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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, 28 January 16
WHAT ARE THE PROSPECTS FOR COAL IN LIGHT OF THE PARIS CLIMATE AGREEMENT? - GERMAN COAL IMPORTERS ASSOCIATION
This depends – says the VDKi – to a very great extent on who you want to believe more, the United Nations or the International Energy A ...
Thursday, 28 January 16
RICHARDS BAY COAL SWAPS FOR Q1,Q2 AND Q3 DELIVERIES FIRM THIS PAST WEEK
COALspot.com: Q1’ 2016 API4 FOB Richards Bay Coal swap rose month over month and week over week.
The Q1’ 2016 FOB Richards Bay Coa ...
Wednesday, 27 January 16
API 5 FOB NEWCASTLE COAL SWAPS CLOSE MIXED
COALspot.com: API 5 FOB Newcastle Coal swap for Q1’ 2016 delivery rose another $1.17 per ton (3.13%) this past week compared to the sam ...
Wednesday, 27 January 16
CHINA'S STALLING ECONOMY HAS HAD A GREAT EFFECT ON VARIOUS COMMODITIES; DECREASED DEMAND DRIVING COMMODITY PRICES LOWER AND LOWER - LINOS ALEXANDROS KOGEVINAS
Having gone through the first few weeks of 2016, it’s starting to look like another challenging year is ahead of us. Hopes for a recovery in ...
Wednesday, 27 January 16
WORLD HARD COAL PRODUCTION AND CONSUMPTION DECLINE IN 2015 FOR THE FIRST TIME IN OVER A DECADE - VDKI
COALspot.com: Seaborne hard coal trade and the changes in this area were decisively affected by China and India - VDKi.
China bears the g ...
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Showing 2586 to 2590 news of total 6871 |
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- Interocean Group of Companies - India
- Oldendorff Carriers - Singapore
- Chettinad Cement Corporation Ltd - India
- Neyveli Lignite Corporation Ltd, - India
- Borneo Indobara - Indonesia
- Economic Council, Georgia
- Sinarmas Energy and Mining - Indonesia
- Vizag Seaport Private Limited - India
- Coal and Oil Company - UAE
- Savvy Resources Ltd - HongKong
- Offshore Bulk Terminal Pte Ltd, Singapore
- Meenaskhi Energy Private Limited - India
- Iligan Light & Power Inc, Philippines
- Ceylon Electricity Board - Sri Lanka
- Rashtriya Ispat Nigam Limited - India
- Kideco Jaya Agung - Indonesia
- PTC India Limited - India
- Karbindo Abesyapradhi - Indoneisa
- Bahari Cakrawala Sebuku - Indonesia
- Africa Commodities Group - South Africa
- Jindal Steel & Power Ltd - India
- Pendopo Energi Batubara - Indonesia
- Petron Corporation, Philippines
- Bhatia International Limited - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Indonesian Coal Mining Association
- Marubeni Corporation - India
- Bharathi Cement Corporation - India
- Cigading International Bulk Terminal - Indonesia
- Carbofer General Trading SA - India
- Mercator Lines Limited - India
- Ministry of Finance - Indonesia
- SMG Consultants - Indonesia
- Energy Link Ltd, New Zealand
- Meralco Power Generation, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Trasteel International SA, Italy
- LBH Netherlands Bv - Netherlands
- Bhoruka Overseas - Indonesia
- TeaM Sual Corporation - Philippines
- Deloitte Consulting - India
- Tata Chemicals Ltd - India
- Power Finance Corporation Ltd., India
- Salva Resources Pvt Ltd - India
- Siam City Cement - Thailand
- Coalindo Energy - Indonesia
- Barasentosa Lestari - Indonesia
- Global Business Power Corporation, Philippines
- The Treasury - Australian Government
- Sical Logistics Limited - India
- Holcim Trading Pte Ltd - Singapore
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Grasim Industreis Ltd - India
- Renaissance Capital - South Africa
- Thai Mozambique Logistica
- Gujarat Mineral Development Corp Ltd - India
- Tamil Nadu electricity Board
- Essar Steel Hazira Ltd - India
- Petrochimia International Co. Ltd.- Taiwan
- IHS Mccloskey Coal Group - USA
- Energy Development Corp, Philippines
- Global Green Power PLC Corporation, Philippines
- Medco Energi Mining Internasional
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Bangladesh Power Developement Board
- Therma Luzon, Inc, Philippines
- Goldman Sachs - Singapore
- Karaikal Port Pvt Ltd - India
- Dalmia Cement Bharat India
- Commonwealth Bank - Australia
- PetroVietnam Power Coal Import and Supply Company
- Pipit Mutiara Jaya. PT, Indonesia
- Orica Mining Services - Indonesia
- Singapore Mercantile Exchange
- Gujarat Electricity Regulatory Commission - India
- Parliament of New Zealand
- Romanian Commodities Exchange
- Wood Mackenzie - Singapore
- Independent Power Producers Association of India
- ASAPP Information Group - India
- Kepco SPC Power Corporation, Philippines
- Samtan Co., Ltd - South Korea
- Jaiprakash Power Ventures ltd
- Toyota Tsusho Corporation, Japan
- Makarim & Taira - Indonesia
- Agrawal Coal Company - India
- Minerals Council of Australia
- GAC Shipping (India) Pvt Ltd
- Miang Besar Coal Terminal - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Electricity Generating Authority of Thailand
- Kartika Selabumi Mining - Indonesia
- Metalloyd Limited - United Kingdom
- SMC Global Power, Philippines
- Wilmar Investment Holdings
- The University of Queensland
- White Energy Company Limited
- Heidelberg Cement - Germany
- Edison Trading Spa - Italy
- Indian Oil Corporation Limited
- Banpu Public Company Limited - Thailand
- Electricity Authority, New Zealand
- Kumho Petrochemical, South Korea
- OPG Power Generation Pvt Ltd - India
- European Bulk Services B.V. - Netherlands
- Eastern Coal Council - USA
- Coastal Gujarat Power Limited - India
- Formosa Plastics Group - Taiwan
- MS Steel International - UAE
- Asmin Koalindo Tuhup - Indonesia
- Mintek Dendrill Indonesia
- New Zealand Coal & Carbon
- Bayan Resources Tbk. - Indonesia
- Merrill Lynch Commodities Europe
- Antam Resourcindo - Indonesia
- Simpson Spence & Young - Indonesia
- CIMB Investment Bank - Malaysia
- Binh Thuan Hamico - Vietnam
- Bhushan Steel Limited - India
- Indika Energy - Indonesia
- Ministry of Mines - Canada
- Standard Chartered Bank - UAE
- Orica Australia Pty. Ltd.
- Videocon Industries ltd - India
- Global Coal Blending Company Limited - Australia
- SN Aboitiz Power Inc, Philippines
- South Luzon Thermal Energy Corporation
- Baramulti Group, Indonesia
- Gujarat Sidhee Cement - India
- ICICI Bank Limited - India
- Indogreen Group - Indonesia
- GVK Power & Infra Limited - India
- Altura Mining Limited, Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Indian Energy Exchange, India
- Georgia Ports Authority, United States
- Thiess Contractors Indonesia
- AsiaOL BioFuels Corp., Philippines
- Manunggal Multi Energi - Indonesia
- Cement Manufacturers Association - India
- Aditya Birla Group - India
- Parry Sugars Refinery, India
- Uttam Galva Steels Limited - India
- Ambuja Cements Ltd - India
- Indo Tambangraya Megah - Indonesia
- CNBM International Corporation - China
- India Bulls Power Limited - India
- Australian Coal Association
- Sarangani Energy Corporation, Philippines
- Mjunction Services Limited - India
- Riau Bara Harum - Indonesia
- Vedanta Resources Plc - India
- Central Java Power - Indonesia
- Planning Commission, India
- San Jose City I Power Corp, Philippines
- Timah Investasi Mineral - Indoneisa
- PowerSource Philippines DevCo
- Xindia Steels Limited - India
- VISA Power Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Semirara Mining Corp, Philippines
- Semirara Mining and Power Corporation, Philippines
- Mercuria Energy - Indonesia
- Siam City Cement PLC, Thailand
- Globalindo Alam Lestari - Indonesia
- Bulk Trading Sa - Switzerland
- Krishnapatnam Port Company Ltd. - India
- Eastern Energy - Thailand
- Kobexindo Tractors - Indoneisa
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Alfred C Toepfer International GmbH - Germany
- Anglo American - United Kingdom
- GMR Energy Limited - India
- Straits Asia Resources Limited - Singapore
- Kapuas Tunggal Persada - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- The State Trading Corporation of India Ltd
- PNOC Exploration Corporation - Philippines
- Intertek Mineral Services - Indonesia
- Bukit Makmur.PT - Indonesia
- Latin American Coal - Colombia
- Rio Tinto Coal - Australia
- McConnell Dowell - Australia
- Chamber of Mines of South Africa
- Sindya Power Generating Company Private Ltd
- Kohat Cement Company Ltd. - Pakistan
- International Coal Ventures Pvt Ltd - India
- Directorate Of Revenue Intelligence - India
- Port Waratah Coal Services - Australia
- Leighton Contractors Pty Ltd - Australia
- Madhucon Powers Ltd - India
- Ind-Barath Power Infra Limited - India
- Aboitiz Power Corporation - Philippines
- Attock Cement Pakistan Limited
- Lanco Infratech Ltd - India
- Star Paper Mills Limited - India
- Ministry of Transport, Egypt
- Jorong Barutama Greston.PT - Indonesia
- Posco Energy - South Korea
- Sree Jayajothi Cements Limited - India
- IEA Clean Coal Centre - UK
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Sakthi Sugars Limited - India
- Price Waterhouse Coopers - Russia
- Kaltim Prima Coal - Indonesia
- Bukit Baiduri Energy - Indonesia
- Australian Commodity Traders Exchange
- Vijayanagar Sugar Pvt Ltd - India
- Billiton Holdings Pty Ltd - Australia
- London Commodity Brokers - England
- Malabar Cements Ltd - India
- Central Electricity Authority - India
- Larsen & Toubro Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Maheswari Brothers Coal Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- Sojitz Corporation - Japan
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