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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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Friday, 08 January 16
DRY BULK MARKET'S CRISIS DEEPENS AS RATES ARE DROPPING TO NEW RECORD LOWS BY THE DAY - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
Just when you would think that the dry bulk market is reaching its bottom, even as it has long surpassed all-time lows, each day that passes by at ...
Thursday, 07 January 16
FOB NEWCASTLE COAL SWAPS DELIVERY Q1'16 REMAIN FLAT W-O-W; UP M-O-M
COALspot.com: API 5 FOB Newcastle Coal swap for Q1’ 2016 delivery rose another $1.23 per ton (3.35%) this past week compared to the sam ...
Thursday, 07 January 16
SHIPPING WILL REMAIN VOLATILE AND INDISPENSABLE IN 2016 - MOORE STEPHENS
The ultimate definition of an optimist has been characterised as an accordion player with an answerphone. Such extreme optimism might be difficult ...
Wednesday, 06 January 16
NEW COAL PRICE PASS-THROUGH REGULATION BENEFITS CHINA IPPS - FITCH RATINGS
Fitch Ratings says the new Coal Price Pass-through Mechanism announced by the National Development and Reform Commission (NDRC) on 31 December ...
Tuesday, 05 January 16
BIG COAL MINERS PLAN HIGHER PRODUCTION THIS YEAR - THE JAKARTA POST
The country’s major coal miners plan to further boost production in 2016 although analysts estimate that an oversupply in the world’s c ...
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Showing 2621 to 2625 news of total 6871 |
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- Essar Steel Hazira Ltd - India
- Sindya Power Generating Company Private Ltd
- Karaikal Port Pvt Ltd - India
- Planning Commission, India
- Ind-Barath Power Infra Limited - India
- Bhatia International Limited - India
- Intertek Mineral Services - Indonesia
- LBH Netherlands Bv - Netherlands
- Gujarat Mineral Development Corp Ltd - India
- Minerals Council of Australia
- Bulk Trading Sa - Switzerland
- Cement Manufacturers Association - India
- Romanian Commodities Exchange
- Therma Luzon, Inc, Philippines
- Chamber of Mines of South Africa
- Central Electricity Authority - India
- Pendopo Energi Batubara - Indonesia
- Meralco Power Generation, Philippines
- Jindal Steel & Power Ltd - India
- White Energy Company Limited
- PNOC Exploration Corporation - Philippines
- Carbofer General Trading SA - India
- Sical Logistics Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Sojitz Corporation - Japan
- Vijayanagar Sugar Pvt Ltd - India
- McConnell Dowell - Australia
- Aditya Birla Group - India
- Asmin Koalindo Tuhup - Indonesia
- Bayan Resources Tbk. - Indonesia
- Meenaskhi Energy Private Limited - India
- GMR Energy Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Star Paper Mills Limited - India
- Bhoruka Overseas - Indonesia
- Dalmia Cement Bharat India
- Goldman Sachs - Singapore
- Bukit Makmur.PT - Indonesia
- Kideco Jaya Agung - Indonesia
- Binh Thuan Hamico - Vietnam
- Straits Asia Resources Limited - Singapore
- Kohat Cement Company Ltd. - Pakistan
- Timah Investasi Mineral - Indoneisa
- Indika Energy - Indonesia
- Kartika Selabumi Mining - Indonesia
- Global Coal Blending Company Limited - Australia
- Coastal Gujarat Power Limited - India
- Ambuja Cements Ltd - India
- Electricity Generating Authority of Thailand
- Riau Bara Harum - Indonesia
- New Zealand Coal & Carbon
- Jaiprakash Power Ventures ltd
- SMC Global Power, Philippines
- Renaissance Capital - South Africa
- Parliament of New Zealand
- Bangladesh Power Developement Board
- Xindia Steels Limited - India
- AsiaOL BioFuels Corp., Philippines
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- San Jose City I Power Corp, Philippines
- Merrill Lynch Commodities Europe
- Directorate General of MIneral and Coal - Indonesia
- Videocon Industries ltd - India
- SN Aboitiz Power Inc, Philippines
- London Commodity Brokers - England
- GN Power Mariveles Coal Plant, Philippines
- Deloitte Consulting - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Georgia Ports Authority, United States
- Global Green Power PLC Corporation, Philippines
- The Treasury - Australian Government
- Eastern Coal Council - USA
- Thiess Contractors Indonesia
- Tamil Nadu electricity Board
- Vedanta Resources Plc - India
- International Coal Ventures Pvt Ltd - India
- Ministry of Transport, Egypt
- TeaM Sual Corporation - Philippines
- Bukit Baiduri Energy - Indonesia
- Parry Sugars Refinery, India
- Kepco SPC Power Corporation, Philippines
- ASAPP Information Group - India
- Sinarmas Energy and Mining - Indonesia
- PTC India Limited - India
- Borneo Indobara - Indonesia
- Electricity Authority, New Zealand
- Indian Oil Corporation Limited
- Manunggal Multi Energi - Indonesia
- Edison Trading Spa - Italy
- The University of Queensland
- Salva Resources Pvt Ltd - India
- Heidelberg Cement - Germany
- Aboitiz Power Corporation - Philippines
- Interocean Group of Companies - India
- Karbindo Abesyapradhi - Indoneisa
- Oldendorff Carriers - Singapore
- PowerSource Philippines DevCo
- Ceylon Electricity Board - Sri Lanka
- Uttam Galva Steels Limited - India
- Mintek Dendrill Indonesia
- Petron Corporation, Philippines
- Jorong Barutama Greston.PT - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Leighton Contractors Pty Ltd - Australia
- The State Trading Corporation of India Ltd
- Directorate Of Revenue Intelligence - India
- Ministry of Finance - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Indo Tambangraya Megah - Indonesia
- Rio Tinto Coal - Australia
- Krishnapatnam Port Company Ltd. - India
- CNBM International Corporation - China
- Trasteel International SA, Italy
- Holcim Trading Pte Ltd - Singapore
- Baramulti Group, Indonesia
- CIMB Investment Bank - Malaysia
- VISA Power Limited - India
- Alfred C Toepfer International GmbH - Germany
- Agrawal Coal Company - India
- Grasim Industreis Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Australian Commodity Traders Exchange
- Kapuas Tunggal Persada - Indonesia
- Thai Mozambique Logistica
- Samtan Co., Ltd - South Korea
- Orica Australia Pty. Ltd.
- Indian Energy Exchange, India
- Larsen & Toubro Limited - India
- Kaltim Prima Coal - Indonesia
- SMG Consultants - Indonesia
- IEA Clean Coal Centre - UK
- Simpson Spence & Young - Indonesia
- Savvy Resources Ltd - HongKong
- Global Business Power Corporation, Philippines
- Miang Besar Coal Terminal - Indonesia
- Globalindo Alam Lestari - Indonesia
- Commonwealth Bank - Australia
- Attock Cement Pakistan Limited
- Gujarat Sidhee Cement - India
- Bukit Asam (Persero) Tbk - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Power Finance Corporation Ltd., India
- Siam City Cement - Thailand
- South Luzon Thermal Energy Corporation
- Antam Resourcindo - Indonesia
- Malabar Cements Ltd - India
- Madhucon Powers Ltd - India
- Maheswari Brothers Coal Limited - India
- Gujarat Electricity Regulatory Commission - India
- Energy Development Corp, Philippines
- Central Java Power - Indonesia
- Vizag Seaport Private Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- India Bulls Power Limited - India
- Billiton Holdings Pty Ltd - Australia
- Latin American Coal - Colombia
- Banpu Public Company Limited - Thailand
- Eastern Energy - Thailand
- Wood Mackenzie - Singapore
- Neyveli Lignite Corporation Ltd, - India
- Coal and Oil Company - UAE
- Mjunction Services Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- Indonesian Coal Mining Association
- Sree Jayajothi Cements Limited - India
- Marubeni Corporation - India
- Medco Energi Mining Internasional
- Price Waterhouse Coopers - Russia
- Kalimantan Lumbung Energi - Indonesia
- Australian Coal Association
- Kobexindo Tractors - Indoneisa
- OPG Power Generation Pvt Ltd - India
- Sakthi Sugars Limited - India
- Africa Commodities Group - South Africa
- Port Waratah Coal Services - Australia
- IHS Mccloskey Coal Group - USA
- Siam City Cement PLC, Thailand
- Chettinad Cement Corporation Ltd - India
- Posco Energy - South Korea
- Pipit Mutiara Jaya. PT, Indonesia
- Toyota Tsusho Corporation, Japan
- Anglo American - United Kingdom
- Orica Mining Services - Indonesia
- Mercator Lines Limited - India
- Barasentosa Lestari - Indonesia
- Kumho Petrochemical, South Korea
- Sarangani Energy Corporation, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- European Bulk Services B.V. - Netherlands
- ICICI Bank Limited - India
- GVK Power & Infra Limited - India
- Iligan Light & Power Inc, Philippines
- Rashtriya Ispat Nigam Limited - India
- Bhushan Steel Limited - India
- MS Steel International - UAE
- Formosa Plastics Group - Taiwan
- Indogreen Group - Indonesia
- Wilmar Investment Holdings
- Semirara Mining Corp, Philippines
- Standard Chartered Bank - UAE
- Tata Chemicals Ltd - India
- Energy Link Ltd, New Zealand
- Makarim & Taira - Indonesia
- Lanco Infratech Ltd - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Singapore Mercantile Exchange
- Economic Council, Georgia
- Mercuria Energy - Indonesia
- Altura Mining Limited, Indonesia
- GAC Shipping (India) Pvt Ltd
- Coalindo Energy - Indonesia
- Bharathi Cement Corporation - India
- Ministry of Mines - Canada
- Metalloyd Limited - United Kingdom
- Cigading International Bulk Terminal - Indonesia
- Independent Power Producers Association of India
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