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.
|
|
Sunday, 16 February 14
SUPRAMAX : THE FAR EAST/SE ASIA CHARTER RATES FIRMED UP
COALspot.com: The freight market had a mixed reaction this week with BDI increased by 1.37 pct and closing at 1106 points on Valentine day. The cape ...
Friday, 14 February 14
US COAL PRODUCTION STILL SLIPPING
COALspot.com – United States the world’s second largest coal producer, produced approximately 17.9 million short tons (mmst) of coal in ...
Thursday, 13 February 14
PANAMAX : NOT ENOUGH REQUIREMENTS TO KEEP THE ATLANTIC MARKET FLOATING - FEARNLEYS AS
Handy
After the Chinese holidays the week started on a positive note. Owners are talking higher rates but chrtrs are still somehow reluctant to mov ...
Thursday, 13 February 14
DRY BULK MARKET FACES BETTER PROSPECTS ON THE BACK OF IMPROVING DEMAND AND SUPPLY BALANCE - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
The dry bulk market has started off the New Year on the "left foot", with the strong finish of 2013 proving to be unsustainable, on the ba ...
Wednesday, 12 February 14
NEW BUILDING ORDERS REACHING NEW POST-CRISIS HEIGHTS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
Ship owners are looking to take advantage of the last few attractive deals in the new building market, before prices start climbing to new highs and ...
|
|
|
Showing 3851 to 3855 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- SMC Global Power, Philippines
- Anglo American - United Kingdom
- MS Steel International - UAE
- Larsen & Toubro Limited - India
- Savvy Resources Ltd - HongKong
- Bayan Resources Tbk. - Indonesia
- Bukit Baiduri Energy - Indonesia
- Indo Tambangraya Megah - Indonesia
- Meralco Power Generation, Philippines
- New Zealand Coal & Carbon
- GN Power Mariveles Coal Plant, Philippines
- Planning Commission, India
- Indian Oil Corporation Limited
- CIMB Investment Bank - Malaysia
- Sical Logistics Limited - India
- Coal and Oil Company - UAE
- Semirara Mining and Power Corporation, Philippines
- IHS Mccloskey Coal Group - USA
- Antam Resourcindo - Indonesia
- Australian Commodity Traders Exchange
- Asia Pacific Energy Resources Ventures Inc, Philippines
- White Energy Company Limited
- Attock Cement Pakistan Limited
- Sakthi Sugars Limited - India
- Port Waratah Coal Services - Australia
- Asmin Koalindo Tuhup - Indonesia
- Posco Energy - South Korea
- Edison Trading Spa - Italy
- Borneo Indobara - Indonesia
- Sree Jayajothi Cements Limited - India
- Chamber of Mines of South Africa
- Thai Mozambique Logistica
- Bahari Cakrawala Sebuku - Indonesia
- Interocean Group of Companies - India
- Independent Power Producers Association of India
- Wilmar Investment Holdings
- Straits Asia Resources Limited - Singapore
- Ind-Barath Power Infra Limited - India
- Eastern Energy - Thailand
- Iligan Light & Power Inc, Philippines
- Orica Australia Pty. Ltd.
- Bharathi Cement Corporation - India
- Bhoruka Overseas - Indonesia
- Cigading International Bulk Terminal - Indonesia
- VISA Power Limited - India
- Orica Mining Services - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Billiton Holdings Pty Ltd - Australia
- Siam City Cement PLC, Thailand
- Bulk Trading Sa - Switzerland
- Vijayanagar Sugar Pvt Ltd - India
- Wood Mackenzie - Singapore
- PetroVietnam Power Coal Import and Supply Company
- LBH Netherlands Bv - Netherlands
- Power Finance Corporation Ltd., India
- Aboitiz Power Corporation - Philippines
- PTC India Limited - India
- Essar Steel Hazira Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- Kalimantan Lumbung Energi - Indonesia
- Gujarat Sidhee Cement - India
- The University of Queensland
- Energy Link Ltd, New Zealand
- Tata Chemicals Ltd - India
- Kaltim Prima Coal - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Aditya Birla Group - India
- Central Electricity Authority - India
- Salva Resources Pvt Ltd - India
- Cement Manufacturers Association - India
- Thiess Contractors Indonesia
- Bhushan Steel Limited - India
- Australian Coal Association
- Standard Chartered Bank - UAE
- Minerals Council of Australia
- Economic Council, Georgia
- Trasteel International SA, Italy
- Gujarat Mineral Development Corp Ltd - India
- Lanco Infratech Ltd - India
- Jindal Steel & Power Ltd - India
- Binh Thuan Hamico - Vietnam
- Africa Commodities Group - South Africa
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Romanian Commodities Exchange
- Global Coal Blending Company Limited - Australia
- IEA Clean Coal Centre - UK
- Mjunction Services Limited - India
- SN Aboitiz Power Inc, Philippines
- London Commodity Brokers - England
- GAC Shipping (India) Pvt Ltd
- Karbindo Abesyapradhi - Indoneisa
- Vizag Seaport Private Limited - India
- Sinarmas Energy and Mining - Indonesia
- ASAPP Information Group - India
- Gujarat Electricity Regulatory Commission - India
- Electricity Authority, New Zealand
- Globalindo Alam Lestari - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Mintek Dendrill Indonesia
- Oldendorff Carriers - Singapore
- International Coal Ventures Pvt Ltd - India
- Renaissance Capital - South Africa
- Mercator Lines Limited - India
- Rio Tinto Coal - Australia
- Coalindo Energy - Indonesia
- Grasim Industreis Ltd - India
- PowerSource Philippines DevCo
- Latin American Coal - Colombia
- Holcim Trading Pte Ltd - Singapore
- Neyveli Lignite Corporation Ltd, - India
- GMR Energy Limited - India
- ICICI Bank Limited - India
- Semirara Mining Corp, Philippines
- Alfred C Toepfer International GmbH - Germany
- Banpu Public Company Limited - Thailand
- Merrill Lynch Commodities Europe
- Parliament of New Zealand
- Altura Mining Limited, Indonesia
- Metalloyd Limited - United Kingdom
- Timah Investasi Mineral - Indoneisa
- Parry Sugars Refinery, India
- Georgia Ports Authority, United States
- Mercuria Energy - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Jaiprakash Power Ventures ltd
- Bhatia International Limited - India
- Kapuas Tunggal Persada - Indonesia
- San Jose City I Power Corp, Philippines
- Indian Energy Exchange, India
- Bukit Makmur.PT - Indonesia
- India Bulls Power Limited - India
- Global Business Power Corporation, Philippines
- TeaM Sual Corporation - Philippines
- Uttam Galva Steels Limited - India
- Siam City Cement - Thailand
- Sojitz Corporation - Japan
- The State Trading Corporation of India Ltd
- Star Paper Mills Limited - India
- Malabar Cements Ltd - India
- Maheswari Brothers Coal Limited - India
- Ceylon Electricity Board - Sri Lanka
- Petrochimia International Co. Ltd.- Taiwan
- Simpson Spence & Young - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Intertek Mineral Services - Indonesia
- Tamil Nadu electricity Board
- Ministry of Finance - Indonesia
- Formosa Plastics Group - Taiwan
- Offshore Bulk Terminal Pte Ltd, Singapore
- McConnell Dowell - Australia
- Pendopo Energi Batubara - Indonesia
- Electricity Generating Authority of Thailand
- Central Java Power - Indonesia
- Energy Development Corp, Philippines
- CNBM International Corporation - China
- Ministry of Transport, Egypt
- Kobexindo Tractors - Indoneisa
- Price Waterhouse Coopers - Russia
- Meenaskhi Energy Private Limited - India
- Samtan Co., Ltd - South Korea
- The Treasury - Australian Government
- Vedanta Resources Plc - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Kartika Selabumi Mining - Indonesia
- Agrawal Coal Company - India
- Madhucon Powers Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- European Bulk Services B.V. - Netherlands
- Toyota Tsusho Corporation, Japan
- Commonwealth Bank - Australia
- Kumho Petrochemical, South Korea
- Global Green Power PLC Corporation, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Sindya Power Generating Company Private Ltd
- Ministry of Mines - Canada
- Indonesian Coal Mining Association
- Medco Energi Mining Internasional
- Kepco SPC Power Corporation, Philippines
- Manunggal Multi Energi - Indonesia
- Ambuja Cements Ltd - India
- Marubeni Corporation - India
- Bangladesh Power Developement Board
- Coastal Gujarat Power Limited - India
- OPG Power Generation Pvt Ltd - India
- Videocon Industries ltd - India
- GVK Power & Infra Limited - India
- Baramulti Group, Indonesia
- South Luzon Thermal Energy Corporation
- Barasentosa Lestari - Indonesia
- Deloitte Consulting - India
- Makarim & Taira - Indonesia
- SMG Consultants - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Eastern Coal Council - USA
- Goldman Sachs - Singapore
- Rashtriya Ispat Nigam Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Riau Bara Harum - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Petron Corporation, Philippines
- PNOC Exploration Corporation - Philippines
- Heidelberg Cement - Germany
- Kideco Jaya Agung - Indonesia
- Therma Luzon, Inc, Philippines
- Chettinad Cement Corporation Ltd - India
- Singapore Mercantile Exchange
- Carbofer General Trading SA - India
- Indika Energy - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Directorate Of Revenue Intelligence - India
- Indogreen Group - Indonesia
- Xindia Steels Limited - India
- Sarangani Energy Corporation, Philippines
- Leighton Contractors Pty Ltd - Australia
- Dalmia Cement Bharat India
- Karaikal Port Pvt Ltd - India
|
| |
| |
|
