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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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Monday, 07 March 16
INDONESIAN 5700 GAR COAL INDEX DECLINE $0.05 A TON WEEK OVER WEEK
COALspot.com: Average 5000 GAR coal index of Indonesian origin decline 0.28 percent week over week to averaging $38.66 per ton on this past Friday, ...
Monday, 07 March 16
FREIGHT MARKET MOVING POSITIVE; ALL SEGMENTS EXCEPT CAPE SHOWING A FIRM TREND
COALspot.com: The freight market was steady this past week and showing a firm trend for all segments except for Cape index.
The Baltic Dry Ind ...
Friday, 04 March 16
GLOBAL ECONOMY'S JITTERS ARE SLOWING DOWN SHIPPING EVEN FURTHER - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
The global economy’s shaky condition to say the least is now hampering growth and as a result demand for shipping is slowing down, something ...
Friday, 04 March 16
U.S. YEAR-TO-DATE COAL PRODUCTION TOTALED 109.3 MMST; 30.2% LOWER THAN THE COMPARABLE YEAR-TO-DATE COAL PRODUCTION IN 2015 - EIA
COALspot.com – United States the world’s second largest coal producer has produced approximately totaled an estimated 13.1 million shor ...
Thursday, 03 March 16
INDIA'S BUDGET NOT ENOUGH TO BOOST STEELMAKERS' PROFITABILITY - FITCH RATINGS
COALspot.com: Fitch Ratings says that increase in proposed infrastructure spending in India's latest government budget is unlikely to provide a ...
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Showing 2536 to 2540 news of total 6871 |
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- Kepco SPC Power Corporation, Philippines
- Wilmar Investment Holdings
- Planning Commission, India
- Gujarat Mineral Development Corp Ltd - India
- Larsen & Toubro Limited - India
- Price Waterhouse Coopers - Russia
- Maharashtra Electricity Regulatory Commission - India
- Jindal Steel & Power Ltd - India
- Iligan Light & Power Inc, Philippines
- Siam City Cement PLC, Thailand
- IHS Mccloskey Coal Group - USA
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Borneo Indobara - Indonesia
- Coalindo Energy - Indonesia
- The University of Queensland
- Global Green Power PLC Corporation, Philippines
- India Bulls Power Limited - India
- Timah Investasi Mineral - Indoneisa
- PetroVietnam Power Coal Import and Supply Company
- Bhushan Steel Limited - India
- Latin American Coal - Colombia
- Medco Energi Mining Internasional
- Xindia Steels Limited - India
- Directorate Of Revenue Intelligence - India
- Riau Bara Harum - Indonesia
- Salva Resources Pvt Ltd - India
- Trasteel International SA, Italy
- Deloitte Consulting - India
- Videocon Industries ltd - India
- Sindya Power Generating Company Private Ltd
- Antam Resourcindo - Indonesia
- Indo Tambangraya Megah - Indonesia
- McConnell Dowell - Australia
- Aditya Birla Group - India
- Asmin Koalindo Tuhup - Indonesia
- Kumho Petrochemical, South Korea
- Binh Thuan Hamico - Vietnam
- Kalimantan Lumbung Energi - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Carbofer General Trading SA - India
- The State Trading Corporation of India Ltd
- Samtan Co., Ltd - South Korea
- GVK Power & Infra Limited - India
- Grasim Industreis Ltd - India
- Bukit Makmur.PT - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Ambuja Cements Ltd - India
- Manunggal Multi Energi - Indonesia
- Central Java Power - Indonesia
- Semirara Mining Corp, Philippines
- Rio Tinto Coal - Australia
- Georgia Ports Authority, United States
- Dalmia Cement Bharat India
- Power Finance Corporation Ltd., India
- International Coal Ventures Pvt Ltd - India
- OPG Power Generation Pvt Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Commonwealth Bank - Australia
- Central Electricity Authority - India
- Global Coal Blending Company Limited - Australia
- Posco Energy - South Korea
- Kobexindo Tractors - Indoneisa
- Toyota Tsusho Corporation, Japan
- Kartika Selabumi Mining - Indonesia
- Energy Link Ltd, New Zealand
- GAC Shipping (India) Pvt Ltd
- Petron Corporation, Philippines
- Standard Chartered Bank - UAE
- Jorong Barutama Greston.PT - Indonesia
- Malabar Cements Ltd - India
- Meenaskhi Energy Private Limited - India
- Uttam Galva Steels Limited - India
- ICICI Bank Limited - India
- Semirara Mining and Power Corporation, Philippines
- Bhoruka Overseas - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Maheswari Brothers Coal Limited - India
- Indian Energy Exchange, India
- SMC Global Power, Philippines
- Holcim Trading Pte Ltd - Singapore
- Bulk Trading Sa - Switzerland
- Economic Council, Georgia
- Chamber of Mines of South Africa
- White Energy Company Limited
- Sakthi Sugars Limited - India
- Ministry of Mines - Canada
- Banpu Public Company Limited - Thailand
- Ceylon Electricity Board - Sri Lanka
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- London Commodity Brokers - England
- Pipit Mutiara Jaya. PT, Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Edison Trading Spa - Italy
- Chettinad Cement Corporation Ltd - India
- Jaiprakash Power Ventures ltd
- Parliament of New Zealand
- Eastern Energy - Thailand
- GMR Energy Limited - India
- Mercator Lines Limited - India
- Energy Development Corp, Philippines
- VISA Power Limited - India
- Mintek Dendrill Indonesia
- Vedanta Resources Plc - India
- Kapuas Tunggal Persada - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- New Zealand Coal & Carbon
- Port Waratah Coal Services - Australia
- Ind-Barath Power Infra Limited - India
- Global Business Power Corporation, Philippines
- Neyveli Lignite Corporation Ltd, - India
- Bukit Asam (Persero) Tbk - Indonesia
- European Bulk Services B.V. - Netherlands
- IEA Clean Coal Centre - UK
- Tamil Nadu electricity Board
- Bangladesh Power Developement Board
- Makarim & Taira - Indonesia
- Meralco Power Generation, Philippines
- TeaM Sual Corporation - Philippines
- Straits Asia Resources Limited - Singapore
- Singapore Mercantile Exchange
- Orica Mining Services - Indonesia
- Heidelberg Cement - Germany
- Sinarmas Energy and Mining - Indonesia
- SN Aboitiz Power Inc, Philippines
- Australian Coal Association
- Australian Commodity Traders Exchange
- Altura Mining Limited, Indonesia
- Gujarat Sidhee Cement - India
- Thiess Contractors Indonesia
- Oldendorff Carriers - Singapore
- Indika Energy - Indonesia
- Siam City Cement - Thailand
- Bukit Baiduri Energy - Indonesia
- Eastern Coal Council - USA
- Thai Mozambique Logistica
- Globalindo Alam Lestari - Indonesia
- Madhucon Powers Ltd - India
- Tata Chemicals Ltd - India
- Barasentosa Lestari - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Mjunction Services Limited - India
- Attock Cement Pakistan Limited
- CNBM International Corporation - China
- Sarangani Energy Corporation, Philippines
- Indonesian Coal Mining Association
- Indogreen Group - Indonesia
- Wood Mackenzie - Singapore
- Agrawal Coal Company - India
- Merrill Lynch Commodities Europe
- Cigading International Bulk Terminal - Indonesia
- Baramulti Group, Indonesia
- Africa Commodities Group - South Africa
- Therma Luzon, Inc, Philippines
- Intertek Mineral Services - Indonesia
- ASAPP Information Group - India
- Orica Australia Pty. Ltd.
- Rashtriya Ispat Nigam Limited - India
- GN Power Mariveles Coal Plant, Philippines
- SMG Consultants - Indonesia
- Sojitz Corporation - Japan
- Aboitiz Power Corporation - Philippines
- PowerSource Philippines DevCo
- Goldman Sachs - Singapore
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Electricity Generating Authority of Thailand
- Interocean Group of Companies - India
- Star Paper Mills Limited - India
- Parry Sugars Refinery, India
- Bharathi Cement Corporation - India
- Vizag Seaport Private Limited - India
- Indian Oil Corporation Limited
- Coal and Oil Company - UAE
- PNOC Exploration Corporation - Philippines
- Karbindo Abesyapradhi - Indoneisa
- Miang Besar Coal Terminal - Indonesia
- Ministry of Transport, Egypt
- Savvy Resources Ltd - HongKong
- Kideco Jaya Agung - Indonesia
- Minerals Council of Australia
- Ministry of Finance - Indonesia
- Essar Steel Hazira Ltd - India
- Mercuria Energy - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Cement Manufacturers Association - India
- Sree Jayajothi Cements Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Lanco Infratech Ltd - India
- Petrochimia International Co. Ltd.- Taiwan
- Renaissance Capital - South Africa
- Bayan Resources Tbk. - Indonesia
- Metalloyd Limited - United Kingdom
- Kaltim Prima Coal - Indonesia
- Karaikal Port Pvt Ltd - India
- LBH Netherlands Bv - Netherlands
- Krishnapatnam Port Company Ltd. - India
- Anglo American - United Kingdom
- South Luzon Thermal Energy Corporation
- AsiaOL BioFuels Corp., Philippines
- MS Steel International - UAE
- CIMB Investment Bank - Malaysia
- Simpson Spence & Young - Indonesia
- Electricity Authority, New Zealand
- TNB Fuel Sdn Bhd - Malaysia
- PTC India Limited - India
- Coastal Gujarat Power Limited - India
- Independent Power Producers Association of India
- Bhatia International Limited - India
- Sical Logistics Limited - India
- Pendopo Energi Batubara - Indonesia
- San Jose City I Power Corp, Philippines
- Offshore Bulk Terminal Pte Ltd, Singapore
- Formosa Plastics Group - Taiwan
- Romanian Commodities Exchange
- The Treasury - Australian Government
- Bank of Tokyo Mitsubishi UFJ Ltd
- Marubeni Corporation - India
- Leighton Contractors Pty Ltd - Australia
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