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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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Tuesday, 05 January 16
THE SHIPPING MARKET IN 2015 AND LOOKING FORWARD - BIMCO
Global economy: menacing clouds in the sky cast a shadow on global economic developments 2015 never really took off, even though the global economi ...
Tuesday, 05 January 16
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COALspot.com: Average 5000 GAR coal index has not moved in the past week, averaging $40.12 per ton on last Thursday, according to CS (i) Coal Index ...
Monday, 04 January 16
CFR SOUTH CHINA COAL SWAP REMAIN FLAT OVER CHRISTMAS & NEW YEAR HOLIDAYS
COALspot.com: API 8 CFR South China Coal swap for Q1’ 2016 delivery rose US$ 0.68 (1.64%) per ton month over month.
A commodity swap is ...
Friday, 01 January 16
FOB INDONESIA COAL SWAP FOR Q1'16 DELIVERY CLOSED AT $36.75 PER TON
COALspot.com: Indonesian coal swap delivery Q1 2016 declined month on month but flat week over week.
According to AsiaClear OTC coal swap' ...
Thursday, 31 December 15
COAL PRICES FELL ON WEAK DEMAND
COALspot.com: Q1’ 2016 API4 FOB Richards Bay Coal swap decline month over month and slightly up week over week.
The Q1’ 2016 ...
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Showing 2626 to 2630 news of total 6871 |
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- Trasteel International SA, Italy
- London Commodity Brokers - England
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- Makarim & Taira - Indonesia
- Sindya Power Generating Company Private Ltd
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- Attock Cement Pakistan Limited
- Cement Manufacturers Association - India
- Altura Mining Limited, Indonesia
- Orica Mining Services - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Commonwealth Bank - Australia
- Alfred C Toepfer International GmbH - Germany
- Coastal Gujarat Power Limited - India
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- Pendopo Energi Batubara - Indonesia
- Jindal Steel & Power Ltd - India
- McConnell Dowell - Australia
- VISA Power Limited - India
- Cigading International Bulk Terminal - Indonesia
- Borneo Indobara - Indonesia
- Gujarat Electricity Regulatory Commission - India
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- Thiess Contractors Indonesia
- Antam Resourcindo - Indonesia
- Bayan Resources Tbk. - Indonesia
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- Holcim Trading Pte Ltd - Singapore
- India Bulls Power Limited - India
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- Petron Corporation, Philippines
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- Siam City Cement PLC, Thailand
- CIMB Investment Bank - Malaysia
- CNBM International Corporation - China
- Kepco SPC Power Corporation, Philippines
- Parry Sugars Refinery, India
- Goldman Sachs - Singapore
- SMG Consultants - Indonesia
- Sakthi Sugars Limited - India
- New Zealand Coal & Carbon
- Bharathi Cement Corporation - India
- Siam City Cement - Thailand
- Larsen & Toubro Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Georgia Ports Authority, United States
- Kideco Jaya Agung - Indonesia
- Rio Tinto Coal - Australia
- Global Coal Blending Company Limited - Australia
- PTC India Limited - India
- Bukit Makmur.PT - Indonesia
- Coal and Oil Company - UAE
- Gujarat Mineral Development Corp Ltd - India
- Power Finance Corporation Ltd., India
- Ministry of Finance - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Sarangani Energy Corporation, Philippines
- Ceylon Electricity Board - Sri Lanka
- SMC Global Power, Philippines
- Asmin Koalindo Tuhup - Indonesia
- The Treasury - Australian Government
- Aditya Birla Group - India
- Electricity Authority, New Zealand
- Iligan Light & Power Inc, Philippines
- Indonesian Coal Mining Association
- Tamil Nadu electricity Board
- Mercuria Energy - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- White Energy Company Limited
- Sical Logistics Limited - India
- Deloitte Consulting - India
- Carbofer General Trading SA - India
- Economic Council, Georgia
- Marubeni Corporation - India
- Krishnapatnam Port Company Ltd. - India
- Banpu Public Company Limited - Thailand
- Romanian Commodities Exchange
- Interocean Group of Companies - India
- Kaltim Prima Coal - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Vizag Seaport Private Limited - India
- Australian Commodity Traders Exchange
- Samtan Co., Ltd - South Korea
- Miang Besar Coal Terminal - Indonesia
- Latin American Coal - Colombia
- Manunggal Multi Energi - Indonesia
- Port Waratah Coal Services - Australia
- Minerals Council of Australia
- International Coal Ventures Pvt Ltd - India
- Standard Chartered Bank - UAE
- Wilmar Investment Holdings
- GVK Power & Infra Limited - India
- Bukit Baiduri Energy - Indonesia
- ASAPP Information Group - India
- PNOC Exploration Corporation - Philippines
- Binh Thuan Hamico - Vietnam
- Semirara Mining Corp, Philippines
- Ambuja Cements Ltd - India
- Savvy Resources Ltd - HongKong
- PowerSource Philippines DevCo
- Independent Power Producers Association of India
- Dalmia Cement Bharat India
- Straits Asia Resources Limited - Singapore
- Indian Oil Corporation Limited
- Planning Commission, India
- Thai Mozambique Logistica
- Meralco Power Generation, Philippines
- IHS Mccloskey Coal Group - USA
- Rashtriya Ispat Nigam Limited - India
- Essar Steel Hazira Ltd - India
- Mjunction Services Limited - India
- Jaiprakash Power Ventures ltd
- Mintek Dendrill Indonesia
- Ministry of Transport, Egypt
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Indian Energy Exchange, India
- South Luzon Thermal Energy Corporation
- Salva Resources Pvt Ltd - India
- Electricity Generating Authority of Thailand
- Gujarat Sidhee Cement - India
- Grasim Industreis Ltd - India
- Vijayanagar Sugar Pvt Ltd - India
- Mercator Lines Limited - India
- LBH Netherlands Bv - Netherlands
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Edison Trading Spa - Italy
- The University of Queensland
- Orica Australia Pty. Ltd.
- Metalloyd Limited - United Kingdom
- European Bulk Services B.V. - Netherlands
- Barasentosa Lestari - Indonesia
- Heidelberg Cement - Germany
- Aboitiz Power Corporation - Philippines
- Agrawal Coal Company - India
- Central Electricity Authority - India
- Bhoruka Overseas - Indonesia
- Renaissance Capital - South Africa
- Indika Energy - Indonesia
- Indogreen Group - Indonesia
- Bhushan Steel Limited - India
- Videocon Industries ltd - India
- OPG Power Generation Pvt Ltd - India
- Sree Jayajothi Cements Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Price Waterhouse Coopers - Russia
- Directorate Of Revenue Intelligence - India
- Ministry of Mines - Canada
- Pipit Mutiara Jaya. PT, Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Timah Investasi Mineral - Indoneisa
- Uttam Galva Steels Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Toyota Tsusho Corporation, Japan
- Bulk Trading Sa - Switzerland
- ICICI Bank Limited - India
- GAC Shipping (India) Pvt Ltd
- Parliament of New Zealand
- Chettinad Cement Corporation Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Star Paper Mills Limited - India
- MS Steel International - UAE
- Tata Chemicals Ltd - India
- Vedanta Resources Plc - India
- Madhucon Powers Ltd - India
- Meenaskhi Energy Private Limited - India
- Central Java Power - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Maheswari Brothers Coal Limited - India
- Energy Development Corp, Philippines
- Sojitz Corporation - Japan
- Coalindo Energy - Indonesia
- Posco Energy - South Korea
- Formosa Plastics Group - Taiwan
- Malabar Cements Ltd - India
- Energy Link Ltd, New Zealand
- Xindia Steels Limited - India
- Indo Tambangraya Megah - Indonesia
- Therma Luzon, Inc, Philippines
- Bangladesh Power Developement Board
- Bukit Asam (Persero) Tbk - Indonesia
- Medco Energi Mining Internasional
- Bhatia International Limited - India
- Kobexindo Tractors - Indoneisa
- Global Business Power Corporation, Philippines
- TeaM Sual Corporation - Philippines
- Merrill Lynch Commodities Europe
- Globalindo Alam Lestari - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Australian Coal Association
- Kumho Petrochemical, South Korea
- Anglo American - United Kingdom
- IEA Clean Coal Centre - UK
- Chamber of Mines of South Africa
- Africa Commodities Group - South Africa
- Kalimantan Lumbung Energi - Indonesia
- Oldendorff Carriers - Singapore
- Singapore Mercantile Exchange
- San Jose City I Power Corp, Philippines
- Directorate General of MIneral and Coal - Indonesia
- The State Trading Corporation of India Ltd
- Wood Mackenzie - Singapore
- Intertek Mineral Services - Indonesia
- Karaikal Port Pvt Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Baramulti Group, Indonesia
- Eastern Coal Council - USA
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Kapuas Tunggal Persada - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
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