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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, 11 March 16
ADANI GLOBAL BAGS 0.26 MILLION TONS OF COAL CONTRACT FROM LANKA COAL COMPANY
COALspot.com: Lanka Coal Company (Private) Limited, Sri Lanka has awarded 260,000 +/- 10% tons of Power plant 6300 GAR calorific value coal to Adan ...
Friday, 11 March 16
US WEEKLY COAL PRODUCTION DOWN BY 0.5 MMST
COALspot.com – United States the world’s second largest coal producer has produced approximately totaled an estimated 12.6 million shor ...
Friday, 11 March 16
FORTESCUE'S MOU WITH VALE COULD STRENGTHEN ITS BUSINESS PROFILE - FITCH
COALspot.com: Fitch Ratings says that Australia-based Fortescue Metals Group Limited's (BB+/Negative) memorandum of understanding (MOU) with Br ...
Thursday, 10 March 16
CHINA'S NEW POLICY PLAN COULD BE POSITIVE FOR SHIPPING, BUT TARGETS SEEM RATHER AMBITIOUS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
China set out its new policy plan during the course of the past weekend, but it seems to have set some very ambitious goals, which could be difficu ...
Thursday, 10 March 16
U.S. COAL EXPORTS DECLINED 23% IN 2015, AS COAL IMPORTS REMAINED STEADY
COALspot.com: The United States remains a net exporter of coal, exporting 74.0 million short tons (MMst) and importing 11 MMst in 2015.
Accord ...
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Showing 2526 to 2530 news of total 6871 |
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- Indonesian Coal Mining Association
- Formosa Plastics Group - Taiwan
- Cigading International Bulk Terminal - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Aboitiz Power Corporation - Philippines
- Simpson Spence & Young - Indonesia
- Ambuja Cements Ltd - India
- South Luzon Thermal Energy Corporation
- Malabar Cements Ltd - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Tata Chemicals Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Semirara Mining and Power Corporation, Philippines
- Dalmia Cement Bharat India
- Edison Trading Spa - Italy
- Coal and Oil Company - UAE
- MS Steel International - UAE
- Neyveli Lignite Corporation Ltd, - India
- Interocean Group of Companies - India
- Jindal Steel & Power Ltd - India
- Energy Link Ltd, New Zealand
- OPG Power Generation Pvt Ltd - India
- Globalindo Alam Lestari - Indonesia
- Kumho Petrochemical, South Korea
- GMR Energy Limited - India
- SMC Global Power, Philippines
- Thai Mozambique Logistica
- Semirara Mining Corp, Philippines
- Wood Mackenzie - Singapore
- Singapore Mercantile Exchange
- Independent Power Producers Association of India
- Essar Steel Hazira Ltd - India
- Kaltim Prima Coal - Indonesia
- Indo Tambangraya Megah - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Chettinad Cement Corporation Ltd - India
- Krishnapatnam Port Company Ltd. - India
- Mintek Dendrill Indonesia
- Anglo American - United Kingdom
- Savvy Resources Ltd - HongKong
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- PTC India Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Ministry of Mines - Canada
- Antam Resourcindo - Indonesia
- Manunggal Multi Energi - Indonesia
- Metalloyd Limited - United Kingdom
- Commonwealth Bank - Australia
- Bukit Makmur.PT - Indonesia
- Merrill Lynch Commodities Europe
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Eastern Energy - Thailand
- Marubeni Corporation - India
- Bayan Resources Tbk. - Indonesia
- Electricity Generating Authority of Thailand
- Barasentosa Lestari - Indonesia
- Vedanta Resources Plc - India
- Borneo Indobara - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Billiton Holdings Pty Ltd - Australia
- Port Waratah Coal Services - Australia
- Siam City Cement - Thailand
- Oldendorff Carriers - Singapore
- Posco Energy - South Korea
- Karbindo Abesyapradhi - Indoneisa
- Jaiprakash Power Ventures ltd
- Global Green Power PLC Corporation, Philippines
- Indian Energy Exchange, India
- Energy Development Corp, Philippines
- Bulk Trading Sa - Switzerland
- Australian Coal Association
- Renaissance Capital - South Africa
- Pendopo Energi Batubara - Indonesia
- Sree Jayajothi Cements Limited - India
- Global Business Power Corporation, Philippines
- Videocon Industries ltd - India
- Coastal Gujarat Power Limited - India
- Banpu Public Company Limited - Thailand
- Iligan Light & Power Inc, Philippines
- Maheswari Brothers Coal Limited - India
- Lanco Infratech Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- Therma Luzon, Inc, Philippines
- Madhucon Powers Ltd - India
- Attock Cement Pakistan Limited
- Parry Sugars Refinery, India
- Grasim Industreis Ltd - India
- Electricity Authority, New Zealand
- Larsen & Toubro Limited - India
- Gujarat Sidhee Cement - India
- TeaM Sual Corporation - Philippines
- GN Power Mariveles Coal Plant, Philippines
- Cement Manufacturers Association - India
- CNBM International Corporation - China
- Tamil Nadu electricity Board
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Planning Commission, India
- Meralco Power Generation, Philippines
- Binh Thuan Hamico - Vietnam
- Rio Tinto Coal - Australia
- CIMB Investment Bank - Malaysia
- Intertek Mineral Services - Indonesia
- Minerals Council of Australia
- Sindya Power Generating Company Private Ltd
- Latin American Coal - Colombia
- The Treasury - Australian Government
- Offshore Bulk Terminal Pte Ltd, Singapore
- Goldman Sachs - Singapore
- Directorate Of Revenue Intelligence - India
- Toyota Tsusho Corporation, Japan
- Gujarat Mineral Development Corp Ltd - India
- Coalindo Energy - Indonesia
- Trasteel International SA, Italy
- GVK Power & Infra Limited - India
- PNOC Exploration Corporation - Philippines
- Kobexindo Tractors - Indoneisa
- Global Coal Blending Company Limited - Australia
- Karaikal Port Pvt Ltd - India
- GAC Shipping (India) Pvt Ltd
- Alfred C Toepfer International GmbH - Germany
- Petron Corporation, Philippines
- Bukit Baiduri Energy - Indonesia
- Kideco Jaya Agung - Indonesia
- Vizag Seaport Private Limited - India
- Central Java Power - Indonesia
- Economic Council, Georgia
- New Zealand Coal & Carbon
- Petrochimia International Co. Ltd.- Taiwan
- Bank of Tokyo Mitsubishi UFJ Ltd
- Bharathi Cement Corporation - India
- Salva Resources Pvt Ltd - India
- Romanian Commodities Exchange
- Mjunction Services Limited - India
- Thiess Contractors Indonesia
- Wilmar Investment Holdings
- Deloitte Consulting - India
- Xindia Steels Limited - India
- Ministry of Finance - Indonesia
- Indika Energy - Indonesia
- White Energy Company Limited
- Miang Besar Coal Terminal - Indonesia
- Central Electricity Authority - India
- Uttam Galva Steels Limited - India
- Mercator Lines Limited - India
- Parliament of New Zealand
- Orica Australia Pty. Ltd.
- Kalimantan Lumbung Energi - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- London Commodity Brokers - England
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Sarangani Energy Corporation, Philippines
- Bhushan Steel Limited - India
- Eastern Coal Council - USA
- Bhatia International Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- Georgia Ports Authority, United States
- San Jose City I Power Corp, Philippines
- Samtan Co., Ltd - South Korea
- Orica Mining Services - Indonesia
- Ministry of Transport, Egypt
- Sical Logistics Limited - India
- SMG Consultants - Indonesia
- The University of Queensland
- Sinarmas Energy and Mining - Indonesia
- Bhoruka Overseas - Indonesia
- The State Trading Corporation of India Ltd
- Heidelberg Cement - Germany
- Price Waterhouse Coopers - Russia
- Gujarat Electricity Regulatory Commission - India
- Directorate General of MIneral and Coal - Indonesia
- Kapuas Tunggal Persada - Indonesia
- International Coal Ventures Pvt Ltd - India
- McConnell Dowell - Australia
- Bukit Asam (Persero) Tbk - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Makarim & Taira - Indonesia
- SN Aboitiz Power Inc, Philippines
- Sojitz Corporation - Japan
- European Bulk Services B.V. - Netherlands
- Chamber of Mines of South Africa
- Medco Energi Mining Internasional
- PowerSource Philippines DevCo
- Straits Asia Resources Limited - Singapore
- Mercuria Energy - Indonesia
- Timah Investasi Mineral - Indoneisa
- Altura Mining Limited, Indonesia
- ICICI Bank Limited - India
- Australian Commodity Traders Exchange
- Standard Chartered Bank - UAE
- Riau Bara Harum - Indonesia
- IEA Clean Coal Centre - UK
- Kartika Selabumi Mining - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Star Paper Mills Limited - India
- LBH Netherlands Bv - Netherlands
- ASAPP Information Group - India
- Sakthi Sugars Limited - India
- PetroVietnam Power Coal Import and Supply Company
- Rashtriya Ispat Nigam Limited - India
- VISA Power Limited - India
- Power Finance Corporation Ltd., India
- Baramulti Group, Indonesia
- IHS Mccloskey Coal Group - USA
- Carbofer General Trading SA - India
- Bangladesh Power Developement Board
- Aditya Birla Group - India
- Indogreen Group - Indonesia
- Ind-Barath Power Infra Limited - India
- Africa Commodities Group - South Africa
- India Bulls Power Limited - India
- Meenaskhi Energy Private Limited - India
- Kepco SPC Power Corporation, Philippines
- Siam City Cement PLC, Thailand
- Agrawal Coal Company - India
- Indian Oil Corporation Limited
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