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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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Thursday, 07 April 16
PANAMAX RATES ARE FIRMING IN BOTH HEMISHEPHERES - FEARNLEYS
Capesize
With a great volume our of west Australia, rates were finally moving to upper 3's. and stabilizing towards the middle of the week in ...
Thursday, 07 April 16
BIMCO AND GIIGNL PUBLISH A GROUNDBREAKING VOYAGE CHARTER PARTY FOR LNG TRADE
BIMCO and the International Group of Liquefied Natural Gas Importers (GIIGNL) have today jointly issued the first definitive voyage charter party & ...
Wednesday, 06 April 16
HOW LONG SHIPPING CRISIS WILL BE; WHEN SHOULD OWNERS EXPECT THE BULK CARRIERS TO BECOME PROFITABLE? - INTERMODAL
It is the consensus that dry bulk shipping has been in a crisis for quite some time now. Bulk carrier values are at historical low levels, therefor ...
Tuesday, 05 April 16
DRY BULK REVISITS 1980S LOWS AND FACES UNCERTAIN LONGER TERM OUTLOOK - MSI | HELLENIC SHIPPING NEWS
With the market near bottom, attention is turning to the length of the downturn, the effect on asset values and the impact of broader demand side c ...
Monday, 04 April 16
THE LOADING, AND SUBSEQUENT DISCHARGE, OF UNSAFE NICKEL ORE - ALL TIME TO 'COUNT' - THE STANDARD CLUB
KNOWLEDGE TO ELEVATE
In a recent, published, London arbitration award the English tribunal has held that all time lost as a result of loading, ...
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Showing 2491 to 2495 news of total 6871 |
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- Africa Commodities Group - South Africa
- Offshore Bulk Terminal Pte Ltd, Singapore
- GN Power Mariveles Coal Plant, Philippines
- Gujarat Sidhee Cement - India
- Malabar Cements Ltd - India
- Carbofer General Trading SA - India
- Global Business Power Corporation, Philippines
- Kideco Jaya Agung - Indonesia
- Kaltim Prima Coal - Indonesia
- London Commodity Brokers - England
- Economic Council, Georgia
- GAC Shipping (India) Pvt Ltd
- Indonesian Coal Mining Association
- Bukit Asam (Persero) Tbk - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- CNBM International Corporation - China
- Bhatia International Limited - India
- Wilmar Investment Holdings
- Asmin Koalindo Tuhup - Indonesia
- Australian Commodity Traders Exchange
- OPG Power Generation Pvt Ltd - India
- Kartika Selabumi Mining - Indonesia
- Vedanta Resources Plc - India
- Thai Mozambique Logistica
- MS Steel International - UAE
- Eastern Energy - Thailand
- Central Electricity Authority - India
- Kepco SPC Power Corporation, Philippines
- Semirara Mining Corp, Philippines
- Orica Mining Services - Indonesia
- ASAPP Information Group - India
- Planning Commission, India
- Renaissance Capital - South Africa
- Heidelberg Cement - Germany
- Simpson Spence & Young - Indonesia
- Mjunction Services Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Interocean Group of Companies - India
- PTC India Limited - India
- Sindya Power Generating Company Private Ltd
- Cement Manufacturers Association - India
- McConnell Dowell - Australia
- Meralco Power Generation, Philippines
- Maheswari Brothers Coal Limited - India
- San Jose City I Power Corp, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Sojitz Corporation - Japan
- Standard Chartered Bank - UAE
- Karbindo Abesyapradhi - Indoneisa
- Vijayanagar Sugar Pvt Ltd - India
- Ambuja Cements Ltd - India
- Leighton Contractors Pty Ltd - Australia
- Dalmia Cement Bharat India
- Formosa Plastics Group - Taiwan
- Anglo American - United Kingdom
- Chamber of Mines of South Africa
- Electricity Authority, New Zealand
- Marubeni Corporation - India
- Energy Link Ltd, New Zealand
- Sical Logistics Limited - India
- Krishnapatnam Port Company Ltd. - India
- Uttam Galva Steels Limited - India
- Cigading International Bulk Terminal - Indonesia
- CIMB Investment Bank - Malaysia
- Orica Australia Pty. Ltd.
- Indika Energy - Indonesia
- Global Coal Blending Company Limited - Australia
- Globalindo Alam Lestari - Indonesia
- Parliament of New Zealand
- Intertek Mineral Services - Indonesia
- Trasteel International SA, Italy
- Kapuas Tunggal Persada - Indonesia
- White Energy Company Limited
- Semirara Mining and Power Corporation, Philippines
- Chettinad Cement Corporation Ltd - India
- Oldendorff Carriers - Singapore
- Parry Sugars Refinery, India
- Georgia Ports Authority, United States
- LBH Netherlands Bv - Netherlands
- Singapore Mercantile Exchange
- South Luzon Thermal Energy Corporation
- GMR Energy Limited - India
- Antam Resourcindo - Indonesia
- Star Paper Mills Limited - India
- Binh Thuan Hamico - Vietnam
- Straits Asia Resources Limited - Singapore
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Metalloyd Limited - United Kingdom
- Ceylon Electricity Board - Sri Lanka
- Bangladesh Power Developement Board
- Holcim Trading Pte Ltd - Singapore
- Iligan Light & Power Inc, Philippines
- Attock Cement Pakistan Limited
- Agrawal Coal Company - India
- Ministry of Transport, Egypt
- Merrill Lynch Commodities Europe
- Coal and Oil Company - UAE
- Power Finance Corporation Ltd., India
- Deloitte Consulting - India
- Mercuria Energy - Indonesia
- Coastal Gujarat Power Limited - India
- PNOC Exploration Corporation - Philippines
- PowerSource Philippines DevCo
- Thiess Contractors Indonesia
- Sinarmas Energy and Mining - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- TeaM Sual Corporation - Philippines
- IHS Mccloskey Coal Group - USA
- Makarim & Taira - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Ministry of Finance - Indonesia
- Tata Chemicals Ltd - India
- Aditya Birla Group - India
- Xindia Steels Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- India Bulls Power Limited - India
- IEA Clean Coal Centre - UK
- Borneo Indobara - Indonesia
- Minerals Council of Australia
- Petrochimia International Co. Ltd.- Taiwan
- Global Green Power PLC Corporation, Philippines
- The University of Queensland
- Coalindo Energy - Indonesia
- Indo Tambangraya Megah - Indonesia
- Barasentosa Lestari - Indonesia
- Bhushan Steel Limited - India
- Petron Corporation, Philippines
- Baramulti Group, Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Pendopo Energi Batubara - Indonesia
- Aboitiz Power Corporation - Philippines
- Kalimantan Lumbung Energi - Indonesia
- Grasim Industreis Ltd - India
- Manunggal Multi Energi - Indonesia
- Indian Energy Exchange, India
- Videocon Industries ltd - India
- The State Trading Corporation of India Ltd
- SN Aboitiz Power Inc, Philippines
- Gujarat Electricity Regulatory Commission - India
- Ind-Barath Power Infra Limited - India
- Siam City Cement PLC, Thailand
- SMC Global Power, Philippines
- Sree Jayajothi Cements Limited - India
- Timah Investasi Mineral - Indoneisa
- Indian Oil Corporation Limited
- Therma Luzon, Inc, Philippines
- Jindal Steel & Power Ltd - India
- Karaikal Port Pvt Ltd - India
- Port Waratah Coal Services - Australia
- Riau Bara Harum - Indonesia
- Salva Resources Pvt Ltd - India
- The Treasury - Australian Government
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Tamil Nadu electricity Board
- Altura Mining Limited, Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Billiton Holdings Pty Ltd - Australia
- European Bulk Services B.V. - Netherlands
- Energy Development Corp, Philippines
- Banpu Public Company Limited - Thailand
- Central Java Power - Indonesia
- Sarangani Energy Corporation, Philippines
- Siam City Cement - Thailand
- Independent Power Producers Association of India
- VISA Power Limited - India
- Bhoruka Overseas - Indonesia
- Kobexindo Tractors - Indoneisa
- Kumho Petrochemical, South Korea
- Posco Energy - South Korea
- Bayan Resources Tbk. - Indonesia
- Madhucon Powers Ltd - India
- Australian Coal Association
- Wood Mackenzie - Singapore
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Alfred C Toepfer International GmbH - Germany
- ICICI Bank Limited - India
- Ministry of Mines - Canada
- Jaiprakash Power Ventures ltd
- Maharashtra Electricity Regulatory Commission - India
- Medco Energi Mining Internasional
- Bulk Trading Sa - Switzerland
- Edison Trading Spa - Italy
- Savvy Resources Ltd - HongKong
- Bharathi Cement Corporation - India
- Rashtriya Ispat Nigam Limited - India
- Price Waterhouse Coopers - Russia
- GVK Power & Infra Limited - India
- International Coal Ventures Pvt Ltd - India
- Bukit Makmur.PT - Indonesia
- Sakthi Sugars Limited - India
- Miang Besar Coal Terminal - Indonesia
- Larsen & Toubro Limited - India
- Vizag Seaport Private Limited - India
- Rio Tinto Coal - Australia
- Eastern Coal Council - USA
- Indogreen Group - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Electricity Generating Authority of Thailand
- Directorate Of Revenue Intelligence - India
- Pipit Mutiara Jaya. PT, Indonesia
- Romanian Commodities Exchange
- Bank of Tokyo Mitsubishi UFJ Ltd
- Latin American Coal - Colombia
- Toyota Tsusho Corporation, Japan
- SMG Consultants - Indonesia
- Goldman Sachs - Singapore
- Essar Steel Hazira Ltd - India
- Meenaskhi Energy Private Limited - India
- Samtan Co., Ltd - South Korea
- PetroVietnam Power Coal Import and Supply Company
- Mercator Lines Limited - India
- Commonwealth Bank - Australia
- Bukit Baiduri Energy - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Lanco Infratech Ltd - India
- New Zealand Coal & Carbon
- Mintek Dendrill Indonesia
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