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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, 04 February 16
CAPESIZE: WEST AUSTRALIAN TO CHINA HAS BEEN CONCLUDED AT US$ 2.85 PMT AND THE C3 MARKET REMAINS INACTIVE - FEARNLEYS
Capesize
As everyone is getting ready for the Chinese new year, already depressed rates are under further pressure.
According to Fearnleys, ...
Wednesday, 03 February 16
DRY BULK MARKET CONTINUES TO BE UNDER PRESSURE - INTERMODAL
The Dry Bulk market continues to be under pressure, with the BDI remaining in search of even the slightest support, which seems to be delaying more ...
Tuesday, 02 February 16
RECORD EXPORTS THROUGH SOUTH AFRICA'S RICHARDS BAY COAL TERMINAL MADE AT EXPENSE OF SMALLER RIVALS, IHS SAYS
Five percent increase in coal exports through South Africa’s dominant Richards Bay Coal Terminal in 2015 unlikely to accelerate country&rsquo ...
Tuesday, 02 February 16
SETTING ASIDE, STRIKING OUT AND APPEALS TO THE COURT OF APPEAL IN SHIP ARRESTS - RAJAH & TANN ASIA LLP
KNOWLEDGE TO ELEVATE
The Singapore Court of Appeal once again has had to grapple with ship arrest, setting aside and appeals to the Court unde ...
Monday, 01 February 16
DRY BULK SUFFERS FROM POSEIDON'S POTENT PRONGS - CLARKSONS
It has been a grim start to 2016 for the bulkcarrier market, with the Baltic Dry Index sliding to new record lows on almost every day of the year s ...
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Showing 2576 to 2580 news of total 6871 |
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- Jindal Steel & Power Ltd - India
- Indian Oil Corporation Limited
- Bangladesh Power Developement Board
- Miang Besar Coal Terminal - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Larsen & Toubro Limited - India
- VISA Power Limited - India
- Parliament of New Zealand
- Price Waterhouse Coopers - Russia
- Australian Commodity Traders Exchange
- Sojitz Corporation - Japan
- Uttam Galva Steels Limited - India
- IHS Mccloskey Coal Group - USA
- Ind-Barath Power Infra Limited - India
- Cigading International Bulk Terminal - Indonesia
- Energy Link Ltd, New Zealand
- Africa Commodities Group - South Africa
- Madhucon Powers Ltd - India
- Bukit Makmur.PT - Indonesia
- Star Paper Mills Limited - India
- Manunggal Multi Energi - Indonesia
- Therma Luzon, Inc, Philippines
- Sakthi Sugars Limited - India
- Indogreen Group - Indonesia
- Antam Resourcindo - Indonesia
- Meralco Power Generation, Philippines
- Barasentosa Lestari - Indonesia
- GAC Shipping (India) Pvt Ltd
- IEA Clean Coal Centre - UK
- Deloitte Consulting - India
- Global Business Power Corporation, Philippines
- The State Trading Corporation of India Ltd
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Sical Logistics Limited - India
- India Bulls Power Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Minerals Council of Australia
- Central Java Power - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Kideco Jaya Agung - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Simpson Spence & Young - Indonesia
- Wood Mackenzie - Singapore
- Malabar Cements Ltd - India
- The Treasury - Australian Government
- Karbindo Abesyapradhi - Indoneisa
- Chettinad Cement Corporation Ltd - India
- Mercator Lines Limited - India
- The University of Queensland
- Bukit Baiduri Energy - Indonesia
- Medco Energi Mining Internasional
- Australian Coal Association
- Vizag Seaport Private Limited - India
- Orica Australia Pty. Ltd.
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Renaissance Capital - South Africa
- Bhatia International Limited - India
- Lanco Infratech Ltd - India
- Global Green Power PLC Corporation, Philippines
- Kapuas Tunggal Persada - Indonesia
- Petron Corporation, Philippines
- Mintek Dendrill Indonesia
- Georgia Ports Authority, United States
- Petrochimia International Co. Ltd.- Taiwan
- PowerSource Philippines DevCo
- Metalloyd Limited - United Kingdom
- Videocon Industries ltd - India
- Cement Manufacturers Association - India
- Chamber of Mines of South Africa
- Sinarmas Energy and Mining - Indonesia
- LBH Netherlands Bv - Netherlands
- Kaltim Prima Coal - Indonesia
- South Luzon Thermal Energy Corporation
- Planning Commission, India
- Bhushan Steel Limited - India
- Commonwealth Bank - Australia
- Borneo Indobara - Indonesia
- Binh Thuan Hamico - Vietnam
- Banpu Public Company Limited - Thailand
- Coal and Oil Company - UAE
- McConnell Dowell - Australia
- Gujarat Sidhee Cement - India
- Makarim & Taira - Indonesia
- Orica Mining Services - Indonesia
- Latin American Coal - Colombia
- Asmin Koalindo Tuhup - Indonesia
- Karaikal Port Pvt Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Coalindo Energy - Indonesia
- Eastern Coal Council - USA
- Altura Mining Limited, Indonesia
- Thiess Contractors Indonesia
- Heidelberg Cement - Germany
- Krishnapatnam Port Company Ltd. - India
- Independent Power Producers Association of India
- Mercuria Energy - Indonesia
- Kumho Petrochemical, South Korea
- International Coal Ventures Pvt Ltd - India
- PNOC Exploration Corporation - Philippines
- Salva Resources Pvt Ltd - India
- Holcim Trading Pte Ltd - Singapore
- Thai Mozambique Logistica
- Attock Cement Pakistan Limited
- Semirara Mining Corp, Philippines
- Merrill Lynch Commodities Europe
- Kalimantan Lumbung Energi - Indonesia
- CNBM International Corporation - China
- Port Waratah Coal Services - Australia
- Xindia Steels Limited - India
- Toyota Tsusho Corporation, Japan
- Aditya Birla Group - India
- Vedanta Resources Plc - India
- SN Aboitiz Power Inc, Philippines
- Jaiprakash Power Ventures ltd
- Grasim Industreis Ltd - India
- Tata Chemicals Ltd - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Ministry of Finance - Indonesia
- Riau Bara Harum - Indonesia
- SMG Consultants - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Energy Development Corp, Philippines
- Leighton Contractors Pty Ltd - Australia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Pendopo Energi Batubara - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Oldendorff Carriers - Singapore
- Siam City Cement - Thailand
- Singapore Mercantile Exchange
- Tamil Nadu electricity Board
- Anglo American - United Kingdom
- Maheswari Brothers Coal Limited - India
- Coastal Gujarat Power Limited - India
- ICICI Bank Limited - India
- Edison Trading Spa - Italy
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Jorong Barutama Greston.PT - Indonesia
- Electricity Generating Authority of Thailand
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Intertek Mineral Services - Indonesia
- Timah Investasi Mineral - Indoneisa
- Straits Asia Resources Limited - Singapore
- Dalmia Cement Bharat India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Standard Chartered Bank - UAE
- Parry Sugars Refinery, India
- Central Electricity Authority - India
- Mjunction Services Limited - India
- Kohat Cement Company Ltd. - Pakistan
- Sree Jayajothi Cements Limited - India
- Romanian Commodities Exchange
- Ambuja Cements Ltd - India
- Iligan Light & Power Inc, Philippines
- Bayan Resources Tbk. - Indonesia
- Ministry of Transport, Egypt
- Directorate Of Revenue Intelligence - India
- Indika Energy - Indonesia
- GVK Power & Infra Limited - India
- CIMB Investment Bank - Malaysia
- Ministry of Mines - Canada
- Sindya Power Generating Company Private Ltd
- Globalindo Alam Lestari - Indonesia
- Formosa Plastics Group - Taiwan
- Directorate General of MIneral and Coal - Indonesia
- European Bulk Services B.V. - Netherlands
- Economic Council, Georgia
- Samtan Co., Ltd - South Korea
- Power Finance Corporation Ltd., India
- Bulk Trading Sa - Switzerland
- Vijayanagar Sugar Pvt Ltd - India
- Sarangani Energy Corporation, Philippines
- SMC Global Power, Philippines
- London Commodity Brokers - England
- MS Steel International - UAE
- Global Coal Blending Company Limited - Australia
- Pipit Mutiara Jaya. PT, Indonesia
- Indonesian Coal Mining Association
- OPG Power Generation Pvt Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- Posco Energy - South Korea
- GMR Energy Limited - India
- Meenaskhi Energy Private Limited - India
- Goldman Sachs - Singapore
- Ceylon Electricity Board - Sri Lanka
- Kepco SPC Power Corporation, Philippines
- Siam City Cement PLC, Thailand
- PTC India Limited - India
- TeaM Sual Corporation - Philippines
- Indian Energy Exchange, India
- Essar Steel Hazira Ltd - India
- GN Power Mariveles Coal Plant, Philippines
- AsiaOL BioFuels Corp., Philippines
- Bhoruka Overseas - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Bukit Asam (Persero) Tbk - Indonesia
- Bharathi Cement Corporation - India
- New Zealand Coal & Carbon
- Indo Tambangraya Megah - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- ASAPP Information Group - India
- Rio Tinto Coal - Australia
- Savvy Resources Ltd - HongKong
- Kobexindo Tractors - Indoneisa
- Wilmar Investment Holdings
- Electricity Authority, New Zealand
- Bahari Cakrawala Sebuku - Indonesia
- Kartika Selabumi Mining - Indonesia
- Baramulti Group, Indonesia
- Interocean Group of Companies - India
- Trasteel International SA, Italy
- Aboitiz Power Corporation - Philippines
- Marubeni Corporation - India
- Carbofer General Trading SA - India
- White Energy Company Limited
- Eastern Energy - Thailand
- San Jose City I Power Corp, Philippines
- Agrawal Coal Company - India
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