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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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Thursday, 31 December 15
2016 FOB NEWCASTLE COAL SWAP RALLY TO CLOSE AT $37.98/TON
COALspot.com: API 5 FOB Newcastle Coal swap for Q1’ 2016 delivery rose another $1.48 per ton (4.05%) this past week compared to the sam ...
Wednesday, 30 December 15
FINAL DEALS OF THE YEAR TAKING PLACE, AS SHIP OWNERS PREPARE FOR 2016 - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
The Holidays’ investment lull has taken a grip over the newbuilding and S&P market for second hand vessels, as shipbrokers are reporting ...
Tuesday, 29 December 15
CFR SOUTH CHINA COAL SWAPS ROSE MONTH OVER MONTH
COALspot.com: API 8 CFR South China Coal swap for Q1’ 2016 delivery rose US$ 0.68 (1.64%) per ton month over month.
A commodity swap is ...
Monday, 28 December 15
Q2' 15 U.S. STEAM COAL EXPORTS TOTALED 7.0 MMST; DOWN 16.9% FROM Q1 2015 - EIA
COALspot.com: U.S. coal production during second quarter 2015 totaled 211.1 million short tons.
According to EIA’s preliminary quarterly ...
Monday, 28 December 15
NOVEMBER NEWCASTLE COAL EXPORTS DECLINED 11.87%; THE AVERAGE PRICE OF COAL EXPORTS ROSE 1.37%
COALspot.com: The Port of Newcastle, Australia’s major trading ports and the world’s largest coal export port has shipped $1.120 billio ...
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- Ministry of Transport, Egypt
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- Indonesian Coal Mining Association
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- Ceylon Electricity Board - Sri Lanka
- Videocon Industries ltd - India
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- CIMB Investment Bank - Malaysia
- Karaikal Port Pvt Ltd - India
- Altura Mining Limited, Indonesia
- SMC Global Power, Philippines
- Eastern Coal Council - USA
- Rio Tinto Coal - Australia
- Indika Energy - Indonesia
- South Luzon Thermal Energy Corporation
- Manunggal Multi Energi - Indonesia
- Chamber of Mines of South Africa
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- Holcim Trading Pte Ltd - Singapore
- Vedanta Resources Plc - India
- Medco Energi Mining Internasional
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- New Zealand Coal & Carbon
- Commonwealth Bank - Australia
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- Baramulti Group, Indonesia
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- Wood Mackenzie - Singapore
- Thiess Contractors Indonesia
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- Ambuja Cements Ltd - India
- Trasteel International SA, Italy
- Energy Link Ltd, New Zealand
- Ministry of Mines - Canada
- Latin American Coal - Colombia
- Metalloyd Limited - United Kingdom
- Gujarat Mineral Development Corp Ltd - India
- The State Trading Corporation of India Ltd
- Maharashtra Electricity Regulatory Commission - India
- Sakthi Sugars Limited - India
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- Kohat Cement Company Ltd. - Pakistan
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- Meralco Power Generation, Philippines
- Siam City Cement - Thailand
- Global Business Power Corporation, Philippines
- Price Waterhouse Coopers - Russia
- Deloitte Consulting - India
- Mintek Dendrill Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Timah Investasi Mineral - Indoneisa
- Petron Corporation, Philippines
- White Energy Company Limited
- India Bulls Power Limited - India
- Gujarat Sidhee Cement - India
- Straits Asia Resources Limited - Singapore
- Agrawal Coal Company - India
- Kalimantan Lumbung Energi - Indonesia
- GVK Power & Infra Limited - India
- Xindia Steels Limited - India
- AsiaOL BioFuels Corp., Philippines
- Antam Resourcindo - Indonesia
- Savvy Resources Ltd - HongKong
- Gujarat Electricity Regulatory Commission - India
- Eastern Energy - Thailand
- PetroVietnam Power Coal Import and Supply Company
- Cement Manufacturers Association - India
- Toyota Tsusho Corporation, Japan
- Sical Logistics Limited - India
- Orica Mining Services - Indonesia
- Maheswari Brothers Coal Limited - India
- Minerals Council of Australia
- Iligan Light & Power Inc, Philippines
- Renaissance Capital - South Africa
- Bhoruka Overseas - Indonesia
- Indo Tambangraya Megah - Indonesia
- Electricity Generating Authority of Thailand
- International Coal Ventures Pvt Ltd - India
- ICICI Bank Limited - India
- Global Green Power PLC Corporation, Philippines
- Samtan Co., Ltd - South Korea
- Africa Commodities Group - South Africa
- Bangladesh Power Developement Board
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Independent Power Producers Association of India
- Cigading International Bulk Terminal - Indonesia
- Tata Chemicals Ltd - India
- Malabar Cements Ltd - India
- Semirara Mining and Power Corporation, Philippines
- Kumho Petrochemical, South Korea
- Therma Luzon, Inc, Philippines
- European Bulk Services B.V. - Netherlands
- Edison Trading Spa - Italy
- Globalindo Alam Lestari - Indonesia
- The University of Queensland
- ASAPP Information Group - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Sarangani Energy Corporation, Philippines
- Indian Energy Exchange, India
- Romanian Commodities Exchange
- Karbindo Abesyapradhi - Indoneisa
- Standard Chartered Bank - UAE
- Bukit Makmur.PT - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Anglo American - United Kingdom
- Global Coal Blending Company Limited - Australia
- Port Waratah Coal Services - Australia
- Economic Council, Georgia
- Borneo Indobara - Indonesia
- Planning Commission, India
- Central Java Power - Indonesia
- Dalmia Cement Bharat India
- Meenaskhi Energy Private Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Larsen & Toubro Limited - India
- Mercator Lines Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- Parliament of New Zealand
- Coal and Oil Company - UAE
- Coastal Gujarat Power Limited - India
- Parry Sugars Refinery, India
- Interocean Group of Companies - India
- Rashtriya Ispat Nigam Limited - India
- Pendopo Energi Batubara - Indonesia
- Thai Mozambique Logistica
- Kobexindo Tractors - Indoneisa
- Aboitiz Power Corporation - Philippines
- Bayan Resources Tbk. - Indonesia
- PTC India Limited - India
- Riau Bara Harum - Indonesia
- Australian Commodity Traders Exchange
- Georgia Ports Authority, United States
- Kartika Selabumi Mining - Indonesia
- Aditya Birla Group - India
- Sojitz Corporation - Japan
- Kepco SPC Power Corporation, Philippines
- Asia Pacific Energy Resources Ventures Inc, Philippines
- IHS Mccloskey Coal Group - USA
- Australian Coal Association
- Essar Steel Hazira Ltd - India
- Bukit Baiduri Energy - Indonesia
- Lanco Infratech Ltd - India
- GAC Shipping (India) Pvt Ltd
- SN Aboitiz Power Inc, Philippines
- Vizag Seaport Private Limited - India
- The Treasury - Australian Government
- Orica Australia Pty. Ltd.
- Leighton Contractors Pty Ltd - Australia
- Pipit Mutiara Jaya. PT, Indonesia
- Coalindo Energy - Indonesia
- Kideco Jaya Agung - Indonesia
- Sree Jayajothi Cements Limited - India
- Bhatia International Limited - India
- McConnell Dowell - Australia
- Sinarmas Energy and Mining - Indonesia
- Ministry of Finance - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Uttam Galva Steels Limited - India
- Mercuria Energy - Indonesia
- CNBM International Corporation - China
- Energy Development Corp, Philippines
- Power Finance Corporation Ltd., India
- Star Paper Mills Limited - India
- Neyveli Lignite Corporation Ltd, - India
- Central Electricity Authority - India
- Bharathi Cement Corporation - India
- Goldman Sachs - Singapore
- Bhushan Steel Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Carbofer General Trading SA - India
- Mjunction Services Limited - India
- Directorate Of Revenue Intelligence - India
- Barasentosa Lestari - Indonesia
- Jaiprakash Power Ventures ltd
- Heidelberg Cement - Germany
- Jindal Steel & Power Ltd - India
- Bukit Asam (Persero) Tbk - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- PNOC Exploration Corporation - Philippines
- Indian Oil Corporation Limited
- Offshore Bulk Terminal Pte Ltd, Singapore
- LBH Netherlands Bv - Netherlands
- MS Steel International - UAE
- Sindya Power Generating Company Private Ltd
- Marubeni Corporation - India
- Alfred C Toepfer International GmbH - Germany
- Jorong Barutama Greston.PT - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Electricity Authority, New Zealand
- Grasim Industreis Ltd - India
- Makarim & Taira - Indonesia
- Siam City Cement PLC, Thailand
- SMG Consultants - Indonesia
- IEA Clean Coal Centre - UK
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Salva Resources Pvt Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Wilmar Investment Holdings
- VISA Power Limited - India
- TeaM Sual Corporation - Philippines
- Binh Thuan Hamico - Vietnam
- PowerSource Philippines DevCo
- London Commodity Brokers - England
- Bulk Trading Sa - Switzerland
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