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.
|
|
Tuesday, 23 May 23
INDIA: COAL OUTPUT UP 8.9%, SUPPLY RISES 11.7% IN APRIL - FINANCIAL EXPRESS
India’s coal production jumped 8.85% to 73.14 million tonne (MT) in April 2023 and the total coal despatch during the month went up 11.66% to ...
Tuesday, 23 May 23
CHINA COAL OUTPUT UP 4.5 PCT IN APRIL - XINHUA
China’s raw coal output posted stable expansion in April, official data showed.
The country produced 380 million tonnes of raw ...
Saturday, 20 May 23
NON-OPEC OIL SUPPLY DEVELOPMENT - OPEC
In 2022, non-OPEC supply is estimated to have increased by 1.9 mb/d y-o-y. Out of this, US liquids production increased by 1.2 mb/d, mainly on the ...
Saturday, 20 May 23
GLOBAL COAL TRADE HAS REALLY PICKED UP PACE IN RECENT MONTHS, NOW FULLY BACK TO PRE-COVID LEVELS - BANCHERO COSTA
Global coal trade has really picked up pace in recent months, and is now fully back to pre-Covid levels. In Jan-Apr 2023, total global seaborne coa ...
Saturday, 20 May 23
MARKET INSIGHT - INTERMODAL
India is one of the world's largest coal producers and one of the world's largest importers of coal. The country uses coal mainly for power ...
|
|
|
Showing 101 to 105 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- IHS Mccloskey Coal Group - USA
- Miang Besar Coal Terminal - Indonesia
- Latin American Coal - Colombia
- Edison Trading Spa - Italy
- Mjunction Services Limited - India
- Indogreen Group - Indonesia
- PowerSource Philippines DevCo
- Samtan Co., Ltd - South Korea
- Parliament of New Zealand
- Aditya Birla Group - India
- Malabar Cements Ltd - India
- Romanian Commodities Exchange
- Kobexindo Tractors - Indoneisa
- PetroVietnam Power Coal Import and Supply Company
- Ind-Barath Power Infra Limited - India
- Sindya Power Generating Company Private Ltd
- Barasentosa Lestari - Indonesia
- Riau Bara Harum - Indonesia
- Xindia Steels Limited - India
- Globalindo Alam Lestari - Indonesia
- Africa Commodities Group - South Africa
- Dalmia Cement Bharat India
- Pendopo Energi Batubara - Indonesia
- Jaiprakash Power Ventures ltd
- Altura Mining Limited, Indonesia
- European Bulk Services B.V. - Netherlands
- Kalimantan Lumbung Energi - Indonesia
- Videocon Industries ltd - India
- Billiton Holdings Pty Ltd - Australia
- Maharashtra Electricity Regulatory Commission - India
- Baramulti Group, Indonesia
- Banpu Public Company Limited - Thailand
- PTC India Limited - India
- Gujarat Sidhee Cement - India
- Renaissance Capital - South Africa
- Ceylon Electricity Board - Sri Lanka
- Standard Chartered Bank - UAE
- Electricity Generating Authority of Thailand
- Bhoruka Overseas - Indonesia
- Mintek Dendrill Indonesia
- Orica Mining Services - Indonesia
- Bharathi Cement Corporation - India
- Oldendorff Carriers - Singapore
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Holcim Trading Pte Ltd - Singapore
- Leighton Contractors Pty Ltd - Australia
- GN Power Mariveles Coal Plant, Philippines
- Carbofer General Trading SA - India
- SMC Global Power, Philippines
- Semirara Mining Corp, Philippines
- Bulk Trading Sa - Switzerland
- Pipit Mutiara Jaya. PT, Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Medco Energi Mining Internasional
- Cement Manufacturers Association - India
- Energy Link Ltd, New Zealand
- Indo Tambangraya Megah - Indonesia
- OPG Power Generation Pvt Ltd - India
- Kapuas Tunggal Persada - Indonesia
- MS Steel International - UAE
- Uttam Galva Steels Limited - India
- India Bulls Power Limited - India
- Binh Thuan Hamico - Vietnam
- Petrochimia International Co. Ltd.- Taiwan
- Electricity Authority, New Zealand
- Bhushan Steel Limited - India
- San Jose City I Power Corp, Philippines
- Intertek Mineral Services - Indonesia
- Eastern Energy - Thailand
- TNB Fuel Sdn Bhd - Malaysia
- SMG Consultants - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- New Zealand Coal & Carbon
- Lanco Infratech Ltd - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Coastal Gujarat Power Limited - India
- Trasteel International SA, Italy
- Heidelberg Cement - Germany
- Australian Coal Association
- Power Finance Corporation Ltd., India
- Directorate Of Revenue Intelligence - India
- Bukit Asam (Persero) Tbk - Indonesia
- Australian Commodity Traders Exchange
- Goldman Sachs - Singapore
- Tata Chemicals Ltd - India
- Vizag Seaport Private Limited - India
- McConnell Dowell - Australia
- Ministry of Finance - Indonesia
- Anglo American - United Kingdom
- Bank of Tokyo Mitsubishi UFJ Ltd
- Marubeni Corporation - India
- Iligan Light & Power Inc, Philippines
- AsiaOL BioFuels Corp., Philippines
- Salva Resources Pvt Ltd - India
- Sarangani Energy Corporation, Philippines
- Bukit Makmur.PT - Indonesia
- Agrawal Coal Company - India
- Mercuria Energy - Indonesia
- CNBM International Corporation - China
- Minerals Council of Australia
- Madhucon Powers Ltd - India
- Kideco Jaya Agung - Indonesia
- Global Green Power PLC Corporation, Philippines
- Maheswari Brothers Coal Limited - India
- Energy Development Corp, Philippines
- Toyota Tsusho Corporation, Japan
- International Coal Ventures Pvt Ltd - India
- SN Aboitiz Power Inc, Philippines
- Kohat Cement Company Ltd. - Pakistan
- Siam City Cement - Thailand
- Star Paper Mills Limited - India
- Sical Logistics Limited - India
- Rashtriya Ispat Nigam Limited - India
- Independent Power Producers Association of India
- Meenaskhi Energy Private Limited - India
- Savvy Resources Ltd - HongKong
- Thai Mozambique Logistica
- Sakthi Sugars Limited - India
- GVK Power & Infra Limited - India
- Essar Steel Hazira Ltd - India
- London Commodity Brokers - England
- Indika Energy - Indonesia
- Larsen & Toubro Limited - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Eastern Coal Council - USA
- Kaltim Prima Coal - Indonesia
- The State Trading Corporation of India Ltd
- Krishnapatnam Port Company Ltd. - India
- Coalindo Energy - Indonesia
- LBH Netherlands Bv - Netherlands
- Deloitte Consulting - India
- Bhatia International Limited - India
- South Luzon Thermal Energy Corporation
- GMR Energy Limited - India
- Cigading International Bulk Terminal - Indonesia
- IEA Clean Coal Centre - UK
- Ministry of Mines - Canada
- Kartika Selabumi Mining - Indonesia
- Vedanta Resources Plc - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Antam Resourcindo - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Singapore Mercantile Exchange
- Georgia Ports Authority, United States
- Jorong Barutama Greston.PT - Indonesia
- Price Waterhouse Coopers - Russia
- Commonwealth Bank - Australia
- Posco Energy - South Korea
- Alfred C Toepfer International GmbH - Germany
- Merrill Lynch Commodities Europe
- Parry Sugars Refinery, India
- Vijayanagar Sugar Pvt Ltd - India
- Aboitiz Power Corporation - Philippines
- Bukit Baiduri Energy - Indonesia
- TeaM Sual Corporation - Philippines
- Port Waratah Coal Services - Australia
- Global Coal Blending Company Limited - Australia
- Coal and Oil Company - UAE
- Formosa Plastics Group - Taiwan
- Orica Australia Pty. Ltd.
- Thiess Contractors Indonesia
- Wood Mackenzie - Singapore
- ASAPP Information Group - India
- Kepco SPC Power Corporation, Philippines
- Siam City Cement PLC, Thailand
- Jindal Steel & Power Ltd - India
- Indian Energy Exchange, India
- Karaikal Port Pvt Ltd - India
- Straits Asia Resources Limited - Singapore
- Kumho Petrochemical, South Korea
- Manunggal Multi Energi - Indonesia
- Planning Commission, India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Bangladesh Power Developement Board
- Ambuja Cements Ltd - India
- Gujarat Mineral Development Corp Ltd - India
- Sinarmas Energy and Mining - Indonesia
- Chamber of Mines of South Africa
- Wilmar Investment Holdings
- Mercator Lines Limited - India
- Metalloyd Limited - United Kingdom
- Sojitz Corporation - Japan
- Borneo Indobara - Indonesia
- Attock Cement Pakistan Limited
- Global Business Power Corporation, Philippines
- The Treasury - Australian Government
- Rio Tinto Coal - Australia
- Makarim & Taira - Indonesia
- Bayan Resources Tbk. - Indonesia
- Tamil Nadu electricity Board
- Central Java Power - Indonesia
- Timah Investasi Mineral - Indoneisa
- The University of Queensland
- Petron Corporation, Philippines
- CIMB Investment Bank - Malaysia
- PNOC Exploration Corporation - Philippines
- GAC Shipping (India) Pvt Ltd
- Ministry of Transport, Egypt
- Indian Oil Corporation Limited
- Neyveli Lignite Corporation Ltd, - India
- Central Electricity Authority - India
- Sree Jayajothi Cements Limited - India
- Simpson Spence & Young - Indonesia
- Therma Luzon, Inc, Philippines
- VISA Power Limited - India
- Economic Council, Georgia
- Indonesian Coal Mining Association
- Karbindo Abesyapradhi - Indoneisa
- ICICI Bank Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Grasim Industreis Ltd - India
- Chettinad Cement Corporation Ltd - India
- White Energy Company Limited
- Gujarat Electricity Regulatory Commission - India
- Interocean Group of Companies - India
- Meralco Power Generation, Philippines
|
| |
| |
|
