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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, 24 March 16
NEWBUILDINGS' PRICES HAVE STARTED TO COME DOWN - ALLIED | HELLENIC SHIPPING NEWS
Newbuildings’ prices have started to come down, as demand has remained subdued for quite some time now. In its latest weekly report, shipbrok ...
Wednesday, 23 March 16
THE PANAMA CANAL - WILL THE MELTING OF POLAR ICE CAPS CREATE RIVAL NAVIGATIONAL WATERWAYS THROUGH THE ARCTIC? - INTERMODAL
The Panama Canal, 102 years after its initial opening, is now about to have its expansion completed with a cost of USD5.25 Billion. It is a project ...
Tuesday, 22 March 16
FOUR NEW MARKET MEMBERS HAVE JOINED GLOBALCOAL
globalCOAL® announced yesterday that four new Market Members have joined its international trading community.
Ferrocadia DMCC is an intern ...
Monday, 21 March 16
INDONESIAN 4200 GAR COAL INDEX ROSE $0.12 OR, 0.44% WEEK OVER WEEK; INDEX CLOASED AT $27.19 A TON
COALspot.com: Average 5000 GAR coal index of Indonesian origin rose 0.21 percent week over week to averaging $38.90 per ton on this past Friday, ac ...
Monday, 21 March 16
THE BALTIC DRY INDEX ROSE SLIGHTLY WEEK OVER WEEK; BCI UP 11.93%
COALspot.com: The Baltic Exchange, tracking rates for ships carrying dry bulk commodities continued rose this week helped by higher rates for Cape ...
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Showing 2511 to 2515 news of total 6871 |
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- CNBM International Corporation - China
- Barasentosa Lestari - Indonesia
- Meralco Power Generation, Philippines
- Intertek Mineral Services - Indonesia
- Aditya Birla Group - India
- PowerSource Philippines DevCo
- Africa Commodities Group - South Africa
- Manunggal Multi Energi - Indonesia
- Savvy Resources Ltd - HongKong
- SMG Consultants - Indonesia
- Ministry of Finance - Indonesia
- Posco Energy - South Korea
- Energy Link Ltd, New Zealand
- Binh Thuan Hamico - Vietnam
- Eastern Coal Council - USA
- Lanco Infratech Ltd - India
- Maheswari Brothers Coal Limited - India
- SN Aboitiz Power Inc, Philippines
- ICICI Bank Limited - India
- Larsen & Toubro Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Sojitz Corporation - Japan
- Madhucon Powers Ltd - India
- MS Steel International - UAE
- Baramulti Group, Indonesia
- Orica Australia Pty. Ltd.
- Agrawal Coal Company - India
- PNOC Exploration Corporation - Philippines
- European Bulk Services B.V. - Netherlands
- Essar Steel Hazira Ltd - India
- Salva Resources Pvt Ltd - India
- Karbindo Abesyapradhi - Indoneisa
- Indian Energy Exchange, India
- Trasteel International SA, Italy
- Maharashtra Electricity Regulatory Commission - India
- GAC Shipping (India) Pvt Ltd
- Siam City Cement - Thailand
- Banpu Public Company Limited - Thailand
- Anglo American - United Kingdom
- Sarangani Energy Corporation, Philippines
- Siam City Cement PLC, Thailand
- San Jose City I Power Corp, Philippines
- Bulk Trading Sa - Switzerland
- Makarim & Taira - Indonesia
- Oldendorff Carriers - Singapore
- Directorate General of MIneral and Coal - Indonesia
- Thai Mozambique Logistica
- Bank of Tokyo Mitsubishi UFJ Ltd
- Iligan Light & Power Inc, Philippines
- White Energy Company Limited
- Bhoruka Overseas - Indonesia
- LBH Netherlands Bv - Netherlands
- Wilmar Investment Holdings
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Gujarat Mineral Development Corp Ltd - India
- Georgia Ports Authority, United States
- Globalindo Alam Lestari - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Central Electricity Authority - India
- Aboitiz Power Corporation - Philippines
- Kumho Petrochemical, South Korea
- AsiaOL BioFuels Corp., Philippines
- Uttam Galva Steels Limited - India
- Bhatia International Limited - India
- Power Finance Corporation Ltd., India
- Riau Bara Harum - Indonesia
- Meenaskhi Energy Private Limited - India
- Bhushan Steel Limited - India
- Holcim Trading Pte Ltd - Singapore
- GVK Power & Infra Limited - India
- IHS Mccloskey Coal Group - USA
- Carbofer General Trading SA - India
- Standard Chartered Bank - UAE
- PTC India Limited - India
- Coalindo Energy - Indonesia
- Parry Sugars Refinery, India
- Indo Tambangraya Megah - Indonesia
- OPG Power Generation Pvt Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Star Paper Mills Limited - India
- Minerals Council of Australia
- Pipit Mutiara Jaya. PT, Indonesia
- Kobexindo Tractors - Indoneisa
- Energy Development Corp, Philippines
- Ministry of Mines - Canada
- TeaM Sual Corporation - Philippines
- Australian Coal Association
- Videocon Industries ltd - India
- ASAPP Information Group - India
- India Bulls Power Limited - India
- Indika Energy - Indonesia
- Toyota Tsusho Corporation, Japan
- Neyveli Lignite Corporation Ltd, - India
- Indonesian Coal Mining Association
- Global Business Power Corporation, Philippines
- Ambuja Cements Ltd - India
- Sakthi Sugars Limited - India
- Indian Oil Corporation Limited
- SMC Global Power, Philippines
- Bayan Resources Tbk. - Indonesia
- Singapore Mercantile Exchange
- Thiess Contractors Indonesia
- Gujarat Sidhee Cement - India
- Electricity Authority, New Zealand
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Global Green Power PLC Corporation, Philippines
- Romanian Commodities Exchange
- Electricity Generating Authority of Thailand
- IEA Clean Coal Centre - UK
- Tamil Nadu electricity Board
- Marubeni Corporation - India
- Vizag Seaport Private Limited - India
- Deloitte Consulting - India
- Bukit Asam (Persero) Tbk - Indonesia
- The State Trading Corporation of India Ltd
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Global Coal Blending Company Limited - Australia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Borneo Indobara - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Altura Mining Limited, Indonesia
- Cigading International Bulk Terminal - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Eastern Energy - Thailand
- VISA Power Limited - India
- Bukit Baiduri Energy - Indonesia
- Edison Trading Spa - Italy
- Grasim Industreis Ltd - India
- Krishnapatnam Port Company Ltd. - India
- Petron Corporation, Philippines
- Ministry of Transport, Egypt
- Directorate Of Revenue Intelligence - India
- Chamber of Mines of South Africa
- International Coal Ventures Pvt Ltd - India
- Wood Mackenzie - Singapore
- Karaikal Port Pvt Ltd - India
- Orica Mining Services - Indonesia
- Economic Council, Georgia
- Chettinad Cement Corporation Ltd - India
- Bahari Cakrawala Sebuku - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Vijayanagar Sugar Pvt Ltd - India
- Australian Commodity Traders Exchange
- Jaiprakash Power Ventures ltd
- Metalloyd Limited - United Kingdom
- Mintek Dendrill Indonesia
- Dalmia Cement Bharat India
- South Luzon Thermal Energy Corporation
- Tata Chemicals Ltd - India
- Jindal Steel & Power Ltd - India
- Gujarat Electricity Regulatory Commission - India
- Ind-Barath Power Infra Limited - India
- Commonwealth Bank - Australia
- Mercator Lines Limited - India
- Billiton Holdings Pty Ltd - Australia
- Bharathi Cement Corporation - India
- Xindia Steels Limited - India
- Simpson Spence & Young - Indonesia
- Parliament of New Zealand
- Kaltim Prima Coal - Indonesia
- Interocean Group of Companies - India
- London Commodity Brokers - England
- Price Waterhouse Coopers - Russia
- Bangladesh Power Developement Board
- Heidelberg Cement - Germany
- Sree Jayajothi Cements Limited - India
- Malabar Cements Ltd - India
- Straits Asia Resources Limited - Singapore
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Merrill Lynch Commodities Europe
- Sinarmas Energy and Mining - Indonesia
- McConnell Dowell - Australia
- Antam Resourcindo - Indonesia
- Cement Manufacturers Association - India
- Independent Power Producers Association of India
- Port Waratah Coal Services - Australia
- GN Power Mariveles Coal Plant, Philippines
- Coal and Oil Company - UAE
- Rio Tinto Coal - Australia
- Vedanta Resources Plc - India
- Sical Logistics Limited - India
- Medco Energi Mining Internasional
- Formosa Plastics Group - Taiwan
- New Zealand Coal & Carbon
- CIMB Investment Bank - Malaysia
- Goldman Sachs - Singapore
- Attock Cement Pakistan Limited
- Renaissance Capital - South Africa
- Timah Investasi Mineral - Indoneisa
- Mjunction Services Limited - India
- Leighton Contractors Pty Ltd - Australia
- Planning Commission, India
- Petrochimia International Co. Ltd.- Taiwan
- Central Java Power - Indonesia
- Bukit Makmur.PT - Indonesia
- Latin American Coal - Colombia
- Pendopo Energi Batubara - Indonesia
- Samtan Co., Ltd - South Korea
- Asmin Koalindo Tuhup - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Coastal Gujarat Power Limited - India
- The University of Queensland
- The Treasury - Australian Government
- GMR Energy Limited - India
- Indogreen Group - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Kideco Jaya Agung - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Therma Luzon, Inc, Philippines
- Kartika Selabumi Mining - Indonesia
- Kepco SPC Power Corporation, Philippines
- Miang Besar Coal Terminal - Indonesia
- Semirara Mining Corp, Philippines
- Mercuria Energy - Indonesia
- Sindya Power Generating Company Private Ltd
- Rashtriya Ispat Nigam Limited - India
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