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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, 18 January 16
Q1'16 CFR SOUTH CHINA COAL SWAP CLOSED AT $ 42.50 PER TON; UP 1% MONTH OVER MONTH
COALspot.com: API 8 CFR South China Coal swap for Q1’ 2016 delivery rose US$ 0.43 (1.02%) per ton month over month.
A commodity swap is ...
Friday, 15 January 16
FOB INDONESIA COAL SWAPS FIRM SLIGHTLY LAST WEEK
COALspot.com: Indonesian coal swap delivery Q1 2016 declined month over month and week over week.
According to AsiaClear OTC coal swap's r ...
Friday, 15 January 16
SHIPPING: 2016 STARTED WITH MISERY ACROSS THE BOARD FOR SHIP OWNERS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
As one would have expected, the dry bulk market starter the new year where it left off in 2015, plunging to never seen before depths, as the market ...
Friday, 15 January 16
U.S. WEEKLY COAL PRODUCTION ROSE ACROSS ALL BASINS: EIA
COALspot.com – United States the world’s second largest coal producer has produced approximately totaled an estimated 13.4 million shor ...
Thursday, 14 January 16
FOB RICHARDS BAY COAL SWAP FOR Q3 DELIVERY CLOSED $5.90 LOWER THAN Q1 PRICE
COALspot.com: Q1’ 2016 API4 FOB Richards Bay Coal swap up month over month and week over week.
The Q1’ 2016 FOB Richards Bay Coal ...
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Showing 2606 to 2610 news of total 6871 |
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- Chamber of Mines of South Africa
- Energy Link Ltd, New Zealand
- Wood Mackenzie - Singapore
- Intertek Mineral Services - Indonesia
- Sarangani Energy Corporation, Philippines
- Kaltim Prima Coal - Indonesia
- MS Steel International - UAE
- Gujarat Electricity Regulatory Commission - India
- Malabar Cements Ltd - India
- Sree Jayajothi Cements Limited - India
- SMC Global Power, Philippines
- Energy Development Corp, Philippines
- Orica Australia Pty. Ltd.
- VISA Power Limited - India
- Altura Mining Limited, Indonesia
- Simpson Spence & Young - Indonesia
- The State Trading Corporation of India Ltd
- London Commodity Brokers - England
- Neyveli Lignite Corporation Ltd, - India
- PTC India Limited - India
- International Coal Ventures Pvt Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Bhoruka Overseas - Indonesia
- Australian Coal Association
- Commonwealth Bank - Australia
- Chettinad Cement Corporation Ltd - India
- Baramulti Group, Indonesia
- Marubeni Corporation - India
- Timah Investasi Mineral - Indoneisa
- Eastern Energy - Thailand
- McConnell Dowell - Australia
- Economic Council, Georgia
- Bukit Asam (Persero) Tbk - Indonesia
- Indonesian Coal Mining Association
- Sical Logistics Limited - India
- Renaissance Capital - South Africa
- Binh Thuan Hamico - Vietnam
- Sindya Power Generating Company Private Ltd
- Vedanta Resources Plc - India
- India Bulls Power Limited - India
- Sojitz Corporation - Japan
- Bayan Resources Tbk. - Indonesia
- Ambuja Cements Ltd - India
- Mjunction Services Limited - India
- Ind-Barath Power Infra Limited - India
- Barasentosa Lestari - Indonesia
- GVK Power & Infra Limited - India
- Ministry of Mines - Canada
- Rio Tinto Coal - Australia
- Minerals Council of Australia
- Aboitiz Power Corporation - Philippines
- Samtan Co., Ltd - South Korea
- PNOC Exploration Corporation - Philippines
- Standard Chartered Bank - UAE
- Vijayanagar Sugar Pvt Ltd - India
- Carbofer General Trading SA - India
- Cigading International Bulk Terminal - Indonesia
- Central Java Power - Indonesia
- Thiess Contractors Indonesia
- IHS Mccloskey Coal Group - USA
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Attock Cement Pakistan Limited
- Bulk Trading Sa - Switzerland
- Ministry of Finance - Indonesia
- White Energy Company Limited
- Meralco Power Generation, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- The Treasury - Australian Government
- Thai Mozambique Logistica
- Wilmar Investment Holdings
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Makarim & Taira - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Planning Commission, India
- Singapore Mercantile Exchange
- Borneo Indobara - Indonesia
- Directorate Of Revenue Intelligence - India
- Orica Mining Services - Indonesia
- Essar Steel Hazira Ltd - India
- Price Waterhouse Coopers - Russia
- Coalindo Energy - Indonesia
- Leighton Contractors Pty Ltd - Australia
- GN Power Mariveles Coal Plant, Philippines
- Tamil Nadu electricity Board
- Anglo American - United Kingdom
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Parry Sugars Refinery, India
- Therma Luzon, Inc, Philippines
- Siam City Cement PLC, Thailand
- Uttam Galva Steels Limited - India
- ASAPP Information Group - India
- Kobexindo Tractors - Indoneisa
- Georgia Ports Authority, United States
- PetroVietnam Power Coal Import and Supply Company
- PowerSource Philippines DevCo
- SN Aboitiz Power Inc, Philippines
- Tata Chemicals Ltd - India
- Lanco Infratech Ltd - India
- Madhucon Powers Ltd - India
- AsiaOL BioFuels Corp., Philippines
- CNBM International Corporation - China
- Gujarat Sidhee Cement - India
- Kumho Petrochemical, South Korea
- Kepco SPC Power Corporation, Philippines
- Mercuria Energy - Indonesia
- The University of Queensland
- Bangladesh Power Developement Board
- Bukit Makmur.PT - Indonesia
- Videocon Industries ltd - India
- Coal and Oil Company - UAE
- Iligan Light & Power Inc, Philippines
- New Zealand Coal & Carbon
- Latin American Coal - Colombia
- Indika Energy - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Formosa Plastics Group - Taiwan
- Indogreen Group - Indonesia
- Indo Tambangraya Megah - Indonesia
- Cement Manufacturers Association - India
- Maheswari Brothers Coal Limited - India
- Interocean Group of Companies - India
- Siam City Cement - Thailand
- IEA Clean Coal Centre - UK
- Romanian Commodities Exchange
- Kalimantan Lumbung Energi - Indonesia
- Straits Asia Resources Limited - Singapore
- Sinarmas Energy and Mining - Indonesia
- Larsen & Toubro Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Maharashtra Electricity Regulatory Commission - India
- Pipit Mutiara Jaya. PT, Indonesia
- Port Waratah Coal Services - Australia
- Bhatia International Limited - India
- Banpu Public Company Limited - Thailand
- Jindal Steel & Power Ltd - India
- Merrill Lynch Commodities Europe
- Electricity Generating Authority of Thailand
- Meenaskhi Energy Private Limited - India
- Australian Commodity Traders Exchange
- Kohat Cement Company Ltd. - Pakistan
- LBH Netherlands Bv - Netherlands
- Grasim Industreis Ltd - India
- European Bulk Services B.V. - Netherlands
- GAC Shipping (India) Pvt Ltd
- Manunggal Multi Energi - Indonesia
- Star Paper Mills Limited - India
- Pendopo Energi Batubara - Indonesia
- Semirara Mining Corp, Philippines
- GMR Energy Limited - India
- Bharathi Cement Corporation - India
- Posco Energy - South Korea
- Billiton Holdings Pty Ltd - Australia
- Krishnapatnam Port Company Ltd. - India
- Bhushan Steel Limited - India
- Ministry of Transport, Egypt
- Toyota Tsusho Corporation, Japan
- Miang Besar Coal Terminal - Indonesia
- Edison Trading Spa - Italy
- TeaM Sual Corporation - Philippines
- Antam Resourcindo - Indonesia
- Aditya Birla Group - India
- Medco Energi Mining Internasional
- Dalmia Cement Bharat India
- Global Coal Blending Company Limited - Australia
- Alfred C Toepfer International GmbH - Germany
- Karaikal Port Pvt Ltd - India
- Power Finance Corporation Ltd., India
- OPG Power Generation Pvt Ltd - India
- Bukit Baiduri Energy - Indonesia
- Electricity Authority, New Zealand
- Ceylon Electricity Board - Sri Lanka
- Xindia Steels Limited - India
- Deloitte Consulting - India
- San Jose City I Power Corp, Philippines
- South Luzon Thermal Energy Corporation
- Goldman Sachs - Singapore
- Metalloyd Limited - United Kingdom
- Petron Corporation, Philippines
- Vizag Seaport Private Limited - India
- Savvy Resources Ltd - HongKong
- Africa Commodities Group - South Africa
- Indian Energy Exchange, India
- Parliament of New Zealand
- Mintek Dendrill Indonesia
- Sakthi Sugars Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- ICICI Bank Limited - India
- Kideco Jaya Agung - Indonesia
- Coastal Gujarat Power Limited - India
- Salva Resources Pvt Ltd - India
- Central Electricity Authority - India
- Kartika Selabumi Mining - Indonesia
- Globalindo Alam Lestari - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Global Business Power Corporation, Philippines
- CIMB Investment Bank - Malaysia
- Directorate General of MIneral and Coal - Indonesia
- SMG Consultants - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Oldendorff Carriers - Singapore
- Gujarat Mineral Development Corp Ltd - India
- Global Green Power PLC Corporation, Philippines
- Independent Power Producers Association of India
- Agrawal Coal Company - India
- Mercator Lines Limited - India
- Semirara Mining and Power Corporation, Philippines
- Riau Bara Harum - Indonesia
- Jaiprakash Power Ventures ltd
- Bank of Tokyo Mitsubishi UFJ Ltd
- Indian Oil Corporation Limited
- Trasteel International SA, Italy
- Eastern Coal Council - USA
- Jorong Barutama Greston.PT - Indonesia
- Heidelberg Cement - Germany
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