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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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Monday, 18 April 16
INDONESIAN 5000 GAR COAL INDEX DECLINE 1.43 PERCENT WEEK OVER WEEK - CS (I) COAL INDEX
COALspot.com: Average 5000 GAR coal index of Indonesian origin fell 1.43 percent week over week to averaging $38.65 per ton on this past Friday, ac ...
Monday, 18 April 16
SOUTH KOREA STATE-OWNED UTILITY KOMIPO INVITES COAL BIDS FOR BORYEONG POWER PLANT
COALspot.com: South Korea state-owned utility Korea Midland Power (KOMIPO) issued a new tender for 70,000 Metric Tons of 4,600 kcal/kg NAR coal for ...
Monday, 18 April 16
SOUTH AFRICA RB1 COAL HAS LOST GROUND IN INDIA; RB2 MAY LOSE GRIP IF THE PRICE CROSSES US$ 50 A TON - TRADERS
COALspot.com: Indian coal consumers preferred to buy South Africa RB2 coal instead of RB1 coal recent months due to RB2's low CFR price level. ...
Monday, 18 April 16
CAPESIZE INDEX ROSE 44.66 PER CENT WEEK OVER WEEK
COALspot.com: The Baltic Exchange, tracking rates for ships carrying dry bulk commodities continued to rose this week.
The freight market was ...
Friday, 15 April 16
PANAMAX MARKET CONTINUES TO FIRM - FEARNLEYS
Cape
It has been a positive freight market for the past few weeks, however, this week the market is taking a small breather, says Fearnleys in it ...
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Showing 2471 to 2475 news of total 6871 |
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- VISA Power Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- Oldendorff Carriers - Singapore
- Neyveli Lignite Corporation Ltd, - India
- Indo Tambangraya Megah - Indonesia
- Bharathi Cement Corporation - India
- India Bulls Power Limited - India
- McConnell Dowell - Australia
- PNOC Exploration Corporation - Philippines
- Ambuja Cements Ltd - India
- Miang Besar Coal Terminal - Indonesia
- Global Business Power Corporation, Philippines
- Ministry of Transport, Egypt
- Global Coal Blending Company Limited - Australia
- Bulk Trading Sa - Switzerland
- Iligan Light & Power Inc, Philippines
- South Luzon Thermal Energy Corporation
- Krishnapatnam Port Company Ltd. - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Independent Power Producers Association of India
- Semirara Mining and Power Corporation, Philippines
- Altura Mining Limited, Indonesia
- Electricity Authority, New Zealand
- Barasentosa Lestari - Indonesia
- Latin American Coal - Colombia
- Australian Commodity Traders Exchange
- Holcim Trading Pte Ltd - Singapore
- Billiton Holdings Pty Ltd - Australia
- Deloitte Consulting - India
- Borneo Indobara - Indonesia
- Binh Thuan Hamico - Vietnam
- Kaltim Prima Coal - Indonesia
- Renaissance Capital - South Africa
- Therma Luzon, Inc, Philippines
- Medco Energi Mining Internasional
- LBH Netherlands Bv - Netherlands
- International Coal Ventures Pvt Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- Australian Coal Association
- MS Steel International - UAE
- Wood Mackenzie - Singapore
- PetroVietnam Power Coal Import and Supply Company
- Jorong Barutama Greston.PT - Indonesia
- GAC Shipping (India) Pvt Ltd
- Bhatia International Limited - India
- Uttam Galva Steels Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Vijayanagar Sugar Pvt Ltd - India
- Alfred C Toepfer International GmbH - Germany
- Directorate Of Revenue Intelligence - India
- Petrochimia International Co. Ltd.- Taiwan
- PTC India Limited - India
- Orica Australia Pty. Ltd.
- Riau Bara Harum - Indonesia
- Mercator Lines Limited - India
- Indian Oil Corporation Limited
- Indogreen Group - Indonesia
- Coastal Gujarat Power Limited - India
- Vizag Seaport Private Limited - India
- Edison Trading Spa - Italy
- Sarangani Energy Corporation, Philippines
- Thiess Contractors Indonesia
- Kideco Jaya Agung - Indonesia
- SN Aboitiz Power Inc, Philippines
- Videocon Industries ltd - India
- Energy Development Corp, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Pendopo Energi Batubara - Indonesia
- CIMB Investment Bank - Malaysia
- Siam City Cement - Thailand
- Karbindo Abesyapradhi - Indoneisa
- Chettinad Cement Corporation Ltd - India
- Power Finance Corporation Ltd., India
- Tamil Nadu electricity Board
- Kumho Petrochemical, South Korea
- Salva Resources Pvt Ltd - India
- Xindia Steels Limited - India
- Orica Mining Services - Indonesia
- Wilmar Investment Holdings
- Port Waratah Coal Services - Australia
- London Commodity Brokers - England
- Sical Logistics Limited - India
- Mjunction Services Limited - India
- Ind-Barath Power Infra Limited - India
- Anglo American - United Kingdom
- ICICI Bank Limited - India
- Africa Commodities Group - South Africa
- Kartika Selabumi Mining - Indonesia
- Global Green Power PLC Corporation, Philippines
- The Treasury - Australian Government
- Bayan Resources Tbk. - Indonesia
- Dalmia Cement Bharat India
- Petron Corporation, Philippines
- Gujarat Electricity Regulatory Commission - India
- Star Paper Mills Limited - India
- Maheswari Brothers Coal Limited - India
- PowerSource Philippines DevCo
- Kapuas Tunggal Persada - Indonesia
- Goldman Sachs - Singapore
- Minerals Council of Australia
- Cigading International Bulk Terminal - Indonesia
- Essar Steel Hazira Ltd - India
- Madhucon Powers Ltd - India
- Coal and Oil Company - UAE
- Economic Council, Georgia
- Straits Asia Resources Limited - Singapore
- TeaM Sual Corporation - Philippines
- Interocean Group of Companies - India
- Timah Investasi Mineral - Indoneisa
- Gujarat Mineral Development Corp Ltd - India
- White Energy Company Limited
- Parliament of New Zealand
- Indika Energy - Indonesia
- European Bulk Services B.V. - Netherlands
- Cement Manufacturers Association - India
- Thai Mozambique Logistica
- Formosa Plastics Group - Taiwan
- Baramulti Group, Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Standard Chartered Bank - UAE
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Trasteel International SA, Italy
- CNBM International Corporation - China
- Parry Sugars Refinery, India
- Gujarat Sidhee Cement - India
- Jindal Steel & Power Ltd - India
- Kepco SPC Power Corporation, Philippines
- Sree Jayajothi Cements Limited - India
- Bukit Makmur.PT - Indonesia
- The University of Queensland
- Attock Cement Pakistan Limited
- Ministry of Mines - Canada
- San Jose City I Power Corp, Philippines
- IHS Mccloskey Coal Group - USA
- Bank of Tokyo Mitsubishi UFJ Ltd
- TNB Fuel Sdn Bhd - Malaysia
- Makarim & Taira - Indonesia
- Central Java Power - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Posco Energy - South Korea
- Globalindo Alam Lestari - Indonesia
- Agrawal Coal Company - India
- Toyota Tsusho Corporation, Japan
- Tata Chemicals Ltd - India
- Indian Energy Exchange, India
- Marubeni Corporation - India
- SMC Global Power, Philippines
- Price Waterhouse Coopers - Russia
- Larsen & Toubro Limited - India
- ASAPP Information Group - India
- Meenaskhi Energy Private Limited - India
- Kohat Cement Company Ltd. - Pakistan
- Aboitiz Power Corporation - Philippines
- Intertek Mineral Services - Indonesia
- Central Electricity Authority - India
- Banpu Public Company Limited - Thailand
- Mercuria Energy - Indonesia
- Karaikal Port Pvt Ltd - India
- Rio Tinto Coal - Australia
- SMG Consultants - Indonesia
- Lanco Infratech Ltd - India
- Sojitz Corporation - Japan
- Ceylon Electricity Board - Sri Lanka
- Aditya Birla Group - India
- Meralco Power Generation, Philippines
- Bangladesh Power Developement Board
- Metalloyd Limited - United Kingdom
- Kalimantan Lumbung Energi - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Chamber of Mines of South Africa
- Ministry of Finance - Indonesia
- Vedanta Resources Plc - India
- Mintek Dendrill Indonesia
- Romanian Commodities Exchange
- GVK Power & Infra Limited - India
- Heidelberg Cement - Germany
- Sindya Power Generating Company Private Ltd
- Bahari Cakrawala Sebuku - Indonesia
- New Zealand Coal & Carbon
- Bukit Baiduri Energy - Indonesia
- Malabar Cements Ltd - India
- Bhushan Steel Limited - India
- Merrill Lynch Commodities Europe
- Savvy Resources Ltd - HongKong
- Semirara Mining Corp, Philippines
- Samtan Co., Ltd - South Korea
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Singapore Mercantile Exchange
- OPG Power Generation Pvt Ltd - India
- Coalindo Energy - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Planning Commission, India
- Energy Link Ltd, New Zealand
- GMR Energy Limited - India
- Bhoruka Overseas - Indonesia
- Indonesian Coal Mining Association
- Georgia Ports Authority, United States
- Jaiprakash Power Ventures ltd
- Carbofer General Trading SA - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Eastern Coal Council - USA
- IEA Clean Coal Centre - UK
- Manunggal Multi Energi - Indonesia
- Electricity Generating Authority of Thailand
- Commonwealth Bank - Australia
- The State Trading Corporation of India Ltd
- Antam Resourcindo - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- GN Power Mariveles Coal Plant, Philippines
- Grasim Industreis Ltd - India
- Simpson Spence & Young - Indonesia
- Kobexindo Tractors - Indoneisa
- Pipit Mutiara Jaya. PT, Indonesia
- Siam City Cement PLC, Thailand
- Sakthi Sugars Limited - India
- Eastern Energy - Thailand
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