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