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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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Sunday, 10 January 16
LNG BUNKERING IN ASIA: FUELING A PROMISING FUTURE? - REED SMITH
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Saturday, 09 January 16
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Friday, 08 January 16
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Friday, 08 January 16
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Friday, 08 January 16
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- Bhushan Steel Limited - India
- Jindal Steel & Power Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Mercuria Energy - Indonesia
- The State Trading Corporation of India Ltd
- Essar Steel Hazira Ltd - India
- Barasentosa Lestari - Indonesia
- Lanco Infratech Ltd - India
- Kumho Petrochemical, South Korea
- Singapore Mercantile Exchange
- Oldendorff Carriers - Singapore
- Posco Energy - South Korea
- Karbindo Abesyapradhi - Indoneisa
- Altura Mining Limited, Indonesia
- Romanian Commodities Exchange
- Bukit Baiduri Energy - Indonesia
- Sical Logistics Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- Larsen & Toubro Limited - India
- Directorate Of Revenue Intelligence - India
- Kideco Jaya Agung - Indonesia
- MS Steel International - UAE
- Samtan Co., Ltd - South Korea
- Price Waterhouse Coopers - Russia
- Neyveli Lignite Corporation Ltd, - India
- Australian Coal Association
- Orica Mining Services - Indonesia
- Rio Tinto Coal - Australia
- Timah Investasi Mineral - Indoneisa
- Bulk Trading Sa - Switzerland
- Africa Commodities Group - South Africa
- Energy Development Corp, Philippines
- Interocean Group of Companies - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- PetroVietnam Power Coal Import and Supply Company
- Borneo Indobara - Indonesia
- CNBM International Corporation - China
- Sakthi Sugars Limited - India
- Standard Chartered Bank - UAE
- Kaltim Prima Coal - Indonesia
- Eastern Energy - Thailand
- Karaikal Port Pvt Ltd - India
- Coastal Gujarat Power Limited - India
- Baramulti Group, Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Mercator Lines Limited - India
- GMR Energy Limited - India
- International Coal Ventures Pvt Ltd - India
- Thai Mozambique Logistica
- White Energy Company Limited
- Bank of Tokyo Mitsubishi UFJ Ltd
- Siam City Cement - Thailand
- GAC Shipping (India) Pvt Ltd
- Indonesian Coal Mining Association
- Uttam Galva Steels Limited - India
- VISA Power Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Commonwealth Bank - Australia
- PowerSource Philippines DevCo
- Petron Corporation, Philippines
- South Luzon Thermal Energy Corporation
- Indian Oil Corporation Limited
- Malabar Cements Ltd - India
- Indogreen Group - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Formosa Plastics Group - Taiwan
- Global Green Power PLC Corporation, Philippines
- Port Waratah Coal Services - Australia
- Pendopo Energi Batubara - Indonesia
- Metalloyd Limited - United Kingdom
- CIMB Investment Bank - Malaysia
- London Commodity Brokers - England
- Meralco Power Generation, Philippines
- Georgia Ports Authority, United States
- Billiton Holdings Pty Ltd - Australia
- Maharashtra Electricity Regulatory Commission - India
- Bhatia International Limited - India
- LBH Netherlands Bv - Netherlands
- Sojitz Corporation - Japan
- Edison Trading Spa - Italy
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Orica Australia Pty. Ltd.
- Independent Power Producers Association of India
- Trasteel International SA, Italy
- Attock Cement Pakistan Limited
- Bharathi Cement Corporation - India
- Planning Commission, India
- Wood Mackenzie - Singapore
- Agrawal Coal Company - India
- Indian Energy Exchange, India
- Wilmar Investment Holdings
- Asmin Koalindo Tuhup - Indonesia
- Bukit Makmur.PT - Indonesia
- Gujarat Electricity Regulatory Commission - India
- TNB Fuel Sdn Bhd - Malaysia
- Jorong Barutama Greston.PT - Indonesia
- Kepco SPC Power Corporation, Philippines
- Power Finance Corporation Ltd., India
- Vijayanagar Sugar Pvt Ltd - India
- Thiess Contractors Indonesia
- Latin American Coal - Colombia
- Heidelberg Cement - Germany
- Meenaskhi Energy Private Limited - India
- PNOC Exploration Corporation - Philippines
- San Jose City I Power Corp, Philippines
- Ambuja Cements Ltd - India
- Toyota Tsusho Corporation, Japan
- Leighton Contractors Pty Ltd - Australia
- IHS Mccloskey Coal Group - USA
- Ministry of Transport, Egypt
- Petrochimia International Co. Ltd.- Taiwan
- European Bulk Services B.V. - Netherlands
- Global Business Power Corporation, Philippines
- Carbofer General Trading SA - India
- Sarangani Energy Corporation, Philippines
- Central Electricity Authority - India
- Merrill Lynch Commodities Europe
- Banpu Public Company Limited - Thailand
- Tata Chemicals Ltd - India
- SMG Consultants - Indonesia
- Miang Besar Coal Terminal - Indonesia
- IEA Clean Coal Centre - UK
- Minerals Council of Australia
- Vizag Seaport Private Limited - India
- Chamber of Mines of South Africa
- TeaM Sual Corporation - Philippines
- Indika Energy - Indonesia
- Energy Link Ltd, New Zealand
- ASAPP Information Group - India
- Straits Asia Resources Limited - Singapore
- Ceylon Electricity Board - Sri Lanka
- Iligan Light & Power Inc, Philippines
- Bayan Resources Tbk. - Indonesia
- Sree Jayajothi Cements Limited - India
- SMC Global Power, Philippines
- Krishnapatnam Port Company Ltd. - India
- Australian Commodity Traders Exchange
- Tamil Nadu electricity Board
- Coalindo Energy - Indonesia
- Riau Bara Harum - Indonesia
- Antam Resourcindo - Indonesia
- Electricity Generating Authority of Thailand
- Siam City Cement PLC, Thailand
- Renaissance Capital - South Africa
- Global Coal Blending Company Limited - Australia
- Bhoruka Overseas - Indonesia
- Parry Sugars Refinery, India
- Sinarmas Energy and Mining - Indonesia
- Ministry of Finance - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Kalimantan Lumbung Energi - Indonesia
- Medco Energi Mining Internasional
- Electricity Authority, New Zealand
- Ind-Barath Power Infra Limited - India
- Economic Council, Georgia
- New Zealand Coal & Carbon
- The University of Queensland
- Madhucon Powers Ltd - India
- Indo Tambangraya Megah - Indonesia
- PTC India Limited - India
- Globalindo Alam Lestari - Indonesia
- Sindya Power Generating Company Private Ltd
- OPG Power Generation Pvt Ltd - India
- Vedanta Resources Plc - India
- Semirara Mining and Power Corporation, Philippines
- Semirara Mining Corp, Philippines
- Directorate General of MIneral and Coal - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Cement Manufacturers Association - India
- Jaiprakash Power Ventures ltd
- Simpson Spence & Young - Indonesia
- Coal and Oil Company - UAE
- Grasim Industreis Ltd - India
- Aditya Birla Group - India
- Anglo American - United Kingdom
- Rashtriya Ispat Nigam Limited - India
- Marubeni Corporation - India
- GVK Power & Infra Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Star Paper Mills Limited - India
- Central Java Power - Indonesia
- Savvy Resources Ltd - HongKong
- Mintek Dendrill Indonesia
- Kartika Selabumi Mining - Indonesia
- Gujarat Sidhee Cement - India
- Intertek Mineral Services - Indonesia
- Eastern Coal Council - USA
- Cigading International Bulk Terminal - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Manunggal Multi Energi - Indonesia
- Videocon Industries ltd - India
- The Treasury - Australian Government
- Salva Resources Pvt Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Bangladesh Power Developement Board
- India Bulls Power Limited - India
- Goldman Sachs - Singapore
- Maheswari Brothers Coal Limited - India
- Ministry of Mines - Canada
- McConnell Dowell - Australia
- ICICI Bank Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Kobexindo Tractors - Indoneisa
- Kapuas Tunggal Persada - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Xindia Steels Limited - India
- Binh Thuan Hamico - Vietnam
- Mjunction Services Limited - India
- Therma Luzon, Inc, Philippines
- Dalmia Cement Bharat India
- Deloitte Consulting - India
- Parliament of New Zealand
- Aboitiz Power Corporation - Philippines
- SN Aboitiz Power Inc, Philippines
- Chettinad Cement Corporation Ltd - India
- Makarim & Taira - Indonesia
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