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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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Monday, 23 November 15
NEGATIVE 2016 OUTLOOK FOR WESTERN EUROPEAN STEEL - SAYS FITCH RATINGS
COALspot.com: European steel in 2016 are both negative for the sector and for issuer ratings.
This reflects our expectation that import levels ...
Monday, 23 November 15
DRY BULK MARKET: NET FLEET GROWTH IS SLOWING DOWN, AS SHIP OWNERS ARE LOOKING FOR WAYS TO ALLEVIATING MARKET MELTDOWN - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
The dry bulk market has been in “meltdown” mode for a few weeks now, unable to find support and avoid the fall in historical lows. As s ...
Monday, 23 November 15
CS50 COAL INDEX CLOSED AT $40.27 PER TON; FELL 0.15% FROM LAST WEEK
COALspot.com: The 5700 GAR CS (i) coal index fell by US cents 3 per ton week over week on 20 November 2015. CS 57 (5700 GAR coal) index closed at U ...
Monday, 23 November 15
CFR SOUTH CHINA COAL SWAPS FALL FURTHER ON LOW DEMAND
COALspot.com: API 8 CFR South China Coal swap for Q1’ 2016 delivery declined US$ 6.75 (13.99%) per ton month over month.
A commodity swa ...
Sunday, 22 November 15
INDONESIA TO INDIA FREIGHT RATES TO REMAIN DULL NEXT WEEK
COALspot.com: The BDI was down to historical lows closing at 498 points which is down by almost 95.77 per cent compared to 11,800 points in 2008.
...
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- Karbindo Abesyapradhi - Indoneisa
- Grasim Industreis Ltd - India
- Singapore Mercantile Exchange
- Coalindo Energy - Indonesia
- SMC Global Power, Philippines
- Marubeni Corporation - India
- Price Waterhouse Coopers - Russia
- Madhucon Powers Ltd - India
- Neyveli Lignite Corporation Ltd, - India
- Indian Energy Exchange, India
- Edison Trading Spa - Italy
- South Luzon Thermal Energy Corporation
- The University of Queensland
- Power Finance Corporation Ltd., India
- Ceylon Electricity Board - Sri Lanka
- Indogreen Group - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- McConnell Dowell - Australia
- PowerSource Philippines DevCo
- Billiton Holdings Pty Ltd - Australia
- Xindia Steels Limited - India
- Electricity Generating Authority of Thailand
- Salva Resources Pvt Ltd - India
- Standard Chartered Bank - UAE
- Thai Mozambique Logistica
- Petrochimia International Co. Ltd.- Taiwan
- Cigading International Bulk Terminal - Indonesia
- Kaltim Prima Coal - Indonesia
- Bulk Trading Sa - Switzerland
- Globalindo Alam Lestari - Indonesia
- India Bulls Power Limited - India
- Interocean Group of Companies - India
- Bahari Cakrawala Sebuku - Indonesia
- Agrawal Coal Company - India
- Gujarat Mineral Development Corp Ltd - India
- Eastern Energy - Thailand
- Cement Manufacturers Association - India
- Kohat Cement Company Ltd. - Pakistan
- Metalloyd Limited - United Kingdom
- Simpson Spence & Young - Indonesia
- Mercator Lines Limited - India
- Georgia Ports Authority, United States
- Videocon Industries ltd - India
- Semirara Mining Corp, Philippines
- Vijayanagar Sugar Pvt Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Merrill Lynch Commodities Europe
- Parry Sugars Refinery, India
- Australian Coal Association
- Aditya Birla Group - India
- Bayan Resources Tbk. - Indonesia
- Economic Council, Georgia
- GMR Energy Limited - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Energy Development Corp, Philippines
- Orica Australia Pty. Ltd.
- Aboitiz Power Corporation - Philippines
- Indika Energy - Indonesia
- Samtan Co., Ltd - South Korea
- Goldman Sachs - Singapore
- Thiess Contractors Indonesia
- Ministry of Mines - Canada
- MS Steel International - UAE
- Maharashtra Electricity Regulatory Commission - India
- Essar Steel Hazira Ltd - India
- Carbofer General Trading SA - India
- Global Coal Blending Company Limited - Australia
- Romanian Commodities Exchange
- Bhoruka Overseas - Indonesia
- Ministry of Transport, Egypt
- Sical Logistics Limited - India
- Rio Tinto Coal - Australia
- Africa Commodities Group - South Africa
- Directorate General of MIneral and Coal - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Chettinad Cement Corporation Ltd - India
- Central Java Power - Indonesia
- SN Aboitiz Power Inc, Philippines
- Siam City Cement PLC, Thailand
- Miang Besar Coal Terminal - Indonesia
- Global Business Power Corporation, Philippines
- Independent Power Producers Association of India
- Electricity Authority, New Zealand
- Indo Tambangraya Megah - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Energy Link Ltd, New Zealand
- Star Paper Mills Limited - India
- Uttam Galva Steels Limited - India
- Barasentosa Lestari - Indonesia
- International Coal Ventures Pvt Ltd - India
- Medco Energi Mining Internasional
- Pendopo Energi Batubara - Indonesia
- Meenaskhi Energy Private Limited - India
- Bukit Baiduri Energy - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Semirara Mining and Power Corporation, Philippines
- Petron Corporation, Philippines
- Mintek Dendrill Indonesia
- Timah Investasi Mineral - Indoneisa
- PetroVietnam Power Coal Import and Supply Company
- ICICI Bank Limited - India
- Makarim & Taira - Indonesia
- CNBM International Corporation - China
- Lanco Infratech Ltd - India
- Kepco SPC Power Corporation, Philippines
- Pipit Mutiara Jaya. PT, Indonesia
- Alfred C Toepfer International GmbH - Germany
- Antam Resourcindo - Indonesia
- Coastal Gujarat Power Limited - India
- Coal and Oil Company - UAE
- Borneo Indobara - Indonesia
- Sree Jayajothi Cements Limited - India
- Bangladesh Power Developement Board
- Mercuria Energy - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Trasteel International SA, Italy
- Bank of Tokyo Mitsubishi UFJ Ltd
- Minerals Council of Australia
- Jindal Steel & Power Ltd - India
- Oldendorff Carriers - Singapore
- Kobexindo Tractors - Indoneisa
- PTC India Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Wood Mackenzie - Singapore
- CIMB Investment Bank - Malaysia
- Baramulti Group, Indonesia
- Intertek Mineral Services - Indonesia
- Bharathi Cement Corporation - India
- Leighton Contractors Pty Ltd - Australia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Bhatia International Limited - India
- Vizag Seaport Private Limited - India
- Riau Bara Harum - Indonesia
- The State Trading Corporation of India Ltd
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Therma Luzon, Inc, Philippines
- TeaM Sual Corporation - Philippines
- Wilmar Investment Holdings
- Dalmia Cement Bharat India
- Ambuja Cements Ltd - India
- Vedanta Resources Plc - India
- Karaikal Port Pvt Ltd - India
- New Zealand Coal & Carbon
- White Energy Company Limited
- GN Power Mariveles Coal Plant, Philippines
- Bhushan Steel Limited - India
- Global Green Power PLC Corporation, Philippines
- Anglo American - United Kingdom
- London Commodity Brokers - England
- IHS Mccloskey Coal Group - USA
- Bukit Asam (Persero) Tbk - Indonesia
- Formosa Plastics Group - Taiwan
- Sojitz Corporation - Japan
- Straits Asia Resources Limited - Singapore
- Chamber of Mines of South Africa
- Meralco Power Generation, Philippines
- Directorate Of Revenue Intelligence - India
- Central Electricity Authority - India
- Altura Mining Limited, Indonesia
- The Treasury - Australian Government
- Gujarat Sidhee Cement - India
- Posco Energy - South Korea
- Deloitte Consulting - India
- Kideco Jaya Agung - Indonesia
- Indonesian Coal Mining Association
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Ministry of Finance - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Attock Cement Pakistan Limited
- Sinarmas Energy and Mining - Indonesia
- VISA Power Limited - India
- PNOC Exploration Corporation - Philippines
- IEA Clean Coal Centre - UK
- Siam City Cement - Thailand
- SMG Consultants - Indonesia
- Savvy Resources Ltd - HongKong
- LBH Netherlands Bv - Netherlands
- Ind-Barath Power Infra Limited - India
- Maheswari Brothers Coal Limited - India
- Iligan Light & Power Inc, Philippines
- GVK Power & Infra Limited - India
- Jaiprakash Power Ventures ltd
- ASAPP Information Group - India
- Larsen & Toubro Limited - India
- European Bulk Services B.V. - Netherlands
- Gujarat Electricity Regulatory Commission - India
- Orica Mining Services - Indonesia
- Sindya Power Generating Company Private Ltd
- Eastern Coal Council - USA
- Indian Oil Corporation Limited
- Toyota Tsusho Corporation, Japan
- Parliament of New Zealand
- Kartika Selabumi Mining - Indonesia
- Commonwealth Bank - Australia
- Port Waratah Coal Services - Australia
- Tamil Nadu electricity Board
- Kumho Petrochemical, South Korea
- Australian Commodity Traders Exchange
- Planning Commission, India
- Malabar Cements Ltd - India
- GAC Shipping (India) Pvt Ltd
- Bukit Makmur.PT - Indonesia
- Tata Chemicals Ltd - India
- Mjunction Services Limited - India
- Sarangani Energy Corporation, Philippines
- Kalimantan Lumbung Energi - Indonesia
- Binh Thuan Hamico - Vietnam
- Manunggal Multi Energi - Indonesia
- Heidelberg Cement - Germany
- Banpu Public Company Limited - Thailand
- Renaissance Capital - South Africa
- San Jose City I Power Corp, Philippines
- Holcim Trading Pte Ltd - Singapore
- Sakthi Sugars Limited - India
- Krishnapatnam Port Company Ltd. - India
- OPG Power Generation Pvt Ltd - India
- Latin American Coal - Colombia
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