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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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Friday, 08 January 16
DRY BULK MARKET'S CRISIS DEEPENS AS RATES ARE DROPPING TO NEW RECORD LOWS BY THE DAY - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
Just when you would think that the dry bulk market is reaching its bottom, even as it has long surpassed all-time lows, each day that passes by at ...
Thursday, 07 January 16
FOB NEWCASTLE COAL SWAPS DELIVERY Q1'16 REMAIN FLAT W-O-W; UP M-O-M
COALspot.com: API 5 FOB Newcastle Coal swap for Q1’ 2016 delivery rose another $1.23 per ton (3.35%) this past week compared to the sam ...
Thursday, 07 January 16
SHIPPING WILL REMAIN VOLATILE AND INDISPENSABLE IN 2016 - MOORE STEPHENS
The ultimate definition of an optimist has been characterised as an accordion player with an answerphone. Such extreme optimism might be difficult ...
Wednesday, 06 January 16
NEW COAL PRICE PASS-THROUGH REGULATION BENEFITS CHINA IPPS - FITCH RATINGS
Fitch Ratings says the new Coal Price Pass-through Mechanism announced by the National Development and Reform Commission (NDRC) on 31 December ...
Tuesday, 05 January 16
BIG COAL MINERS PLAN HIGHER PRODUCTION THIS YEAR - THE JAKARTA POST
The country’s major coal miners plan to further boost production in 2016 although analysts estimate that an oversupply in the world’s c ...
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Showing 2621 to 2625 news of total 6871 |
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- Maharashtra Electricity Regulatory Commission - India
- Larsen & Toubro Limited - India
- Bulk Trading Sa - Switzerland
- Borneo Indobara - Indonesia
- OPG Power Generation Pvt Ltd - India
- Bhushan Steel Limited - India
- Toyota Tsusho Corporation, Japan
- Makarim & Taira - Indonesia
- Trasteel International SA, Italy
- Karbindo Abesyapradhi - Indoneisa
- Marubeni Corporation - India
- Sree Jayajothi Cements Limited - India
- CNBM International Corporation - China
- Jorong Barutama Greston.PT - Indonesia
- Price Waterhouse Coopers - Russia
- LBH Netherlands Bv - Netherlands
- Carbofer General Trading SA - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Anglo American - United Kingdom
- Grasim Industreis Ltd - India
- Heidelberg Cement - Germany
- Ministry of Finance - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Siam City Cement PLC, Thailand
- TNB Fuel Sdn Bhd - Malaysia
- Savvy Resources Ltd - HongKong
- Ministry of Transport, Egypt
- Merrill Lynch Commodities Europe
- Siam City Cement - Thailand
- The State Trading Corporation of India Ltd
- Videocon Industries ltd - India
- Kalimantan Lumbung Energi - Indonesia
- Thiess Contractors Indonesia
- Renaissance Capital - South Africa
- Global Green Power PLC Corporation, Philippines
- Sinarmas Energy and Mining - Indonesia
- Rio Tinto Coal - Australia
- Ceylon Electricity Board - Sri Lanka
- Ambuja Cements Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Latin American Coal - Colombia
- SN Aboitiz Power Inc, Philippines
- Mjunction Services Limited - India
- Simpson Spence & Young - Indonesia
- Altura Mining Limited, Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Karaikal Port Pvt Ltd - India
- Asmin Koalindo Tuhup - Indonesia
- San Jose City I Power Corp, Philippines
- Baramulti Group, Indonesia
- Rashtriya Ispat Nigam Limited - India
- Parliament of New Zealand
- Krishnapatnam Port Company Ltd. - India
- London Commodity Brokers - England
- Agrawal Coal Company - India
- The University of Queensland
- Port Waratah Coal Services - Australia
- SMC Global Power, Philippines
- Wood Mackenzie - Singapore
- Wilmar Investment Holdings
- Leighton Contractors Pty Ltd - Australia
- Vizag Seaport Private Limited - India
- Minerals Council of Australia
- Timah Investasi Mineral - Indoneisa
- Ind-Barath Power Infra Limited - India
- Parry Sugars Refinery, India
- Singapore Mercantile Exchange
- Salva Resources Pvt Ltd - India
- Meralco Power Generation, Philippines
- Energy Link Ltd, New Zealand
- Tata Chemicals Ltd - India
- Bukit Baiduri Energy - Indonesia
- Lanco Infratech Ltd - India
- Economic Council, Georgia
- Kideco Jaya Agung - Indonesia
- Meenaskhi Energy Private Limited - India
- Formosa Plastics Group - Taiwan
- Iligan Light & Power Inc, Philippines
- Power Finance Corporation Ltd., India
- Neyveli Lignite Corporation Ltd, - India
- Gujarat Sidhee Cement - India
- PetroVietnam Power Coal Import and Supply Company
- Barasentosa Lestari - Indonesia
- Sarangani Energy Corporation, Philippines
- Essar Steel Hazira Ltd - India
- ICICI Bank Limited - India
- Kaltim Prima Coal - Indonesia
- Banpu Public Company Limited - Thailand
- Asia Pacific Energy Resources Ventures Inc, Philippines
- PNOC Exploration Corporation - Philippines
- Chamber of Mines of South Africa
- Cement Manufacturers Association - India
- Commonwealth Bank - Australia
- Uttam Galva Steels Limited - India
- Alfred C Toepfer International GmbH - Germany
- Ministry of Mines - Canada
- Holcim Trading Pte Ltd - Singapore
- Indo Tambangraya Megah - Indonesia
- Maheswari Brothers Coal Limited - India
- Bangladesh Power Developement Board
- Interocean Group of Companies - India
- Orica Mining Services - Indonesia
- Binh Thuan Hamico - Vietnam
- Directorate General of MIneral and Coal - Indonesia
- TeaM Sual Corporation - Philippines
- Attock Cement Pakistan Limited
- Eastern Energy - Thailand
- PTC India Limited - India
- Eastern Coal Council - USA
- ASAPP Information Group - India
- Bhoruka Overseas - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Orica Australia Pty. Ltd.
- Therma Luzon, Inc, Philippines
- Global Coal Blending Company Limited - Australia
- Central Electricity Authority - India
- Indian Energy Exchange, India
- Coastal Gujarat Power Limited - India
- VISA Power Limited - India
- GVK Power & Infra Limited - India
- Thai Mozambique Logistica
- Kumho Petrochemical, South Korea
- Oldendorff Carriers - Singapore
- Chettinad Cement Corporation Ltd - India
- European Bulk Services B.V. - Netherlands
- Electricity Authority, New Zealand
- Kartika Selabumi Mining - Indonesia
- Bharathi Cement Corporation - India
- Bahari Cakrawala Sebuku - Indonesia
- Samtan Co., Ltd - South Korea
- Sindya Power Generating Company Private Ltd
- Jaiprakash Power Ventures ltd
- India Bulls Power Limited - India
- Mercuria Energy - Indonesia
- Electricity Generating Authority of Thailand
- Bukit Makmur.PT - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Mercator Lines Limited - India
- Posco Energy - South Korea
- Deloitte Consulting - India
- Antam Resourcindo - Indonesia
- Indonesian Coal Mining Association
- Coalindo Energy - Indonesia
- PowerSource Philippines DevCo
- Central Java Power - Indonesia
- IHS Mccloskey Coal Group - USA
- Indogreen Group - Indonesia
- Romanian Commodities Exchange
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Madhucon Powers Ltd - India
- International Coal Ventures Pvt Ltd - India
- Kepco SPC Power Corporation, Philippines
- Indika Energy - Indonesia
- Kobexindo Tractors - Indoneisa
- Gujarat Electricity Regulatory Commission - India
- CIMB Investment Bank - Malaysia
- Intertek Mineral Services - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Global Business Power Corporation, Philippines
- Kapuas Tunggal Persada - Indonesia
- Indian Oil Corporation Limited
- Bayan Resources Tbk. - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Vedanta Resources Plc - India
- Sical Logistics Limited - India
- Riau Bara Harum - Indonesia
- Straits Asia Resources Limited - Singapore
- Standard Chartered Bank - UAE
- Africa Commodities Group - South Africa
- Vijayanagar Sugar Pvt Ltd - India
- Metalloyd Limited - United Kingdom
- Energy Development Corp, Philippines
- IEA Clean Coal Centre - UK
- Gujarat Mineral Development Corp Ltd - India
- Malabar Cements Ltd - India
- GMR Energy Limited - India
- Jindal Steel & Power Ltd - India
- Semirara Mining and Power Corporation, Philippines
- Manunggal Multi Energi - Indonesia
- Sakthi Sugars Limited - India
- The Treasury - Australian Government
- Semirara Mining Corp, Philippines
- Aditya Birla Group - India
- Miang Besar Coal Terminal - Indonesia
- Xindia Steels Limited - India
- Aboitiz Power Corporation - Philippines
- Australian Commodity Traders Exchange
- Medco Energi Mining Internasional
- New Zealand Coal & Carbon
- Coal and Oil Company - UAE
- Bhatia International Limited - India
- Tamil Nadu electricity Board
- Independent Power Producers Association of India
- Mintek Dendrill Indonesia
- Cigading International Bulk Terminal - Indonesia
- Directorate Of Revenue Intelligence - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- MS Steel International - UAE
- Sojitz Corporation - Japan
- SMG Consultants - Indonesia
- Planning Commission, India
- Petron Corporation, Philippines
- Pendopo Energi Batubara - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Goldman Sachs - Singapore
- White Energy Company Limited
- McConnell Dowell - Australia
- Dalmia Cement Bharat India
- Pipit Mutiara Jaya. PT, Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Australian Coal Association
- GAC Shipping (India) Pvt Ltd
- South Luzon Thermal Energy Corporation
- Globalindo Alam Lestari - Indonesia
- Star Paper Mills Limited - India
- Georgia Ports Authority, United States
- Edison Trading Spa - Italy
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