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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, 31 March 16
CAPE: ANOTHER UNEVENTFUL WEEK WITH FIXTURES CONCLUDED AT LAST DONE LEVELS - FEARNLEYS
Cape
Another uneventful week with fixtures concluded at last done levels, CS levels remain around the USD 3 mark, whilst C3 is still just short o ...
Wednesday, 30 March 16
MINISTRY OF ENERGY AND MINERAL RESOURCES OF INDONESIA TO REVISE METHODOLOGY TO DETERMINE THE SELLING PRICE OF COAL TO MINE-MOUTH POWER PLANTS
COALspot.com: Ministry of Energy and Mineral Resources (ESDM) of Indonesia to review to revise methodology to determine the selling price of co ...
Wednesday, 30 March 16
VALEMAXES: THE BIGGEST NIGHTMARE OF TODAY'S DRY BULK MARKET - INTERMODAL
At a time that Europe is still dealing with the aftermath of the terrorist attacks in Brussels our society is daily bombarded with news of terroris ...
Tuesday, 29 March 16
BULK CARRIER VENTILATION - CAPTAIN PAUL R. WALTON
KNOWLEDGE TO ELEVATE
Moisture damage is a source of many cargo claims. Claimants allege that it is brought about by the ship’s failure t ...
Monday, 28 March 16
INDONESIAN WEEKLY CS50 COAL INDEX CLOSED SLIGHTLY FIRM; CS 57 INDEX CLOSED WEAK
COALspot.com: Average 5000 GAR coal index of Indonesian origin rose 0.03 percent week over week to averaging $38.91 per ton on this past Thursday, ...
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Showing 2501 to 2505 news of total 6871 |
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- McConnell Dowell - Australia
- Chamber of Mines of South Africa
- Parliament of New Zealand
- Metalloyd Limited - United Kingdom
- Eastern Energy - Thailand
- Interocean Group of Companies - India
- Parry Sugars Refinery, India
- Cigading International Bulk Terminal - Indonesia
- SMC Global Power, Philippines
- Edison Trading Spa - Italy
- Renaissance Capital - South Africa
- Simpson Spence & Young - Indonesia
- Energy Development Corp, Philippines
- Heidelberg Cement - Germany
- ICICI Bank Limited - India
- Central Java Power - Indonesia
- Orica Australia Pty. Ltd.
- Ministry of Finance - Indonesia
- Bharathi Cement Corporation - India
- Gujarat Electricity Regulatory Commission - India
- Timah Investasi Mineral - Indoneisa
- The Treasury - Australian Government
- Lanco Infratech Ltd - India
- Coastal Gujarat Power Limited - India
- Kobexindo Tractors - Indoneisa
- London Commodity Brokers - England
- Miang Besar Coal Terminal - Indonesia
- Rio Tinto Coal - Australia
- Kohat Cement Company Ltd. - Pakistan
- Globalindo Alam Lestari - Indonesia
- Bhushan Steel Limited - India
- ASAPP Information Group - India
- Tamil Nadu electricity Board
- SN Aboitiz Power Inc, Philippines
- Uttam Galva Steels Limited - India
- Siam City Cement - Thailand
- Alfred C Toepfer International GmbH - Germany
- The State Trading Corporation of India Ltd
- Central Electricity Authority - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- New Zealand Coal & Carbon
- Dalmia Cement Bharat India
- The University of Queensland
- Medco Energi Mining Internasional
- Planning Commission, India
- Larsen & Toubro Limited - India
- Iligan Light & Power Inc, Philippines
- Bayan Resources Tbk. - Indonesia
- CNBM International Corporation - China
- Billiton Holdings Pty Ltd - Australia
- Thai Mozambique Logistica
- Salva Resources Pvt Ltd - India
- Coalindo Energy - Indonesia
- Indogreen Group - Indonesia
- Savvy Resources Ltd - HongKong
- Posco Energy - South Korea
- Formosa Plastics Group - Taiwan
- TNB Fuel Sdn Bhd - Malaysia
- AsiaOL BioFuels Corp., Philippines
- Kaltim Prima Coal - Indonesia
- Intertek Mineral Services - Indonesia
- GAC Shipping (India) Pvt Ltd
- Videocon Industries ltd - India
- Bahari Cakrawala Sebuku - Indonesia
- Straits Asia Resources Limited - Singapore
- Pendopo Energi Batubara - Indonesia
- TeaM Sual Corporation - Philippines
- Minerals Council of Australia
- Pipit Mutiara Jaya. PT, Indonesia
- Merrill Lynch Commodities Europe
- Ministry of Mines - Canada
- Kumho Petrochemical, South Korea
- Gujarat Sidhee Cement - India
- Eastern Coal Council - USA
- Jorong Barutama Greston.PT - Indonesia
- PowerSource Philippines DevCo
- Leighton Contractors Pty Ltd - Australia
- Rashtriya Ispat Nigam Limited - India
- Semirara Mining and Power Corporation, Philippines
- Malabar Cements Ltd - India
- Maheswari Brothers Coal Limited - India
- Bukit Baiduri Energy - Indonesia
- Jindal Steel & Power Ltd - India
- India Bulls Power Limited - India
- Agrawal Coal Company - India
- Grasim Industreis Ltd - India
- Indian Oil Corporation Limited
- Oldendorff Carriers - Singapore
- Petron Corporation, Philippines
- Energy Link Ltd, New Zealand
- Kideco Jaya Agung - Indonesia
- Romanian Commodities Exchange
- Georgia Ports Authority, United States
- Kartika Selabumi Mining - Indonesia
- Riau Bara Harum - Indonesia
- Ambuja Cements Ltd - India
- Bukit Makmur.PT - Indonesia
- White Energy Company Limited
- GMR Energy Limited - India
- Indonesian Coal Mining Association
- Altura Mining Limited, Indonesia
- Madhucon Powers Ltd - India
- Kalimantan Lumbung Energi - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Sarangani Energy Corporation, Philippines
- Price Waterhouse Coopers - Russia
- Jaiprakash Power Ventures ltd
- Ind-Barath Power Infra Limited - India
- Sree Jayajothi Cements Limited - India
- Toyota Tsusho Corporation, Japan
- Global Coal Blending Company Limited - Australia
- Vizag Seaport Private Limited - India
- Manunggal Multi Energi - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Bhoruka Overseas - Indonesia
- Bhatia International Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Antam Resourcindo - Indonesia
- Sakthi Sugars Limited - India
- LBH Netherlands Bv - Netherlands
- Port Waratah Coal Services - Australia
- SMG Consultants - Indonesia
- Carbofer General Trading SA - India
- Commonwealth Bank - Australia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Ceylon Electricity Board - Sri Lanka
- Aditya Birla Group - India
- South Luzon Thermal Energy Corporation
- Ministry of Transport, Egypt
- Semirara Mining Corp, Philippines
- Meenaskhi Energy Private Limited - India
- Xindia Steels Limited - India
- Siam City Cement PLC, Thailand
- IEA Clean Coal Centre - UK
- Deloitte Consulting - India
- Electricity Generating Authority of Thailand
- Indo Tambangraya Megah - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Bangladesh Power Developement Board
- Latin American Coal - Colombia
- Essar Steel Hazira Ltd - India
- Kepco SPC Power Corporation, Philippines
- Mercator Lines Limited - India
- Barasentosa Lestari - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Karaikal Port Pvt Ltd - India
- Wood Mackenzie - Singapore
- VISA Power Limited - India
- Goldman Sachs - Singapore
- PetroVietnam Power Coal Import and Supply Company
- Karbindo Abesyapradhi - Indoneisa
- Thiess Contractors Indonesia
- Sojitz Corporation - Japan
- Cement Manufacturers Association - India
- Singapore Mercantile Exchange
- Samtan Co., Ltd - South Korea
- Banpu Public Company Limited - Thailand
- Meralco Power Generation, Philippines
- Independent Power Producers Association of India
- IHS Mccloskey Coal Group - USA
- Vijayanagar Sugar Pvt Ltd - India
- International Coal Ventures Pvt Ltd - India
- Anglo American - United Kingdom
- PTC India Limited - India
- Binh Thuan Hamico - Vietnam
- Orica Mining Services - Indonesia
- Therma Luzon, Inc, Philippines
- CIMB Investment Bank - Malaysia
- Electricity Authority, New Zealand
- Economic Council, Georgia
- PNOC Exploration Corporation - Philippines
- Maharashtra Electricity Regulatory Commission - India
- Attock Cement Pakistan Limited
- Chettinad Cement Corporation Ltd - India
- Standard Chartered Bank - UAE
- Borneo Indobara - Indonesia
- Tata Chemicals Ltd - India
- San Jose City I Power Corp, Philippines
- European Bulk Services B.V. - Netherlands
- Mintek Dendrill Indonesia
- Africa Commodities Group - South Africa
- Power Finance Corporation Ltd., India
- Global Green Power PLC Corporation, Philippines
- Baramulti Group, Indonesia
- OPG Power Generation Pvt Ltd - India
- GN Power Mariveles Coal Plant, Philippines
- Coal and Oil Company - UAE
- Mercuria Energy - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Sical Logistics Limited - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Indian Energy Exchange, India
- Makarim & Taira - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Gujarat Mineral Development Corp Ltd - India
- Marubeni Corporation - India
- Global Business Power Corporation, Philippines
- Sindya Power Generating Company Private Ltd
- Australian Coal Association
- Neyveli Lignite Corporation Ltd, - India
- Mjunction Services Limited - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Vedanta Resources Plc - India
- Australian Commodity Traders Exchange
- Bulk Trading Sa - Switzerland
- Aboitiz Power Corporation - Philippines
- Star Paper Mills Limited - India
- Indika Energy - Indonesia
- Directorate Of Revenue Intelligence - India
- Holcim Trading Pte Ltd - Singapore
- Krishnapatnam Port Company Ltd. - India
- MS Steel International - UAE
- Trasteel International SA, Italy
- Asia Pacific Energy Resources Ventures Inc, Philippines
- GVK Power & Infra Limited - India
- Wilmar Investment Holdings
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