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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, 03 March 16
BDI FURTHER STRENGTHENING; THE INCREASE IN RATES WAS NOT SUBSTANTIAL
COALspot.com: The BDI closed off on a positive note for a second week in a row, further strengthening the belief that the market might be bottoming ...
Thursday, 03 March 16
RIO TINTO COMPLETES SALE OF INTEREST IN BENGALLA JOINT VENTURE FOR US$616.7 MILLION
COALspot.com: Rio Tinto has completed the sale of its 40 per cent interest in the Bengalla coal Joint Venture in Australia to New Hope Corporation ...
Wednesday, 02 March 16
RE-EVALUATION OF MINING LICENSES CLEAN AND CLEAR STATUS IN INDONESIA
COALspot.com: In connection with the transfer of mining authority from Regents/Mayors to Governors1 and from Regents/Mayors and Governors to t ...
Wednesday, 02 March 16
OIL MY GOD.....!!!!
OIL my GOD….!!!!
The oil price “crash” that started in 2014 was caused by a glut of practically unwanted oil. Producers had be ...
Tuesday, 01 March 16
CS 42 (4200 GAR) COAL INDEX CLOSED AT US$ 27.11 A TON ON 26 FEBRUARY
COALspot.com: Average 5000 GAR coal index of Indonesian origin decline 0.31 percent week over week to averaging $38.77 per ton on this past Friday, ...
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Showing 2541 to 2545 news of total 6871 |
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- Indogreen Group - Indonesia
- Merrill Lynch Commodities Europe
- Karaikal Port Pvt Ltd - India
- Coalindo Energy - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- SN Aboitiz Power Inc, Philippines
- Cement Manufacturers Association - India
- Ministry of Finance - Indonesia
- Barasentosa Lestari - Indonesia
- Lanco Infratech Ltd - India
- Bayan Resources Tbk. - Indonesia
- McConnell Dowell - Australia
- Renaissance Capital - South Africa
- Thai Mozambique Logistica
- Banpu Public Company Limited - Thailand
- Minerals Council of Australia
- GN Power Mariveles Coal Plant, Philippines
- Krishnapatnam Port Company Ltd. - India
- San Jose City I Power Corp, Philippines
- Power Finance Corporation Ltd., India
- Meenaskhi Energy Private Limited - India
- PNOC Exploration Corporation - Philippines
- VISA Power Limited - India
- Semirara Mining and Power Corporation, Philippines
- Sindya Power Generating Company Private Ltd
- Makarim & Taira - Indonesia
- Kepco SPC Power Corporation, Philippines
- Economic Council, Georgia
- Medco Energi Mining Internasional
- Therma Luzon, Inc, Philippines
- India Bulls Power Limited - India
- Alfred C Toepfer International GmbH - Germany
- Global Business Power Corporation, Philippines
- Global Green Power PLC Corporation, Philippines
- Deloitte Consulting - India
- Meralco Power Generation, Philippines
- Global Coal Blending Company Limited - Australia
- Rashtriya Ispat Nigam Limited - India
- Energy Development Corp, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Mercuria Energy - Indonesia
- Australian Coal Association
- Bukit Makmur.PT - Indonesia
- Edison Trading Spa - Italy
- Gujarat Mineral Development Corp Ltd - India
- Price Waterhouse Coopers - Russia
- Ministry of Mines - Canada
- Electricity Authority, New Zealand
- Salva Resources Pvt Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- AsiaOL BioFuels Corp., Philippines
- Pendopo Energi Batubara - Indonesia
- Ind-Barath Power Infra Limited - India
- European Bulk Services B.V. - Netherlands
- Standard Chartered Bank - UAE
- GVK Power & Infra Limited - India
- Videocon Industries ltd - India
- Indian Energy Exchange, India
- Chettinad Cement Corporation Ltd - India
- Savvy Resources Ltd - HongKong
- Borneo Indobara - Indonesia
- Sree Jayajothi Cements Limited - India
- GMR Energy Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- Maheswari Brothers Coal Limited - India
- International Coal Ventures Pvt Ltd - India
- Posco Energy - South Korea
- Carbofer General Trading SA - India
- Goldman Sachs - Singapore
- Rio Tinto Coal - Australia
- Antam Resourcindo - Indonesia
- OPG Power Generation Pvt Ltd - India
- Mercator Lines Limited - India
- Heidelberg Cement - Germany
- Bhushan Steel Limited - India
- Madhucon Powers Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- Trasteel International SA, Italy
- Indo Tambangraya Megah - Indonesia
- Bangladesh Power Developement Board
- Coal and Oil Company - UAE
- Africa Commodities Group - South Africa
- Offshore Bulk Terminal Pte Ltd, Singapore
- LBH Netherlands Bv - Netherlands
- Essar Steel Hazira Ltd - India
- Jaiprakash Power Ventures ltd
- Georgia Ports Authority, United States
- IHS Mccloskey Coal Group - USA
- Kumho Petrochemical, South Korea
- Holcim Trading Pte Ltd - Singapore
- Aditya Birla Group - India
- Chamber of Mines of South Africa
- Coastal Gujarat Power Limited - India
- Formosa Plastics Group - Taiwan
- Aboitiz Power Corporation - Philippines
- Central Java Power - Indonesia
- Vedanta Resources Plc - India
- Grasim Industreis Ltd - India
- GAC Shipping (India) Pvt Ltd
- New Zealand Coal & Carbon
- Pipit Mutiara Jaya. PT, Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- London Commodity Brokers - England
- Bhatia International Limited - India
- Manunggal Multi Energi - Indonesia
- Kobexindo Tractors - Indoneisa
- Central Electricity Authority - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Sinarmas Energy and Mining - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Sakthi Sugars Limited - India
- Kalimantan Lumbung Energi - Indonesia
- Wilmar Investment Holdings
- Romanian Commodities Exchange
- Neyveli Lignite Corporation Ltd, - India
- Eastern Coal Council - USA
- PowerSource Philippines DevCo
- Miang Besar Coal Terminal - Indonesia
- Port Waratah Coal Services - Australia
- Semirara Mining Corp, Philippines
- Kartika Selabumi Mining - Indonesia
- Siam City Cement PLC, Thailand
- Bukit Asam (Persero) Tbk - Indonesia
- Iligan Light & Power Inc, Philippines
- Bhoruka Overseas - Indonesia
- Jindal Steel & Power Ltd - India
- Indian Oil Corporation Limited
- Directorate Of Revenue Intelligence - India
- Petron Corporation, Philippines
- Mjunction Services Limited - India
- Commonwealth Bank - Australia
- Oldendorff Carriers - Singapore
- Bulk Trading Sa - Switzerland
- PTC India Limited - India
- IEA Clean Coal Centre - UK
- Latin American Coal - Colombia
- Sical Logistics Limited - India
- Agrawal Coal Company - India
- Bharathi Cement Corporation - India
- ICICI Bank Limited - India
- The Treasury - Australian Government
- Parliament of New Zealand
- Asia Pacific Energy Resources Ventures Inc, Philippines
- MS Steel International - UAE
- Marubeni Corporation - India
- The State Trading Corporation of India Ltd
- Baramulti Group, Indonesia
- Parry Sugars Refinery, India
- Energy Link Ltd, New Zealand
- Siam City Cement - Thailand
- Billiton Holdings Pty Ltd - Australia
- CIMB Investment Bank - Malaysia
- Samtan Co., Ltd - South Korea
- The University of Queensland
- Altura Mining Limited, Indonesia
- Tata Chemicals Ltd - India
- Anglo American - United Kingdom
- Cigading International Bulk Terminal - Indonesia
- Timah Investasi Mineral - Indoneisa
- Larsen & Toubro Limited - India
- Leighton Contractors Pty Ltd - Australia
- Attock Cement Pakistan Limited
- Australian Commodity Traders Exchange
- Karbindo Abesyapradhi - Indoneisa
- Malabar Cements Ltd - India
- Kohat Cement Company Ltd. - Pakistan
- Vizag Seaport Private Limited - India
- Ceylon Electricity Board - Sri Lanka
- TNB Fuel Sdn Bhd - Malaysia
- TeaM Sual Corporation - Philippines
- Electricity Generating Authority of Thailand
- Ministry of Transport, Egypt
- South Luzon Thermal Energy Corporation
- Kaltim Prima Coal - Indonesia
- Gujarat Sidhee Cement - India
- Interocean Group of Companies - India
- Sojitz Corporation - Japan
- ASAPP Information Group - India
- Globalindo Alam Lestari - Indonesia
- Bukit Baiduri Energy - Indonesia
- Xindia Steels Limited - India
- Ambuja Cements Ltd - India
- Indika Energy - Indonesia
- Dalmia Cement Bharat India
- Independent Power Producers Association of India
- Planning Commission, India
- Wood Mackenzie - Singapore
- SMC Global Power, Philippines
- Tamil Nadu electricity Board
- Gujarat Electricity Regulatory Commission - India
- Sarangani Energy Corporation, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Petrochimia International Co. Ltd.- Taiwan
- Mintek Dendrill Indonesia
- Metalloyd Limited - United Kingdom
- Riau Bara Harum - Indonesia
- White Energy Company Limited
- Jorong Barutama Greston.PT - Indonesia
- Singapore Mercantile Exchange
- Intertek Mineral Services - Indonesia
- SMG Consultants - Indonesia
- Thiess Contractors Indonesia
- Simpson Spence & Young - Indonesia
- Straits Asia Resources Limited - Singapore
- Indonesian Coal Mining Association
- Eastern Energy - Thailand
- Asmin Koalindo Tuhup - Indonesia
- Toyota Tsusho Corporation, Japan
- Star Paper Mills Limited - India
- Uttam Galva Steels Limited - India
- Orica Mining Services - Indonesia
- Orica Australia Pty. Ltd.
- Binh Thuan Hamico - Vietnam
- Kideco Jaya Agung - Indonesia
- CNBM International Corporation - China
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