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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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Monday, 19 December 22
ENERGY CRISIS FUELS COAL COMEBACK IN GERMANY - REUTERS
Coal has made a comeback in Germany this year, as Europe’s largest economy turns to the dirty fuel to power it through an energy crisis.
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Thursday, 15 December 22
MARKET INSIGHT - INTERMODAL
While observing the ship repair market very close to the end of the year, we are confident that shipyards worldwide are entering a new era. The nex ...
Tuesday, 13 December 22
STRONG COAL PRICES SUPPORT ROBUST EARNINGS AT INDONESIAN COAL MINERS - FITCH RATINGS
Fitch Ratings expects cash flow generation at Indonesian coal miners to remain strong in 2023, based on its forecast for coal prices to remain high ...
Tuesday, 13 December 22
BIMCO CII CLAUSE FINALLY RELEASED: DOES IT MAKE ANY SENSE OF CCI? - WFW
WHAT IS CII?
The new International Maritime Organisation’s (“IMO’s”) Carbon Intensity Indicator (“CII”) cer ...
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COAL BASE RAMPS UP ENERGY SUPPLY FOR WINTER NEEDS - XINHUA
Inner Mongolia Autonomous Region, China’s leading coal production base, has kicked its production into high gear to meet heating needs as col ...
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- Indogreen Group - Indonesia
- Vizag Seaport Private Limited - India
- MS Steel International - UAE
- Bharathi Cement Corporation - India
- Jorong Barutama Greston.PT - Indonesia
- Minerals Council of Australia
- Rio Tinto Coal - Australia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Jindal Steel & Power Ltd - India
- PNOC Exploration Corporation - Philippines
- Gujarat Electricity Regulatory Commission - India
- IEA Clean Coal Centre - UK
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Aditya Birla Group - India
- London Commodity Brokers - England
- Siam City Cement PLC, Thailand
- Parliament of New Zealand
- Medco Energi Mining Internasional
- Romanian Commodities Exchange
- Energy Link Ltd, New Zealand
- Samtan Co., Ltd - South Korea
- Orica Australia Pty. Ltd.
- Chettinad Cement Corporation Ltd - India
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- Cement Manufacturers Association - India
- Bangladesh Power Developement Board
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- Petrochimia International Co. Ltd.- Taiwan
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- Kepco SPC Power Corporation, Philippines
- Savvy Resources Ltd - HongKong
- Miang Besar Coal Terminal - Indonesia
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- ICICI Bank Limited - India
- Ambuja Cements Ltd - India
- The University of Queensland
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- Coastal Gujarat Power Limited - India
- Coalindo Energy - Indonesia
- Independent Power Producers Association of India
- Merrill Lynch Commodities Europe
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- Rashtriya Ispat Nigam Limited - India
- Kaltim Prima Coal - Indonesia
- Electricity Generating Authority of Thailand
- Kideco Jaya Agung - Indonesia
- Australian Coal Association
- Economic Council, Georgia
- Sical Logistics Limited - India
- Semirara Mining Corp, Philippines
- Global Green Power PLC Corporation, Philippines
- OPG Power Generation Pvt Ltd - India
- Global Coal Blending Company Limited - Australia
- Borneo Indobara - Indonesia
- Africa Commodities Group - South Africa
- Price Waterhouse Coopers - Russia
- Indo Tambangraya Megah - Indonesia
- Ministry of Transport, Egypt
- Pipit Mutiara Jaya. PT, Indonesia
- New Zealand Coal & Carbon
- Marubeni Corporation - India
- Kumho Petrochemical, South Korea
- India Bulls Power Limited - India
- McConnell Dowell - Australia
- Bhoruka Overseas - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- GVK Power & Infra Limited - India
- Dalmia Cement Bharat India
- Ministry of Finance - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Chamber of Mines of South Africa
- Videocon Industries ltd - India
- Karbindo Abesyapradhi - Indoneisa
- Vedanta Resources Plc - India
- Gujarat Mineral Development Corp Ltd - India
- Bhushan Steel Limited - India
- Planning Commission, India
- Deloitte Consulting - India
- Cigading International Bulk Terminal - Indonesia
- European Bulk Services B.V. - Netherlands
- Parry Sugars Refinery, India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Meenaskhi Energy Private Limited - India
- Commonwealth Bank - Australia
- Krishnapatnam Port Company Ltd. - India
- Leighton Contractors Pty Ltd - Australia
- Goldman Sachs - Singapore
- Ministry of Mines - Canada
- SMC Global Power, Philippines
- Therma Luzon, Inc, Philippines
- The Treasury - Australian Government
- Meralco Power Generation, Philippines
- Binh Thuan Hamico - Vietnam
- Larsen & Toubro Limited - India
- Interocean Group of Companies - India
- ASAPP Information Group - India
- Coal and Oil Company - UAE
- Manunggal Multi Energi - Indonesia
- CIMB Investment Bank - Malaysia
- Electricity Authority, New Zealand
- Kobexindo Tractors - Indoneisa
- Kalimantan Lumbung Energi - Indonesia
- TeaM Sual Corporation - Philippines
- Singapore Mercantile Exchange
- Bulk Trading Sa - Switzerland
- Wood Mackenzie - Singapore
- Barasentosa Lestari - Indonesia
- The State Trading Corporation of India Ltd
- Sindya Power Generating Company Private Ltd
- Tamil Nadu electricity Board
- Iligan Light & Power Inc, Philippines
- Thai Mozambique Logistica
- Kapuas Tunggal Persada - Indonesia
- PTC India Limited - India
- Timah Investasi Mineral - Indoneisa
- Sarangani Energy Corporation, Philippines
- Mercator Lines Limited - India
- Wilmar Investment Holdings
- Mercuria Energy - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Madhucon Powers Ltd - India
- Aboitiz Power Corporation - Philippines
- Straits Asia Resources Limited - Singapore
- Latin American Coal - Colombia
- VISA Power Limited - India
- CNBM International Corporation - China
- Australian Commodity Traders Exchange
- Asmin Koalindo Tuhup - Indonesia
- Intertek Mineral Services - Indonesia
- Posco Energy - South Korea
- Bukit Makmur.PT - Indonesia
- Eastern Coal Council - USA
- TNB Fuel Sdn Bhd - Malaysia
- Indian Energy Exchange, India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Toyota Tsusho Corporation, Japan
- Bhatia International Limited - India
- Attock Cement Pakistan Limited
- Kartika Selabumi Mining - Indonesia
- Lanco Infratech Ltd - India
- Siam City Cement - Thailand
- Alfred C Toepfer International GmbH - Germany
- Tata Chemicals Ltd - India
- Maheswari Brothers Coal Limited - India
- Globalindo Alam Lestari - Indonesia
- Heidelberg Cement - Germany
- SN Aboitiz Power Inc, Philippines
- Formosa Plastics Group - Taiwan
- Indonesian Coal Mining Association
- Vijayanagar Sugar Pvt Ltd - India
- GAC Shipping (India) Pvt Ltd
- Eastern Energy - Thailand
- Bukit Baiduri Energy - Indonesia
- Metalloyd Limited - United Kingdom
- Indian Oil Corporation Limited
- Global Business Power Corporation, Philippines
- Central Electricity Authority - India
- Antam Resourcindo - Indonesia
- South Luzon Thermal Energy Corporation
- Uttam Galva Steels Limited - India
- Essar Steel Hazira Ltd - India
- Bayan Resources Tbk. - Indonesia
- Energy Development Corp, Philippines
- Salva Resources Pvt Ltd - India
- Pendopo Energi Batubara - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Semirara Mining and Power Corporation, Philippines
- Edison Trading Spa - Italy
- Baramulti Group, Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Ind-Barath Power Infra Limited - India
- Xindia Steels Limited - India
- Banpu Public Company Limited - Thailand
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Sree Jayajothi Cements Limited - India
- Port Waratah Coal Services - Australia
- Central Java Power - Indonesia
- Georgia Ports Authority, United States
- Malabar Cements Ltd - India
- Star Paper Mills Limited - India
- Grasim Industreis Ltd - India
- Power Finance Corporation Ltd., India
- Directorate General of MIneral and Coal - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Simpson Spence & Young - Indonesia
- Ceylon Electricity Board - Sri Lanka
- LBH Netherlands Bv - Netherlands
- Directorate Of Revenue Intelligence - India
- Anglo American - United Kingdom
- Bahari Cakrawala Sebuku - Indonesia
- Renaissance Capital - South Africa
- SMG Consultants - Indonesia
- Mjunction Services Limited - India
- Mintek Dendrill Indonesia
- Standard Chartered Bank - UAE
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Sojitz Corporation - Japan
- Agrawal Coal Company - India
- International Coal Ventures Pvt Ltd - India
- GMR Energy Limited - India
- Karaikal Port Pvt Ltd - India
- Gujarat Sidhee Cement - India
- Orica Mining Services - Indonesia
- Riau Bara Harum - Indonesia
- Altura Mining Limited, Indonesia
- IHS Mccloskey Coal Group - USA
- Oldendorff Carriers - Singapore
- Petron Corporation, Philippines
- White Energy Company Limited
- Trasteel International SA, Italy
- Thiess Contractors Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Indika Energy - Indonesia
- Makarim & Taira - Indonesia
- San Jose City I Power Corp, Philippines
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