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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, 22 December 22
RUSSIAN OIL EXPORTS CRATER BY 54% IN THE FIRST FULL WEEK OF THE EU'S EMBARGO AMID A SHORTAGE OF TANKERS WILLING TO CARRY CARGOES - BUSINESS INSIDER
Since the European Union imposed its seaborne crude sanctions, Russian oil exports have tumbled by more than half, according to data compiled by Bl ...
Thursday, 22 December 22
CHINA TIGHTENS VERIFICATION OF SHIPS’ ENERGY CONSUMPTION DATA - GARD
From 22 December 2022, ships trading to Chinese ports must record their energy consumption data in accordance with the requirements of their Ship E ...
Thursday, 22 December 22
AN OVERVIEW OF THE LNG MARKET - VESSELSVALUE
LNG values have continued to strengthen, spurred by skyrocketing earnings that have surpassed last year’s record breaking peaks. In November, ...
Thursday, 22 December 22
COKING COAL SLUMPS AS TALKS ON AUSTRALIA-CHINA TRADE RIFT LOOM - REUTERS
Chinese coking coal futures dropped more than 3 per cent on Tuesday (Dec 20), extending losses, as supply of the steelmaking input might increase i ...
Thursday, 22 December 22
COAL AND GAS PRICE CAPS MAY COMPOUND POLITICAL RISK FOR AUSTRALIAN CORPORATES - FITCH RATINGS
Australia’s introduction of temporary price caps on domestic sales of gas and coal used for electricity generation will probably have limited ...
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- Bayan Resources Tbk. - Indonesia
- Lanco Infratech Ltd - India
- Therma Luzon, Inc, Philippines
- Latin American Coal - Colombia
- Trasteel International SA, Italy
- Ministry of Finance - Indonesia
- Sical Logistics Limited - India
- Krishnapatnam Port Company Ltd. - India
- International Coal Ventures Pvt Ltd - India
- Bangladesh Power Developement Board
- The State Trading Corporation of India Ltd
- Gujarat Mineral Development Corp Ltd - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- CIMB Investment Bank - Malaysia
- Sinarmas Energy and Mining - Indonesia
- LBH Netherlands Bv - Netherlands
- Kartika Selabumi Mining - Indonesia
- Standard Chartered Bank - UAE
- Petrochimia International Co. Ltd.- Taiwan
- Billiton Holdings Pty Ltd - Australia
- GN Power Mariveles Coal Plant, Philippines
- Bukit Asam (Persero) Tbk - Indonesia
- Kobexindo Tractors - Indoneisa
- TeaM Sual Corporation - Philippines
- Bhoruka Overseas - Indonesia
- Toyota Tsusho Corporation, Japan
- Aditya Birla Group - India
- Merrill Lynch Commodities Europe
- Planning Commission, India
- Global Green Power PLC Corporation, Philippines
- Ambuja Cements Ltd - India
- Mercuria Energy - Indonesia
- Chamber of Mines of South Africa
- India Bulls Power Limited - India
- Antam Resourcindo - Indonesia
- Indian Energy Exchange, India
- Indo Tambangraya Megah - Indonesia
- Mintek Dendrill Indonesia
- Gujarat Electricity Regulatory Commission - India
- PNOC Exploration Corporation - Philippines
- IHS Mccloskey Coal Group - USA
- Tata Chemicals Ltd - India
- Bahari Cakrawala Sebuku - Indonesia
- Karaikal Port Pvt Ltd - India
- Jaiprakash Power Ventures ltd
- Larsen & Toubro Limited - India
- Global Business Power Corporation, Philippines
- Tamil Nadu electricity Board
- Miang Besar Coal Terminal - Indonesia
- Rio Tinto Coal - Australia
- Dalmia Cement Bharat India
- White Energy Company Limited
- Port Waratah Coal Services - Australia
- The University of Queensland
- Holcim Trading Pte Ltd - Singapore
- ASAPP Information Group - India
- Attock Cement Pakistan Limited
- Manunggal Multi Energi - Indonesia
- IEA Clean Coal Centre - UK
- Gujarat Sidhee Cement - India
- Kohat Cement Company Ltd. - Pakistan
- Eastern Coal Council - USA
- Central Electricity Authority - India
- Georgia Ports Authority, United States
- Salva Resources Pvt Ltd - India
- SN Aboitiz Power Inc, Philippines
- Renaissance Capital - South Africa
- Grasim Industreis Ltd - India
- VISA Power Limited - India
- Videocon Industries ltd - India
- Pipit Mutiara Jaya. PT, Indonesia
- Metalloyd Limited - United Kingdom
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Meenaskhi Energy Private Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Anglo American - United Kingdom
- Bhatia International Limited - India
- Thai Mozambique Logistica
- Straits Asia Resources Limited - Singapore
- Chettinad Cement Corporation Ltd - India
- Australian Commodity Traders Exchange
- Samtan Co., Ltd - South Korea
- South Luzon Thermal Energy Corporation
- Ministry of Transport, Egypt
- Siam City Cement PLC, Thailand
- Coalindo Energy - Indonesia
- Bhushan Steel Limited - India
- Kapuas Tunggal Persada - Indonesia
- Vedanta Resources Plc - India
- Riau Bara Harum - Indonesia
- Iligan Light & Power Inc, Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Kepco SPC Power Corporation, Philippines
- Sakthi Sugars Limited - India
- Indonesian Coal Mining Association
- GMR Energy Limited - India
- Central Java Power - Indonesia
- Sindya Power Generating Company Private Ltd
- Medco Energi Mining Internasional
- Siam City Cement - Thailand
- Barasentosa Lestari - Indonesia
- Coastal Gujarat Power Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Meralco Power Generation, Philippines
- Mjunction Services Limited - India
- OPG Power Generation Pvt Ltd - India
- Semirara Mining Corp, Philippines
- PetroVietnam Power Coal Import and Supply Company
- Indika Energy - Indonesia
- Mercator Lines Limited - India
- Carbofer General Trading SA - India
- Malabar Cements Ltd - India
- Indian Oil Corporation Limited
- Orica Mining Services - Indonesia
- Aboitiz Power Corporation - Philippines
- Wood Mackenzie - Singapore
- Sojitz Corporation - Japan
- Ministry of Mines - Canada
- SMG Consultants - Indonesia
- Ind-Barath Power Infra Limited - India
- Power Finance Corporation Ltd., India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Commonwealth Bank - Australia
- Oldendorff Carriers - Singapore
- Agrawal Coal Company - India
- McConnell Dowell - Australia
- Africa Commodities Group - South Africa
- Bharathi Cement Corporation - India
- Bukit Baiduri Energy - Indonesia
- Xindia Steels Limited - India
- Heidelberg Cement - Germany
- Cement Manufacturers Association - India
- Independent Power Producers Association of India
- CNBM International Corporation - China
- SMC Global Power, Philippines
- Indogreen Group - Indonesia
- Kumho Petrochemical, South Korea
- Vijayanagar Sugar Pvt Ltd - India
- Leighton Contractors Pty Ltd - Australia
- GVK Power & Infra Limited - India
- Kideco Jaya Agung - Indonesia
- Bulk Trading Sa - Switzerland
- Vizag Seaport Private Limited - India
- Minerals Council of Australia
- Deloitte Consulting - India
- Kaltim Prima Coal - Indonesia
- Essar Steel Hazira Ltd - India
- European Bulk Services B.V. - Netherlands
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Timah Investasi Mineral - Indoneisa
- Altura Mining Limited, Indonesia
- Binh Thuan Hamico - Vietnam
- Intertek Mineral Services - Indonesia
- MS Steel International - UAE
- Neyveli Lignite Corporation Ltd, - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Jindal Steel & Power Ltd - India
- Price Waterhouse Coopers - Russia
- Star Paper Mills Limited - India
- Semirara Mining and Power Corporation, Philippines
- Formosa Plastics Group - Taiwan
- Simpson Spence & Young - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Karbindo Abesyapradhi - Indoneisa
- Maheswari Brothers Coal Limited - India
- Parry Sugars Refinery, India
- Coal and Oil Company - UAE
- Alfred C Toepfer International GmbH - Germany
- Savvy Resources Ltd - HongKong
- PTC India Limited - India
- Directorate Of Revenue Intelligence - India
- Romanian Commodities Exchange
- Petron Corporation, Philippines
- Edison Trading Spa - Italy
- Marubeni Corporation - India
- Banpu Public Company Limited - Thailand
- Electricity Generating Authority of Thailand
- Bank of Tokyo Mitsubishi UFJ Ltd
- Directorate General of MIneral and Coal - Indonesia
- Sree Jayajothi Cements Limited - India
- Ceylon Electricity Board - Sri Lanka
- Cigading International Bulk Terminal - Indonesia
- ICICI Bank Limited - India
- Economic Council, Georgia
- Goldman Sachs - Singapore
- Orica Australia Pty. Ltd.
- Baramulti Group, Indonesia
- Electricity Authority, New Zealand
- Energy Link Ltd, New Zealand
- Sarangani Energy Corporation, Philippines
- Borneo Indobara - Indonesia
- Australian Coal Association
- Globalindo Alam Lestari - Indonesia
- Singapore Mercantile Exchange
- GAC Shipping (India) Pvt Ltd
- Interocean Group of Companies - India
- Pendopo Energi Batubara - Indonesia
- Energy Development Corp, Philippines
- Wilmar Investment Holdings
- The Treasury - Australian Government
- New Zealand Coal & Carbon
- San Jose City I Power Corp, Philippines
- Parliament of New Zealand
- Bukit Makmur.PT - Indonesia
- Eastern Energy - Thailand
- Jorong Barutama Greston.PT - Indonesia
- PowerSource Philippines DevCo
- Makarim & Taira - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Uttam Galva Steels Limited - India
- London Commodity Brokers - England
- Global Coal Blending Company Limited - Australia
- Thiess Contractors Indonesia
- Posco Energy - South Korea
- Madhucon Powers Ltd - India
- Rashtriya Ispat Nigam Limited - India
- Asmin Koalindo Tuhup - Indonesia
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