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, 10 February 14
SUPRAMAX STILL AT AROUND US$ 5K + BB 50K DELIVERY KALIMANTAN FOR A TRIP TO INDIA - CAPT. REDDY
COALspot.com: The BDI was down by 1.71 pct and closed at 1091 points week ended 7 February 2014. The BDI seemed to reach the bottom as the cape inde ...
Saturday, 08 February 14
U.S PRODUCED 84.5 MMMST OF COAL IN JANUARY; 2.05% UP MONTH ON MONTH, EIA SAYS
COALspot.com – United States the world’s second largest coal producer, produced approximately 18.8 million short tons (mmst) of coal in ...
Friday, 07 February 14
DRY BULK MARKET ON ' REVERSE' MODE DUE TO CHINESE HOLIDAYS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
The dry bulk market has kept its uninspiring mood throughout yet another week, with the Baltic Dry Index (BDI) hovering slightly above the 1,000-poi ...
Thursday, 06 February 14
INDONESIA'S BAN ON THE EXPORT OF RAW MINERAL ORES COMES INTO FORCE - INCE & CO
COALspot.com: On 12 January 2014, the ban on the export of unprocessed mineral ores came into effect in Indonesia. This ban enforces the Mining Law ...
Thursday, 06 February 14
THE WORLD LARGEST COAL EXPORTER SHIPPED AROUND 35.90 MMT OF COAL IN DECEMBER 2013
COALspot.com: Indonesia, the world 4th largest coal producer and the Global largest multi grade coal exporter shipped around $2* billion worth ...
|
|
|
Showing 3861 to 3865 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Karbindo Abesyapradhi - Indoneisa
- Mintek Dendrill Indonesia
- Oldendorff Carriers - Singapore
- Eastern Energy - Thailand
- Grasim Industreis Ltd - India
- Tata Chemicals Ltd - India
- PTC India Limited - India
- Timah Investasi Mineral - Indoneisa
- Ministry of Mines - Canada
- Simpson Spence & Young - Indonesia
- ASAPP Information Group - India
- Bukit Baiduri Energy - Indonesia
- Jindal Steel & Power Ltd - India
- Edison Trading Spa - Italy
- European Bulk Services B.V. - Netherlands
- SMC Global Power, Philippines
- Metalloyd Limited - United Kingdom
- Globalindo Alam Lestari - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- GAC Shipping (India) Pvt Ltd
- Krishnapatnam Port Company Ltd. - India
- The State Trading Corporation of India Ltd
- Georgia Ports Authority, United States
- White Energy Company Limited
- Riau Bara Harum - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- London Commodity Brokers - England
- Siam City Cement PLC, Thailand
- Cigading International Bulk Terminal - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Banpu Public Company Limited - Thailand
- Bayan Resources Tbk. - Indonesia
- Deloitte Consulting - India
- AsiaOL BioFuels Corp., Philippines
- Uttam Galva Steels Limited - India
- Ambuja Cements Ltd - India
- Samtan Co., Ltd - South Korea
- SN Aboitiz Power Inc, Philippines
- Aboitiz Power Corporation - Philippines
- Formosa Plastics Group - Taiwan
- Neyveli Lignite Corporation Ltd, - India
- Sarangani Energy Corporation, Philippines
- Planning Commission, India
- Maharashtra Electricity Regulatory Commission - India
- Coastal Gujarat Power Limited - India
- Electricity Authority, New Zealand
- Kobexindo Tractors - Indoneisa
- Global Green Power PLC Corporation, Philippines
- Mjunction Services Limited - India
- Chamber of Mines of South Africa
- Kartika Selabumi Mining - Indonesia
- Karaikal Port Pvt Ltd - India
- GMR Energy Limited - India
- Africa Commodities Group - South Africa
- Thiess Contractors Indonesia
- Bhatia International Limited - India
- Leighton Contractors Pty Ltd - Australia
- Baramulti Group, Indonesia
- Toyota Tsusho Corporation, Japan
- Vizag Seaport Private Limited - India
- Straits Asia Resources Limited - Singapore
- South Luzon Thermal Energy Corporation
- Videocon Industries ltd - India
- Directorate General of MIneral and Coal - Indonesia
- Bukit Makmur.PT - Indonesia
- Altura Mining Limited, Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Port Waratah Coal Services - Australia
- Independent Power Producers Association of India
- IEA Clean Coal Centre - UK
- PowerSource Philippines DevCo
- Energy Link Ltd, New Zealand
- Bhoruka Overseas - Indonesia
- Indonesian Coal Mining Association
- Vedanta Resources Plc - India
- Wilmar Investment Holdings
- CNBM International Corporation - China
- India Bulls Power Limited - India
- Iligan Light & Power Inc, Philippines
- Posco Energy - South Korea
- Sree Jayajothi Cements Limited - India
- Agrawal Coal Company - India
- Savvy Resources Ltd - HongKong
- Makarim & Taira - Indonesia
- Directorate Of Revenue Intelligence - India
- Coalindo Energy - Indonesia
- Intertek Mineral Services - Indonesia
- Global Coal Blending Company Limited - Australia
- LBH Netherlands Bv - Netherlands
- Madhucon Powers Ltd - India
- Tamil Nadu electricity Board
- The University of Queensland
- Goldman Sachs - Singapore
- Miang Besar Coal Terminal - Indonesia
- Lanco Infratech Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- VISA Power Limited - India
- Kohat Cement Company Ltd. - Pakistan
- Mercuria Energy - Indonesia
- Attock Cement Pakistan Limited
- Kumho Petrochemical, South Korea
- Heidelberg Cement - Germany
- Bangladesh Power Developement Board
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Trasteel International SA, Italy
- Global Business Power Corporation, Philippines
- Ministry of Finance - Indonesia
- IHS Mccloskey Coal Group - USA
- Coal and Oil Company - UAE
- Interocean Group of Companies - India
- Marubeni Corporation - India
- Gujarat Electricity Regulatory Commission - India
- Singapore Mercantile Exchange
- Australian Coal Association
- Bukit Asam (Persero) Tbk - Indonesia
- New Zealand Coal & Carbon
- Ceylon Electricity Board - Sri Lanka
- Standard Chartered Bank - UAE
- Indogreen Group - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Kideco Jaya Agung - Indonesia
- Orica Mining Services - Indonesia
- Rio Tinto Coal - Australia
- Minerals Council of Australia
- Ind-Barath Power Infra Limited - India
- Chettinad Cement Corporation Ltd - India
- Therma Luzon, Inc, Philippines
- Star Paper Mills Limited - India
- Antam Resourcindo - Indonesia
- Borneo Indobara - Indonesia
- Jaiprakash Power Ventures ltd
- Salva Resources Pvt Ltd - India
- Medco Energi Mining Internasional
- Pipit Mutiara Jaya. PT, Indonesia
- San Jose City I Power Corp, Philippines
- Power Finance Corporation Ltd., India
- Wood Mackenzie - Singapore
- Binh Thuan Hamico - Vietnam
- PNOC Exploration Corporation - Philippines
- Semirara Mining and Power Corporation, Philippines
- Essar Steel Hazira Ltd - India
- International Coal Ventures Pvt Ltd - India
- Xindia Steels Limited - India
- Energy Development Corp, Philippines
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Eastern Coal Council - USA
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Bharathi Cement Corporation - India
- Malabar Cements Ltd - India
- Renaissance Capital - South Africa
- Indo Tambangraya Megah - Indonesia
- Sojitz Corporation - Japan
- Offshore Bulk Terminal Pte Ltd, Singapore
- Parry Sugars Refinery, India
- Meralco Power Generation, Philippines
- Meenaskhi Energy Private Limited - India
- Central Electricity Authority - India
- TeaM Sual Corporation - Philippines
- Alfred C Toepfer International GmbH - Germany
- Orica Australia Pty. Ltd.
- Pendopo Energi Batubara - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Indian Oil Corporation Limited
- Merrill Lynch Commodities Europe
- Latin American Coal - Colombia
- Central Java Power - Indonesia
- Maheswari Brothers Coal Limited - India
- Manunggal Multi Energi - Indonesia
- Sindya Power Generating Company Private Ltd
- Sical Logistics Limited - India
- Indian Energy Exchange, India
- Jorong Barutama Greston.PT - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Parliament of New Zealand
- Price Waterhouse Coopers - Russia
- Kalimantan Lumbung Energi - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Bulk Trading Sa - Switzerland
- Semirara Mining Corp, Philippines
- Dalmia Cement Bharat India
- GVK Power & Infra Limited - India
- Commonwealth Bank - Australia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Kaltim Prima Coal - Indonesia
- Carbofer General Trading SA - India
- MS Steel International - UAE
- Mercator Lines Limited - India
- The Treasury - Australian Government
- Romanian Commodities Exchange
- Sinarmas Energy and Mining - Indonesia
- Economic Council, Georgia
- Australian Commodity Traders Exchange
- Sakthi Sugars Limited - India
- McConnell Dowell - Australia
- Cement Manufacturers Association - India
- Vijayanagar Sugar Pvt Ltd - India
- Anglo American - United Kingdom
- Billiton Holdings Pty Ltd - Australia
- ICICI Bank Limited - India
- Ministry of Transport, Egypt
- Indika Energy - Indonesia
- Barasentosa Lestari - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Larsen & Toubro Limited - India
- Gujarat Sidhee Cement - India
- Bhushan Steel Limited - India
- Kepco SPC Power Corporation, Philippines
- Petron Corporation, Philippines
- Thai Mozambique Logistica
- Bahari Cakrawala Sebuku - Indonesia
- Electricity Generating Authority of Thailand
- OPG Power Generation Pvt Ltd - India
- Siam City Cement - Thailand
- Aditya Birla Group - India
- CIMB Investment Bank - Malaysia
- SMG Consultants - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
|
| |
| |
|
