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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, 10 March 16
IT FEELS SAFE TO SAY THAT THE MARKET IS SLOWLY AND PAINFULLY REGAINING ITS BALANCE
With the BDI marking its third consecutive positive weekly closing, it feels safe to say that the market is regaining its balance; slowly and painf ...
Wednesday, 09 March 16
U.S. COAL EXPORTS DECLINED 24% (74 MMST) IN 2015; COAL PRODUCTION IS EXPECTED TO DECREASE BY 111 MMST IN 2016 - EIA
U.S. Coal Supply
EIA estimates that U.S. coal production for February 2016 was 54 million short tons (MMst), a 4 MMst (7%) decrease from the prev ...
Wednesday, 09 March 16
RI MAY HAVE TO IMPORT COAL FOR FUTURE POWER PLANTS: STUDY - THE JAKARTA POST
With coal prices continuing to decline, Indonesia will struggle to provide the coal needed to fire up its power stations in the near future, a stud ...
Tuesday, 08 March 16
INDONESIA HIKES COAL BENCHMARK PRICE FOR THE FIRST TIME IN 12 MONTHS
COALspot.com: Low coal demand and excess supplies sent Indonesian benchmark coal price further deep in February 2016, but up slightly in Mar ...
Tuesday, 08 March 16
THE DRY CARGO MARKET ENDURED ONE OF ITS MOST DIFFICULT YEARS IN 2015, EXPERIENCING LOWS NOT SEEN SINCE THE MID 1980S - CLARKSONS
Whilst shipping and offshore markets have seen some good opportunities during 2015, overall there have been unprecedented challenges, so we are ver ...
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Showing 2531 to 2535 news of total 6871 |
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- Thiess Contractors Indonesia
- Kaltim Prima Coal - Indonesia
- Minerals Council of Australia
- The State Trading Corporation of India Ltd
- Karbindo Abesyapradhi - Indoneisa
- Bank of Tokyo Mitsubishi UFJ Ltd
- Sarangani Energy Corporation, Philippines
- Bukit Baiduri Energy - Indonesia
- Trasteel International SA, Italy
- Kalimantan Lumbung Energi - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Siam City Cement - Thailand
- Sical Logistics Limited - India
- AsiaOL BioFuels Corp., Philippines
- IHS Mccloskey Coal Group - USA
- Jindal Steel & Power Ltd - India
- Heidelberg Cement - Germany
- Independent Power Producers Association of India
- Bukit Makmur.PT - Indonesia
- Parry Sugars Refinery, India
- Sojitz Corporation - Japan
- Savvy Resources Ltd - HongKong
- GMR Energy Limited - India
- Edison Trading Spa - Italy
- Romanian Commodities Exchange
- GN Power Mariveles Coal Plant, Philippines
- McConnell Dowell - Australia
- Georgia Ports Authority, United States
- Uttam Galva Steels Limited - India
- Rashtriya Ispat Nigam Limited - India
- Kobexindo Tractors - Indoneisa
- Binh Thuan Hamico - Vietnam
- Simpson Spence & Young - Indonesia
- Aboitiz Power Corporation - Philippines
- Sakthi Sugars Limited - India
- Toyota Tsusho Corporation, Japan
- Riau Bara Harum - Indonesia
- Madhucon Powers Ltd - India
- Coal and Oil Company - UAE
- Cement Manufacturers Association - India
- Rio Tinto Coal - Australia
- MS Steel International - UAE
- New Zealand Coal & Carbon
- The Treasury - Australian Government
- Medco Energi Mining Internasional
- Tamil Nadu electricity Board
- London Commodity Brokers - England
- Tata Chemicals Ltd - India
- Mjunction Services Limited - India
- Eastern Coal Council - USA
- Marubeni Corporation - India
- Wilmar Investment Holdings
- Mercuria Energy - Indonesia
- Gujarat Electricity Regulatory Commission - India
- VISA Power Limited - India
- PetroVietnam Power Coal Import and Supply Company
- GAC Shipping (India) Pvt Ltd
- Ceylon Electricity Board - Sri Lanka
- Billiton Holdings Pty Ltd - Australia
- Bulk Trading Sa - Switzerland
- The University of Queensland
- Global Coal Blending Company Limited - Australia
- Holcim Trading Pte Ltd - Singapore
- Economic Council, Georgia
- Kohat Cement Company Ltd. - Pakistan
- Cigading International Bulk Terminal - Indonesia
- Baramulti Group, Indonesia
- Price Waterhouse Coopers - Russia
- Chamber of Mines of South Africa
- Indian Energy Exchange, India
- Port Waratah Coal Services - Australia
- Merrill Lynch Commodities Europe
- Indo Tambangraya Megah - Indonesia
- Eastern Energy - Thailand
- Straits Asia Resources Limited - Singapore
- ASAPP Information Group - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Mintek Dendrill Indonesia
- Bhoruka Overseas - Indonesia
- Bhatia International Limited - India
- Ministry of Mines - Canada
- Agrawal Coal Company - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- SN Aboitiz Power Inc, Philippines
- Manunggal Multi Energi - Indonesia
- Xindia Steels Limited - India
- Carbofer General Trading SA - India
- Directorate General of MIneral and Coal - Indonesia
- Sindya Power Generating Company Private Ltd
- Kartika Selabumi Mining - Indonesia
- Star Paper Mills Limited - India
- Goldman Sachs - Singapore
- Malabar Cements Ltd - India
- Maheswari Brothers Coal Limited - India
- Leighton Contractors Pty Ltd - Australia
- Thai Mozambique Logistica
- Oldendorff Carriers - Singapore
- OPG Power Generation Pvt Ltd - India
- Bayan Resources Tbk. - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Gujarat Sidhee Cement - India
- Latin American Coal - Colombia
- SMG Consultants - Indonesia
- Singapore Mercantile Exchange
- Semirara Mining Corp, Philippines
- Directorate Of Revenue Intelligence - India
- ICICI Bank Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Pendopo Energi Batubara - Indonesia
- Jaiprakash Power Ventures ltd
- Videocon Industries ltd - India
- Indian Oil Corporation Limited
- Lanco Infratech Ltd - India
- Siam City Cement PLC, Thailand
- Australian Coal Association
- Ind-Barath Power Infra Limited - India
- Karaikal Port Pvt Ltd - India
- Bharathi Cement Corporation - India
- Iligan Light & Power Inc, Philippines
- India Bulls Power Limited - India
- Essar Steel Hazira Ltd - India
- Ambuja Cements Ltd - India
- Parliament of New Zealand
- Chettinad Cement Corporation Ltd - India
- Grasim Industreis Ltd - India
- San Jose City I Power Corp, Philippines
- Antam Resourcindo - Indonesia
- Australian Commodity Traders Exchange
- Posco Energy - South Korea
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- South Luzon Thermal Energy Corporation
- Planning Commission, India
- Wood Mackenzie - Singapore
- Indika Energy - Indonesia
- SMC Global Power, Philippines
- Altura Mining Limited, Indonesia
- Electricity Generating Authority of Thailand
- Coastal Gujarat Power Limited - India
- Larsen & Toubro Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Energy Development Corp, Philippines
- Ministry of Transport, Egypt
- Metalloyd Limited - United Kingdom
- Commonwealth Bank - Australia
- LBH Netherlands Bv - Netherlands
- Indonesian Coal Mining Association
- TeaM Sual Corporation - Philippines
- Attock Cement Pakistan Limited
- PTC India Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Kumho Petrochemical, South Korea
- Vijayanagar Sugar Pvt Ltd - India
- CNBM International Corporation - China
- GVK Power & Infra Limited - India
- Sree Jayajothi Cements Limited - India
- Intertek Mineral Services - Indonesia
- Coalindo Energy - Indonesia
- Deloitte Consulting - India
- Samtan Co., Ltd - South Korea
- European Bulk Services B.V. - Netherlands
- Borneo Indobara - Indonesia
- Makarim & Taira - Indonesia
- Anglo American - United Kingdom
- Vedanta Resources Plc - India
- Indogreen Group - Indonesia
- Global Green Power PLC Corporation, Philippines
- Alfred C Toepfer International GmbH - Germany
- Meralco Power Generation, Philippines
- Vizag Seaport Private Limited - India
- Bhushan Steel Limited - India
- Ministry of Finance - Indonesia
- PNOC Exploration Corporation - Philippines
- White Energy Company Limited
- Kideco Jaya Agung - Indonesia
- Africa Commodities Group - South Africa
- PowerSource Philippines DevCo
- Barasentosa Lestari - Indonesia
- Kepco SPC Power Corporation, Philippines
- Renaissance Capital - South Africa
- Central Electricity Authority - India
- International Coal Ventures Pvt Ltd - India
- Meenaskhi Energy Private Limited - India
- Salva Resources Pvt Ltd - India
- Interocean Group of Companies - India
- Therma Luzon, Inc, Philippines
- Neyveli Lignite Corporation Ltd, - India
- Petrochimia International Co. Ltd.- Taiwan
- CIMB Investment Bank - Malaysia
- Electricity Authority, New Zealand
- Semirara Mining and Power Corporation, Philippines
- Sinarmas Energy and Mining - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Central Java Power - Indonesia
- Standard Chartered Bank - UAE
- Aditya Birla Group - India
- Banpu Public Company Limited - Thailand
- Orica Australia Pty. Ltd.
- Offshore Bulk Terminal Pte Ltd, Singapore
- Asmin Koalindo Tuhup - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Bahari Cakrawala Sebuku - Indonesia
- Formosa Plastics Group - Taiwan
- Bukit Asam (Persero) Tbk - Indonesia
- Energy Link Ltd, New Zealand
- Global Business Power Corporation, Philippines
- Petron Corporation, Philippines
- Globalindo Alam Lestari - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- IEA Clean Coal Centre - UK
- Power Finance Corporation Ltd., India
- Orica Mining Services - Indonesia
- Mercator Lines Limited - India
- Dalmia Cement Bharat India
- Bangladesh Power Developement Board
- Timah Investasi Mineral - Indoneisa
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