Australia Pty. Ltd.
- Indonesian Coal Mining Association
- Standard Chartered Bank - UAE
- PowerSource Philippines DevCo
- Oldendorff Carriers - Singapore
- Global Business Power Corporation, Philippines
- Grasim Industreis Ltd - India
- Agrawal Coal Company - India
- Petron Corporation, Philippines
- Indika Energy - Indonesia
- Videocon Industries ltd - India
- Bukit Asam (Persero) Tbk - Indonesia
- IEA Clean Coal Centre - UK
- Altura Mining Limited, Indonesia
- GMR Energy Limited - India
- Central Java Power - Indonesia
- Antam Resourcindo - Indonesia
- Economic Council, Georgia
- Borneo Indobara - Indonesia
- Georgia Ports Authority, United States
- Uttam Galva Steels Limited - India
- Kartika Selabumi Mining - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Holcim Trading Pte Ltd - Singapore
- Coalindo Energy - Indonesia
- Baramulti Group, Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Meralco Power Generation, Philippines
- South Luzon Thermal Energy Corporation
- Meenaskhi Energy Private Limited - India
- London Commodity Brokers - England
- Anglo American - United Kingdom
- Thai Mozambique Logistica
- Sindya Power Generating Company Private Ltd
- Binh Thuan Hamico - Vietnam
- Bulk Trading Sa - Switzerland
- Metalloyd Limited - United Kingdom
- Kaltim Prima Coal - Indonesia
- Eastern Coal Council - USA
- LBH Netherlands Bv - Netherlands
- Parliament of New Zealand
- Marubeni Corporation - India
- Renaissance Capital - South Africa
- Offshore Bulk Terminal Pte Ltd, Singapore
- Salva Resources Pvt Ltd - India
- Ind-Barath Power Infra Limited - India
- Minerals Council of Australia
- Siam City Cement - Thailand
- Trasteel International SA, Italy
- Merrill Lynch Commodities Europe
- Sree Jayajothi Cements Limited - India
- Banpu Public Company Limited - Thailand
- Port Waratah Coal Services - Australia
- Posco Energy - South Korea
- Simpson Spence & Young - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- The State Trading Corporation of India Ltd
- Vijayanagar Sugar Pvt Ltd - India
- Gujarat Sidhee Cement - India
- The Treasury - Australian Government
- Straits Asia Resources Limited - Singapore
- Ambuja Cements Ltd - India
- Central Electricity Authority - India
- Jorong Barutama Greston.PT - Indonesia
- Romanian Commodities Exchange
- Jindal Steel & Power Ltd - India
- Heidelberg Cement - Germany
- Neyveli Lignite Corporation Ltd, - India
- Jaiprakash Power Ventures ltd
- Commonwealth Bank - Australia
- Mintek Dendrill Indonesia
- Tata Chemicals Ltd - India
- OPG Power Generation Pvt Ltd - India
- Semirara Mining Corp, Philippines
- Mercuria Energy - Indonesia
- CNBM International Corporation - China
- GVK Power & Infra Limited - India
- Mjunction Services Limited - India
- TeaM Sual Corporation - Philippines
- PNOC Exploration Corporation - Philippines
- Vedanta Resources Plc - India
- Sakthi Sugars Limited - India
- Krishnapatnam Port Company Ltd. - India
- Medco Energi Mining Internasional
- Attock Cement Pakistan Limited
- Savvy Resources Ltd - HongKong
- Karaikal Port Pvt Ltd - India
- ICICI Bank Limited - India
- New Zealand Coal & Carbon
- Wilmar Investment Holdings
- Formosa Plastics Group - Taiwan
- Bhatia International Limited - India
- Semirara Mining and Power Corporation, Philippines
- McConnell Dowell - Australia
- Price Waterhouse Coopers - Russia
- Leighton Contractors Pty Ltd - Australia
- Globalindo Alam Lestari - Indonesia
- Indo Tambangraya Megah - Indonesia
- Sojitz Corporation - Japan
- GAC Shipping (India) Pvt Ltd
- Alfred C Toepfer International GmbH - Germany
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Indogreen Group - Indonesia
- Cement Manufacturers Association - India
- Energy Development Corp, Philippines
- The University of Queensland
- Malabar Cements Ltd - India
- Indian Energy Exchange, India
- Tamil Nadu electricity Board
- Bukit Makmur.PT - Indonesia
- Cigading International Bulk Terminal - Indonesia
- CIMB Investment Bank - Malaysia
- VISA Power Limited - India
- Kobexindo Tractors - Indoneisa
- AsiaOL BioFuels Corp., Philippines
- Bhoruka Overseas - Indonesia
- Parry Sugars Refinery, India
- Riau Bara Harum - Indonesia
- Global Green Power PLC Corporation, Philippines
- Coal and Oil Company - UAE
|
| |
| |
|
