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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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Wednesday, 13 January 16
U.S. COAL PRODUCTION DECLINED BY 109 MMST IN 2015; COAL EXPORTS DECREASED 21% Y-O-Y
COALspot.com: U.S. coal production declined by 109 million short tons (MMst) (11%) in 2015, the largest decline ever recorded, says EIA.
The 2 ...
Wednesday, 13 January 16
SHIPPING MARKET INSIGHT - GEORGE ILIOPOULOS
Going through the second week of 2016 we could easily argue that at this point there are no visible signs of an imminent recovery in the Dry Bulk m ...
Wednesday, 13 January 16
IRON ORE IMPASSE - A FAILED CLAIM FOR CONVERSION - CLYDE & CO
KNOWLEDGE TO ELEVATE
In the recent case of the “Bao Yue”, the English High Court found that the bill of lading holder was liable t ...
Tuesday, 12 January 16
5700 GAR COAL FOR DELIVERY WITHIN Q1 FELL 0.91% WEEK OVER WEEK
COALspot.com: Average 5000 GAR coal index of Indonesian origin moved South direction week over week to averaging $39.96 per ton on last Friday, acc ...
Monday, 11 January 16
PORT OF NEWCASTLE SHIPPED 20% MORE COAL IN DECEMBER 2015; AVERAGE SELLING PRICE DECLINE 3.43%
COALspot.com: The Port of Newcastle, Australia’s major trading ports and the world’s largest coal export port has shipped $1.129 billio ...
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Showing 2611 to 2615 news of total 6871 |
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- Grasim Industreis Ltd - India
- McConnell Dowell - Australia
- Meenaskhi Energy Private Limited - India
- Energy Development Corp, Philippines
- European Bulk Services B.V. - Netherlands
- Antam Resourcindo - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Bhushan Steel Limited - India
- Bukit Makmur.PT - Indonesia
- Standard Chartered Bank - UAE
- Coastal Gujarat Power Limited - India
- Aboitiz Power Corporation - Philippines
- Sical Logistics Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- MS Steel International - UAE
- Leighton Contractors Pty Ltd - Australia
- Kepco SPC Power Corporation, Philippines
- Wood Mackenzie - Singapore
- Kideco Jaya Agung - Indonesia
- IHS Mccloskey Coal Group - USA
- Jaiprakash Power Ventures ltd
- Global Coal Blending Company Limited - Australia
- Binh Thuan Hamico - Vietnam
- Semirara Mining and Power Corporation, Philippines
- Chamber of Mines of South Africa
- Sojitz Corporation - Japan
- Larsen & Toubro Limited - India
- Interocean Group of Companies - India
- Ambuja Cements Ltd - India
- Minerals Council of Australia
- GMR Energy Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Global Business Power Corporation, Philippines
- Kaltim Prima Coal - Indonesia
- Metalloyd Limited - United Kingdom
- Kobexindo Tractors - Indoneisa
- International Coal Ventures Pvt Ltd - India
- Bayan Resources Tbk. - Indonesia
- Tata Chemicals Ltd - India
- Merrill Lynch Commodities Europe
- Malabar Cements Ltd - India
- Neyveli Lignite Corporation Ltd, - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Wilmar Investment Holdings
- IEA Clean Coal Centre - UK
- Thai Mozambique Logistica
- Vizag Seaport Private Limited - India
- Global Green Power PLC Corporation, Philippines
- Therma Luzon, Inc, Philippines
- Ind-Barath Power Infra Limited - India
- Jindal Steel & Power Ltd - India
- Renaissance Capital - South Africa
- Altura Mining Limited, Indonesia
- Intertek Mineral Services - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- VISA Power Limited - India
- Electricity Authority, New Zealand
- SN Aboitiz Power Inc, Philippines
- Gujarat Electricity Regulatory Commission - India
- Cigading International Bulk Terminal - Indonesia
- GVK Power & Infra Limited - India
- Sarangani Energy Corporation, Philippines
- Cement Manufacturers Association - India
- LBH Netherlands Bv - Netherlands
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Marubeni Corporation - India
- Makarim & Taira - Indonesia
- Gujarat Sidhee Cement - India
- Medco Energi Mining Internasional
- Commonwealth Bank - Australia
- Latin American Coal - Colombia
- PowerSource Philippines DevCo
- Mercuria Energy - Indonesia
- Indian Oil Corporation Limited
- Sinarmas Energy and Mining - Indonesia
- Indian Energy Exchange, India
- Goldman Sachs - Singapore
- Bhoruka Overseas - Indonesia
- New Zealand Coal & Carbon
- Bukit Baiduri Energy - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Tamil Nadu electricity Board
- Vedanta Resources Plc - India
- The Treasury - Australian Government
- Bank of Tokyo Mitsubishi UFJ Ltd
- OPG Power Generation Pvt Ltd - India
- GN Power Mariveles Coal Plant, Philippines
- TeaM Sual Corporation - Philippines
- PetroVietnam Power Coal Import and Supply Company
- Ministry of Transport, Egypt
- Indo Tambangraya Megah - Indonesia
- Aditya Birla Group - India
- Attock Cement Pakistan Limited
- Orica Mining Services - Indonesia
- Banpu Public Company Limited - Thailand
- AsiaOL BioFuels Corp., Philippines
- Coalindo Energy - Indonesia
- Energy Link Ltd, New Zealand
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Ministry of Finance - Indonesia
- Lanco Infratech Ltd - India
- Madhucon Powers Ltd - India
- SMC Global Power, Philippines
- Siam City Cement - Thailand
- Formosa Plastics Group - Taiwan
- Mercator Lines Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Deloitte Consulting - India
- TNB Fuel Sdn Bhd - Malaysia
- Price Waterhouse Coopers - Russia
- Baramulti Group, Indonesia
- Singapore Mercantile Exchange
- PNOC Exploration Corporation - Philippines
- Indogreen Group - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Siam City Cement PLC, Thailand
- PTC India Limited - India
- Rashtriya Ispat Nigam Limited - India
- Indonesian Coal Mining Association
- Straits Asia Resources Limited - Singapore
- Parliament of New Zealand
- Power Finance Corporation Ltd., India
- Karbindo Abesyapradhi - Indoneisa
- London Commodity Brokers - England
- Georgia Ports Authority, United States
- Independent Power Producers Association of India
- Port Waratah Coal Services - Australia
- Salva Resources Pvt Ltd - India
- South Luzon Thermal Energy Corporation
- Petrochimia International Co. Ltd.- Taiwan
- Africa Commodities Group - South Africa
- Orica Australia Pty. Ltd.
- Bangladesh Power Developement Board
- Sakthi Sugars Limited - India
- Romanian Commodities Exchange
- CNBM International Corporation - China
- Sindya Power Generating Company Private Ltd
- Holcim Trading Pte Ltd - Singapore
- Rio Tinto Coal - Australia
- White Energy Company Limited
- Bukit Asam (Persero) Tbk - Indonesia
- Riau Bara Harum - Indonesia
- Meralco Power Generation, Philippines
- Videocon Industries ltd - India
- Barasentosa Lestari - Indonesia
- Kapuas Tunggal Persada - Indonesia
- The University of Queensland
- Asmin Koalindo Tuhup - Indonesia
- Bharathi Cement Corporation - India
- Economic Council, Georgia
- Edison Trading Spa - Italy
- Globalindo Alam Lestari - Indonesia
- Ministry of Mines - Canada
- CIMB Investment Bank - Malaysia
- Eastern Coal Council - USA
- Uttam Galva Steels Limited - India
- Alfred C Toepfer International GmbH - Germany
- Maheswari Brothers Coal Limited - India
- Essar Steel Hazira Ltd - India
- Samtan Co., Ltd - South Korea
- Oldendorff Carriers - Singapore
- Ceylon Electricity Board - Sri Lanka
- Heidelberg Cement - Germany
- Billiton Holdings Pty Ltd - Australia
- Agrawal Coal Company - India
- Bulk Trading Sa - Switzerland
- Timah Investasi Mineral - Indoneisa
- The State Trading Corporation of India Ltd
- India Bulls Power Limited - India
- Indika Energy - Indonesia
- SMG Consultants - Indonesia
- Electricity Generating Authority of Thailand
- Iligan Light & Power Inc, Philippines
- Thiess Contractors Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Directorate General of MIneral and Coal - Indonesia
- Borneo Indobara - Indonesia
- Xindia Steels Limited - India
- Coal and Oil Company - UAE
- Directorate Of Revenue Intelligence - India
- Parry Sugars Refinery, India
- Anglo American - United Kingdom
- Trasteel International SA, Italy
- Sree Jayajothi Cements Limited - India
- Toyota Tsusho Corporation, Japan
- Carbofer General Trading SA - India
- Chettinad Cement Corporation Ltd - India
- Semirara Mining Corp, Philippines
- Bhatia International Limited - India
- Kumho Petrochemical, South Korea
- Manunggal Multi Energi - Indonesia
- ASAPP Information Group - India
- Posco Energy - South Korea
- Petron Corporation, Philippines
- GAC Shipping (India) Pvt Ltd
- Pendopo Energi Batubara - Indonesia
- San Jose City I Power Corp, Philippines
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Australian Coal Association
- Karaikal Port Pvt Ltd - India
- Australian Commodity Traders Exchange
- Star Paper Mills Limited - India
- Krishnapatnam Port Company Ltd. - India
- Savvy Resources Ltd - HongKong
- Dalmia Cement Bharat India
- Kohat Cement Company Ltd. - Pakistan
- Kartika Selabumi Mining - Indonesia
- Mintek Dendrill Indonesia
- ICICI Bank Limited - India
- Central Java Power - Indonesia
- Eastern Energy - Thailand
- Planning Commission, India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Central Electricity Authority - India
- Simpson Spence & Young - Indonesia
- Mjunction Services Limited - India
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