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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, 16 December 15
FOB RICHARDS BAY COAL SWAP SLUMP 5.5% FROM LAST MONTH
COALspot.com: API4 FOB Richards Bay Coal swap for delivery Q1’ 2016 decline month over month and week over week.
The Q1’ 2016 &nbs ...
Wednesday, 16 December 15
MARKET INSIGHT - KATERINA RESTIS
On Friday 4th of December the meeting of OPEC was held in Vienna, Austria. Since its last meeting, oil and product stock levels have continued to r ...
Tuesday, 15 December 15
THE GOVERNMENT DECLARED THERMAL COAL BENCHMARK PRICE CRASHING ONCE AGAIN
COALspot.com: Low coal demand and excess supplies sent Indonesian benchmark coal price down to below 2009 level. HBA has slumped by 1.69% mo ...
Tuesday, 15 December 15
API 5 FOB NEWCASTLE COAL SWAP FIRM W-W; WEAK M-M
COALspot.com: API 5 FOB Newcastle Coal swap for Q1’ 2016 delivery slid $.13 per ton (0.35%) month over month to US$ 37.07 per ton. The swap w ...
Monday, 14 December 15
5000 GAR CS (I) COAL INDEX DECLINE US$ 0.04 PER TON W-O-W
COALspot.com: The 5000 GAR CS (i) coal index decline US$ 0.04 per ton (-0.10 %) week over week.
According to the CS (i) coal (system generated ...
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- New Zealand Coal & Carbon
- Intertek Mineral Services - Indonesia
- Indonesian Coal Mining Association
- GN Power Mariveles Coal Plant, Philippines
- Australian Commodity Traders Exchange
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- Neyveli Lignite Corporation Ltd, - India
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- Meralco Power Generation, Philippines
- Altura Mining Limited, Indonesia
- San Jose City I Power Corp, Philippines
- Metalloyd Limited - United Kingdom
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- Parry Sugars Refinery, India
- Bhushan Steel Limited - India
- Baramulti Group, Indonesia
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- Lanco Infratech Ltd - India
- Gujarat Mineral Development Corp Ltd - India
- London Commodity Brokers - England
- Kepco SPC Power Corporation, Philippines
- CIMB Investment Bank - Malaysia
- Sree Jayajothi Cements Limited - India
- India Bulls Power Limited - India
- Bayan Resources Tbk. - Indonesia
- Sindya Power Generating Company Private Ltd
- Independent Power Producers Association of India
- Mercator Lines Limited - India
- Port Waratah Coal Services - Australia
- Offshore Bulk Terminal Pte Ltd, Singapore
- White Energy Company Limited
- Energy Link Ltd, New Zealand
- Coastal Gujarat Power Limited - India
- Bharathi Cement Corporation - India
- Power Finance Corporation Ltd., India
- Asmin Koalindo Tuhup - Indonesia
- Jaiprakash Power Ventures ltd
- PTC India Limited - India
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- MS Steel International - UAE
- Electricity Authority, New Zealand
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- Thai Mozambique Logistica
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- Siam City Cement PLC, Thailand
- Australian Coal Association
- Wilmar Investment Holdings
- Africa Commodities Group - South Africa
- Price Waterhouse Coopers - Russia
- Timah Investasi Mineral - Indoneisa
- AsiaOL BioFuels Corp., Philippines
- Ministry of Transport, Egypt
- Alfred C Toepfer International GmbH - Germany
- Rashtriya Ispat Nigam Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Cement Manufacturers Association - India
- Energy Development Corp, Philippines
- Commonwealth Bank - Australia
- Orica Mining Services - Indonesia
- Bhatia International Limited - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Mercuria Energy - Indonesia
- IEA Clean Coal Centre - UK
- Petrochimia International Co. Ltd.- Taiwan
- OPG Power Generation Pvt Ltd - India
- Sojitz Corporation - Japan
- Sakthi Sugars Limited - India
- Cigading International Bulk Terminal - Indonesia
- Bhoruka Overseas - Indonesia
- Deloitte Consulting - India
- Singapore Mercantile Exchange
- Uttam Galva Steels Limited - India
- The University of Queensland
- Global Coal Blending Company Limited - Australia
- Siam City Cement - Thailand
- Ministry of Mines - Canada
- Heidelberg Cement - Germany
- Standard Chartered Bank - UAE
- Kapuas Tunggal Persada - Indonesia
- Banpu Public Company Limited - Thailand
- Indika Energy - Indonesia
- Formosa Plastics Group - Taiwan
- Directorate General of MIneral and Coal - Indonesia
- Holcim Trading Pte Ltd - Singapore
- PNOC Exploration Corporation - Philippines
- Kobexindo Tractors - Indoneisa
- Savvy Resources Ltd - HongKong
- PetroVietnam Power Coal Import and Supply Company
- Antam Resourcindo - Indonesia
- Sarangani Energy Corporation, Philippines
- ICICI Bank Limited - India
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- Trasteel International SA, Italy
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Ceylon Electricity Board - Sri Lanka
- GVK Power & Infra Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- Minerals Council of Australia
- Samtan Co., Ltd - South Korea
- Leighton Contractors Pty Ltd - Australia
- Merrill Lynch Commodities Europe
- Aboitiz Power Corporation - Philippines
- Ind-Barath Power Infra Limited - India
- Billiton Holdings Pty Ltd - Australia
- Karaikal Port Pvt Ltd - India
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- Karbindo Abesyapradhi - Indoneisa
- IHS Mccloskey Coal Group - USA
- Toyota Tsusho Corporation, Japan
- Manunggal Multi Energi - Indonesia
- Global Green Power PLC Corporation, Philippines
- Therma Luzon, Inc, Philippines
- McConnell Dowell - Australia
- Romanian Commodities Exchange
- Bangladesh Power Developement Board
- Chamber of Mines of South Africa
- Eastern Coal Council - USA
- Dalmia Cement Bharat India
- Miang Besar Coal Terminal - Indonesia
- Coal and Oil Company - UAE
- Georgia Ports Authority, United States
- Kohat Cement Company Ltd. - Pakistan
- Essar Steel Hazira Ltd - India
- Kumho Petrochemical, South Korea
- Barasentosa Lestari - Indonesia
- Anglo American - United Kingdom
- Attock Cement Pakistan Limited
- Oldendorff Carriers - Singapore
- Chettinad Cement Corporation Ltd - India
- International Coal Ventures Pvt Ltd - India
- Kalimantan Lumbung Energi - Indonesia
- Bulk Trading Sa - Switzerland
- European Bulk Services B.V. - Netherlands
- Malabar Cements Ltd - India
- Videocon Industries ltd - India
- Sical Logistics Limited - India
- Straits Asia Resources Limited - Singapore
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Eastern Energy - Thailand
- Grasim Industreis Ltd - India
- Interocean Group of Companies - India
- Tamil Nadu electricity Board
- The State Trading Corporation of India Ltd
- Edison Trading Spa - Italy
- SMC Global Power, Philippines
- The Treasury - Australian Government
- Bukit Asam (Persero) Tbk - Indonesia
- Latin American Coal - Colombia
- Sinarmas Energy and Mining - Indonesia
- Xindia Steels Limited - India
- South Luzon Thermal Energy Corporation
- Pendopo Energi Batubara - Indonesia
- PowerSource Philippines DevCo
- Coalindo Energy - Indonesia
- Medco Energi Mining Internasional
- Directorate Of Revenue Intelligence - India
- Parliament of New Zealand
- Agrawal Coal Company - India
- Pipit Mutiara Jaya. PT, Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Semirara Mining Corp, Philippines
- Renaissance Capital - South Africa
- Globalindo Alam Lestari - Indonesia
- Petron Corporation, Philippines
- Iligan Light & Power Inc, Philippines
- Economic Council, Georgia
- Meenaskhi Energy Private Limited - India
- Indogreen Group - Indonesia
- Vizag Seaport Private Limited - India
- Planning Commission, India
- CNBM International Corporation - China
- Indo Tambangraya Megah - Indonesia
- GMR Energy Limited - India
- Goldman Sachs - Singapore
- Posco Energy - South Korea
- Bahari Cakrawala Sebuku - Indonesia
- Jindal Steel & Power Ltd - India
- Madhucon Powers Ltd - India
- Riau Bara Harum - Indonesia
- Global Business Power Corporation, Philippines
- Larsen & Toubro Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Kaltim Prima Coal - Indonesia
- Thiess Contractors Indonesia
- GAC Shipping (India) Pvt Ltd
- Maheswari Brothers Coal Limited - India
- Tata Chemicals Ltd - India
- SN Aboitiz Power Inc, Philippines
- TNB Fuel Sdn Bhd - Malaysia
- Maharashtra Electricity Regulatory Commission - India
- Bukit Makmur.PT - Indonesia
- Binh Thuan Hamico - Vietnam
- Indian Energy Exchange, India
- ASAPP Information Group - India
- Krishnapatnam Port Company Ltd. - India
- TeaM Sual Corporation - Philippines
- Indian Oil Corporation Limited
- Marubeni Corporation - India
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