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.
|
|
Wednesday, 07 December 22
MARKET INSIGHT - INTERMODAL
China’s coal imports from January to October were 230.1m mt, a decrease of around 10.7% y-o-y (2021 totalled 323.2m mt). The question is if t ...
Wednesday, 07 December 22
INDIA'S STEEL MINISTRY SEEKS IMPORT TAX WAIVER FOR COKING COAL - SOURCES REUTERS REPORTED
India’s steel ministry has asked the finance ministry for a waiver of import tax on coking coal among a slew of raw materials, as it scramble ...
Tuesday, 06 December 22
INDIA'S COAL PRODUCTION RISES 17% IN APR-NOV PERIOD - PTI
The country’s coal production increased 17 per cent to 524.20 million tonnes in the April-November period of the ongoing fiscal.
...
Tuesday, 06 December 22
INDONESIA AIMS TO STARTS COLLECTING COAL LEVY IN Q1 2023 - MINISTER, REUTERS REPORTED
Indonesia aims to establish a coal fund agency and start collecting a coal levy in the first quarter next year, to help ensure supply security for ...
Saturday, 03 December 22
COMPLEX RUSSIAN PRICE CAP MAKES MARITIME VISIBILITY A MUST - WINDWARD
Many commentators and analysts are speculating about the potential impact the Russian seaborne oil price cap will have on organizations and entitie ...
|
|
|
Showing 176 to 180 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Wilmar Investment Holdings
- Posco Energy - South Korea
- Africa Commodities Group - South Africa
- Indo Tambangraya Megah - Indonesia
- Bukit Makmur.PT - Indonesia
- Kartika Selabumi Mining - Indonesia
- Siam City Cement - Thailand
- Attock Cement Pakistan Limited
- Kideco Jaya Agung - Indonesia
- Alfred C Toepfer International GmbH - Germany
- New Zealand Coal & Carbon
- Indika Energy - Indonesia
- Manunggal Multi Energi - Indonesia
- European Bulk Services B.V. - Netherlands
- Vizag Seaport Private Limited - India
- Carbofer General Trading SA - India
- Karaikal Port Pvt Ltd - India
- Sakthi Sugars Limited - India
- South Luzon Thermal Energy Corporation
- Vedanta Resources Plc - India
- Miang Besar Coal Terminal - Indonesia
- Makarim & Taira - Indonesia
- Jaiprakash Power Ventures ltd
- Bharathi Cement Corporation - India
- Toyota Tsusho Corporation, Japan
- PowerSource Philippines DevCo
- White Energy Company Limited
- Kumho Petrochemical, South Korea
- The Treasury - Australian Government
- Parry Sugars Refinery, India
- IEA Clean Coal Centre - UK
- Ind-Barath Power Infra Limited - India
- Wood Mackenzie - Singapore
- Neyveli Lignite Corporation Ltd, - India
- Meenaskhi Energy Private Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Cement Manufacturers Association - India
- Edison Trading Spa - Italy
- London Commodity Brokers - England
- Power Finance Corporation Ltd., India
- Dalmia Cement Bharat India
- Romanian Commodities Exchange
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Baramulti Group, Indonesia
- Billiton Holdings Pty Ltd - Australia
- OPG Power Generation Pvt Ltd - India
- Standard Chartered Bank - UAE
- Singapore Mercantile Exchange
- Asmin Koalindo Tuhup - Indonesia
- Kobexindo Tractors - Indoneisa
- Indian Energy Exchange, India
- Electricity Generating Authority of Thailand
- Chettinad Cement Corporation Ltd - India
- Sinarmas Energy and Mining - Indonesia
- Sarangani Energy Corporation, Philippines
- SMG Consultants - Indonesia
- Deloitte Consulting - India
- Samtan Co., Ltd - South Korea
- GVK Power & Infra Limited - India
- Siam City Cement PLC, Thailand
- Independent Power Producers Association of India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Global Coal Blending Company Limited - Australia
- Rio Tinto Coal - Australia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- LBH Netherlands Bv - Netherlands
- Timah Investasi Mineral - Indoneisa
- Mjunction Services Limited - India
- Madhucon Powers Ltd - India
- Semirara Mining Corp, Philippines
- McConnell Dowell - Australia
- Bhatia International Limited - India
- Commonwealth Bank - Australia
- Bhoruka Overseas - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- PetroVietnam Power Coal Import and Supply Company
- Thiess Contractors Indonesia
- Indonesian Coal Mining Association
- Maheswari Brothers Coal Limited - India
- Mercuria Energy - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Sojitz Corporation - Japan
- Aboitiz Power Corporation - Philippines
- Formosa Plastics Group - Taiwan
- Eastern Energy - Thailand
- Coal and Oil Company - UAE
- Larsen & Toubro Limited - India
- Pendopo Energi Batubara - Indonesia
- MS Steel International - UAE
- Gujarat Sidhee Cement - India
- India Bulls Power Limited - India
- Sindya Power Generating Company Private Ltd
- Globalindo Alam Lestari - Indonesia
- Leighton Contractors Pty Ltd - Australia
- PTC India Limited - India
- Malabar Cements Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Marubeni Corporation - India
- IHS Mccloskey Coal Group - USA
- Parliament of New Zealand
- Merrill Lynch Commodities Europe
- Aditya Birla Group - India
- Borneo Indobara - Indonesia
- VISA Power Limited - India
- Therma Luzon, Inc, Philippines
- Ambuja Cements Ltd - India
- Pipit Mutiara Jaya. PT, Indonesia
- Holcim Trading Pte Ltd - Singapore
- Ministry of Transport, Egypt
- Salva Resources Pvt Ltd - India
- Cigading International Bulk Terminal - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Metalloyd Limited - United Kingdom
- Kalimantan Lumbung Energi - Indonesia
- Port Waratah Coal Services - Australia
- Bukit Baiduri Energy - Indonesia
- Latin American Coal - Colombia
- Gujarat Electricity Regulatory Commission - India
- Sree Jayajothi Cements Limited - India
- Iligan Light & Power Inc, Philippines
- Energy Link Ltd, New Zealand
- Orica Mining Services - Indonesia
- Georgia Ports Authority, United States
- Riau Bara Harum - Indonesia
- Straits Asia Resources Limited - Singapore
- Kapuas Tunggal Persada - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Gujarat Mineral Development Corp Ltd - India
- Mintek Dendrill Indonesia
- Chamber of Mines of South Africa
- Ceylon Electricity Board - Sri Lanka
- Kaltim Prima Coal - Indonesia
- Eastern Coal Council - USA
- Jindal Steel & Power Ltd - India
- Simpson Spence & Young - Indonesia
- Barasentosa Lestari - Indonesia
- Heidelberg Cement - Germany
- Savvy Resources Ltd - HongKong
- International Coal Ventures Pvt Ltd - India
- Global Green Power PLC Corporation, Philippines
- Central Electricity Authority - India
- Karbindo Abesyapradhi - Indoneisa
- Bayan Resources Tbk. - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Orica Australia Pty. Ltd.
- Australian Commodity Traders Exchange
- Petron Corporation, Philippines
- Electricity Authority, New Zealand
- Tamil Nadu electricity Board
- GMR Energy Limited - India
- Australian Coal Association
- Agrawal Coal Company - India
- Xindia Steels Limited - India
- Ministry of Mines - Canada
- San Jose City I Power Corp, Philippines
- Bulk Trading Sa - Switzerland
- Binh Thuan Hamico - Vietnam
- CIMB Investment Bank - Malaysia
- Planning Commission, India
- Intertek Mineral Services - Indonesia
- Videocon Industries ltd - India
- Bhushan Steel Limited - India
- Semirara Mining and Power Corporation, Philippines
- Interocean Group of Companies - India
- Oldendorff Carriers - Singapore
- ICICI Bank Limited - India
- Thai Mozambique Logistica
- SMC Global Power, Philippines
- CNBM International Corporation - China
- ASAPP Information Group - India
- Essar Steel Hazira Ltd - India
- Banpu Public Company Limited - Thailand
- The State Trading Corporation of India Ltd
- Minerals Council of Australia
- Mercator Lines Limited - India
- PNOC Exploration Corporation - Philippines
- Indogreen Group - Indonesia
- Star Paper Mills Limited - India
- Ministry of Finance - Indonesia
- Grasim Industreis Ltd - India
- GN Power Mariveles Coal Plant, Philippines
- Renaissance Capital - South Africa
- Central Java Power - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Indian Oil Corporation Limited
- Tata Chemicals Ltd - India
- Antam Resourcindo - Indonesia
- Kepco SPC Power Corporation, Philippines
- Goldman Sachs - Singapore
- Altura Mining Limited, Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Lanco Infratech Ltd - India
- SN Aboitiz Power Inc, Philippines
- The University of Queensland
- Bangladesh Power Developement Board
- Uttam Galva Steels Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Medco Energi Mining Internasional
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- TeaM Sual Corporation - Philippines
- GAC Shipping (India) Pvt Ltd
- Economic Council, Georgia
- Directorate Of Revenue Intelligence - India
- Bukit Asam (Persero) Tbk - Indonesia
- Sical Logistics Limited - India
- Meralco Power Generation, Philippines
- Global Business Power Corporation, Philippines
- Coastal Gujarat Power Limited - India
- Kohat Cement Company Ltd. - Pakistan
- Energy Development Corp, Philippines
- Trasteel International SA, Italy
- Anglo American - United Kingdom
- Coalindo Energy - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Price Waterhouse Coopers - Russia
- Rashtriya Ispat Nigam Limited - India
- Directorate General of MIneral and Coal - Indonesia
|
| |
| |
|
