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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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Friday, 28 February 14
PTBA TO INCREASE ITS COAL TERMINAL'S LOADING CAPACITY TO 25 MILLION TONS PER ANNUM BY JULY 2014
COALspot.com: PT. Bukit Asam (PTBA), the Indonesian government owned coal miner operates several coal mining units in Sumatera as well as in Kaliman ...
Friday, 28 February 14
U.S PRODUCED 1.9% LESS COAL WEEK ON WEEK
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Friday, 28 February 14
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Thursday, 27 February 14
PANAMAX : MARKET CONTINUED TO DECLINE IN THE ATLANTIC
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The Atlantic handy/supra market experienced a downward trend this week but not a dramatic one. TA rates are down around USD 800 w-o-w lead b ...
Thursday, 27 February 14
SHIPPING LOANS WORTH $5 BILLION HAVE CHANGED HANDS OVER THE PAST YEAR, AS FUNDS INVEST IN SHIPPING - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
Funds investing in shipping has been the "talk of the town" over the past couple of years, as institutional investors, private equity and ...
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- Australian Commodity Traders Exchange
- Eastern Energy - Thailand
- Commonwealth Bank - Australia
- Coal and Oil Company - UAE
- Neyveli Lignite Corporation Ltd, - India
- Indogreen Group - Indonesia
- Georgia Ports Authority, United States
- Semirara Mining Corp, Philippines
- Ministry of Finance - Indonesia
- CIMB Investment Bank - Malaysia
- Coalindo Energy - Indonesia
- Bhoruka Overseas - Indonesia
- Latin American Coal - Colombia
- Xindia Steels Limited - India
- Kaltim Prima Coal - Indonesia
- Kideco Jaya Agung - Indonesia
- Bangladesh Power Developement Board
- AsiaOL BioFuels Corp., Philippines
- Eastern Coal Council - USA
- New Zealand Coal & Carbon
- Meenaskhi Energy Private Limited - India
- LBH Netherlands Bv - Netherlands
- Electricity Authority, New Zealand
- The University of Queensland
- Vijayanagar Sugar Pvt Ltd - India
- Oldendorff Carriers - Singapore
- Price Waterhouse Coopers - Russia
- Sical Logistics Limited - India
- Global Business Power Corporation, Philippines
- Interocean Group of Companies - India
- TeaM Sual Corporation - Philippines
- IHS Mccloskey Coal Group - USA
- Vizag Seaport Private Limited - India
- Rashtriya Ispat Nigam Limited - India
- CNBM International Corporation - China
- Bulk Trading Sa - Switzerland
- Siam City Cement - Thailand
- Dalmia Cement Bharat India
- Gujarat Electricity Regulatory Commission - India
- Agrawal Coal Company - India
- Romanian Commodities Exchange
- Ministry of Transport, Egypt
- Chamber of Mines of South Africa
- Sree Jayajothi Cements Limited - India
- The State Trading Corporation of India Ltd
- Baramulti Group, Indonesia
- Kobexindo Tractors - Indoneisa
- Heidelberg Cement - Germany
- PowerSource Philippines DevCo
- Deloitte Consulting - India
- Marubeni Corporation - India
- Straits Asia Resources Limited - Singapore
- Global Green Power PLC Corporation, Philippines
- McConnell Dowell - Australia
- Energy Link Ltd, New Zealand
- Riau Bara Harum - Indonesia
- Toyota Tsusho Corporation, Japan
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Sakthi Sugars Limited - India
- Kapuas Tunggal Persada - Indonesia
- Global Coal Blending Company Limited - Australia
- GN Power Mariveles Coal Plant, Philippines
- Anglo American - United Kingdom
- Kohat Cement Company Ltd. - Pakistan
- Orica Australia Pty. Ltd.
- Economic Council, Georgia
- OPG Power Generation Pvt Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- Vedanta Resources Plc - India
- PetroVietnam Power Coal Import and Supply Company
- Iligan Light & Power Inc, Philippines
- White Energy Company Limited
- PTC India Limited - India
- Salva Resources Pvt Ltd - India
- Aditya Birla Group - India
- Antam Resourcindo - Indonesia
- Power Finance Corporation Ltd., India
- SMG Consultants - Indonesia
- Planning Commission, India
- VISA Power Limited - India
- Malabar Cements Ltd - India
- European Bulk Services B.V. - Netherlands
- SMC Global Power, Philippines
- Bhushan Steel Limited - India
- Singapore Mercantile Exchange
- Karaikal Port Pvt Ltd - India
- Port Waratah Coal Services - Australia
- Wood Mackenzie - Singapore
- Tata Chemicals Ltd - India
- Globalindo Alam Lestari - Indonesia
- Attock Cement Pakistan Limited
- Borneo Indobara - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Sarangani Energy Corporation, Philippines
- Africa Commodities Group - South Africa
- Coastal Gujarat Power Limited - India
- Mercuria Energy - Indonesia
- The Treasury - Australian Government
- Central Java Power - Indonesia
- Australian Coal Association
- Wilmar Investment Holdings
- Bukit Makmur.PT - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Minerals Council of Australia
- IEA Clean Coal Centre - UK
- Bank of Tokyo Mitsubishi UFJ Ltd
- Gujarat Sidhee Cement - India
- Bukit Asam (Persero) Tbk - Indonesia
- Indika Energy - Indonesia
- Timah Investasi Mineral - Indoneisa
- Standard Chartered Bank - UAE
- Manunggal Multi Energi - Indonesia
- Indo Tambangraya Megah - Indonesia
- Orica Mining Services - Indonesia
- Kumho Petrochemical, South Korea
- South Luzon Thermal Energy Corporation
- Carbofer General Trading SA - India
- Altura Mining Limited, Indonesia
- GMR Energy Limited - India
- Semirara Mining and Power Corporation, Philippines
- Madhucon Powers Ltd - India
- Formosa Plastics Group - Taiwan
- Barasentosa Lestari - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Chettinad Cement Corporation Ltd - India
- Jindal Steel & Power Ltd - India
- Larsen & Toubro Limited - India
- Bhatia International Limited - India
- Meralco Power Generation, Philippines
- Essar Steel Hazira Ltd - India
- Kartika Selabumi Mining - Indonesia
- Energy Development Corp, Philippines
- Ambuja Cements Ltd - India
- Ind-Barath Power Infra Limited - India
- Thiess Contractors Indonesia
- Petron Corporation, Philippines
- Lanco Infratech Ltd - India
- Bharathi Cement Corporation - India
- Savvy Resources Ltd - HongKong
- Asmin Koalindo Tuhup - Indonesia
- Tamil Nadu electricity Board
- Siam City Cement PLC, Thailand
- Directorate Of Revenue Intelligence - India
- Rio Tinto Coal - Australia
- London Commodity Brokers - England
- Cement Manufacturers Association - India
- India Bulls Power Limited - India
- Miang Besar Coal Terminal - Indonesia
- Bukit Baiduri Energy - Indonesia
- Samtan Co., Ltd - South Korea
- MS Steel International - UAE
- Pendopo Energi Batubara - Indonesia
- Posco Energy - South Korea
- Binh Thuan Hamico - Vietnam
- Mintek Dendrill Indonesia
- Kepco SPC Power Corporation, Philippines
- Intertek Mineral Services - Indonesia
- Sindya Power Generating Company Private Ltd
- Thai Mozambique Logistica
- Parry Sugars Refinery, India
- TNB Fuel Sdn Bhd - Malaysia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Central Electricity Authority - India
- Jorong Barutama Greston.PT - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Mercator Lines Limited - India
- Merrill Lynch Commodities Europe
- GVK Power & Infra Limited - India
- Goldman Sachs - Singapore
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Independent Power Producers Association of India
- Petrochimia International Co. Ltd.- Taiwan
- Aboitiz Power Corporation - Philippines
- Edison Trading Spa - Italy
- Metalloyd Limited - United Kingdom
- International Coal Ventures Pvt Ltd - India
- Sinarmas Energy and Mining - Indonesia
- GAC Shipping (India) Pvt Ltd
- Alfred C Toepfer International GmbH - Germany
- San Jose City I Power Corp, Philippines
- ASAPP Information Group - India
- Videocon Industries ltd - India
- Electricity Generating Authority of Thailand
- Ceylon Electricity Board - Sri Lanka
- Directorate General of MIneral and Coal - Indonesia
- Renaissance Capital - South Africa
- Indian Oil Corporation Limited
- Medco Energi Mining Internasional
- Maheswari Brothers Coal Limited - India
- Krishnapatnam Port Company Ltd. - India
- Ministry of Mines - Canada
- Mjunction Services Limited - India
- Indian Energy Exchange, India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Holcim Trading Pte Ltd - Singapore
- Sojitz Corporation - Japan
- Uttam Galva Steels Limited - India
- Jaiprakash Power Ventures ltd
- PNOC Exploration Corporation - Philippines
- Simpson Spence & Young - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Bayan Resources Tbk. - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Trasteel International SA, Italy
- Therma Luzon, Inc, Philippines
- Cigading International Bulk Terminal - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Indonesian Coal Mining Association
- ICICI Bank Limited - India
- Star Paper Mills Limited - India
- Parliament of New Zealand
- Billiton Holdings Pty Ltd - Australia
- SN Aboitiz Power Inc, Philippines
- Grasim Industreis Ltd - India
- Banpu Public Company Limited - Thailand
- Pipit Mutiara Jaya. PT, Indonesia
- Makarim & Taira - Indonesia
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