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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, 13 January 16
U.S. COAL PRODUCTION DECLINED BY 109 MMST IN 2015; COAL EXPORTS DECREASED 21% Y-O-Y
COALspot.com: U.S. coal production declined by 109 million short tons (MMst) (11%) in 2015, the largest decline ever recorded, says EIA.
The 2 ...
Wednesday, 13 January 16
SHIPPING MARKET INSIGHT - GEORGE ILIOPOULOS
Going through the second week of 2016 we could easily argue that at this point there are no visible signs of an imminent recovery in the Dry Bulk m ...
Wednesday, 13 January 16
IRON ORE IMPASSE - A FAILED CLAIM FOR CONVERSION - CLYDE & CO
KNOWLEDGE TO ELEVATE
In the recent case of the “Bao Yue”, the English High Court found that the bill of lading holder was liable t ...
Tuesday, 12 January 16
5700 GAR COAL FOR DELIVERY WITHIN Q1 FELL 0.91% WEEK OVER WEEK
COALspot.com: Average 5000 GAR coal index of Indonesian origin moved South direction week over week to averaging $39.96 per ton on last Friday, acc ...
Monday, 11 January 16
PORT OF NEWCASTLE SHIPPED 20% MORE COAL IN DECEMBER 2015; AVERAGE SELLING PRICE DECLINE 3.43%
COALspot.com: The Port of Newcastle, Australia’s major trading ports and the world’s largest coal export port has shipped $1.129 billio ...
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Showing 2611 to 2615 news of total 6871 |
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- OPG Power Generation Pvt Ltd - India
- The University of Queensland
- Indika Energy - Indonesia
- Indian Oil Corporation Limited
- Merrill Lynch Commodities Europe
- Indo Tambangraya Megah - Indonesia
- Trasteel International SA, Italy
- Cigading International Bulk Terminal - Indonesia
- Thai Mozambique Logistica
- VISA Power Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Wood Mackenzie - Singapore
- Cement Manufacturers Association - India
- White Energy Company Limited
- Attock Cement Pakistan Limited
- Sakthi Sugars Limited - India
- Bayan Resources Tbk. - Indonesia
- Makarim & Taira - Indonesia
- Global Business Power Corporation, Philippines
- Sical Logistics Limited - India
- Krishnapatnam Port Company Ltd. - India
- Australian Commodity Traders Exchange
- Kartika Selabumi Mining - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Standard Chartered Bank - UAE
- Kumho Petrochemical, South Korea
- New Zealand Coal & Carbon
- Electricity Authority, New Zealand
- Bukit Makmur.PT - Indonesia
- Metalloyd Limited - United Kingdom
- Minerals Council of Australia
- Global Green Power PLC Corporation, Philippines
- Pipit Mutiara Jaya. PT, Indonesia
- Videocon Industries ltd - India
- Intertek Mineral Services - Indonesia
- South Luzon Thermal Energy Corporation
- Xindia Steels Limited - India
- Therma Luzon, Inc, Philippines
- Bhatia International Limited - India
- Ind-Barath Power Infra Limited - India
- Price Waterhouse Coopers - Russia
- Siam City Cement - Thailand
- The Treasury - Australian Government
- Ministry of Mines - Canada
- Australian Coal Association
- Jaiprakash Power Ventures ltd
- Thiess Contractors Indonesia
- Eastern Coal Council - USA
- Oldendorff Carriers - Singapore
- Sarangani Energy Corporation, Philippines
- Sindya Power Generating Company Private Ltd
- Ministry of Finance - Indonesia
- Orica Australia Pty. Ltd.
- Petron Corporation, Philippines
- Indonesian Coal Mining Association
- CIMB Investment Bank - Malaysia
- Parliament of New Zealand
- Aditya Birla Group - India
- Bukit Asam (Persero) Tbk - Indonesia
- Economic Council, Georgia
- Star Paper Mills Limited - India
- Meralco Power Generation, Philippines
- Leighton Contractors Pty Ltd - Australia
- Rio Tinto Coal - Australia
- Mercator Lines Limited - India
- Anglo American - United Kingdom
- SMG Consultants - Indonesia
- Parry Sugars Refinery, India
- Rashtriya Ispat Nigam Limited - India
- Commonwealth Bank - Australia
- Global Coal Blending Company Limited - Australia
- GN Power Mariveles Coal Plant, Philippines
- Malabar Cements Ltd - India
- Meenaskhi Energy Private Limited - India
- Singapore Mercantile Exchange
- Maheswari Brothers Coal Limited - India
- Medco Energi Mining Internasional
- Mercuria Energy - Indonesia
- Larsen & Toubro Limited - India
- Carbofer General Trading SA - India
- Sree Jayajothi Cements Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- Asmin Koalindo Tuhup - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Energy Development Corp, Philippines
- Jorong Barutama Greston.PT - Indonesia
- San Jose City I Power Corp, Philippines
- Gujarat Mineral Development Corp Ltd - India
- Petrochimia International Co. Ltd.- Taiwan
- Baramulti Group, Indonesia
- Ministry of Transport, Egypt
- Jindal Steel & Power Ltd - India
- IHS Mccloskey Coal Group - USA
- Bahari Cakrawala Sebuku - Indonesia
- TeaM Sual Corporation - Philippines
- CNBM International Corporation - China
- Kobexindo Tractors - Indoneisa
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Central Electricity Authority - India
- AsiaOL BioFuels Corp., Philippines
- Edison Trading Spa - Italy
- Africa Commodities Group - South Africa
- Romanian Commodities Exchange
- Binh Thuan Hamico - Vietnam
- ASAPP Information Group - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Coal and Oil Company - UAE
- The State Trading Corporation of India Ltd
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Madhucon Powers Ltd - India
- Riau Bara Harum - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Directorate Of Revenue Intelligence - India
- Alfred C Toepfer International GmbH - Germany
- Tata Chemicals Ltd - India
- Georgia Ports Authority, United States
- European Bulk Services B.V. - Netherlands
- Kideco Jaya Agung - Indonesia
- Kaltim Prima Coal - Indonesia
- Dalmia Cement Bharat India
- Kalimantan Lumbung Energi - Indonesia
- Independent Power Producers Association of India
- Manunggal Multi Energi - Indonesia
- International Coal Ventures Pvt Ltd - India
- Coalindo Energy - Indonesia
- Vizag Seaport Private Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Bhushan Steel Limited - India
- Agrawal Coal Company - India
- Marubeni Corporation - India
- GVK Power & Infra Limited - India
- PowerSource Philippines DevCo
- Samtan Co., Ltd - South Korea
- Eastern Energy - Thailand
- Bhoruka Overseas - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Timah Investasi Mineral - Indoneisa
- Salva Resources Pvt Ltd - India
- Ambuja Cements Ltd - India
- IEA Clean Coal Centre - UK
- Lanco Infratech Ltd - India
- Antam Resourcindo - Indonesia
- Globalindo Alam Lestari - Indonesia
- Bulk Trading Sa - Switzerland
- Bukit Baiduri Energy - Indonesia
- Savvy Resources Ltd - HongKong
- Bangladesh Power Developement Board
- Directorate General of MIneral and Coal - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Holcim Trading Pte Ltd - Singapore
- Gujarat Electricity Regulatory Commission - India
- Toyota Tsusho Corporation, Japan
- SMC Global Power, Philippines
- Power Finance Corporation Ltd., India
- Siam City Cement PLC, Thailand
- India Bulls Power Limited - India
- Mintek Dendrill Indonesia
- Semirara Mining and Power Corporation, Philippines
- Grasim Industreis Ltd - India
- ICICI Bank Limited - India
- Indian Energy Exchange, India
- Offshore Bulk Terminal Pte Ltd, Singapore
- London Commodity Brokers - England
- Kepco SPC Power Corporation, Philippines
- Indogreen Group - Indonesia
- Port Waratah Coal Services - Australia
- Interocean Group of Companies - India
- Renaissance Capital - South Africa
- Coastal Gujarat Power Limited - India
- Essar Steel Hazira Ltd - India
- Goldman Sachs - Singapore
- SN Aboitiz Power Inc, Philippines
- Chamber of Mines of South Africa
- Iligan Light & Power Inc, Philippines
- Bharathi Cement Corporation - India
- Planning Commission, India
- Gujarat Sidhee Cement - India
- Heidelberg Cement - Germany
- Pendopo Energi Batubara - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- PTC India Limited - India
- GMR Energy Limited - India
- Sojitz Corporation - Japan
- GAC Shipping (India) Pvt Ltd
- Semirara Mining Corp, Philippines
- Banpu Public Company Limited - Thailand
- Energy Link Ltd, New Zealand
- Sinarmas Energy and Mining - Indonesia
- PNOC Exploration Corporation - Philippines
- Kohat Cement Company Ltd. - Pakistan
- Neyveli Lignite Corporation Ltd, - India
- LBH Netherlands Bv - Netherlands
- Formosa Plastics Group - Taiwan
- Billiton Holdings Pty Ltd - Australia
- Uttam Galva Steels Limited - India
- Miang Besar Coal Terminal - Indonesia
- Deloitte Consulting - India
- Altura Mining Limited, Indonesia
- Wilmar Investment Holdings
- Barasentosa Lestari - Indonesia
- Latin American Coal - Colombia
- Straits Asia Resources Limited - Singapore
- Mjunction Services Limited - India
- Borneo Indobara - Indonesia
- Simpson Spence & Young - Indonesia
- Aboitiz Power Corporation - Philippines
- Chettinad Cement Corporation Ltd - India
- Electricity Generating Authority of Thailand
- Orica Mining Services - Indonesia
- Karaikal Port Pvt Ltd - India
- Vedanta Resources Plc - India
- Central Java Power - Indonesia
- McConnell Dowell - Australia
- Posco Energy - South Korea
- MS Steel International - UAE
- Tamil Nadu electricity Board
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