We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
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
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Wednesday, 25 November 15
BIG CHINESE COPPER PROCESSORS DEFEND MARGINS THROUGH R&D, SAYS FITCH
Large Chinese copper processors are focusing on higher value-added products and investing in R&D to enhance their technical know-how to maintai ...
Wednesday, 25 November 15
BIMCO LAUNCHES ANTI-CORRUPTION CLAUSE FOR SHIPPING CONTRACTS WORLDWIDE
COALspot.com: BIMCO, is the world’s largest international shipping association, with 2,200 members in around 130 countries, has now launched ...
Wednesday, 25 November 15
TANKER MARKET INSIGHT - GEORGE VASTARDIS
We have already noticed obvious signs of activity mainly West of Suez, which are currently driving the clean MR market to higher levels. Over the p ...
Tuesday, 24 November 15
COAL SUPPLY PRESSURE PUTS INDONESIAN HBA IN FREE FALL
The coal industry is slowly recognizing that, the current coal price level is not a decrease in price, but a change in pricing to corresp ...
Tuesday, 24 November 15
COAL PRICES SET TO REMAIN UNDER PRESSURE UNTIL 2016 DUE TO OVER SUPPLY GLUT; H1 '16 COAL SWAPS DOWN 13% M-M
COALspot.com: API 5 FOB Newcastle Coal swap for Q1’ 2016 delivery slid $5 per ton (12.05%) month over month to US$ 36.50 per ton. The s ...
|
|
|
Showing 2691 to 2695 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Indo Tambangraya Megah - Indonesia
- Trasteel International SA, Italy
- ICICI Bank Limited - India
- Orica Australia Pty. Ltd.
- Africa Commodities Group - South Africa
- Kohat Cement Company Ltd. - Pakistan
- Price Waterhouse Coopers - Russia
- OPG Power Generation Pvt Ltd - India
- Coastal Gujarat Power Limited - India
- Toyota Tsusho Corporation, Japan
- Central Java Power - Indonesia
- Global Coal Blending Company Limited - Australia
- Gujarat Sidhee Cement - India
- PetroVietnam Power Coal Import and Supply Company
- SMG Consultants - Indonesia
- Oldendorff Carriers - Singapore
- IEA Clean Coal Centre - UK
- Kalimantan Lumbung Energi - Indonesia
- Indonesian Coal Mining Association
- Holcim Trading Pte Ltd - Singapore
- GVK Power & Infra Limited - India
- Videocon Industries ltd - India
- Sinarmas Energy and Mining - Indonesia
- Power Finance Corporation Ltd., India
- Ambuja Cements Ltd - India
- Cement Manufacturers Association - India
- Tamil Nadu electricity Board
- Borneo Indobara - Indonesia
- Chettinad Cement Corporation Ltd - India
- Pipit Mutiara Jaya. PT, Indonesia
- Energy Link Ltd, New Zealand
- Wilmar Investment Holdings
- PowerSource Philippines DevCo
- Siam City Cement - Thailand
- Ceylon Electricity Board - Sri Lanka
- Mercuria Energy - Indonesia
- Standard Chartered Bank - UAE
- Billiton Holdings Pty Ltd - Australia
- Alfred C Toepfer International GmbH - Germany
- Ministry of Finance - Indonesia
- India Bulls Power Limited - India
- Australian Commodity Traders Exchange
- Global Business Power Corporation, Philippines
- Krishnapatnam Port Company Ltd. - India
- The State Trading Corporation of India Ltd
- Eastern Energy - Thailand
- Madhucon Powers Ltd - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Coalindo Energy - Indonesia
- Simpson Spence & Young - Indonesia
- Indian Energy Exchange, India
- Baramulti Group, Indonesia
- Cigading International Bulk Terminal - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Romanian Commodities Exchange
- Essar Steel Hazira Ltd - India
- SMC Global Power, Philippines
- TeaM Sual Corporation - Philippines
- Metalloyd Limited - United Kingdom
- European Bulk Services B.V. - Netherlands
- Marubeni Corporation - India
- Leighton Contractors Pty Ltd - Australia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- The University of Queensland
- Karbindo Abesyapradhi - Indoneisa
- Electricity Authority, New Zealand
- Goldman Sachs - Singapore
- The Treasury - Australian Government
- Bulk Trading Sa - Switzerland
- Thiess Contractors Indonesia
- Semirara Mining Corp, Philippines
- Jorong Barutama Greston.PT - Indonesia
- Riau Bara Harum - Indonesia
- Global Green Power PLC Corporation, Philippines
- Mintek Dendrill Indonesia
- Pendopo Energi Batubara - Indonesia
- Meralco Power Generation, Philippines
- Economic Council, Georgia
- Sical Logistics Limited - India
- Anglo American - United Kingdom
- Jindal Steel & Power Ltd - India
- Attock Cement Pakistan Limited
- Thai Mozambique Logistica
- Kumho Petrochemical, South Korea
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Kaltim Prima Coal - Indonesia
- Tata Chemicals Ltd - India
- Petron Corporation, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Electricity Generating Authority of Thailand
- Salva Resources Pvt Ltd - India
- Sree Jayajothi Cements Limited - India
- Globalindo Alam Lestari - Indonesia
- CNBM International Corporation - China
- Central Electricity Authority - India
- Kepco SPC Power Corporation, Philippines
- Makarim & Taira - Indonesia
- Interocean Group of Companies - India
- Straits Asia Resources Limited - Singapore
- Sakthi Sugars Limited - India
- Jaiprakash Power Ventures ltd
- London Commodity Brokers - England
- Heidelberg Cement - Germany
- Antam Resourcindo - Indonesia
- Energy Development Corp, Philippines
- Siam City Cement PLC, Thailand
- Mercator Lines Limited - India
- Singapore Mercantile Exchange
- Agrawal Coal Company - India
- Lanco Infratech Ltd - India
- Gujarat Electricity Regulatory Commission - India
- Planning Commission, India
- International Coal Ventures Pvt Ltd - India
- Savvy Resources Ltd - HongKong
- Merrill Lynch Commodities Europe
- Maheswari Brothers Coal Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Bukit Asam (Persero) Tbk - Indonesia
- Indogreen Group - Indonesia
- McConnell Dowell - Australia
- Sindya Power Generating Company Private Ltd
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Asmin Koalindo Tuhup - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Kobexindo Tractors - Indoneisa
- Rio Tinto Coal - Australia
- Malabar Cements Ltd - India
- Ministry of Transport, Egypt
- Coal and Oil Company - UAE
- Posco Energy - South Korea
- Bukit Baiduri Energy - Indonesia
- Directorate Of Revenue Intelligence - India
- Sarangani Energy Corporation, Philippines
- Grasim Industreis Ltd - India
- New Zealand Coal & Carbon
- Kapuas Tunggal Persada - Indonesia
- Larsen & Toubro Limited - India
- AsiaOL BioFuels Corp., Philippines
- IHS Mccloskey Coal Group - USA
- Offshore Bulk Terminal Pte Ltd, Singapore
- LBH Netherlands Bv - Netherlands
- Kideco Jaya Agung - Indonesia
- Vedanta Resources Plc - India
- Parry Sugars Refinery, India
- Samtan Co., Ltd - South Korea
- Indika Energy - Indonesia
- Ministry of Mines - Canada
- Uttam Galva Steels Limited - India
- Edison Trading Spa - Italy
- VISA Power Limited - India
- Australian Coal Association
- Medco Energi Mining Internasional
- Parliament of New Zealand
- Sojitz Corporation - Japan
- Renaissance Capital - South Africa
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Deloitte Consulting - India
- Neyveli Lignite Corporation Ltd, - India
- PTC India Limited - India
- PNOC Exploration Corporation - Philippines
- White Energy Company Limited
- Wood Mackenzie - Singapore
- Indian Oil Corporation Limited
- Iligan Light & Power Inc, Philippines
- SN Aboitiz Power Inc, Philippines
- CIMB Investment Bank - Malaysia
- Mjunction Services Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Carbofer General Trading SA - India
- Altura Mining Limited, Indonesia
- Bukit Makmur.PT - Indonesia
- Star Paper Mills Limited - India
- Eastern Coal Council - USA
- South Luzon Thermal Energy Corporation
- Petrochimia International Co. Ltd.- Taiwan
- Formosa Plastics Group - Taiwan
- San Jose City I Power Corp, Philippines
- Ind-Barath Power Infra Limited - India
- Karaikal Port Pvt Ltd - India
- Semirara Mining and Power Corporation, Philippines
- Aboitiz Power Corporation - Philippines
- Georgia Ports Authority, United States
- Dalmia Cement Bharat India
- ASAPP Information Group - India
- GMR Energy Limited - India
- Port Waratah Coal Services - Australia
- Bayan Resources Tbk. - Indonesia
- Kartika Selabumi Mining - Indonesia
- Bhushan Steel Limited - India
- GAC Shipping (India) Pvt Ltd
- Orica Mining Services - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Bharathi Cement Corporation - India
- Timah Investasi Mineral - Indoneisa
- Independent Power Producers Association of India
- Intertek Mineral Services - Indonesia
- Latin American Coal - Colombia
- Bahari Cakrawala Sebuku - Indonesia
- Aditya Birla Group - India
- Bhatia International Limited - India
- Therma Luzon, Inc, Philippines
- Minerals Council of Australia
- Bangladesh Power Developement Board
- Bhoruka Overseas - Indonesia
- Xindia Steels Limited - India
- Banpu Public Company Limited - Thailand
- Chamber of Mines of South Africa
- Meenaskhi Energy Private Limited - India
- Barasentosa Lestari - Indonesia
- Binh Thuan Hamico - Vietnam
- Miang Besar Coal Terminal - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Vizag Seaport Private Limited - India
- Commonwealth Bank - Australia
- Manunggal Multi Energi - Indonesia
- MS Steel International - UAE
|
| |
| |
|
