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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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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 ...
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Showing 101 to 105 news of total 6871 |
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- CNBM International Corporation - China
- Kumho Petrochemical, South Korea
- Chettinad Cement Corporation Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- SN Aboitiz Power Inc, Philippines
- Sinarmas Energy and Mining - Indonesia
- Mercator Lines Limited - India
- Global Green Power PLC Corporation, Philippines
- San Jose City I Power Corp, Philippines
- Formosa Plastics Group - Taiwan
- Riau Bara Harum - Indonesia
- Intertek Mineral Services - Indonesia
- Wilmar Investment Holdings
- Chamber of Mines of South Africa
- Altura Mining Limited, Indonesia
- Energy Development Corp, Philippines
- Karbindo Abesyapradhi - Indoneisa
- LBH Netherlands Bv - Netherlands
- SMG Consultants - Indonesia
- Jaiprakash Power Ventures ltd
- CIMB Investment Bank - Malaysia
- Australian Coal Association
- Agrawal Coal Company - India
- Commonwealth Bank - Australia
- Petrochimia International Co. Ltd.- Taiwan
- Salva Resources Pvt Ltd - India
- IHS Mccloskey Coal Group - USA
- Semirara Mining Corp, Philippines
- Star Paper Mills Limited - India
- Xindia Steels Limited - India
- Coal and Oil Company - UAE
- Neyveli Lignite Corporation Ltd, - India
- Ind-Barath Power Infra Limited - India
- Oldendorff Carriers - Singapore
- Kaltim Prima Coal - Indonesia
- London Commodity Brokers - England
- Miang Besar Coal Terminal - Indonesia
- Aboitiz Power Corporation - Philippines
- Indian Energy Exchange, India
- GVK Power & Infra Limited - India
- Wood Mackenzie - Singapore
- Jorong Barutama Greston.PT - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Ministry of Finance - Indonesia
- OPG Power Generation Pvt Ltd - India
- Simpson Spence & Young - Indonesia
- McConnell Dowell - Australia
- Gujarat Sidhee Cement - India
- Iligan Light & Power Inc, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Coastal Gujarat Power Limited - India
- Tamil Nadu electricity Board
- Larsen & Toubro Limited - India
- Thai Mozambique Logistica
- Siam City Cement PLC, Thailand
- Cigading International Bulk Terminal - Indonesia
- Merrill Lynch Commodities Europe
- Kideco Jaya Agung - Indonesia
- European Bulk Services B.V. - Netherlands
- Metalloyd Limited - United Kingdom
- Toyota Tsusho Corporation, Japan
- Attock Cement Pakistan Limited
- Sree Jayajothi Cements Limited - India
- Sical Logistics Limited - India
- Rashtriya Ispat Nigam Limited - India
- Price Waterhouse Coopers - Russia
- Carbofer General Trading SA - India
- Coalindo Energy - Indonesia
- Timah Investasi Mineral - Indoneisa
- India Bulls Power Limited - India
- Singapore Mercantile Exchange
- Independent Power Producers Association of India
- Barasentosa Lestari - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Mintek Dendrill Indonesia
- Uttam Galva Steels Limited - India
- Jindal Steel & Power Ltd - India
- Cement Manufacturers Association - India
- Bukit Asam (Persero) Tbk - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Vizag Seaport Private Limited - India
- Savvy Resources Ltd - HongKong
- Eastern Coal Council - USA
- Bhatia International Limited - India
- Indonesian Coal Mining Association
- Sindya Power Generating Company Private Ltd
- Siam City Cement - Thailand
- Kohat Cement Company Ltd. - Pakistan
- Antam Resourcindo - Indonesia
- GMR Energy Limited - India
- Malabar Cements Ltd - India
- Edison Trading Spa - Italy
- Electricity Generating Authority of Thailand
- Essar Steel Hazira Ltd - India
- Bangladesh Power Developement Board
- PetroVietnam Power Coal Import and Supply Company
- Therma Luzon, Inc, Philippines
- Manunggal Multi Energi - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Aditya Birla Group - India
- Petron Corporation, Philippines
- Ceylon Electricity Board - Sri Lanka
- Pendopo Energi Batubara - Indonesia
- Orica Australia Pty. Ltd.
- Goldman Sachs - Singapore
- Meenaskhi Energy Private Limited - India
- Grasim Industreis Ltd - India
- Straits Asia Resources Limited - Singapore
- SMC Global Power, Philippines
- Trasteel International SA, Italy
- Ministry of Mines - Canada
- New Zealand Coal & Carbon
- Borneo Indobara - Indonesia
- Africa Commodities Group - South Africa
- White Energy Company Limited
- Karaikal Port Pvt Ltd - India
- Medco Energi Mining Internasional
- Indo Tambangraya Megah - Indonesia
- Interocean Group of Companies - India
- Maharashtra Electricity Regulatory Commission - India
- GAC Shipping (India) Pvt Ltd
- Indika Energy - Indonesia
- Heidelberg Cement - Germany
- Rio Tinto Coal - Australia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Parry Sugars Refinery, India
- Videocon Industries ltd - India
- Mjunction Services Limited - India
- Baramulti Group, Indonesia
- Bayan Resources Tbk. - Indonesia
- Bukit Baiduri Energy - Indonesia
- IEA Clean Coal Centre - UK
- TeaM Sual Corporation - Philippines
- Samtan Co., Ltd - South Korea
- Bharathi Cement Corporation - India
- Electricity Authority, New Zealand
- VISA Power Limited - India
- PTC India Limited - India
- Australian Commodity Traders Exchange
- Central Electricity Authority - India
- Kalimantan Lumbung Energi - Indonesia
- MS Steel International - UAE
- Global Coal Blending Company Limited - Australia
- Banpu Public Company Limited - Thailand
- Posco Energy - South Korea
- Leighton Contractors Pty Ltd - Australia
- Globalindo Alam Lestari - Indonesia
- Mercuria Energy - Indonesia
- Energy Link Ltd, New Zealand
- South Luzon Thermal Energy Corporation
- Tata Chemicals Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Standard Chartered Bank - UAE
- Eastern Energy - Thailand
- Bank of Tokyo Mitsubishi UFJ Ltd
- Semirara Mining and Power Corporation, Philippines
- Vedanta Resources Plc - India
- Madhucon Powers Ltd - India
- The University of Queensland
- Sakthi Sugars Limited - India
- Kepco SPC Power Corporation, Philippines
- Dalmia Cement Bharat India
- Parliament of New Zealand
- Minerals Council of Australia
- Economic Council, Georgia
- International Coal Ventures Pvt Ltd - India
- Maheswari Brothers Coal Limited - India
- Kapuas Tunggal Persada - Indonesia
- PNOC Exploration Corporation - Philippines
- Sojitz Corporation - Japan
- Deloitte Consulting - India
- Bukit Makmur.PT - Indonesia
- Bulk Trading Sa - Switzerland
- Indian Oil Corporation Limited
- Thiess Contractors Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Global Business Power Corporation, Philippines
- The Treasury - Australian Government
- Anglo American - United Kingdom
- ICICI Bank Limited - India
- Kartika Selabumi Mining - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Orica Mining Services - Indonesia
- Marubeni Corporation - India
- Binh Thuan Hamico - Vietnam
- PowerSource Philippines DevCo
- Gujarat Electricity Regulatory Commission - India
- Georgia Ports Authority, United States
- Asmin Koalindo Tuhup - Indonesia
- ASAPP Information Group - India
- Meralco Power Generation, Philippines
- Planning Commission, India
- Renaissance Capital - South Africa
- The State Trading Corporation of India Ltd
- Directorate Of Revenue Intelligence - India
- Central Java Power - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Sarangani Energy Corporation, Philippines
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Power Finance Corporation Ltd., India
- Port Waratah Coal Services - Australia
- Bhushan Steel Limited - India
- Indogreen Group - Indonesia
- Romanian Commodities Exchange
- AsiaOL BioFuels Corp., Philippines
- Makarim & Taira - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Latin American Coal - Colombia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Ambuja Cements Ltd - India
- Ministry of Transport, Egypt
- Kobexindo Tractors - Indoneisa
- Lanco Infratech Ltd - India
- Bhoruka Overseas - Indonesia
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