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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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Wednesday, 17 February 16
TAP ON OPPORTUNITIES IN GROWING ELECTRICITY DEMAND AND NEW COAL POWER PROJECT DEVELOPMENTS IN THE PHILIPPINES - IBC
Tap on Opportunities in Growing Electricity Demand and New Coal Power Project Developments in the Philippines
Coal Power Generation 2016
19- ...
Wednesday, 17 February 16
THE OWNERS FACING HISTORICAL LOW DRY BULK RATES; COAL IMPORTS TO CHINA IS STILL POINTING TO A STRONG TREND OF DECLINING CONSUMPTION
The sharp fall in dry bulk rates that has been taking place since the end of last year and has left owners facing historical low rates for a substa ...
Monday, 15 February 16
CALL THE DOCTOR! SHIPPING'S MEDICAL DRAMA UNFOLDS......- CLARKSONS
The recycling market has started 2016 with a bang, with a huge volume of tonnage heading to demolition facilities. Many of the key shipping markets ...
Monday, 15 February 16
CS 42 COAL INDEX ROSE 0.07% WEEK OVER WEEK
COALspot.com: Average 5000 GAR coal index of Indonesian origin decline 0.15 percent week over week to averaging $38.96 per ton on this past Friday, ...
Monday, 15 February 16
BALTIC INDEX MARGINALLY ROSE BY A POINT D-D; CAPESIZE INDEX DOWN 13 POINTS W-W; PANAMAX INDEX UP 29 POINTS W-W
COALspot.com: The freight markets continued to fall this past week.
The BDI, The Baltic Dry Index (BDI) of dry-bulk shipping freights, a measu ...
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- Central Java Power - Indonesia
- Vizag Seaport Private Limited - India
- Semirara Mining and Power Corporation, Philippines
- Georgia Ports Authority, United States
- Straits Asia Resources Limited - Singapore
- Offshore Bulk Terminal Pte Ltd, Singapore
- Essar Steel Hazira Ltd - India
- Videocon Industries ltd - India
- Leighton Contractors Pty Ltd - Australia
- Eastern Coal Council - USA
- Power Finance Corporation Ltd., India
- Central Electricity Authority - India
- Miang Besar Coal Terminal - Indonesia
- Posco Energy - South Korea
- Altura Mining Limited, Indonesia
- Australian Commodity Traders Exchange
- Manunggal Multi Energi - Indonesia
- Timah Investasi Mineral - Indoneisa
- Sojitz Corporation - Japan
- Tamil Nadu electricity Board
- ICICI Bank Limited - India
- Economic Council, Georgia
- Rio Tinto Coal - Australia
- Krishnapatnam Port Company Ltd. - India
- Samtan Co., Ltd - South Korea
- Chettinad Cement Corporation Ltd - India
- The State Trading Corporation of India Ltd
- Cigading International Bulk Terminal - Indonesia
- Globalindo Alam Lestari - Indonesia
- Romanian Commodities Exchange
- Dalmia Cement Bharat India
- Marubeni Corporation - India
- Alfred C Toepfer International GmbH - Germany
- Asmin Koalindo Tuhup - Indonesia
- India Bulls Power Limited - India
- Africa Commodities Group - South Africa
- Lanco Infratech Ltd - India
- LBH Netherlands Bv - Netherlands
- Coastal Gujarat Power Limited - India
- Bhushan Steel Limited - India
- Iligan Light & Power Inc, Philippines
- Tata Chemicals Ltd - India
- Coal and Oil Company - UAE
- GMR Energy Limited - India
- Kepco SPC Power Corporation, Philippines
- Star Paper Mills Limited - India
- Ministry of Finance - Indonesia
- Maheswari Brothers Coal Limited - India
- PetroVietnam Power Coal Import and Supply Company
- Bharathi Cement Corporation - India
- Energy Development Corp, Philippines
- Metalloyd Limited - United Kingdom
- Wilmar Investment Holdings
- CNBM International Corporation - China
- Kapuas Tunggal Persada - Indonesia
- Indogreen Group - Indonesia
- Malabar Cements Ltd - India
- Xindia Steels Limited - India
- Thai Mozambique Logistica
- Banpu Public Company Limited - Thailand
- Toyota Tsusho Corporation, Japan
- McConnell Dowell - Australia
- Simpson Spence & Young - Indonesia
- CIMB Investment Bank - Malaysia
- Binh Thuan Hamico - Vietnam
- Latin American Coal - Colombia
- Baramulti Group, Indonesia
- Indika Energy - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Intertek Mineral Services - Indonesia
- Ind-Barath Power Infra Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Antam Resourcindo - Indonesia
- Kumho Petrochemical, South Korea
- Kartika Selabumi Mining - Indonesia
- Sree Jayajothi Cements Limited - India
- Orica Mining Services - Indonesia
- Indian Oil Corporation Limited
- Anglo American - United Kingdom
- Gujarat Mineral Development Corp Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Oldendorff Carriers - Singapore
- Rashtriya Ispat Nigam Limited - India
- Kalimantan Lumbung Energi - Indonesia
- Jaiprakash Power Ventures ltd
- Singapore Mercantile Exchange
- Makarim & Taira - Indonesia
- Sarangani Energy Corporation, Philippines
- Sakthi Sugars Limited - India
- Kohat Cement Company Ltd. - Pakistan
- Borneo Indobara - Indonesia
- Therma Luzon, Inc, Philippines
- Port Waratah Coal Services - Australia
- Bukit Makmur.PT - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Bukit Baiduri Energy - Indonesia
- Edison Trading Spa - Italy
- Bangladesh Power Developement Board
- Bhatia International Limited - India
- Aditya Birla Group - India
- Bukit Asam (Persero) Tbk - Indonesia
- Barasentosa Lestari - Indonesia
- Bayan Resources Tbk. - Indonesia
- Jindal Steel & Power Ltd - India
- IHS Mccloskey Coal Group - USA
- Indian Energy Exchange, India
- Kaltim Prima Coal - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Cement Manufacturers Association - India
- Agrawal Coal Company - India
- The Treasury - Australian Government
- Mintek Dendrill Indonesia
- Renaissance Capital - South Africa
- GN Power Mariveles Coal Plant, Philippines
- Sindya Power Generating Company Private Ltd
- Bank of Tokyo Mitsubishi UFJ Ltd
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Bhoruka Overseas - Indonesia
- PNOC Exploration Corporation - Philippines
- SMC Global Power, Philippines
- Mercuria Energy - Indonesia
- Ministry of Mines - Canada
- San Jose City I Power Corp, Philippines
- Global Green Power PLC Corporation, Philippines
- Medco Energi Mining Internasional
- Independent Power Producers Association of India
- Ministry of Transport, Egypt
- Maharashtra Electricity Regulatory Commission - India
- IEA Clean Coal Centre - UK
- White Energy Company Limited
- Commonwealth Bank - Australia
- AsiaOL BioFuels Corp., Philippines
- OPG Power Generation Pvt Ltd - India
- Australian Coal Association
- TeaM Sual Corporation - Philippines
- SMG Consultants - Indonesia
- Gujarat Sidhee Cement - India
- Karbindo Abesyapradhi - Indoneisa
- Deloitte Consulting - India
- Directorate General of MIneral and Coal - Indonesia
- Sical Logistics Limited - India
- Siam City Cement PLC, Thailand
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Price Waterhouse Coopers - Russia
- Mercator Lines Limited - India
- Indo Tambangraya Megah - Indonesia
- ASAPP Information Group - India
- Meralco Power Generation, Philippines
- London Commodity Brokers - England
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- The University of Queensland
- Semirara Mining Corp, Philippines
- Electricity Generating Authority of Thailand
- International Coal Ventures Pvt Ltd - India
- Neyveli Lignite Corporation Ltd, - India
- Standard Chartered Bank - UAE
- GVK Power & Infra Limited - India
- Attock Cement Pakistan Limited
- Savvy Resources Ltd - HongKong
- Eastern Energy - Thailand
- PowerSource Philippines DevCo
- Directorate Of Revenue Intelligence - India
- Grasim Industreis Ltd - India
- Merrill Lynch Commodities Europe
- Gujarat Electricity Regulatory Commission - India
- Orica Australia Pty. Ltd.
- Indonesian Coal Mining Association
- Formosa Plastics Group - Taiwan
- Goldman Sachs - Singapore
- Carbofer General Trading SA - India
- Vijayanagar Sugar Pvt Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- Aboitiz Power Corporation - Philippines
- Interocean Group of Companies - India
- Kideco Jaya Agung - Indonesia
- Vedanta Resources Plc - India
- Pendopo Energi Batubara - Indonesia
- Madhucon Powers Ltd - India
- Trasteel International SA, Italy
- PTC India Limited - India
- Mjunction Services Limited - India
- Bulk Trading Sa - Switzerland
- VISA Power Limited - India
- Salva Resources Pvt Ltd - India
- Parliament of New Zealand
- Holcim Trading Pte Ltd - Singapore
- Wood Mackenzie - Singapore
- Coalindo Energy - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- MS Steel International - UAE
- Global Coal Blending Company Limited - Australia
- Heidelberg Cement - Germany
- Karaikal Port Pvt Ltd - India
- Jorong Barutama Greston.PT - Indonesia
- Meenaskhi Energy Private Limited - India
- Kobexindo Tractors - Indoneisa
- Electricity Authority, New Zealand
- Thiess Contractors Indonesia
- Ceylon Electricity Board - Sri Lanka
- Petron Corporation, Philippines
- Ambuja Cements Ltd - India
- Planning Commission, India
- European Bulk Services B.V. - Netherlands
- Riau Bara Harum - Indonesia
- Siam City Cement - Thailand
- Parry Sugars Refinery, India
- Energy Link Ltd, New Zealand
- Larsen & Toubro Limited - India
- Global Business Power Corporation, Philippines
- Chamber of Mines of South Africa
- New Zealand Coal & Carbon
- GAC Shipping (India) Pvt Ltd
- Uttam Galva Steels Limited - India
- SN Aboitiz Power Inc, Philippines
- Billiton Holdings Pty Ltd - Australia
- South Luzon Thermal Energy Corporation
- Minerals Council of Australia
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