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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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Tuesday, 05 January 16
THE SHIPPING MARKET IN 2015 AND LOOKING FORWARD - BIMCO
Global economy: menacing clouds in the sky cast a shadow on global economic developments 2015 never really took off, even though the global economi ...
Tuesday, 05 January 16
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COALspot.com: Average 5000 GAR coal index has not moved in the past week, averaging $40.12 per ton on last Thursday, according to CS (i) Coal Index ...
Monday, 04 January 16
CFR SOUTH CHINA COAL SWAP REMAIN FLAT OVER CHRISTMAS & NEW YEAR HOLIDAYS
COALspot.com: API 8 CFR South China Coal swap for Q1’ 2016 delivery rose US$ 0.68 (1.64%) per ton month over month.
A commodity swap is ...
Friday, 01 January 16
FOB INDONESIA COAL SWAP FOR Q1'16 DELIVERY CLOSED AT $36.75 PER TON
COALspot.com: Indonesian coal swap delivery Q1 2016 declined month on month but flat week over week.
According to AsiaClear OTC coal swap' ...
Thursday, 31 December 15
COAL PRICES FELL ON WEAK DEMAND
COALspot.com: Q1’ 2016 API4 FOB Richards Bay Coal swap decline month over month and slightly up week over week.
The Q1’ 2016 ...
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Showing 2626 to 2630 news of total 6871 |
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- Metalloyd Limited - United Kingdom
- PNOC Exploration Corporation - Philippines
- Banpu Public Company Limited - Thailand
- CNBM International Corporation - China
- Miang Besar Coal Terminal - Indonesia
- Energy Development Corp, Philippines
- Pipit Mutiara Jaya. PT, Indonesia
- Savvy Resources Ltd - HongKong
- Bharathi Cement Corporation - India
- Karaikal Port Pvt Ltd - India
- Commonwealth Bank - Australia
- Gujarat Electricity Regulatory Commission - India
- Coal and Oil Company - UAE
- ICICI Bank Limited - India
- Borneo Indobara - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Africa Commodities Group - South Africa
- Anglo American - United Kingdom
- PowerSource Philippines DevCo
- Kumho Petrochemical, South Korea
- Minerals Council of Australia
- Baramulti Group, Indonesia
- Orica Mining Services - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Latin American Coal - Colombia
- Bulk Trading Sa - Switzerland
- IEA Clean Coal Centre - UK
- Chettinad Cement Corporation Ltd - India
- Thai Mozambique Logistica
- AsiaOL BioFuels Corp., Philippines
- Siam City Cement - Thailand
- Coalindo Energy - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- International Coal Ventures Pvt Ltd - India
- LBH Netherlands Bv - Netherlands
- Agrawal Coal Company - India
- India Bulls Power Limited - India
- Therma Luzon, Inc, Philippines
- Asmin Koalindo Tuhup - Indonesia
- SMC Global Power, Philippines
- PTC India Limited - India
- Power Finance Corporation Ltd., India
- Larsen & Toubro Limited - India
- Mjunction Services Limited - India
- Leighton Contractors Pty Ltd - Australia
- Siam City Cement PLC, Thailand
- Semirara Mining and Power Corporation, Philippines
- Altura Mining Limited, Indonesia
- Star Paper Mills Limited - India
- Deloitte Consulting - India
- Jorong Barutama Greston.PT - Indonesia
- Planning Commission, India
- Toyota Tsusho Corporation, Japan
- ASAPP Information Group - India
- Ministry of Finance - Indonesia
- Riau Bara Harum - Indonesia
- Australian Coal Association
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Eastern Energy - Thailand
- Rashtriya Ispat Nigam Limited - India
- Simpson Spence & Young - Indonesia
- Standard Chartered Bank - UAE
- Heidelberg Cement - Germany
- CIMB Investment Bank - Malaysia
- European Bulk Services B.V. - Netherlands
- Lanco Infratech Ltd - India
- Manunggal Multi Energi - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Sinarmas Energy and Mining - Indonesia
- White Energy Company Limited
- Electricity Authority, New Zealand
- Posco Energy - South Korea
- Bayan Resources Tbk. - Indonesia
- Chamber of Mines of South Africa
- Indogreen Group - Indonesia
- Iligan Light & Power Inc, Philippines
- Sical Logistics Limited - India
- Samtan Co., Ltd - South Korea
- Jindal Steel & Power Ltd - India
- Straits Asia Resources Limited - Singapore
- Malabar Cements Ltd - India
- IHS Mccloskey Coal Group - USA
- Aditya Birla Group - India
- Central Electricity Authority - India
- Aboitiz Power Corporation - Philippines
- Grasim Industreis Ltd - India
- Global Business Power Corporation, Philippines
- Bhushan Steel Limited - India
- Indo Tambangraya Megah - Indonesia
- Mintek Dendrill Indonesia
- Indika Energy - Indonesia
- Meenaskhi Energy Private Limited - India
- OPG Power Generation Pvt Ltd - India
- Attock Cement Pakistan Limited
- Videocon Industries ltd - India
- Georgia Ports Authority, United States
- Billiton Holdings Pty Ltd - Australia
- Bangladesh Power Developement Board
- Kapuas Tunggal Persada - Indonesia
- Oldendorff Carriers - Singapore
- Directorate General of MIneral and Coal - Indonesia
- Energy Link Ltd, New Zealand
- Essar Steel Hazira Ltd - India
- Cement Manufacturers Association - India
- Antam Resourcindo - Indonesia
- Singapore Mercantile Exchange
- Uttam Galva Steels Limited - India
- Holcim Trading Pte Ltd - Singapore
- SMG Consultants - Indonesia
- Independent Power Producers Association of India
- Medco Energi Mining Internasional
- Carbofer General Trading SA - India
- Cigading International Bulk Terminal - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Kohat Cement Company Ltd. - Pakistan
- Parry Sugars Refinery, India
- Binh Thuan Hamico - Vietnam
- Wood Mackenzie - Singapore
- Bukit Makmur.PT - Indonesia
- Trasteel International SA, Italy
- Maheswari Brothers Coal Limited - India
- Petron Corporation, Philippines
- Electricity Generating Authority of Thailand
- Interocean Group of Companies - India
- Alfred C Toepfer International GmbH - Germany
- Semirara Mining Corp, Philippines
- Formosa Plastics Group - Taiwan
- Australian Commodity Traders Exchange
- Indian Oil Corporation Limited
- Global Green Power PLC Corporation, Philippines
- Gujarat Sidhee Cement - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Barasentosa Lestari - Indonesia
- Sarangani Energy Corporation, Philippines
- Sree Jayajothi Cements Limited - India
- Ind-Barath Power Infra Limited - India
- SN Aboitiz Power Inc, Philippines
- London Commodity Brokers - England
- MS Steel International - UAE
- Intertek Mineral Services - Indonesia
- Parliament of New Zealand
- Krishnapatnam Port Company Ltd. - India
- Goldman Sachs - Singapore
- GVK Power & Infra Limited - India
- Marubeni Corporation - India
- Globalindo Alam Lestari - Indonesia
- Bukit Baiduri Energy - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Ambuja Cements Ltd - India
- Merrill Lynch Commodities Europe
- Meralco Power Generation, Philippines
- Global Coal Blending Company Limited - Australia
- Bhoruka Overseas - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Bahari Cakrawala Sebuku - Indonesia
- Bhatia International Limited - India
- Kepco SPC Power Corporation, Philippines
- New Zealand Coal & Carbon
- Orica Australia Pty. Ltd.
- Tamil Nadu electricity Board
- Sojitz Corporation - Japan
- Karbindo Abesyapradhi - Indoneisa
- TeaM Sual Corporation - Philippines
- San Jose City I Power Corp, Philippines
- Kaltim Prima Coal - Indonesia
- Vedanta Resources Plc - India
- Kobexindo Tractors - Indoneisa
- Price Waterhouse Coopers - Russia
- Dalmia Cement Bharat India
- Bukit Asam (Persero) Tbk - Indonesia
- GMR Energy Limited - India
- Ceylon Electricity Board - Sri Lanka
- Kartika Selabumi Mining - Indonesia
- Madhucon Powers Ltd - India
- Makarim & Taira - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- The Treasury - Australian Government
- Indian Energy Exchange, India
- Sakthi Sugars Limited - India
- VISA Power Limited - India
- The State Trading Corporation of India Ltd
- Central Java Power - Indonesia
- Ministry of Mines - Canada
- Edison Trading Spa - Italy
- Xindia Steels Limited - India
- Salva Resources Pvt Ltd - India
- Directorate Of Revenue Intelligence - India
- Renaissance Capital - South Africa
- Tata Chemicals Ltd - India
- Mercuria Energy - Indonesia
- Thiess Contractors Indonesia
- Pendopo Energi Batubara - Indonesia
- Romanian Commodities Exchange
- South Luzon Thermal Energy Corporation
- Timah Investasi Mineral - Indoneisa
- GN Power Mariveles Coal Plant, Philippines
- GAC Shipping (India) Pvt Ltd
- Indonesian Coal Mining Association
- Rio Tinto Coal - Australia
- Kideco Jaya Agung - Indonesia
- Eastern Coal Council - USA
- Mercator Lines Limited - India
- Vizag Seaport Private Limited - India
- Coastal Gujarat Power Limited - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Petrochimia International Co. Ltd.- Taiwan
- Ministry of Transport, Egypt
- Sindya Power Generating Company Private Ltd
- Jaiprakash Power Ventures ltd
- Vijayanagar Sugar Pvt Ltd - India
- Port Waratah Coal Services - Australia
- Economic Council, Georgia
- Wilmar Investment Holdings
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- The University of Queensland
- McConnell Dowell - Australia
- Gujarat Mineral Development Corp Ltd - India
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