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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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Friday, 05 January 24
BANGLADESH’S 2023 COAL-FIRED POWER OUTPUT TRIPLED, EASING SHORTAGES - REUTERS
Bangladesh nearly tripled its coal-fired power output in 2023, a Reuters analysis of government data showed, helping it tide over the worst power s ...
Tuesday, 02 January 24
COAL TRADE CONTINUES TO HEAD EAST - BALTIC EXCHANGE
The global coal trade, once concentrated in the Pacific and Atlantic basins, is undergoing a significant transformation, as highlighted in the Inte ...
Tuesday, 02 January 24
COAL CARGOES: AVOIDING EXPLOSION AND SELF-HEATING - GARD
KNOWLEDGE TO ELEVATE
Despite its contribution to greenhouse gas emissions, global coal consumption climbed to an all-time high in 2022 and is ...
Tuesday, 02 January 24
SINOPEC FORECASTS CHINA’S COAL CONSUMPTION TO PEAK AROUND 2025 - REUTERS
China Petrochemical Corp, or Sinopec, expects coal consumption to peak around 2025 at 4.37 billion metric tons, the state energy group said in an o ...
Thursday, 07 December 23
CHINA TO SET UP COAL PRODUCTION RESERVE TO STABILISE PRICES - REUTERS
China will establish a back-up coal production system by 2027 to stabilise prices and secure coal supply, the state planner said on Wednesday, even ...
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Showing 61 to 65 news of total 6871 |
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- CNBM International Corporation - China
- Gujarat Mineral Development Corp Ltd - India
- Tata Chemicals Ltd - India
- Rashtriya Ispat Nigam Limited - India
- OPG Power Generation Pvt Ltd - India
- Manunggal Multi Energi - Indonesia
- Sical Logistics Limited - India
- Iligan Light & Power Inc, Philippines
- Holcim Trading Pte Ltd - Singapore
- Attock Cement Pakistan Limited
- Anglo American - United Kingdom
- Semirara Mining Corp, Philippines
- Chettinad Cement Corporation Ltd - India
- Directorate Of Revenue Intelligence - India
- Makarim & Taira - Indonesia
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- Ministry of Transport, Egypt
- Global Green Power PLC Corporation, Philippines
- Kalimantan Lumbung Energi - Indonesia
- Kepco SPC Power Corporation, Philippines
- Bangladesh Power Developement Board
- Samtan Co., Ltd - South Korea
- ASAPP Information Group - India
- Salva Resources Pvt Ltd - India
- Banpu Public Company Limited - Thailand
- Miang Besar Coal Terminal - Indonesia
- White Energy Company Limited
- GAC Shipping (India) Pvt Ltd
- Sarangani Energy Corporation, Philippines
- Alfred C Toepfer International GmbH - Germany
- Meralco Power Generation, Philippines
- Lanco Infratech Ltd - India
- Georgia Ports Authority, United States
- Aditya Birla Group - India
- Madhucon Powers Ltd - India
- Uttam Galva Steels Limited - India
- Latin American Coal - Colombia
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- Minerals Council of Australia
- The State Trading Corporation of India Ltd
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- Mjunction Services Limited - India
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- Toyota Tsusho Corporation, Japan
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- Power Finance Corporation Ltd., India
- Karbindo Abesyapradhi - Indoneisa
- India Bulls Power Limited - India
- SMC Global Power, Philippines
- Riau Bara Harum - Indonesia
- London Commodity Brokers - England
- TNB Fuel Sdn Bhd - Malaysia
- Maheswari Brothers Coal Limited - India
- Neyveli Lignite Corporation Ltd, - India
- Petrochimia International Co. Ltd.- Taiwan
- Ambuja Cements Ltd - India
- Tamil Nadu electricity Board
- Mercator Lines Limited - India
- Merrill Lynch Commodities Europe
- Asmin Koalindo Tuhup - Indonesia
- Kartika Selabumi Mining - Indonesia
- Sindya Power Generating Company Private Ltd
- Bayan Resources Tbk. - Indonesia
- San Jose City I Power Corp, Philippines
- Jaiprakash Power Ventures ltd
- Kaltim Prima Coal - Indonesia
- Medco Energi Mining Internasional
- Kapuas Tunggal Persada - Indonesia
- Billiton Holdings Pty Ltd - Australia
- GVK Power & Infra Limited - India
- Petron Corporation, Philippines
- Interocean Group of Companies - India
- Altura Mining Limited, Indonesia
- Krishnapatnam Port Company Ltd. - India
- TeaM Sual Corporation - Philippines
- Parry Sugars Refinery, India
- PetroVietnam Power Coal Import and Supply Company
- Jindal Steel & Power Ltd - India
- Commonwealth Bank - Australia
- Indian Oil Corporation Limited
- Coastal Gujarat Power Limited - India
- Oldendorff Carriers - Singapore
- The University of Queensland
- ICICI Bank Limited - India
- Kideco Jaya Agung - Indonesia
- Australian Commodity Traders Exchange
- Vizag Seaport Private Limited - India
- Straits Asia Resources Limited - Singapore
- Mercuria Energy - Indonesia
- Parliament of New Zealand
- Binh Thuan Hamico - Vietnam
- Central Electricity Authority - India
- Formosa Plastics Group - Taiwan
- Deloitte Consulting - India
- Dalmia Cement Bharat India
- Eastern Coal Council - USA
- Videocon Industries ltd - India
- Semirara Mining and Power Corporation, Philippines
- European Bulk Services B.V. - Netherlands
- Renaissance Capital - South Africa
- Indonesian Coal Mining Association
- Port Waratah Coal Services - Australia
- Bukit Asam (Persero) Tbk - Indonesia
- LBH Netherlands Bv - Netherlands
- Carbofer General Trading SA - India
- IHS Mccloskey Coal Group - USA
- Electricity Authority, New Zealand
- Heidelberg Cement - Germany
- Planning Commission, India
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- Pipit Mutiara Jaya. PT, Indonesia
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- Directorate General of MIneral and Coal - Indonesia
- Bharathi Cement Corporation - India
- South Luzon Thermal Energy Corporation
- Timah Investasi Mineral - Indoneisa
- Kohat Cement Company Ltd. - Pakistan
- Malabar Cements Ltd - India
- Essar Steel Hazira Ltd - India
- Aboitiz Power Corporation - Philippines
- The Treasury - Australian Government
- Bukit Makmur.PT - Indonesia
- Thai Mozambique Logistica
- Globalindo Alam Lestari - Indonesia
- Kumho Petrochemical, South Korea
- Indian Energy Exchange, India
- McConnell Dowell - Australia
- Ministry of Mines - Canada
- Edison Trading Spa - Italy
- Metalloyd Limited - United Kingdom
- Energy Link Ltd, New Zealand
- Coalindo Energy - Indonesia
- Bhatia International Limited - India
- AsiaOL BioFuels Corp., Philippines
- Maharashtra Electricity Regulatory Commission - India
- Wilmar Investment Holdings
- Karaikal Port Pvt Ltd - India
- Bukit Baiduri Energy - Indonesia
- Orica Mining Services - Indonesia
- Africa Commodities Group - South Africa
- Asia Pacific Energy Resources Ventures Inc, Philippines
- MS Steel International - UAE
- Kobexindo Tractors - Indoneisa
- Sojitz Corporation - Japan
- Bulk Trading Sa - Switzerland
- Energy Development Corp, Philippines
- Gujarat Electricity Regulatory Commission - India
- Romanian Commodities Exchange
- Grasim Industreis Ltd - India
- Central Java Power - Indonesia
- Electricity Generating Authority of Thailand
- Wood Mackenzie - Singapore
- CIMB Investment Bank - Malaysia
- Ministry of Finance - Indonesia
- Savvy Resources Ltd - HongKong
- VISA Power Limited - India
- Rio Tinto Coal - Australia
- Bhushan Steel Limited - India
- Antam Resourcindo - Indonesia
- Siam City Cement PLC, Thailand
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Bank of Tokyo Mitsubishi UFJ Ltd
- IEA Clean Coal Centre - UK
- Thiess Contractors Indonesia
- Singapore Mercantile Exchange
- Meenaskhi Energy Private Limited - India
- Pendopo Energi Batubara - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Goldman Sachs - Singapore
- Indogreen Group - Indonesia
- Trasteel International SA, Italy
- New Zealand Coal & Carbon
- GMR Energy Limited - India
- Standard Chartered Bank - UAE
- SMG Consultants - Indonesia
- Agrawal Coal Company - India
- GN Power Mariveles Coal Plant, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Economic Council, Georgia
- Borneo Indobara - Indonesia
- Cement Manufacturers Association - India
- Price Waterhouse Coopers - Russia
- Global Business Power Corporation, Philippines
- Baramulti Group, Indonesia
- Xindia Steels Limited - India
- Sakthi Sugars Limited - India
- Chamber of Mines of South Africa
- Indo Tambangraya Megah - Indonesia
- Posco Energy - South Korea
- Sree Jayajothi Cements Limited - India
- Barasentosa Lestari - Indonesia
- Sinarmas Energy and Mining - Indonesia
- PowerSource Philippines DevCo
- Coal and Oil Company - UAE
- PTC India Limited - India
- Leighton Contractors Pty Ltd - Australia
- Global Coal Blending Company Limited - Australia
- Intertek Mineral Services - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Orica Australia Pty. Ltd.
- Therma Luzon, Inc, Philippines
- Offshore Bulk Terminal Pte Ltd, Singapore
- Gujarat Sidhee Cement - India
- Independent Power Producers Association of India
- Siam City Cement - Thailand
- International Coal Ventures Pvt Ltd - India
- Australian Coal Association
- Eastern Energy - Thailand
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