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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, 18 March 16
OUTLOOK ON GLOBAL SHIPPING SECTOR TURNS NEGATIVE AS SUPPLY-DEMAND GAP WIDENS AND EBITDA DECLINES - MOODY'S
Moody’s Investors Service (Moody’s) has changed its outlook on the global shipping sector to negative as it expects supply growth to ou ...
Friday, 18 March 16
DRY BULK MARKET HAS LITTLE TO LOOK FORWARD TO FROM CHINA AT THE MOMENT - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING
The dry bulk market’s rebound is long overdue, but when it comes, it won’t be because of China’s strong demand for commodities, o ...
Friday, 18 March 16
COAL PRODUCTION IN THE UNITED STATES SLIGHTLY DECREASED THIS WEEK - EIA
COALspot.com – United States the world’s second largest coal producer has produced approximately totaled an estimated 12.5 million shor ...
Thursday, 17 March 16
THE PANAMAX MARKET SEEMS TO BE A BIT TOPPISH THIS WEEK - FEARNLEYS
Cape
There are challenging days with rates or less unchanged from last week; West Australia to China still below US$ 3 pmt, and Tuarao to China i ...
Wednesday, 16 March 16
OIL SUPPLY OUTPACES DEMAND ON ANY GIVEN DAY, AND BILLIONS OF BARRELS OF OIL ARE BEING STORED RATHER THAN CONSUMED - CHRISTOPHER
Oil producers have turned to the concept of limiting their output to January levels as a certain form of action to boost prices that have fallen mo ...
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Showing 2516 to 2520 news of total 6871 |
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- Dong Bac Coal Mineral Investment Coporation - Vietnam
- AsiaOL BioFuels Corp., Philippines
- Kumho Petrochemical, South Korea
- PowerSource Philippines DevCo
- CNBM International Corporation - China
- Parliament of New Zealand
- Cement Manufacturers Association - India
- Riau Bara Harum - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Savvy Resources Ltd - HongKong
- Jindal Steel & Power Ltd - India
- Carbofer General Trading SA - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Pendopo Energi Batubara - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Australian Coal Association
- GVK Power & Infra Limited - India
- PTC India Limited - India
- Sical Logistics Limited - India
- Sarangani Energy Corporation, Philippines
- Renaissance Capital - South Africa
- Standard Chartered Bank - UAE
- Bukit Asam (Persero) Tbk - Indonesia
- Agrawal Coal Company - India
- Barasentosa Lestari - Indonesia
- Australian Commodity Traders Exchange
- Sree Jayajothi Cements Limited - India
- Merrill Lynch Commodities Europe
- Semirara Mining and Power Corporation, Philippines
- Uttam Galva Steels Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Goldman Sachs - Singapore
- Aboitiz Power Corporation - Philippines
- MS Steel International - UAE
- Independent Power Producers Association of India
- Meenaskhi Energy Private Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Gujarat Sidhee Cement - India
- Kartika Selabumi Mining - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Mintek Dendrill Indonesia
- Manunggal Multi Energi - Indonesia
- Global Green Power PLC Corporation, Philippines
- Sindya Power Generating Company Private Ltd
- Timah Investasi Mineral - Indoneisa
- London Commodity Brokers - England
- San Jose City I Power Corp, Philippines
- Chettinad Cement Corporation Ltd - India
- Vizag Seaport Private Limited - India
- Miang Besar Coal Terminal - Indonesia
- Singapore Mercantile Exchange
- Bhoruka Overseas - Indonesia
- The Treasury - Australian Government
- Billiton Holdings Pty Ltd - Australia
- Ministry of Finance - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Grasim Industreis Ltd - India
- Coalindo Energy - Indonesia
- Parry Sugars Refinery, India
- Formosa Plastics Group - Taiwan
- Malabar Cements Ltd - India
- Ministry of Transport, Egypt
- Sojitz Corporation - Japan
- Sinarmas Energy and Mining - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Ind-Barath Power Infra Limited - India
- Antam Resourcindo - Indonesia
- Energy Link Ltd, New Zealand
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Tata Chemicals Ltd - India
- Borneo Indobara - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Oldendorff Carriers - Singapore
- Interocean Group of Companies - India
- International Coal Ventures Pvt Ltd - India
- Georgia Ports Authority, United States
- Trasteel International SA, Italy
- Latin American Coal - Colombia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Kobexindo Tractors - Indoneisa
- Coastal Gujarat Power Limited - India
- European Bulk Services B.V. - Netherlands
- Commonwealth Bank - Australia
- Ministry of Mines - Canada
- Indo Tambangraya Megah - Indonesia
- The State Trading Corporation of India Ltd
- Bharathi Cement Corporation - India
- Planning Commission, India
- Intertek Mineral Services - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Energy Development Corp, Philippines
- Orica Australia Pty. Ltd.
- Globalindo Alam Lestari - Indonesia
- McConnell Dowell - Australia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Central Java Power - Indonesia
- SMG Consultants - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Global Business Power Corporation, Philippines
- CIMB Investment Bank - Malaysia
- Krishnapatnam Port Company Ltd. - India
- The University of Queensland
- IEA Clean Coal Centre - UK
- ICICI Bank Limited - India
- Madhucon Powers Ltd - India
- Marubeni Corporation - India
- Vedanta Resources Plc - India
- Bhatia International Limited - India
- OPG Power Generation Pvt Ltd - India
- Heidelberg Cement - Germany
- India Bulls Power Limited - India
- GAC Shipping (India) Pvt Ltd
- Dalmia Cement Bharat India
- Siam City Cement - Thailand
- Tamil Nadu electricity Board
- Jorong Barutama Greston.PT - Indonesia
- Lanco Infratech Ltd - India
- Electricity Authority, New Zealand
- Eastern Energy - Thailand
- Aditya Birla Group - India
- Banpu Public Company Limited - Thailand
- Africa Commodities Group - South Africa
- Kideco Jaya Agung - Indonesia
- Semirara Mining Corp, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Essar Steel Hazira Ltd - India
- Baramulti Group, Indonesia
- Samtan Co., Ltd - South Korea
- Coal and Oil Company - UAE
- Indian Oil Corporation Limited
- Iligan Light & Power Inc, Philippines
- Port Waratah Coal Services - Australia
- Central Electricity Authority - India
- Edison Trading Spa - Italy
- Indika Energy - Indonesia
- Mjunction Services Limited - India
- Makarim & Taira - Indonesia
- Minerals Council of Australia
- Star Paper Mills Limited - India
- Metalloyd Limited - United Kingdom
- Wood Mackenzie - Singapore
- Petron Corporation, Philippines
- South Luzon Thermal Energy Corporation
- Thiess Contractors Indonesia
- SN Aboitiz Power Inc, Philippines
- Indonesian Coal Mining Association
- Sakthi Sugars Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Eastern Coal Council - USA
- Altura Mining Limited, Indonesia
- Jaiprakash Power Ventures ltd
- Karaikal Port Pvt Ltd - India
- PNOC Exploration Corporation - Philippines
- Indian Energy Exchange, India
- Indogreen Group - Indonesia
- TeaM Sual Corporation - Philippines
- Neyveli Lignite Corporation Ltd, - India
- Therma Luzon, Inc, Philippines
- Power Finance Corporation Ltd., India
- Ceylon Electricity Board - Sri Lanka
- GN Power Mariveles Coal Plant, Philippines
- Bangladesh Power Developement Board
- Bhushan Steel Limited - India
- Wilmar Investment Holdings
- Leighton Contractors Pty Ltd - Australia
- Romanian Commodities Exchange
- Gujarat Mineral Development Corp Ltd - India
- Orica Mining Services - Indonesia
- Salva Resources Pvt Ltd - India
- Attock Cement Pakistan Limited
- Mercuria Energy - Indonesia
- Xindia Steels Limited - India
- Kalimantan Lumbung Energi - Indonesia
- Kepco SPC Power Corporation, Philippines
- Anglo American - United Kingdom
- Global Coal Blending Company Limited - Australia
- Bukit Baiduri Energy - Indonesia
- Toyota Tsusho Corporation, Japan
- Karbindo Abesyapradhi - Indoneisa
- Holcim Trading Pte Ltd - Singapore
- Kapuas Tunggal Persada - Indonesia
- Economic Council, Georgia
- Kaltim Prima Coal - Indonesia
- Bukit Makmur.PT - Indonesia
- Directorate Of Revenue Intelligence - India
- White Energy Company Limited
- Videocon Industries ltd - India
- Directorate General of MIneral and Coal - Indonesia
- GMR Energy Limited - India
- Ambuja Cements Ltd - India
- Larsen & Toubro Limited - India
- LBH Netherlands Bv - Netherlands
- Siam City Cement PLC, Thailand
- Thai Mozambique Logistica
- Electricity Generating Authority of Thailand
- ASAPP Information Group - India
- Bulk Trading Sa - Switzerland
- Rio Tinto Coal - Australia
- Straits Asia Resources Limited - Singapore
- PetroVietnam Power Coal Import and Supply Company
- Simpson Spence & Young - Indonesia
- Mercator Lines Limited - India
- SMC Global Power, Philippines
- Chamber of Mines of South Africa
- Bayan Resources Tbk. - Indonesia
- Maheswari Brothers Coal Limited - India
- Gujarat Electricity Regulatory Commission - India
- Petrochimia International Co. Ltd.- Taiwan
- New Zealand Coal & Carbon
- VISA Power Limited - India
- Posco Energy - South Korea
- IHS Mccloskey Coal Group - USA
- Medco Energi Mining Internasional
- Price Waterhouse Coopers - Russia
- Binh Thuan Hamico - Vietnam
- Meralco Power Generation, Philippines
- Deloitte Consulting - India
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