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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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Monday, 18 January 16
Q1'16 CFR SOUTH CHINA COAL SWAP CLOSED AT $ 42.50 PER TON; UP 1% MONTH OVER MONTH
COALspot.com: API 8 CFR South China Coal swap for Q1’ 2016 delivery rose US$ 0.43 (1.02%) per ton month over month.
A commodity swap is ...
Friday, 15 January 16
FOB INDONESIA COAL SWAPS FIRM SLIGHTLY LAST WEEK
COALspot.com: Indonesian coal swap delivery Q1 2016 declined month over month and week over week.
According to AsiaClear OTC coal swap's r ...
Friday, 15 January 16
SHIPPING: 2016 STARTED WITH MISERY ACROSS THE BOARD FOR SHIP OWNERS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
As one would have expected, the dry bulk market starter the new year where it left off in 2015, plunging to never seen before depths, as the market ...
Friday, 15 January 16
U.S. WEEKLY COAL PRODUCTION ROSE ACROSS ALL BASINS: EIA
COALspot.com – United States the world’s second largest coal producer has produced approximately totaled an estimated 13.4 million shor ...
Thursday, 14 January 16
FOB RICHARDS BAY COAL SWAP FOR Q3 DELIVERY CLOSED $5.90 LOWER THAN Q1 PRICE
COALspot.com: Q1’ 2016 API4 FOB Richards Bay Coal swap up month over month and week over week.
The Q1’ 2016 FOB Richards Bay Coal ...
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Showing 2606 to 2610 news of total 6871 |
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- Eastern Coal Council - USA
- Offshore Bulk Terminal Pte Ltd, Singapore
- Iligan Light & Power Inc, Philippines
- Ambuja Cements Ltd - India
- Antam Resourcindo - Indonesia
- TeaM Sual Corporation - Philippines
- Maheswari Brothers Coal Limited - India
- GVK Power & Infra Limited - India
- Bukit Baiduri Energy - Indonesia
- New Zealand Coal & Carbon
- Kaltim Prima Coal - Indonesia
- Deloitte Consulting - India
- Global Green Power PLC Corporation, Philippines
- Wilmar Investment Holdings
- Heidelberg Cement - Germany
- CNBM International Corporation - China
- Gujarat Sidhee Cement - India
- Indogreen Group - Indonesia
- Merrill Lynch Commodities Europe
- Orica Mining Services - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Romanian Commodities Exchange
- London Commodity Brokers - England
- Oldendorff Carriers - Singapore
- Kumho Petrochemical, South Korea
- Sical Logistics Limited - India
- Singapore Mercantile Exchange
- Kepco SPC Power Corporation, Philippines
- Barasentosa Lestari - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Asmin Koalindo Tuhup - Indonesia
- Manunggal Multi Energi - Indonesia
- Agrawal Coal Company - India
- Sojitz Corporation - Japan
- Australian Commodity Traders Exchange
- Gujarat Electricity Regulatory Commission - India
- Semirara Mining and Power Corporation, Philippines
- Meralco Power Generation, Philippines
- Riau Bara Harum - Indonesia
- Vedanta Resources Plc - India
- Bulk Trading Sa - Switzerland
- Chamber of Mines of South Africa
- Gujarat Mineral Development Corp Ltd - India
- Intertek Mineral Services - Indonesia
- SMC Global Power, Philippines
- Vijayanagar Sugar Pvt Ltd - India
- Uttam Galva Steels Limited - India
- Timah Investasi Mineral - Indoneisa
- Videocon Industries ltd - India
- Global Coal Blending Company Limited - Australia
- Jaiprakash Power Ventures ltd
- Africa Commodities Group - South Africa
- Cigading International Bulk Terminal - Indonesia
- CIMB Investment Bank - Malaysia
- Salva Resources Pvt Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Thai Mozambique Logistica
- Simpson Spence & Young - Indonesia
- The Treasury - Australian Government
- Energy Link Ltd, New Zealand
- Energy Development Corp, Philippines
- Mjunction Services Limited - India
- Therma Luzon, Inc, Philippines
- Meenaskhi Energy Private Limited - India
- Vizag Seaport Private Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- Bangladesh Power Developement Board
- Interocean Group of Companies - India
- Pipit Mutiara Jaya. PT, Indonesia
- South Luzon Thermal Energy Corporation
- Directorate General of MIneral and Coal - Indonesia
- McConnell Dowell - Australia
- Aditya Birla Group - India
- PTC India Limited - India
- Independent Power Producers Association of India
- Ministry of Transport, Egypt
- Electricity Authority, New Zealand
- Parry Sugars Refinery, India
- Port Waratah Coal Services - Australia
- Bhushan Steel Limited - India
- Altura Mining Limited, Indonesia
- MS Steel International - UAE
- GN Power Mariveles Coal Plant, Philippines
- Pendopo Energi Batubara - Indonesia
- Renaissance Capital - South Africa
- Star Paper Mills Limited - India
- India Bulls Power Limited - India
- Medco Energi Mining Internasional
- AsiaOL BioFuels Corp., Philippines
- Kartika Selabumi Mining - Indonesia
- Thiess Contractors Indonesia
- Cement Manufacturers Association - India
- Kideco Jaya Agung - Indonesia
- Borneo Indobara - Indonesia
- LBH Netherlands Bv - Netherlands
- Madhucon Powers Ltd - India
- Jindal Steel & Power Ltd - India
- Wood Mackenzie - Singapore
- Samtan Co., Ltd - South Korea
- Malabar Cements Ltd - India
- Aboitiz Power Corporation - Philippines
- Central Electricity Authority - India
- PowerSource Philippines DevCo
- Price Waterhouse Coopers - Russia
- Leighton Contractors Pty Ltd - Australia
- Karaikal Port Pvt Ltd - India
- Toyota Tsusho Corporation, Japan
- Orica Australia Pty. Ltd.
- Latin American Coal - Colombia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Indonesian Coal Mining Association
- Rashtriya Ispat Nigam Limited - India
- Mintek Dendrill Indonesia
- Xindia Steels Limited - India
- Dalmia Cement Bharat India
- PetroVietnam Power Coal Import and Supply Company
- Krishnapatnam Port Company Ltd. - India
- Bharathi Cement Corporation - India
- Holcim Trading Pte Ltd - Singapore
- Planning Commission, India
- Banpu Public Company Limited - Thailand
- Tata Chemicals Ltd - India
- Economic Council, Georgia
- VISA Power Limited - India
- Siam City Cement PLC, Thailand
- Rio Tinto Coal - Australia
- Bahari Cakrawala Sebuku - Indonesia
- Larsen & Toubro Limited - India
- Power Finance Corporation Ltd., India
- San Jose City I Power Corp, Philippines
- Central Java Power - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Metalloyd Limited - United Kingdom
- Sarangani Energy Corporation, Philippines
- White Energy Company Limited
- Minerals Council of Australia
- IEA Clean Coal Centre - UK
- Indian Energy Exchange, India
- Ministry of Mines - Canada
- IHS Mccloskey Coal Group - USA
- Bhatia International Limited - India
- Miang Besar Coal Terminal - Indonesia
- Edison Trading Spa - Italy
- Bhoruka Overseas - Indonesia
- Trasteel International SA, Italy
- Petron Corporation, Philippines
- TNB Fuel Sdn Bhd - Malaysia
- Binh Thuan Hamico - Vietnam
- Coal and Oil Company - UAE
- European Bulk Services B.V. - Netherlands
- Kohat Cement Company Ltd. - Pakistan
- The State Trading Corporation of India Ltd
- Neyveli Lignite Corporation Ltd, - India
- ICICI Bank Limited - India
- Attock Cement Pakistan Limited
- SN Aboitiz Power Inc, Philippines
- Ceylon Electricity Board - Sri Lanka
- Carbofer General Trading SA - India
- Sree Jayajothi Cements Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Directorate Of Revenue Intelligence - India
- Bukit Makmur.PT - Indonesia
- Baramulti Group, Indonesia
- Straits Asia Resources Limited - Singapore
- Standard Chartered Bank - UAE
- OPG Power Generation Pvt Ltd - India
- Semirara Mining Corp, Philippines
- Siam City Cement - Thailand
- Globalindo Alam Lestari - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Kobexindo Tractors - Indoneisa
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- PNOC Exploration Corporation - Philippines
- Billiton Holdings Pty Ltd - Australia
- Commonwealth Bank - Australia
- Indian Oil Corporation Limited
- International Coal Ventures Pvt Ltd - India
- The University of Queensland
- Sakthi Sugars Limited - India
- Mercator Lines Limited - India
- Parliament of New Zealand
- Global Business Power Corporation, Philippines
- Ministry of Finance - Indonesia
- Goldman Sachs - Singapore
- GAC Shipping (India) Pvt Ltd
- Lanco Infratech Ltd - India
- Sindya Power Generating Company Private Ltd
- Electricity Generating Authority of Thailand
- Ind-Barath Power Infra Limited - India
- Bayan Resources Tbk. - Indonesia
- Coastal Gujarat Power Limited - India
- Essar Steel Hazira Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- Coalindo Energy - Indonesia
- GMR Energy Limited - India
- Indika Energy - Indonesia
- Makarim & Taira - Indonesia
- Anglo American - United Kingdom
- Sinarmas Energy and Mining - Indonesia
- Mercuria Energy - Indonesia
- Tamil Nadu electricity Board
- Indo Tambangraya Megah - Indonesia
- Marubeni Corporation - India
- Kapuas Tunggal Persada - Indonesia
- Georgia Ports Authority, United States
- Eastern Energy - Thailand
- Grasim Industreis Ltd - India
- Formosa Plastics Group - Taiwan
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- ASAPP Information Group - India
- Posco Energy - South Korea
- Jorong Barutama Greston.PT - Indonesia
- Savvy Resources Ltd - HongKong
- Australian Coal Association
- SMG Consultants - Indonesia
- Chettinad Cement Corporation Ltd - India
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