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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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Tuesday, 13 February 24
WHAT IS THE OUTLOOK FOR THE NATURAL GAS SPOT PRICE IN 2024 AND 2025? EIA
We expect the U.S. benchmark Henry Hub natural gas spot price to average higher in 2024 and 2025 than in 2023, but to remain lower than $3.00 per m ...
Monday, 12 February 24
US THERMAL COAL EXPORTS HIT 5-YEAR HIGHS AND TOP $5 BLN IN 2023 - REUTERS
United States exporters of thermal coal earned more than $5 billion in 2023 as they shipped out more than 32.5 million metric tons of the high-poll ...
Tuesday, 06 February 24
NEW E-FUELS PROJECT TO MAKE INTERNATIONAL SHIPPING CLIMATE-NEUTRAL - RINA
Transport and trade on the ocean blue must be made much greener. This is the goal of the new €17 million European GAMMA project, where compani ...
Tuesday, 06 February 24
INDIA SEES ANNUAL COAL OUTPUT UP 10.9% IN 2024/25 - REUTERS
India expects domestic coal output to increase by 10.9% to 1.13 billion metric tons in the fiscal year ending March 2025, a senior government offic ...
Tuesday, 06 February 24
INDIA'S COAL PRODUCTION INCREASES BY 10.3% TO 99.73 MILLION TONNE IN JANUARY - PTI
The country’s coal output rose 10.3 per cent to 99.73 Million Tonne (MT) in January, over the same month in the previous fiscal.
...
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Showing 36 to 40 news of total 6871 |
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- Africa Commodities Group - South Africa
- Binh Thuan Hamico - Vietnam
- Goldman Sachs - Singapore
- Bharathi Cement Corporation - India
- Karaikal Port Pvt Ltd - India
- Rio Tinto Coal - Australia
- LBH Netherlands Bv - Netherlands
- Therma Luzon, Inc, Philippines
- Straits Asia Resources Limited - Singapore
- Videocon Industries ltd - India
- Borneo Indobara - Indonesia
- Energy Link Ltd, New Zealand
- Petrochimia International Co. Ltd.- Taiwan
- Coal and Oil Company - UAE
- Coalindo Energy - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Marubeni Corporation - India
- Carbofer General Trading SA - India
- New Zealand Coal & Carbon
- European Bulk Services B.V. - Netherlands
- PNOC Exploration Corporation - Philippines
- Merrill Lynch Commodities Europe
- Tamil Nadu electricity Board
- Savvy Resources Ltd - HongKong
- Interocean Group of Companies - India
- Ind-Barath Power Infra Limited - India
- Singapore Mercantile Exchange
- Simpson Spence & Young - Indonesia
- Bukit Baiduri Energy - Indonesia
- Kaltim Prima Coal - Indonesia
- OPG Power Generation Pvt Ltd - India
- Kideco Jaya Agung - Indonesia
- Mercuria Energy - Indonesia
- Makarim & Taira - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Coastal Gujarat Power Limited - India
- Formosa Plastics Group - Taiwan
- Baramulti Group, Indonesia
- Global Business Power Corporation, Philippines
- Meralco Power Generation, Philippines
- Australian Commodity Traders Exchange
- Miang Besar Coal Terminal - Indonesia
- Orica Australia Pty. Ltd.
- Vedanta Resources Plc - India
- Kepco SPC Power Corporation, Philippines
- Sarangani Energy Corporation, Philippines
- Deloitte Consulting - India
- Ministry of Transport, Egypt
- Gujarat Mineral Development Corp Ltd - India
- Gujarat Sidhee Cement - India
- Bhoruka Overseas - Indonesia
- Eastern Coal Council - USA
- International Coal Ventures Pvt Ltd - India
- The University of Queensland
- SN Aboitiz Power Inc, Philippines
- Medco Energi Mining Internasional
- Bahari Cakrawala Sebuku - Indonesia
- Power Finance Corporation Ltd., India
- South Luzon Thermal Energy Corporation
- Metalloyd Limited - United Kingdom
- Attock Cement Pakistan Limited
- Renaissance Capital - South Africa
- Central Electricity Authority - India
- CNBM International Corporation - China
- Bangladesh Power Developement Board
- Thai Mozambique Logistica
- Bank of Tokyo Mitsubishi UFJ Ltd
- Ministry of Finance - Indonesia
- Manunggal Multi Energi - Indonesia
- Aboitiz Power Corporation - Philippines
- Trasteel International SA, Italy
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Sical Logistics Limited - India
- Planning Commission, India
- IEA Clean Coal Centre - UK
- Maharashtra Electricity Regulatory Commission - India
- White Energy Company Limited
- PTC India Limited - India
- Parry Sugars Refinery, India
- Indian Energy Exchange, India
- Dalmia Cement Bharat India
- San Jose City I Power Corp, Philippines
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Indonesian Coal Mining Association
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Star Paper Mills Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Leighton Contractors Pty Ltd - Australia
- PowerSource Philippines DevCo
- Petron Corporation, Philippines
- The Treasury - Australian Government
- Maheswari Brothers Coal Limited - India
- Indo Tambangraya Megah - Indonesia
- Independent Power Producers Association of India
- Bukit Asam (Persero) Tbk - Indonesia
- Toyota Tsusho Corporation, Japan
- India Bulls Power Limited - India
- Minerals Council of Australia
- Indogreen Group - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Ceylon Electricity Board - Sri Lanka
- Xindia Steels Limited - India
- The State Trading Corporation of India Ltd
- Economic Council, Georgia
- Energy Development Corp, Philippines
- Gujarat Electricity Regulatory Commission - India
- Pipit Mutiara Jaya. PT, Indonesia
- Antam Resourcindo - Indonesia
- Barasentosa Lestari - Indonesia
- Anglo American - United Kingdom
- Vijayanagar Sugar Pvt Ltd - India
- Ministry of Mines - Canada
- GAC Shipping (India) Pvt Ltd
- Indian Oil Corporation Limited
- PetroVietnam Power Coal Import and Supply Company
- Bayan Resources Tbk. - Indonesia
- Jaiprakash Power Ventures ltd
- Bulk Trading Sa - Switzerland
- Altura Mining Limited, Indonesia
- Samtan Co., Ltd - South Korea
- McConnell Dowell - Australia
- CIMB Investment Bank - Malaysia
- Electricity Generating Authority of Thailand
- Jorong Barutama Greston.PT - Indonesia
- Oldendorff Carriers - Singapore
- Intertek Mineral Services - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Chettinad Cement Corporation Ltd - India
- Neyveli Lignite Corporation Ltd, - India
- AsiaOL BioFuels Corp., Philippines
- Riau Bara Harum - Indonesia
- Central Java Power - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Jindal Steel & Power Ltd - India
- Kumho Petrochemical, South Korea
- Indika Energy - Indonesia
- Mercator Lines Limited - India
- Pendopo Energi Batubara - Indonesia
- Semirara Mining Corp, Philippines
- Sakthi Sugars Limited - India
- Mintek Dendrill Indonesia
- Sojitz Corporation - Japan
- Bhushan Steel Limited - India
- SMC Global Power, Philippines
- Chamber of Mines of South Africa
- Billiton Holdings Pty Ltd - Australia
- Salva Resources Pvt Ltd - India
- ASAPP Information Group - India
- Malabar Cements Ltd - India
- Timah Investasi Mineral - Indoneisa
- Directorate General of MIneral and Coal - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Port Waratah Coal Services - Australia
- Banpu Public Company Limited - Thailand
- Romanian Commodities Exchange
- Standard Chartered Bank - UAE
- Larsen & Toubro Limited - India
- Grasim Industreis Ltd - India
- Georgia Ports Authority, United States
- Commonwealth Bank - Australia
- Edison Trading Spa - Italy
- Eastern Energy - Thailand
- Uttam Galva Steels Limited - India
- Ambuja Cements Ltd - India
- MS Steel International - UAE
- Orica Mining Services - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Kartika Selabumi Mining - Indonesia
- Madhucon Powers Ltd - India
- Lanco Infratech Ltd - India
- Agrawal Coal Company - India
- Wood Mackenzie - Singapore
- Aditya Birla Group - India
- Latin American Coal - Colombia
- Electricity Authority, New Zealand
- Meenaskhi Energy Private Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- IHS Mccloskey Coal Group - USA
- Vizag Seaport Private Limited - India
- Tata Chemicals Ltd - India
- Sree Jayajothi Cements Limited - India
- Thiess Contractors Indonesia
- Rashtriya Ispat Nigam Limited - India
- GVK Power & Infra Limited - India
- VISA Power Limited - India
- Mjunction Services Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Semirara Mining and Power Corporation, Philippines
- Wilmar Investment Holdings
- SMG Consultants - Indonesia
- Globalindo Alam Lestari - Indonesia
- Directorate Of Revenue Intelligence - India
- Heidelberg Cement - Germany
- Posco Energy - South Korea
- London Commodity Brokers - England
- ICICI Bank Limited - India
- Siam City Cement - Thailand
- Essar Steel Hazira Ltd - India
- TeaM Sual Corporation - Philippines
- Price Waterhouse Coopers - Russia
- Bhatia International Limited - India
- Sinarmas Energy and Mining - Indonesia
- Australian Coal Association
- Krishnapatnam Port Company Ltd. - India
- Parliament of New Zealand
- Kapuas Tunggal Persada - Indonesia
- GMR Energy Limited - India
- Kobexindo Tractors - Indoneisa
- Iligan Light & Power Inc, Philippines
- Siam City Cement PLC, Thailand
- Global Coal Blending Company Limited - Australia
- Bukit Makmur.PT - Indonesia
- Global Green Power PLC Corporation, Philippines
- Sindya Power Generating Company Private Ltd
- Kalimantan Lumbung Energi - Indonesia
- Cement Manufacturers Association - India
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