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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, 12 February 16
DRY BULK MARKET'S FORTUNES STILL TIED WITH CHINA'S ECONOMY - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
The inevitable slowdown of the Chinese economy was expected to hurt dry bulk shipping, but few expected the blow to be this hard, especially given ...
Friday, 12 February 16
COAL PRICES ARE EXPECTED TO DECLINE 13% IN 2016 TO $50 ATON, ON CONTINUED WEAK DEMAND AND OVERSUPPLY - WORLD BANK
COALspot.com: Thermal coal prices fell 9 percent in the fourth quarter on continued weak demand, high stocks, and surplus production, World Bank sa ...
Friday, 12 February 16
U.S. COAL PRODUCTION OFF 5.4% FROM LAST WEEK - EIA
COALspot.com – United States the world’s second largest coal producer has produced approximately totaled an estimated 12.9 million shor ...
Thursday, 11 February 16
GLOBAL NEWBUILDING ORDERBOOK IS SHRINKING ON A DAILY BASIS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
2016 has started right where 2015 left off when it comes to newbuilding ordering activity, i.e. there are slim pickings to be had from shipyards ar ...
Wednesday, 10 February 16
SOUTH AFRICA IS HOPING TO SHIP MORE COAL TO INDIA IN 2016
COALspot.com: South Africa is hoping to boost coal exports to India after shipping a record 75.4 million tonnes of coal in 2015, industry officials ...
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Showing 2566 to 2570 news of total 6871 |
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- Ambuja Cements Ltd - India
- Indian Energy Exchange, India
- Energy Development Corp, Philippines
- PNOC Exploration Corporation - Philippines
- Salva Resources Pvt Ltd - India
- Banpu Public Company Limited - Thailand
- Semirara Mining Corp, Philippines
- Aditya Birla Group - India
- Medco Energi Mining Internasional
- Vijayanagar Sugar Pvt Ltd - India
- Bahari Cakrawala Sebuku - Indonesia
- Bulk Trading Sa - Switzerland
- GVK Power & Infra Limited - India
- SN Aboitiz Power Inc, Philippines
- Petron Corporation, Philippines
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Tamil Nadu electricity Board
- Thai Mozambique Logistica
- ASAPP Information Group - India
- Kideco Jaya Agung - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Grasim Industreis Ltd - India
- Karaikal Port Pvt Ltd - India
- Marubeni Corporation - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- International Coal Ventures Pvt Ltd - India
- PowerSource Philippines DevCo
- Global Business Power Corporation, Philippines
- Petrochimia International Co. Ltd.- Taiwan
- Edison Trading Spa - Italy
- Binh Thuan Hamico - Vietnam
- CNBM International Corporation - China
- Billiton Holdings Pty Ltd - Australia
- Karbindo Abesyapradhi - Indoneisa
- Orica Mining Services - Indonesia
- Metalloyd Limited - United Kingdom
- Straits Asia Resources Limited - Singapore
- India Bulls Power Limited - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Malabar Cements Ltd - India
- Pendopo Energi Batubara - Indonesia
- Agrawal Coal Company - India
- The State Trading Corporation of India Ltd
- Parliament of New Zealand
- Georgia Ports Authority, United States
- Dalmia Cement Bharat India
- Central Electricity Authority - India
- Wilmar Investment Holdings
- Vizag Seaport Private Limited - India
- Kumho Petrochemical, South Korea
- Coalindo Energy - Indonesia
- The Treasury - Australian Government
- Intertek Mineral Services - Indonesia
- Coastal Gujarat Power Limited - India
- Siam City Cement - Thailand
- Interocean Group of Companies - India
- Meenaskhi Energy Private Limited - India
- Parry Sugars Refinery, India
- Central Java Power - Indonesia
- Star Paper Mills Limited - India
- Directorate Of Revenue Intelligence - India
- Vedanta Resources Plc - India
- Indogreen Group - Indonesia
- McConnell Dowell - Australia
- Miang Besar Coal Terminal - Indonesia
- Energy Link Ltd, New Zealand
- GAC Shipping (India) Pvt Ltd
- IHS Mccloskey Coal Group - USA
- Antam Resourcindo - Indonesia
- Kobexindo Tractors - Indoneisa
- Ministry of Transport, Egypt
- Chettinad Cement Corporation Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- LBH Netherlands Bv - Netherlands
- Bukit Asam (Persero) Tbk - Indonesia
- Jindal Steel & Power Ltd - India
- South Luzon Thermal Energy Corporation
- Cigading International Bulk Terminal - Indonesia
- Price Waterhouse Coopers - Russia
- Kaltim Prima Coal - Indonesia
- Eastern Energy - Thailand
- PTC India Limited - India
- The University of Queensland
- Posco Energy - South Korea
- SMC Global Power, Philippines
- Samtan Co., Ltd - South Korea
- Sree Jayajothi Cements Limited - India
- Indika Energy - Indonesia
- Globalindo Alam Lestari - Indonesia
- Australian Commodity Traders Exchange
- Gujarat Sidhee Cement - India
- Mercator Lines Limited - India
- Carbofer General Trading SA - India
- Directorate General of MIneral and Coal - Indonesia
- Bhatia International Limited - India
- IEA Clean Coal Centre - UK
- VISA Power Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Kapuas Tunggal Persada - Indonesia
- Maheswari Brothers Coal Limited - India
- Wood Mackenzie - Singapore
- Meralco Power Generation, Philippines
- Kalimantan Lumbung Energi - Indonesia
- Borneo Indobara - Indonesia
- Minerals Council of Australia
- Semirara Mining and Power Corporation, Philippines
- Port Waratah Coal Services - Australia
- Planning Commission, India
- Gujarat Electricity Regulatory Commission - India
- Formosa Plastics Group - Taiwan
- Ministry of Finance - Indonesia
- OPG Power Generation Pvt Ltd - India
- Gujarat Mineral Development Corp Ltd - India
- Essar Steel Hazira Ltd - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Kartika Selabumi Mining - Indonesia
- Romanian Commodities Exchange
- Eastern Coal Council - USA
- Sarangani Energy Corporation, Philippines
- Timah Investasi Mineral - Indoneisa
- Anglo American - United Kingdom
- Iligan Light & Power Inc, Philippines
- London Commodity Brokers - England
- Commonwealth Bank - Australia
- Tata Chemicals Ltd - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Bukit Baiduri Energy - Indonesia
- Xindia Steels Limited - India
- Singapore Mercantile Exchange
- Ind-Barath Power Infra Limited - India
- Manunggal Multi Energi - Indonesia
- Jaiprakash Power Ventures ltd
- Asmin Koalindo Tuhup - Indonesia
- Goldman Sachs - Singapore
- MS Steel International - UAE
- Merrill Lynch Commodities Europe
- Sakthi Sugars Limited - India
- Deloitte Consulting - India
- Africa Commodities Group - South Africa
- Videocon Industries ltd - India
- Attock Cement Pakistan Limited
- Alfred C Toepfer International GmbH - Germany
- Heidelberg Cement - Germany
- Siam City Cement PLC, Thailand
- Bukit Makmur.PT - Indonesia
- Independent Power Producers Association of India
- Simpson Spence & Young - Indonesia
- Trasteel International SA, Italy
- Makarim & Taira - Indonesia
- Global Green Power PLC Corporation, Philippines
- TeaM Sual Corporation - Philippines
- Leighton Contractors Pty Ltd - Australia
- Indo Tambangraya Megah - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Ceylon Electricity Board - Sri Lanka
- CIMB Investment Bank - Malaysia
- Standard Chartered Bank - UAE
- Bhushan Steel Limited - India
- Baramulti Group, Indonesia
- New Zealand Coal & Carbon
- Orica Australia Pty. Ltd.
- Rashtriya Ispat Nigam Limited - India
- Economic Council, Georgia
- Krishnapatnam Port Company Ltd. - India
- Indonesian Coal Mining Association
- SMG Consultants - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Electricity Generating Authority of Thailand
- Bharathi Cement Corporation - India
- Indian Oil Corporation Limited
- Toyota Tsusho Corporation, Japan
- PetroVietnam Power Coal Import and Supply Company
- Bangladesh Power Developement Board
- Coal and Oil Company - UAE
- Bhoruka Overseas - Indonesia
- Sojitz Corporation - Japan
- Mjunction Services Limited - India
- Therma Luzon, Inc, Philippines
- Madhucon Powers Ltd - India
- Thiess Contractors Indonesia
- White Energy Company Limited
- GMR Energy Limited - India
- ICICI Bank Limited - India
- Lanco Infratech Ltd - India
- Renaissance Capital - South Africa
- Altura Mining Limited, Indonesia
- Savvy Resources Ltd - HongKong
- Latin American Coal - Colombia
- Power Finance Corporation Ltd., India
- Aboitiz Power Corporation - Philippines
- Ministry of Mines - Canada
- Sical Logistics Limited - India
- Riau Bara Harum - Indonesia
- Rio Tinto Coal - Australia
- Bayan Resources Tbk. - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Holcim Trading Pte Ltd - Singapore
- Jorong Barutama Greston.PT - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Uttam Galva Steels Limited - India
- European Bulk Services B.V. - Netherlands
- Cement Manufacturers Association - India
- Sindya Power Generating Company Private Ltd
- Oldendorff Carriers - Singapore
- Kepco SPC Power Corporation, Philippines
- Chamber of Mines of South Africa
- Global Coal Blending Company Limited - Australia
- Electricity Authority, New Zealand
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Sinarmas Energy and Mining - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Mintek Dendrill Indonesia
- Mercuria Energy - Indonesia
- Larsen & Toubro Limited - India
- San Jose City I Power Corp, Philippines
- Australian Coal Association
- Barasentosa Lestari - Indonesia
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