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.
|
|
Friday, 01 December 23
COAL MINERS GROUP EXPECTS INDONESIA’S 2023 COAL OUTPUT TO SURPASS TARGET - REUTERS
The Indonesian Coal Mining Association (ICMA) expects the country’s 2023 coal output to surpass the official target of 695 million metric ton ...
Friday, 24 November 23
COAL IMPORTS TO INDIA IN OCTOBER 2023 REACHED HIGHEST LEVELS IN NEARLY A YEAR AND A HALF - VESSELSVALUE, VESON NAUTICAL
In October, coal imports to India reached 13.8 mt in October 2023, according to Oceanbolt, a Veson Nautical solution, the highest level since May 2 ...
Friday, 24 November 23
COAL SHIPMENTS TO ADVANCED ECONOMIES DOWN 17% SO FAR IN 2023 - BIMCO
In the first ten months of 2023, coal shipments to advanced economies fell by 17% y/y, as demand for electricity declined and the share of electric ...
Friday, 24 November 23
INTELLIGENT COAL MINES CONTRIBUTE TO IMPROVING SAFETY STANDARDS - CHINA DAILY
Mechanization, automation and intelligent upgrades have contributed to improved safety in coal mines, though the level of development of intelligen ...
Friday, 24 November 23
WHY AUSTRALIA'S COAL MINES ARE GETTING BIGGER - IEEFA
Australia’s largest coal mines are getting larger. Mines in New South Wales (NSW) are ramping up production following the state’s recov ...
|
|
|
Showing 66 to 70 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Anglo American - United Kingdom
- Kumho Petrochemical, South Korea
- Billiton Holdings Pty Ltd - Australia
- Africa Commodities Group - South Africa
- Iligan Light & Power Inc, Philippines
- IEA Clean Coal Centre - UK
- Global Green Power PLC Corporation, Philippines
- Cement Manufacturers Association - India
- Formosa Plastics Group - Taiwan
- Orica Mining Services - Indonesia
- Electricity Authority, New Zealand
- Indonesian Coal Mining Association
- Pendopo Energi Batubara - Indonesia
- Timah Investasi Mineral - Indoneisa
- Bayan Resources Tbk. - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Sakthi Sugars Limited - India
- Semirara Mining and Power Corporation, Philippines
- The State Trading Corporation of India Ltd
- Wood Mackenzie - Singapore
- Thai Mozambique Logistica
- Samtan Co., Ltd - South Korea
- Rio Tinto Coal - Australia
- Minerals Council of Australia
- Kohat Cement Company Ltd. - Pakistan
- Posco Energy - South Korea
- Wilmar Investment Holdings
- Bulk Trading Sa - Switzerland
- Salva Resources Pvt Ltd - India
- Rashtriya Ispat Nigam Limited - India
- India Bulls Power Limited - India
- OPG Power Generation Pvt Ltd - India
- Kapuas Tunggal Persada - Indonesia
- Goldman Sachs - Singapore
- Borneo Indobara - Indonesia
- Meralco Power Generation, Philippines
- Sinarmas Energy and Mining - Indonesia
- South Luzon Thermal Energy Corporation
- Bukit Makmur.PT - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- LBH Netherlands Bv - Netherlands
- Sree Jayajothi Cements Limited - India
- Coastal Gujarat Power Limited - India
- Maheswari Brothers Coal Limited - India
- Lanco Infratech Ltd - India
- McConnell Dowell - Australia
- Coal and Oil Company - UAE
- Intertek Mineral Services - Indonesia
- Dalmia Cement Bharat India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Barasentosa Lestari - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Siam City Cement PLC, Thailand
- Simpson Spence & Young - Indonesia
- Bangladesh Power Developement Board
- Savvy Resources Ltd - HongKong
- GMR Energy Limited - India
- Australian Coal Association
- Coalindo Energy - Indonesia
- Sical Logistics Limited - India
- Malabar Cements Ltd - India
- Independent Power Producers Association of India
- Agrawal Coal Company - India
- Carbofer General Trading SA - India
- Ind-Barath Power Infra Limited - India
- PNOC Exploration Corporation - Philippines
- ASAPP Information Group - India
- Interocean Group of Companies - India
- Mercuria Energy - Indonesia
- Indian Oil Corporation Limited
- Baramulti Group, Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Metalloyd Limited - United Kingdom
- Petrochimia International Co. Ltd.- Taiwan
- Kaltim Prima Coal - Indonesia
- Chettinad Cement Corporation Ltd - India
- Sojitz Corporation - Japan
- Banpu Public Company Limited - Thailand
- Karbindo Abesyapradhi - Indoneisa
- Port Waratah Coal Services - Australia
- Siam City Cement - Thailand
- Miang Besar Coal Terminal - Indonesia
- Ministry of Finance - Indonesia
- Heidelberg Cement - Germany
- Mintek Dendrill Indonesia
- Ambuja Cements Ltd - India
- Meenaskhi Energy Private Limited - India
- Bhushan Steel Limited - India
- Vizag Seaport Private Limited - India
- Deloitte Consulting - India
- SMG Consultants - Indonesia
- Commonwealth Bank - Australia
- Oldendorff Carriers - Singapore
- Indika Energy - Indonesia
- Holcim Trading Pte Ltd - Singapore
- CNBM International Corporation - China
- Riau Bara Harum - Indonesia
- Australian Commodity Traders Exchange
- Central Java Power - Indonesia
- Antam Resourcindo - Indonesia
- Bukit Baiduri Energy - Indonesia
- Orica Australia Pty. Ltd.
- White Energy Company Limited
- Maharashtra Electricity Regulatory Commission - India
- Parry Sugars Refinery, India
- Aboitiz Power Corporation - Philippines
- Bhatia International Limited - India
- Altura Mining Limited, Indonesia
- Central Electricity Authority - India
- Latin American Coal - Colombia
- Straits Asia Resources Limited - Singapore
- Ministry of Mines - Canada
- Trasteel International SA, Italy
- Kartika Selabumi Mining - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Kobexindo Tractors - Indoneisa
- Standard Chartered Bank - UAE
- The Treasury - Australian Government
- SMC Global Power, Philippines
- Edison Trading Spa - Italy
- Kepco SPC Power Corporation, Philippines
- Manunggal Multi Energi - Indonesia
- Economic Council, Georgia
- Directorate Of Revenue Intelligence - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Bhoruka Overseas - Indonesia
- Makarim & Taira - Indonesia
- Gujarat Sidhee Cement - India
- PetroVietnam Power Coal Import and Supply Company
- Xindia Steels Limited - India
- Indian Energy Exchange, India
- Power Finance Corporation Ltd., India
- VISA Power Limited - India
- Star Paper Mills Limited - India
- Neyveli Lignite Corporation Ltd, - India
- Bharathi Cement Corporation - India
- Mercator Lines Limited - India
- Binh Thuan Hamico - Vietnam
- Krishnapatnam Port Company Ltd. - India
- Alfred C Toepfer International GmbH - Germany
- Electricity Generating Authority of Thailand
- Merrill Lynch Commodities Europe
- MS Steel International - UAE
- Planning Commission, India
- AsiaOL BioFuels Corp., Philippines
- PowerSource Philippines DevCo
- Global Coal Blending Company Limited - Australia
- Grasim Industreis Ltd - India
- Petron Corporation, Philippines
- Jaiprakash Power Ventures ltd
- Renaissance Capital - South Africa
- TNB Fuel Sdn Bhd - Malaysia
- GAC Shipping (India) Pvt Ltd
- Tamil Nadu electricity Board
- Madhucon Powers Ltd - India
- The University of Queensland
- Pipit Mutiara Jaya. PT, Indonesia
- Sarangani Energy Corporation, Philippines
- CIMB Investment Bank - Malaysia
- Bukit Asam (Persero) Tbk - Indonesia
- Essar Steel Hazira Ltd - India
- Sindya Power Generating Company Private Ltd
- San Jose City I Power Corp, Philippines
- London Commodity Brokers - England
- Semirara Mining Corp, Philippines
- Marubeni Corporation - India
- Eastern Coal Council - USA
- Indo Tambangraya Megah - Indonesia
- Toyota Tsusho Corporation, Japan
- Vijayanagar Sugar Pvt Ltd - India
- Indogreen Group - Indonesia
- Cigading International Bulk Terminal - Indonesia
- IHS Mccloskey Coal Group - USA
- Karaikal Port Pvt Ltd - India
- New Zealand Coal & Carbon
- PTC India Limited - India
- Kideco Jaya Agung - Indonesia
- Tata Chemicals Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- TeaM Sual Corporation - Philippines
- Global Business Power Corporation, Philippines
- Energy Development Corp, Philippines
- Gujarat Electricity Regulatory Commission - India
- Thiess Contractors Indonesia
- Mjunction Services Limited - India
- Kalimantan Lumbung Energi - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Ministry of Transport, Egypt
- Attock Cement Pakistan Limited
- Videocon Industries ltd - India
- Chamber of Mines of South Africa
- Romanian Commodities Exchange
- Georgia Ports Authority, United States
- Aditya Birla Group - India
- Gujarat Mineral Development Corp Ltd - India
- ICICI Bank Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Therma Luzon, Inc, Philippines
- Energy Link Ltd, New Zealand
- Vedanta Resources Plc - India
- Jorong Barutama Greston.PT - Indonesia
- Uttam Galva Steels Limited - India
- Eastern Energy - Thailand
- Medco Energi Mining Internasional
- Parliament of New Zealand
- Larsen & Toubro Limited - India
- GVK Power & Infra Limited - India
- Globalindo Alam Lestari - Indonesia
- Price Waterhouse Coopers - Russia
- Directorate General of MIneral and Coal - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Jindal Steel & Power Ltd - India
- International Coal Ventures Pvt Ltd - India
- SN Aboitiz Power Inc, Philippines
- European Bulk Services B.V. - Netherlands
- Singapore Mercantile Exchange
|
| |
| |
|
