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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, 02 February 24
DRY BULK MARKET: THE DOWNWARD REVISION IN THE GROWTH OF CAPESIZE TONNE DAYS IN JANUARY WITH THE BCI DROPPING - MARIA BERTZELETOU
In the last week of January, the dry freight market sustained weakness in the Capesize segment, while the number of ballasters in the Southeast (SE ...
Friday, 02 February 24
COAL INDIA ACHIEVES NEARLY 80% OF ITS FY24 PRODUCTION TARGET IN TEN MONTHS - CNBCTV18
For the month of January, the company’s production grew by 9.1% from the same period last year to 78.4 Million Tonnes (MT), from 71.9 MT last ...
Thursday, 01 February 24
CHINA'S WIND, SOLAR CAPACITY TO OVERTAKE COAL IN 2024 - INDUSTRY BODY, REUTERS REPORTED
China’s installed wind and solar capacity is expected to overtake coal for the first time this year, according to industry forecasts.
&nb ...
Thursday, 01 February 24
ANTI-DEDUCTION CLAUSES: CAN A CHARTERER WITHHOLD HIRE WITHOUT AN OWNER'S CONSENT? - SKULD
KNOWLEDGE TO ELEVATE
Summary
In The Anna Dorothea, the Court found that where a charterparty provides that no deduction from hire may be m ...
Thursday, 01 February 24
INDIA REBUILDS COAL STOCKS TO ENSURE ELECTRIC RELIABILITY - REUTERS
India’s electricity supply is much more comfortable at the start of 2024 than in either 2023 or 2022 as coal production has ramped up and the ...
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Showing 41 to 45 news of total 6871 |
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- Offshore Bulk Terminal Pte Ltd, Singapore
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- European Bulk Services B.V. - Netherlands
- Anglo American - United Kingdom
- Miang Besar Coal Terminal - Indonesia
- Bukit Baiduri Energy - Indonesia
- India Bulls Power Limited - India
- Georgia Ports Authority, United States
- Indonesian Coal Mining Association
- Merrill Lynch Commodities Europe
- Parry Sugars Refinery, India
- Price Waterhouse Coopers - Russia
- GN Power Mariveles Coal Plant, Philippines
- Sojitz Corporation - Japan
- White Energy Company Limited
- Posco Energy - South Korea
- McConnell Dowell - Australia
- Dalmia Cement Bharat India
- ICICI Bank Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Globalindo Alam Lestari - Indonesia
- Xindia Steels Limited - India
- Karbindo Abesyapradhi - Indoneisa
- New Zealand Coal & Carbon
- Banpu Public Company Limited - Thailand
- Malabar Cements Ltd - India
- Attock Cement Pakistan Limited
- Makarim & Taira - Indonesia
- AsiaOL BioFuels Corp., Philippines
- TNB Fuel Sdn Bhd - Malaysia
- SN Aboitiz Power Inc, Philippines
- PNOC Exploration Corporation - Philippines
- Coalindo Energy - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Thiess Contractors Indonesia
- Jaiprakash Power Ventures ltd
- Goldman Sachs - Singapore
- Lanco Infratech Ltd - India
- Standard Chartered Bank - UAE
- Energy Link Ltd, New Zealand
- Electricity Authority, New Zealand
- Bhatia International Limited - India
- Kalimantan Lumbung Energi - Indonesia
- Maheswari Brothers Coal Limited - India
- Straits Asia Resources Limited - Singapore
- Jindal Steel & Power Ltd - India
- Rio Tinto Coal - Australia
- CNBM International Corporation - China
- Tamil Nadu electricity Board
- Global Business Power Corporation, Philippines
- Central Java Power - Indonesia
- Directorate Of Revenue Intelligence - India
- Sical Logistics Limited - India
- Interocean Group of Companies - India
- Australian Commodity Traders Exchange
- Bharathi Cement Corporation - India
- Bhoruka Overseas - Indonesia
- Savvy Resources Ltd - HongKong
- Directorate General of MIneral and Coal - Indonesia
- International Coal Ventures Pvt Ltd - India
- Gujarat Mineral Development Corp Ltd - India
- Thai Mozambique Logistica
- Australian Coal Association
- The Treasury - Australian Government
- Electricity Generating Authority of Thailand
- Carbofer General Trading SA - India
- Port Waratah Coal Services - Australia
- Kapuas Tunggal Persada - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Sakthi Sugars Limited - India
- PTC India Limited - India
- Kartika Selabumi Mining - Indonesia
- Global Green Power PLC Corporation, Philippines
- Alfred C Toepfer International GmbH - Germany
- GMR Energy Limited - India
- Orica Australia Pty. Ltd.
- Kobexindo Tractors - Indoneisa
- Trasteel International SA, Italy
- Coal and Oil Company - UAE
- Latin American Coal - Colombia
- Kaltim Prima Coal - Indonesia
- Barasentosa Lestari - Indonesia
- Riau Bara Harum - Indonesia
- Intertek Mineral Services - Indonesia
- Orica Mining Services - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- The University of Queensland
- Mercuria Energy - Indonesia
- Karaikal Port Pvt Ltd - India
- Pipit Mutiara Jaya. PT, Indonesia
- London Commodity Brokers - England
- Meralco Power Generation, Philippines
- Kepco SPC Power Corporation, Philippines
- Altura Mining Limited, Indonesia
- Indian Oil Corporation Limited
- Edison Trading Spa - Italy
- Baramulti Group, Indonesia
- Energy Development Corp, Philippines
- Ambuja Cements Ltd - India
- Aditya Birla Group - India
- Jorong Barutama Greston.PT - Indonesia
- Indo Tambangraya Megah - Indonesia
- Ministry of Mines - Canada
- Eastern Energy - Thailand
- Cement Manufacturers Association - India
- Bukit Asam (Persero) Tbk - Indonesia
- Mjunction Services Limited - India
- Sree Jayajothi Cements Limited - India
- Siam City Cement PLC, Thailand
- Simpson Spence & Young - Indonesia
- VISA Power Limited - India
- Tata Chemicals Ltd - India
- Bayan Resources Tbk. - Indonesia
- Kideco Jaya Agung - Indonesia
- Timah Investasi Mineral - Indoneisa
- Uttam Galva Steels Limited - India
- Neyveli Lignite Corporation Ltd, - India
- Billiton Holdings Pty Ltd - Australia
- Sindya Power Generating Company Private Ltd
- Maharashtra Electricity Regulatory Commission - India
- Grasim Industreis Ltd - India
- Minerals Council of Australia
- Ministry of Finance - Indonesia
- Bangladesh Power Developement Board
- Coastal Gujarat Power Limited - India
- Renaissance Capital - South Africa
- Leighton Contractors Pty Ltd - Australia
- Marubeni Corporation - India
- Borneo Indobara - Indonesia
- Ind-Barath Power Infra Limited - India
- Pendopo Energi Batubara - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Madhucon Powers Ltd - India
- PowerSource Philippines DevCo
- Eastern Coal Council - USA
- Vijayanagar Sugar Pvt Ltd - India
- ASAPP Information Group - India
- Krishnapatnam Port Company Ltd. - India
- Indian Energy Exchange, India
- CIMB Investment Bank - Malaysia
- Parliament of New Zealand
- Africa Commodities Group - South Africa
- Therma Luzon, Inc, Philippines
- Kumho Petrochemical, South Korea
- Singapore Mercantile Exchange
- Petrochimia International Co. Ltd.- Taiwan
- Bhushan Steel Limited - India
- Wilmar Investment Holdings
- Mintek Dendrill Indonesia
- Gujarat Electricity Regulatory Commission - India
- South Luzon Thermal Energy Corporation
- Bulk Trading Sa - Switzerland
- Essar Steel Hazira Ltd - India
- Gujarat Sidhee Cement - India
- Central Electricity Authority - India
- Vizag Seaport Private Limited - India
- Binh Thuan Hamico - Vietnam
- SMG Consultants - Indonesia
- Sarangani Energy Corporation, Philippines
- Vedanta Resources Plc - India
- Salva Resources Pvt Ltd - India
- Petron Corporation, Philippines
- Iligan Light & Power Inc, Philippines
- Oldendorff Carriers - Singapore
- Toyota Tsusho Corporation, Japan
- Star Paper Mills Limited - India
- Commonwealth Bank - Australia
- Bahari Cakrawala Sebuku - Indonesia
- The State Trading Corporation of India Ltd
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Kohat Cement Company Ltd. - Pakistan
- Indika Energy - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Chamber of Mines of South Africa
- SMC Global Power, Philippines
- Holcim Trading Pte Ltd - Singapore
- Heidelberg Cement - Germany
- LBH Netherlands Bv - Netherlands
- GAC Shipping (India) Pvt Ltd
- Medco Energi Mining Internasional
- Global Coal Blending Company Limited - Australia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Semirara Mining Corp, Philippines
- Agrawal Coal Company - India
- Ceylon Electricity Board - Sri Lanka
- Meenaskhi Energy Private Limited - India
- Larsen & Toubro Limited - India
- San Jose City I Power Corp, Philippines
- Bukit Makmur.PT - Indonesia
- Wood Mackenzie - Singapore
- TeaM Sual Corporation - Philippines
- IEA Clean Coal Centre - UK
- Siam City Cement - Thailand
- MS Steel International - UAE
- Deloitte Consulting - India
- Videocon Industries ltd - India
- OPG Power Generation Pvt Ltd - India
- Economic Council, Georgia
- GVK Power & Infra Limited - India
- Indogreen Group - Indonesia
- Romanian Commodities Exchange
- Metalloyd Limited - United Kingdom
- Antam Resourcindo - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Ministry of Transport, Egypt
- Aboitiz Power Corporation - Philippines
- Manunggal Multi Energi - Indonesia
- Samtan Co., Ltd - South Korea
- Planning Commission, India
- Chettinad Cement Corporation Ltd - India
- Mercator Lines Limited - India
- Independent Power Producers Association of India
- Formosa Plastics Group - Taiwan
- Power Finance Corporation Ltd., India
- IHS Mccloskey Coal Group - USA
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