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Thursday, 10 December 15
LIENING CARGO - WHICH LIEN CLAUSE APPLIES TO THE BILL OF LADING? : WIKBORG REIN | HELLENIC SHIPPING NEWS
 KNOWLEDGE TO ELEVATE
In a dry bulk market where a charterer is not paying freight or hire, its counterparty is often left to consider whether it can lien the cargo on board the chartered vessel to obtain payment voluntarily, or by court sale if necessary.
This often involves looking at a Congenbill bill of lading and establishing whether a charterparty lien clause applies via Clause (1) on the reverse, which incorporates all “terms and conditions, liberties and exceptions of the Charterparty, dated as overleaf”. Problems arise when:
- there is no date overleaf and there are a number of charterparties in a chain, any of which could apply; or
- there are a number of charterparties in the chain with the same date as overleaf.
The question then becomes which charterparty lien clause to apply and to what debt to apply it.
Charterparty liens under English law
As a matter of English law, the absence of a date overleaf on the face of the Congenbill does not prevent a charterparty from being incorporated. Where there is only one charter, direct with the head owner, there is no doubt as to its application. However, the situation becomes complicated if there is:
- a head time charter;
- a sub-time charter;
- a head voyage charter; and
- a sub-voyage charter.
Which of these four charters is to be incorporated? An owner will normally assert that the head charter should be incorporated (ie, because it has signed it). Likewise, a receiver under the bill will usually argue for the sub-voyage charter – again, because this was the contract that it knew of when arranging the shipment. However, English law points in a different direction.
The starting point is that under a time charter, the time charterer has power over the issue of the bill of lading, provided that this reflects the mate’s receipts. The time charterer also has the authority to give orders to the master and direct the vessel in its commercial business. As such, the charterparty of greatest influence on the voyage is likely to have a time charterer as one of the parties.
However, insofar as the Congenbill concerns only a single voyage, the charterparty likely to be most relevant will be a voyage charter. As such, English law hesitantly arrives at the position that the applicable charterparty is that in which a time charterer is acting as disponent owner, with the head voyage charterer as its counterparty. In other words, in the above scenario, the terms of the head voyage charter between the sub-time charterer and the head voyage charterer will be incorporated into the Congenbill.
This raises a further question: if the bill of lading is an owner’s bill made between the head owner and receiver, how can a lien in the head voyage charter be applied to that bill when it refers to freight due to the sub-time charterer, which is not a party to the bill? Does the fact that the freight subject to the lien will not be paid to the head owner bar exercise of the lien? English law suggests not. Provided that the freight is still due to be paid by the head voyage charterer to the sub-time charterer, the sub-time charterer can direct the head time charterer to direct the head owner to exercise the lien on its behalf (against its indemnity for the costs, expenses and potential liabilities involved). The head owner acts as a form of trustee in such a lien and accounts to the time charterer for any payments received as a consequence of the lien.
Persuading the head owner to take such steps can be difficult, particularly if it has been paid hire in full and has no personal interest in collecting the freight for the time charterer.
However, if the head owner does not exercise a formal lien, it might face an order from the time charterer to stop the vessel in an attempt to obtain payment. The head owner might argue that this puts it in breach of the Congenbill as against the receiver, to which the time charterer might reply that it has the right to give orders (including the right to order the head owner on how to exercise rights under the bill of lading), so if the head owner refuses, it is in breach. The respective rights and wrongs of such a showdown would be complex; but faced with this situation, a head owner may prefer to exercise the lien itself as trustee to protect itself from claims under the bill of lading from the receiver – particularly if it obtains an indemnity from the time charterer in the process.
Comment
As in all charterparty matters, generalisations are interesting, but the individual circumstances of each dispute must be carefully checked to see whether they apply. Bearing that in mind, when it comes to liening cargo under a Congenbill, it seems that English law will look first to the head voyage charterparty as the source of relevant terms to be incorporated into the Congenbill (unless another charter is expressly identified), and this is likely to lead to a less-than-obvious outcome.
Source: Wikborg Rein | Hellenic Shipping News
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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 ...
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Showing 51 to 55 news of total 6871 |
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- Formosa Plastics Group - Taiwan
- MS Steel International - UAE
- VISA Power Limited - India
- Malabar Cements Ltd - India
- Parry Sugars Refinery, India
- Videocon Industries ltd - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Sical Logistics Limited - India
- Vedanta Resources Plc - India
- Bharathi Cement Corporation - India
- Miang Besar Coal Terminal - Indonesia
- European Bulk Services B.V. - Netherlands
- Asmin Koalindo Tuhup - Indonesia
- PNOC Exploration Corporation - Philippines
- Energy Link Ltd, New Zealand
- Manunggal Multi Energi - Indonesia
- Marubeni Corporation - India
- Oldendorff Carriers - Singapore
- Thai Mozambique Logistica
- Kapuas Tunggal Persada - Indonesia
- Indonesian Coal Mining Association
- Orica Mining Services - Indonesia
- Cement Manufacturers Association - India
- Tata Chemicals Ltd - India
- Kideco Jaya Agung - Indonesia
- Sojitz Corporation - Japan
- Kepco SPC Power Corporation, Philippines
- Agrawal Coal Company - India
- Alfred C Toepfer International GmbH - Germany
- Bukit Baiduri Energy - Indonesia
- Global Coal Blending Company Limited - Australia
- Kumho Petrochemical, South Korea
- Borneo Indobara - Indonesia
- Kaltim Prima Coal - Indonesia
- Rashtriya Ispat Nigam Limited - India
- International Coal Ventures Pvt Ltd - India
- LBH Netherlands Bv - Netherlands
- Ministry of Transport, Egypt
- The Treasury - Australian Government
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Globalindo Alam Lestari - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- TNB Fuel Sdn Bhd - Malaysia
- Meralco Power Generation, Philippines
- Bangladesh Power Developement Board
- Anglo American - United Kingdom
- Trasteel International SA, Italy
- Xindia Steels Limited - India
- GVK Power & Infra Limited - India
- Africa Commodities Group - South Africa
- ICICI Bank Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Dalmia Cement Bharat India
- Sree Jayajothi Cements Limited - India
- Bhushan Steel Limited - India
- PowerSource Philippines DevCo
- GMR Energy Limited - India
- Romanian Commodities Exchange
- Electricity Generating Authority of Thailand
- Central Java Power - Indonesia
- Orica Australia Pty. Ltd.
- Mintek Dendrill Indonesia
- Coalindo Energy - Indonesia
- SMG Consultants - Indonesia
- Singapore Mercantile Exchange
- Directorate General of MIneral and Coal - Indonesia
- Wilmar Investment Holdings
- Merrill Lynch Commodities Europe
- Coastal Gujarat Power Limited - India
- Planning Commission, India
- Antam Resourcindo - Indonesia
- Essar Steel Hazira Ltd - India
- Port Waratah Coal Services - Australia
- Star Paper Mills Limited - India
- Independent Power Producers Association of India
- Larsen & Toubro Limited - India
- Uttam Galva Steels Limited - India
- Krishnapatnam Port Company Ltd. - India
- Riau Bara Harum - Indonesia
- Directorate Of Revenue Intelligence - India
- Mjunction Services Limited - India
- White Energy Company Limited
- Rio Tinto Coal - Australia
- Neyveli Lignite Corporation Ltd, - India
- Billiton Holdings Pty Ltd - Australia
- Banpu Public Company Limited - Thailand
- Holcim Trading Pte Ltd - Singapore
- Gujarat Sidhee Cement - India
- McConnell Dowell - Australia
- Maharashtra Electricity Regulatory Commission - India
- Ceylon Electricity Board - Sri Lanka
- Aboitiz Power Corporation - Philippines
- Semirara Mining and Power Corporation, Philippines
- Kartika Selabumi Mining - Indonesia
- Medco Energi Mining Internasional
- Maheswari Brothers Coal Limited - India
- Global Business Power Corporation, Philippines
- Makarim & Taira - Indonesia
- Simpson Spence & Young - Indonesia
- Interocean Group of Companies - India
- Commonwealth Bank - Australia
- Binh Thuan Hamico - Vietnam
- India Bulls Power Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- Australian Coal Association
- Bahari Cakrawala Sebuku - Indonesia
- South Luzon Thermal Energy Corporation
- Pipit Mutiara Jaya. PT, Indonesia
- Indika Energy - Indonesia
- Straits Asia Resources Limited - Singapore
- Renaissance Capital - South Africa
- Sindya Power Generating Company Private Ltd
- Eastern Energy - Thailand
- GAC Shipping (India) Pvt Ltd
- Power Finance Corporation Ltd., India
- Siam City Cement - Thailand
- CIMB Investment Bank - Malaysia
- Lanco Infratech Ltd - India
- Intertek Mineral Services - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- PetroVietnam Power Coal Import and Supply Company
- Ministry of Finance - Indonesia
- Electricity Authority, New Zealand
- Price Waterhouse Coopers - Russia
- Ministry of Mines - Canada
- Jorong Barutama Greston.PT - Indonesia
- Bhatia International Limited - India
- Kohat Cement Company Ltd. - Pakistan
- Kobexindo Tractors - Indoneisa
- Carbofer General Trading SA - India
- Savvy Resources Ltd - HongKong
- Kalimantan Lumbung Energi - Indonesia
- Thiess Contractors Indonesia
- AsiaOL BioFuels Corp., Philippines
- Timah Investasi Mineral - Indoneisa
- Jindal Steel & Power Ltd - India
- Bulk Trading Sa - Switzerland
- Minerals Council of Australia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Petron Corporation, Philippines
- Barasentosa Lestari - Indonesia
- Toyota Tsusho Corporation, Japan
- Mercator Lines Limited - India
- Pendopo Energi Batubara - Indonesia
- Grasim Industreis Ltd - India
- Semirara Mining Corp, Philippines
- Sinarmas Energy and Mining - Indonesia
- Global Green Power PLC Corporation, Philippines
- Australian Commodity Traders Exchange
- Petrochimia International Co. Ltd.- Taiwan
- Latin American Coal - Colombia
- Edison Trading Spa - Italy
- Metalloyd Limited - United Kingdom
- OPG Power Generation Pvt Ltd - India
- Meenaskhi Energy Private Limited - India
- Indo Tambangraya Megah - Indonesia
- Therma Luzon, Inc, Philippines
- Coal and Oil Company - UAE
- Aditya Birla Group - India
- Bukit Asam (Persero) Tbk - Indonesia
- Chettinad Cement Corporation Ltd - India
- Standard Chartered Bank - UAE
- Cigading International Bulk Terminal - Indonesia
- Bukit Makmur.PT - Indonesia
- Chamber of Mines of South Africa
- Offshore Bulk Terminal Pte Ltd, Singapore
- Wood Mackenzie - Singapore
- Ind-Barath Power Infra Limited - India
- Bhoruka Overseas - Indonesia
- Indian Energy Exchange, India
- New Zealand Coal & Carbon
- The State Trading Corporation of India Ltd
- TeaM Sual Corporation - Philippines
- Indogreen Group - Indonesia
- PTC India Limited - India
- ASAPP Information Group - India
- Tamil Nadu electricity Board
- Heidelberg Cement - Germany
- IHS Mccloskey Coal Group - USA
- Sakthi Sugars Limited - India
- CNBM International Corporation - China
- Mercuria Energy - Indonesia
- London Commodity Brokers - England
- Energy Development Corp, Philippines
- IEA Clean Coal Centre - UK
- Bank of Tokyo Mitsubishi UFJ Ltd
- Siam City Cement PLC, Thailand
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Sarangani Energy Corporation, Philippines
- San Jose City I Power Corp, Philippines
- Bayan Resources Tbk. - Indonesia
- The University of Queensland
- SMC Global Power, Philippines
- Leighton Contractors Pty Ltd - Australia
- Karaikal Port Pvt Ltd - India
- Deloitte Consulting - India
- Georgia Ports Authority, United States
- Central Electricity Authority - India
- Jaiprakash Power Ventures ltd
- Salva Resources Pvt Ltd - India
- Altura Mining Limited, Indonesia
- Iligan Light & Power Inc, Philippines
- Parliament of New Zealand
- Posco Energy - South Korea
- Ambuja Cements Ltd - India
- Gujarat Electricity Regulatory Commission - India
- Economic Council, Georgia
- SN Aboitiz Power Inc, Philippines
- Vizag Seaport Private Limited - India
- Madhucon Powers Ltd - India
- Attock Cement Pakistan Limited
- Indian Oil Corporation Limited
- Samtan Co., Ltd - South Korea
- Goldman Sachs - Singapore
- Eastern Coal Council - USA
- Baramulti Group, Indonesia
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