We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
Thursday, 30 October 14
DOES A LOU ARBITRATION AGREEMENT FOR THE UNDERLYING CARGO CLAIM COMPLETELY REPLACE THE BILL OF LADING ARBITRATION CLAUSE? - INCE &CO
 KNOWLEDGE TO ELEVATE
In the context of cargo claims brought under four bills of lading, the Commercial Court has recently considered whether an arbitration provision in a Club Letter of Undertaking (LOU) had entirely replaced the arbitration agreement in the bills of lading. If it had not, the Cargo Interests may have been faced with a time bar argument in respect of some of their claims. Luckily for them, the Court found in their favour.
The background facts
The dispute arose out of a shipment of a cargo of bagged rice from Thailand to Nigeria pursuant to four Congenbill 1994 bills of lading.
There was a head time charterparty, a sub-trip time charterparty and a sub-sub voyage charterparty. The first two charterparties provided for LMAA arbitration in London, with the LMAA Small Claims Procedure (SCP) to apply to claims of less than US$100,000. The sub-sub voyage charterparty provided for Singapore arbitration. All three charterparties were governed by English law. Each bill of lading incorporated the “Law and Arbitration Clause” of the “Charterparty, dated as overleaf”, but no charterparty was actually identified (by date).
Cargo damage was alleged upon discharge, and the Cargo Interests sought security from the Owners for their claims under the bills of lading. The Owners’ P&I Club issued a LOU which, among other things, confirmed the Owners’ agreement that the Cargo Interests’ claims (to which the LOU would respond if they succeeded) would be referred to LMAA arbitration in London before three arbitrators and that English Law would apply (including the Hague-Visby Rules and the English Carriage of Goods By Sea Act 1992). The Cargo Interests commenced arbitration under the standard LMAA Terms, but no references were made under the SCP.
The Owners argued that the commencement of arbitration was invalid because the Cargo Interests should have commenced four separate arbitrations (not one) of which some should have been under the SCP (before a sole arbitrator) because the claim values under some of the bills of lading were apparently less than US$100,000; and so the arbitrators had no jurisdiction to decide the claims in this arbitration (and the Cargo Interests were time-barred from commencing new arbitration proceedings to correct this). The Owners argued this on the basis that (1) the head time charterparty’s law and jurisdiction provisions had been incorporated into the bills of lading; and (2) its SCP provision for claims for less than US$100,000 survived the LOU – which amended the bills of lading’s arbitration provision in some limited respects but left the SCP provision intact.
The Cargo Interests argued that the LOU’s arbitration provision had replaced the bills of ladings’ arbitration provision entirely.
The Tribunal’s decision
The majority arbitrators held that they had jurisdiction to hear a bill of lading claim for more than US$100,000, but (as the Owners were arguing) no jurisdiction to hear a claim for less than this sum. That said, they could not say which claims they could hear because the Cargo Interests had not set out the claim amount under each bill of lading.
The minority arbitrator held that the Tribunal had jurisdiction to decide all of the bill of lading claims (as the Cargo Interests were arguing).
The Commercial Court decision
The Court agreed with the Cargo Interests that the LOU’s arbitration provision had replaced the bills of lading’s arbitration provision entirely such that the arbitration had been validly commenced. The Court’s reasoning was as follows:
There was no reason in principle why this should not be the case, and the authorities relied upon by the Owners to the contrary did not directly apply here. The LOU’s arbitration provision operated comfortably as a new and free-standing agreement which was comprehensive – dealing with the (London) seat of the arbitration; the (LMAA Terms) arbitration procedure; the number of arbitrators (three, appointed in the usual way); the time for appointing the second arbitrator (14 days); and the law governing the dispute (English law, including the Hague-Visby Rules and the Carriage of Goods by Sea Act 1992).
This was also the natural meaning of the LOU’s arbitration provision.
With this in mind, there was no apparent reason why the parties should not have intended this. On the contrary, there were good reasons why they should:
the arbitration agreement would in this way be found in one document (the LOU) rather than two (the LOU and the bill of lading/head charterparty clause);
the parties knew that some of the modest claims would be less than US$100,000 and would therefore have mentioned the SCP in the LOU if they intended it to apply;
it made no sense for them to have been agreeing to four arbitrations under different LMAA procedures; and
it was in fact arguable that the voyage charterparty’s Singapore arbitration provision actually applied instead of the head charterparty’s London/SCP arbitration provision – as to which any dispute was removed if the LOU’s arbitration provision replaced it entirely.
Comment
The Court would seem to have made a common-sense decision giving effect to the words used in the LOU and, apparently, to what the parties would have intended.
Whilst not relevant to the decision reached, the Court’s comment in passing that the Owners “may well be right”, subject to some scope for disagreement, that the head time charterparty’s arbitration provision would initially have been incorporated into the bills of lading (rather than the voyage charterparty’s arbitration provision) might be questioned in future cases; there is both textbook authority and case law to the effect that if there is a sub-voyage charterparty, the arbitration provision in that sub-charterparty (not that of the head time charterparty) is incorporated into the bill of lading, consistent with the bill of lading’s phrase “freight payable as per cp dated ”.
Source: INCE &Co / Hellenic Shipping News
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Thursday, 25 January 24
THE RED SEA ESCALATION IMPLICATIONS ON GLOBAL SEABORNE TRADE - MARIA BERTZELETOU
In recent days, discussions have intensified about the potential impact on the seaborne trade and ton-miles due to the evolving dynamics of market ...
Thursday, 25 January 24
RED SEA SHIPPING DISRUPTIONS KEEP GEOPOLITICAL PREMIUM FOR COMMODITIES - FITCH RATINGS
Shipping disruptions and re-routing away from the Red Sea will maintain the geopolitical premium in the main commodity markets, including for oil a ...
Friday, 19 January 24
INDONESIA TARGETS 710 MLN METRIC TONS COAL OUTPUT IN 2024 AFTER RECORD 2023 - REUTERS
Indonesia, a major thermal coal exporter, aims to produce 710 million metric tons of coal in 2024, its mining minister said on Monday, after postin ...
Friday, 19 January 24
DRUMMOND COLOMBIA COAL OUTPUT ROSE 7.1% IN 2023 - REUTERS
Coal production from miner Drummond’s Colombia operations rose 7.1% in 2023 to 29.5 million metric tons, while exports declined by 2.6% to 27 ...
Friday, 19 January 24
CHINA'S 2023 COAL OUTPUT HITS RECORD HIGH - REUTERS
China’s coal output reached a record high in 2023, data from the statistics bureau showed on Wednesday, amid an ongoing focus on energy secur ...
|
|
|
Showing 51 to 55 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Billiton Holdings Pty Ltd - Australia
- International Coal Ventures Pvt Ltd - India
- Metalloyd Limited - United Kingdom
- Siam City Cement PLC, Thailand
- The University of Queensland
- Riau Bara Harum - Indonesia
- Central Electricity Authority - India
- Uttam Galva Steels Limited - India
- Carbofer General Trading SA - India
- Petrochimia International Co. Ltd.- Taiwan
- Kumho Petrochemical, South Korea
- Iligan Light & Power Inc, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Global Green Power PLC Corporation, Philippines
- Edison Trading Spa - Italy
- Latin American Coal - Colombia
- Indogreen Group - Indonesia
- TeaM Sual Corporation - Philippines
- Karaikal Port Pvt Ltd - India
- Energy Link Ltd, New Zealand
- Oldendorff Carriers - Singapore
- Vizag Seaport Private Limited - India
- Essar Steel Hazira Ltd - India
- Xindia Steels Limited - India
- Standard Chartered Bank - UAE
- Romanian Commodities Exchange
- Electricity Generating Authority of Thailand
- Bahari Cakrawala Sebuku - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Salva Resources Pvt Ltd - India
- Heidelberg Cement - Germany
- Holcim Trading Pte Ltd - Singapore
- Parry Sugars Refinery, India
- Miang Besar Coal Terminal - Indonesia
- Lanco Infratech Ltd - India
- Coal and Oil Company - UAE
- Ceylon Electricity Board - Sri Lanka
- Banpu Public Company Limited - Thailand
- Binh Thuan Hamico - Vietnam
- Price Waterhouse Coopers - Russia
- TNB Fuel Sdn Bhd - Malaysia
- Pendopo Energi Batubara - Indonesia
- Bhushan Steel Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- CNBM International Corporation - China
- Mercator Lines Limited - India
- Baramulti Group, Indonesia
- Mjunction Services Limited - India
- Renaissance Capital - South Africa
- MS Steel International - UAE
- Independent Power Producers Association of India
- Mercuria Energy - Indonesia
- Altura Mining Limited, Indonesia
- Tata Chemicals Ltd - India
- PetroVietnam Power Coal Import and Supply Company
- Sree Jayajothi Cements Limited - India
- Sical Logistics Limited - India
- Singapore Mercantile Exchange
- Straits Asia Resources Limited - Singapore
- Semirara Mining and Power Corporation, Philippines
- Medco Energi Mining Internasional
- AsiaOL BioFuels Corp., Philippines
- Malabar Cements Ltd - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- SMG Consultants - Indonesia
- Globalindo Alam Lestari - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- SMC Global Power, Philippines
- Directorate Of Revenue Intelligence - India
- Gujarat Electricity Regulatory Commission - India
- Commonwealth Bank - Australia
- Kepco SPC Power Corporation, Philippines
- Sinarmas Energy and Mining - Indonesia
- Bulk Trading Sa - Switzerland
- Karbindo Abesyapradhi - Indoneisa
- Indian Energy Exchange, India
- South Luzon Thermal Energy Corporation
- GVK Power & Infra Limited - India
- Leighton Contractors Pty Ltd - Australia
- Videocon Industries ltd - India
- Goldman Sachs - Singapore
- Orica Mining Services - Indonesia
- Rio Tinto Coal - Australia
- Sindya Power Generating Company Private Ltd
- Tamil Nadu electricity Board
- India Bulls Power Limited - India
- Aditya Birla Group - India
- Bhatia International Limited - India
- Madhucon Powers Ltd - India
- Power Finance Corporation Ltd., India
- Minerals Council of Australia
- ASAPP Information Group - India
- San Jose City I Power Corp, Philippines
- Planning Commission, India
- Kartika Selabumi Mining - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Ind-Barath Power Infra Limited - India
- Makarim & Taira - Indonesia
- Central Java Power - Indonesia
- White Energy Company Limited
- PowerSource Philippines DevCo
- Anglo American - United Kingdom
- Posco Energy - South Korea
- Bangladesh Power Developement Board
- London Commodity Brokers - England
- OPG Power Generation Pvt Ltd - India
- Eastern Coal Council - USA
- Bayan Resources Tbk. - Indonesia
- Australian Commodity Traders Exchange
- Larsen & Toubro Limited - India
- Global Business Power Corporation, Philippines
- PTC India Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Georgia Ports Authority, United States
- New Zealand Coal & Carbon
- Bukit Baiduri Energy - Indonesia
- Timah Investasi Mineral - Indoneisa
- Krishnapatnam Port Company Ltd. - India
- IEA Clean Coal Centre - UK
- Cement Manufacturers Association - India
- Coastal Gujarat Power Limited - India
- Ministry of Mines - Canada
- Siam City Cement - Thailand
- Meenaskhi Energy Private Limited - India
- Kideco Jaya Agung - Indonesia
- Intertek Mineral Services - Indonesia
- Global Coal Blending Company Limited - Australia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Merrill Lynch Commodities Europe
- Antam Resourcindo - Indonesia
- Deloitte Consulting - India
- Maheswari Brothers Coal Limited - India
- Sojitz Corporation - Japan
- Borneo Indobara - Indonesia
- Africa Commodities Group - South Africa
- Barasentosa Lestari - Indonesia
- Samtan Co., Ltd - South Korea
- Indonesian Coal Mining Association
- Simpson Spence & Young - Indonesia
- Thai Mozambique Logistica
- VISA Power Limited - India
- GMR Energy Limited - India
- Toyota Tsusho Corporation, Japan
- Bukit Makmur.PT - Indonesia
- The Treasury - Australian Government
- Rashtriya Ispat Nigam Limited - India
- Bhoruka Overseas - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Petron Corporation, Philippines
- Ambuja Cements Ltd - India
- Wood Mackenzie - Singapore
- Eastern Energy - Thailand
- Vedanta Resources Plc - India
- Indian Oil Corporation Limited
- Therma Luzon, Inc, Philippines
- Vijayanagar Sugar Pvt Ltd - India
- Indo Tambangraya Megah - Indonesia
- European Bulk Services B.V. - Netherlands
- Ministry of Finance - Indonesia
- Star Paper Mills Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Attock Cement Pakistan Limited
- Wilmar Investment Holdings
- Bharathi Cement Corporation - India
- Semirara Mining Corp, Philippines
- Gujarat Sidhee Cement - India
- Meralco Power Generation, Philippines
- LBH Netherlands Bv - Netherlands
- CIMB Investment Bank - Malaysia
- Jaiprakash Power Ventures ltd
- GAC Shipping (India) Pvt Ltd
- Chettinad Cement Corporation Ltd - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Jorong Barutama Greston.PT - Indonesia
- Thiess Contractors Indonesia
- Ministry of Transport, Egypt
- The State Trading Corporation of India Ltd
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Cigading International Bulk Terminal - Indonesia
- Manunggal Multi Energi - Indonesia
- Australian Coal Association
- Kohat Cement Company Ltd. - Pakistan
- Interocean Group of Companies - India
- Jindal Steel & Power Ltd - India
- Economic Council, Georgia
- Electricity Authority, New Zealand
- Port Waratah Coal Services - Australia
- Savvy Resources Ltd - HongKong
- Coalindo Energy - Indonesia
- Sarangani Energy Corporation, Philippines
- Parliament of New Zealand
- Offshore Bulk Terminal Pte Ltd, Singapore
- McConnell Dowell - Australia
- Indika Energy - Indonesia
- Chamber of Mines of South Africa
- Sakthi Sugars Limited - India
- IHS Mccloskey Coal Group - USA
- Agrawal Coal Company - India
- Trasteel International SA, Italy
- Alfred C Toepfer International GmbH - Germany
- Orica Australia Pty. Ltd.
- Grasim Industreis Ltd - India
- ICICI Bank Limited - India
- Formosa Plastics Group - Taiwan
- Dalmia Cement Bharat India
- Energy Development Corp, Philippines
- Kaltim Prima Coal - Indonesia
- Marubeni Corporation - India
- Pipit Mutiara Jaya. PT, Indonesia
- Mintek Dendrill Indonesia
- Aboitiz Power Corporation - Philippines
- PNOC Exploration Corporation - Philippines
- Kobexindo Tractors - Indoneisa
- Kapuas Tunggal Persada - Indonesia
- SN Aboitiz Power Inc, Philippines
|
| |
| |
|
