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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, 13 February 24
WHAT IS THE OUTLOOK FOR THE NATURAL GAS SPOT PRICE IN 2024 AND 2025? EIA
We expect the U.S. benchmark Henry Hub natural gas spot price to average higher in 2024 and 2025 than in 2023, but to remain lower than $3.00 per m ...
Monday, 12 February 24
US THERMAL COAL EXPORTS HIT 5-YEAR HIGHS AND TOP $5 BLN IN 2023 - REUTERS
United States exporters of thermal coal earned more than $5 billion in 2023 as they shipped out more than 32.5 million metric tons of the high-poll ...
Tuesday, 06 February 24
NEW E-FUELS PROJECT TO MAKE INTERNATIONAL SHIPPING CLIMATE-NEUTRAL - RINA
Transport and trade on the ocean blue must be made much greener. This is the goal of the new €17 million European GAMMA project, where compani ...
Tuesday, 06 February 24
INDIA SEES ANNUAL COAL OUTPUT UP 10.9% IN 2024/25 - REUTERS
India expects domestic coal output to increase by 10.9% to 1.13 billion metric tons in the fiscal year ending March 2025, a senior government offic ...
Tuesday, 06 February 24
INDIA'S COAL PRODUCTION INCREASES BY 10.3% TO 99.73 MILLION TONNE IN JANUARY - PTI
The country’s coal output rose 10.3 per cent to 99.73 Million Tonne (MT) in January, over the same month in the previous fiscal.
...
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- Alfred C Toepfer International GmbH - Germany
- Medco Energi Mining Internasional
- Ceylon Electricity Board - Sri Lanka
- Karaikal Port Pvt Ltd - India
- Marubeni Corporation - India
- Sical Logistics Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Australian Coal Association
- Vedanta Resources Plc - India
- Xindia Steels Limited - India
- Ambuja Cements Ltd - India
- PNOC Exploration Corporation - Philippines
- Cement Manufacturers Association - India
- Bhoruka Overseas - Indonesia
- Bharathi Cement Corporation - India
- Indo Tambangraya Megah - Indonesia
- Global Business Power Corporation, Philippines
- MS Steel International - UAE
- Edison Trading Spa - Italy
- GAC Shipping (India) Pvt Ltd
- Eastern Coal Council - USA
- Kapuas Tunggal Persada - Indonesia
- Makarim & Taira - Indonesia
- GMR Energy Limited - India
- Siam City Cement - Thailand
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Directorate General of MIneral and Coal - Indonesia
- Metalloyd Limited - United Kingdom
- Parry Sugars Refinery, India
- Bukit Asam (Persero) Tbk - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Bayan Resources Tbk. - Indonesia
- Indika Energy - Indonesia
- Timah Investasi Mineral - Indoneisa
- Bulk Trading Sa - Switzerland
- Intertek Mineral Services - Indonesia
- Thiess Contractors Indonesia
- Power Finance Corporation Ltd., India
- Gujarat Mineral Development Corp Ltd - India
- LBH Netherlands Bv - Netherlands
- Sarangani Energy Corporation, Philippines
- Planning Commission, India
- Wood Mackenzie - Singapore
- Commonwealth Bank - Australia
- Energy Link Ltd, New Zealand
- Miang Besar Coal Terminal - Indonesia
- CIMB Investment Bank - Malaysia
- Bhatia International Limited - India
- Sindya Power Generating Company Private Ltd
- Ministry of Finance - Indonesia
- Attock Cement Pakistan Limited
- Offshore Bulk Terminal Pte Ltd, Singapore
- Minerals Council of Australia
- Indonesian Coal Mining Association
- Riau Bara Harum - Indonesia
- Indian Energy Exchange, India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- GVK Power & Infra Limited - India
- International Coal Ventures Pvt Ltd - India
- Orica Australia Pty. Ltd.
- Binh Thuan Hamico - Vietnam
- Meralco Power Generation, Philippines
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Savvy Resources Ltd - HongKong
- Indogreen Group - Indonesia
- Deloitte Consulting - India
- Sree Jayajothi Cements Limited - India
- Madhucon Powers Ltd - India
- Videocon Industries ltd - India
- Orica Mining Services - Indonesia
- Port Waratah Coal Services - Australia
- India Bulls Power Limited - India
- Heidelberg Cement - Germany
- Jorong Barutama Greston.PT - Indonesia
- SN Aboitiz Power Inc, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Baramulti Group, Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Maharashtra Electricity Regulatory Commission - India
- Georgia Ports Authority, United States
- McConnell Dowell - Australia
- New Zealand Coal & Carbon
- Aditya Birla Group - India
- PowerSource Philippines DevCo
- Formosa Plastics Group - Taiwan
- Anglo American - United Kingdom
- Vizag Seaport Private Limited - India
- PTC India Limited - India
- Ministry of Transport, Egypt
- AsiaOL BioFuels Corp., Philippines
- SMC Global Power, Philippines
- Chamber of Mines of South Africa
- Iligan Light & Power Inc, Philippines
- CNBM International Corporation - China
- Samtan Co., Ltd - South Korea
- Trasteel International SA, Italy
- Indian Oil Corporation Limited
- Electricity Authority, New Zealand
- Economic Council, Georgia
- Siam City Cement PLC, Thailand
- ASAPP Information Group - India
- VISA Power Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Goldman Sachs - Singapore
- Price Waterhouse Coopers - Russia
- Bangladesh Power Developement Board
- Larsen & Toubro Limited - India
- Kaltim Prima Coal - Indonesia
- Leighton Contractors Pty Ltd - Australia
- South Luzon Thermal Energy Corporation
- Meenaskhi Energy Private Limited - India
- Tata Chemicals Ltd - India
- ICICI Bank Limited - India
- Romanian Commodities Exchange
- Energy Development Corp, Philippines
- Dalmia Cement Bharat India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Altura Mining Limited, Indonesia
- Toyota Tsusho Corporation, Japan
- Rashtriya Ispat Nigam Limited - India
- Oldendorff Carriers - Singapore
- Bhushan Steel Limited - India
- Independent Power Producers Association of India
- Pipit Mutiara Jaya. PT, Indonesia
- Pendopo Energi Batubara - Indonesia
- Borneo Indobara - Indonesia
- The State Trading Corporation of India Ltd
- Maheswari Brothers Coal Limited - India
- TeaM Sual Corporation - Philippines
- Sinarmas Energy and Mining - Indonesia
- The University of Queensland
- Africa Commodities Group - South Africa
- Kepco SPC Power Corporation, Philippines
- Billiton Holdings Pty Ltd - Australia
- Star Paper Mills Limited - India
- Mjunction Services Limited - India
- Barasentosa Lestari - Indonesia
- Ministry of Mines - Canada
- Manunggal Multi Energi - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Salva Resources Pvt Ltd - India
- Bukit Makmur.PT - Indonesia
- Jaiprakash Power Ventures ltd
- Wilmar Investment Holdings
- Central Java Power - Indonesia
- Bukit Baiduri Energy - Indonesia
- Global Green Power PLC Corporation, Philippines
- Coalindo Energy - Indonesia
- Krishnapatnam Port Company Ltd. - India
- European Bulk Services B.V. - Netherlands
- Grasim Industreis Ltd - India
- Kideco Jaya Agung - Indonesia
- Straits Asia Resources Limited - Singapore
- Carbofer General Trading SA - India
- Malabar Cements Ltd - India
- Banpu Public Company Limited - Thailand
- Coal and Oil Company - UAE
- Mercuria Energy - Indonesia
- Semirara Mining and Power Corporation, Philippines
- White Energy Company Limited
- Interocean Group of Companies - India
- Lanco Infratech Ltd - India
- IEA Clean Coal Centre - UK
- Neyveli Lignite Corporation Ltd, - India
- Kumho Petrochemical, South Korea
- Ind-Barath Power Infra Limited - India
- Latin American Coal - Colombia
- Simpson Spence & Young - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Singapore Mercantile Exchange
- Holcim Trading Pte Ltd - Singapore
- Kalimantan Lumbung Energi - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Semirara Mining Corp, Philippines
- Posco Energy - South Korea
- Global Coal Blending Company Limited - Australia
- Renaissance Capital - South Africa
- Gujarat Sidhee Cement - India
- Aboitiz Power Corporation - Philippines
- Essar Steel Hazira Ltd - India
- Central Electricity Authority - India
- Jindal Steel & Power Ltd - India
- SMG Consultants - Indonesia
- IHS Mccloskey Coal Group - USA
- San Jose City I Power Corp, Philippines
- Standard Chartered Bank - UAE
- Kartika Selabumi Mining - Indonesia
- Coastal Gujarat Power Limited - India
- Petron Corporation, Philippines
- Sojitz Corporation - Japan
- Eastern Energy - Thailand
- PetroVietnam Power Coal Import and Supply Company
- Vijayanagar Sugar Pvt Ltd - India
- Australian Commodity Traders Exchange
- Merrill Lynch Commodities Europe
- Therma Luzon, Inc, Philippines
- Gujarat Electricity Regulatory Commission - India
- Electricity Generating Authority of Thailand
- Tamil Nadu electricity Board
- Chettinad Cement Corporation Ltd - India
- The Treasury - Australian Government
- Petrochimia International Co. Ltd.- Taiwan
- Rio Tinto Coal - Australia
- Antam Resourcindo - Indonesia
- Mintek Dendrill Indonesia
- Thai Mozambique Logistica
- Mercator Lines Limited - India
- London Commodity Brokers - England
- Sakthi Sugars Limited - India
- Uttam Galva Steels Limited - India
- Parliament of New Zealand
- Directorate Of Revenue Intelligence - India
- Agrawal Coal Company - India
- Globalindo Alam Lestari - Indonesia
- OPG Power Generation Pvt Ltd - India
- Kobexindo Tractors - Indoneisa
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