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Wednesday, 05 February 14
MARKET INSIGHT - TASOS PAPADOPOULOS
 KNOWLEDGE TO ELEVATE
COALspot.com: Let's take a break from market prospects, numbers, order book etc. and shed some light on the conclusions of the Tribunals in two recently decided cases, namely "The Union Power" and "The Griffon", which any prudent Seller/Buyer should be aware of before entering into an MOA for a secondhand tonnage. In "the Griffon" case an MoA based upon NSF 93 had been signed on 1st May 2010 for the purchase of m/v Griffon. A deposit of 10pct (i.e USD 2,156,000) was payable within 3 banking days of signature; that is by 5th May, 2010. The deposit was not paid by that date and Sellers, on 6th May, 2010 cancelled the MOA as per their express contractual right and claimed the deposit. Buyers had accepted that their failure to pay the deposit was in breach of contract but argued that Sellers should only be entitled to claim "compensation for losses" (as per clause 13 ) and not the whole deposit.
The Court of Appeal confirmed that Buyers are liable for the amount of the (unpaid) whole deposit, if the MOA is terminated as a result of Buyers’ breach. This heralds a departure from the previously held view that under clause 13 of NSF 93, where a Buyer fails to pay the deposit under clause 2, Sellers "shall have the right to cancel this Agreement, and they shall be entitled to claim compensation for their losses and for all expenses incurred together with interest" (which might be less than the amount of the deposit). During the arbitration it was argued that the damages recoverable by Sellers should be the difference between contract and market price which were said to be US$275,000; that is, substantially less than the deposit (i.e. USD 2,156,000). The Court however, concluded that Sellers are in fact entitled to claim the whole deposit in such circumstances.
Anyway, it would not make sense for Buyers to be able to put themselves in a better position than the one they would have been had they not paid the deposit. This case is a reminder to Buyers of secondhand tonnage that if they agree to pay a deposit, under standard NSF terms, they will lose the deposit if they fail to perform, even if Sellers suffer no loss. The case of "The Union Power" in turn, has caused us to re-assess the Sellers' obligation under clause 11 of NSF 93 (Condition on Delivery) and a different understanding of the terms "As is where is " and "As she was at the time of inspection". The MOA in this case, included clause 11 that stipulated that the vessel was to be “delivered and taken over as she was at the time of inspection, fair wear and tear excepted”. When the dispute arose, the buyers argued that a term as to satisfactory quality was to be implied into the MOA by way of s.14(2) of the Sale of Goods Act 1979 (SOGA). Sellers argued that the provision of clause 11, that the vessel was to be sold “as she was”, was inconsistent with implying such a term. The Commercial Court decided in favor of the Buyers, concluding that "class does not tell you the quality of the vessel, which is why the independent implied term as to satisfactory quality is required".
As a result, the effects of the expressions "As is" or "As is where is" no longer exclude the right of Buyers to claim for damages for breach of implied “quality” but only to exclude their right to reject the vessel and not take delivery of her as per the terms and provisions of the MOA. In my view, the above decision is contrary to the commercial common sense and market understanding that has been the basis for thousands of deals over the years.
However, it is worth mentioning that the new NSF 2012 includes wording under Clause 18 which excludes the SOGA regime. Ultimately, what matters is whether the parties have used express and clear wording, such as that of NSF2012, to exclude the SOGA regime if they wish to exclude the satisfactory quality rule.
Compiled by:
Intermodal Research & Valuations | research@intermodal.gr
Analysts:
Mr. George Lazaridis | g.lazaridis@intermodal.gr
Ms. Eva Tzima | e.tzima@intermodal.gr
Disclaimer and legal disclosure: For any further queries please do not hesitate to contact our Research & Valuations Department. The information contained in this report has been obtained from various sources, as reported in the market. Intermodal Shipbrokers Co. believes such information to be factual and reliable without making guarantees regarding its accuracy or completeness. Whilst every care has been taken in the production of the above review, no liability can be accepted for any loss or damage incurred in any way whatsoever by any person who may seek to rely on the information and views contained in this material. This report is being produced for the internal use of the intended recipients only and no re-producing is allowed, without the prior written authorization of Intermodal Shipbrokers Co.
Information contained within the website of COALspot.com is intended for informational purposes only and is not intended as professional counsel and should not be used as such.
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Thursday, 06 February 14
THE WORLD LARGEST COAL EXPORTER SHIPPED AROUND 35.90 MMT OF COAL IN DECEMBER 2013
COALspot.com: Indonesia, the world 4th largest coal producer and the Global largest multi grade coal exporter shipped around $2* billion worth ...
Thursday, 06 February 14
PANAMAX: FAR EAST IS ALMOST ABSENT AND ATLANTIC ON SLOW STEAM
Handy
Due to ongoing Chinese New Year the market is still quiet. Slowly we can see some fresh coal cargos entering the market with second half Feb/ ...
Wednesday, 05 February 14
DRY BULK MARKET HAS LOST FURTHER GROUND THIS PAST WEEK - INTERMODAL
COALspot.com: The Dry Bulk market has lost further ground this past week as activity ex-Far East disappeared into the Chinese holidays and owners id ...
Tuesday, 04 February 14
NEWCASTLE PORT'S WEEKLY COAL EXPORTS HIT NEW HIGH OF 3.53 MMT
COALspot.com: In the week ended 3 February 2014, power plant and semi-soft coking coal shipments from the port of Newcastle in Queensland, totalled ...
Monday, 03 February 14
SUB-BIT INDONESIA COAL SWAP GAINED WEEK ON WEEK
COALspot.com – Swaps prices gained for thermal coal loading from Indonesia, the world’s largest exporter of the fuel, according SGX.
...
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- Sarangani Energy Corporation, Philippines
- Riau Bara Harum - Indonesia
- Indian Energy Exchange, India
- Global Coal Blending Company Limited - Australia
- The State Trading Corporation of India Ltd
- South Luzon Thermal Energy Corporation
- CNBM International Corporation - China
- Manunggal Multi Energi - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Rio Tinto Coal - Australia
- ASAPP Information Group - India
- GAC Shipping (India) Pvt Ltd
- Petrochimia International Co. Ltd.- Taiwan
- Australian Coal Association
- Electricity Authority, New Zealand
- Malabar Cements Ltd - India
- Ministry of Mines - Canada
- Eastern Energy - Thailand
- Energy Link Ltd, New Zealand
- Mjunction Services Limited - India
- Holcim Trading Pte Ltd - Singapore
- MS Steel International - UAE
- Coalindo Energy - Indonesia
- Petron Corporation, Philippines
- Bhoruka Overseas - Indonesia
- PTC India Limited - India
- Wilmar Investment Holdings
- Directorate Of Revenue Intelligence - India
- Global Green Power PLC Corporation, Philippines
- Bukit Asam (Persero) Tbk - Indonesia
- Ind-Barath Power Infra Limited - India
- Gujarat Electricity Regulatory Commission - India
- OPG Power Generation Pvt Ltd - India
- Salva Resources Pvt Ltd - India
- Planning Commission, India
- Kobexindo Tractors - Indoneisa
- Sindya Power Generating Company Private Ltd
- San Jose City I Power Corp, Philippines
- Africa Commodities Group - South Africa
- SN Aboitiz Power Inc, Philippines
- Central Electricity Authority - India
- Mercuria Energy - Indonesia
- Meenaskhi Energy Private Limited - India
- Miang Besar Coal Terminal - Indonesia
- Bayan Resources Tbk. - Indonesia
- Star Paper Mills Limited - India
- New Zealand Coal & Carbon
- Kideco Jaya Agung - Indonesia
- Ambuja Cements Ltd - India
- Toyota Tsusho Corporation, Japan
- Semirara Mining and Power Corporation, Philippines
- Goldman Sachs - Singapore
- Port Waratah Coal Services - Australia
- Altura Mining Limited, Indonesia
- TeaM Sual Corporation - Philippines
- Economic Council, Georgia
- Thiess Contractors Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Orica Australia Pty. Ltd.
- Karaikal Port Pvt Ltd - India
- Kartika Selabumi Mining - Indonesia
- Essar Steel Hazira Ltd - India
- Aboitiz Power Corporation - Philippines
- LBH Netherlands Bv - Netherlands
- Straits Asia Resources Limited - Singapore
- Heidelberg Cement - Germany
- Renaissance Capital - South Africa
- Sical Logistics Limited - India
- Electricity Generating Authority of Thailand
- Timah Investasi Mineral - Indoneisa
- Aditya Birla Group - India
- Parliament of New Zealand
- Chamber of Mines of South Africa
- Bhatia International Limited - India
- Bangladesh Power Developement Board
- SMC Global Power, Philippines
- Kaltim Prima Coal - Indonesia
- Commonwealth Bank - Australia
- Binh Thuan Hamico - Vietnam
- Price Waterhouse Coopers - Russia
- Leighton Contractors Pty Ltd - Australia
- Larsen & Toubro Limited - India
- Baramulti Group, Indonesia
- Uttam Galva Steels Limited - India
- Gujarat Sidhee Cement - India
- Central Java Power - Indonesia
- Bukit Makmur.PT - Indonesia
- ICICI Bank Limited - India
- Indian Oil Corporation Limited
- Mercator Lines Limited - India
- Dalmia Cement Bharat India
- Karbindo Abesyapradhi - Indoneisa
- Attock Cement Pakistan Limited
- Bukit Baiduri Energy - Indonesia
- Banpu Public Company Limited - Thailand
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Rashtriya Ispat Nigam Limited - India
- Jaiprakash Power Ventures ltd
- PetroVietnam Power Coal Import and Supply Company
- Indo Tambangraya Megah - Indonesia
- Borneo Indobara - Indonesia
- Ministry of Transport, Egypt
- Directorate General of MIneral and Coal - Indonesia
- IEA Clean Coal Centre - UK
- Coastal Gujarat Power Limited - India
- Samtan Co., Ltd - South Korea
- Krishnapatnam Port Company Ltd. - India
- Global Business Power Corporation, Philippines
- Coal and Oil Company - UAE
- Carbofer General Trading SA - India
- Mintek Dendrill Indonesia
- Indogreen Group - Indonesia
- Oldendorff Carriers - Singapore
- Bharathi Cement Corporation - India
- Trasteel International SA, Italy
- AsiaOL BioFuels Corp., Philippines
- Bhushan Steel Limited - India
- Lanco Infratech Ltd - India
- Madhucon Powers Ltd - India
- PowerSource Philippines DevCo
- Simpson Spence & Young - Indonesia
- Power Finance Corporation Ltd., India
- Ministry of Finance - Indonesia
- Edison Trading Spa - Italy
- Sree Jayajothi Cements Limited - India
- Parry Sugars Refinery, India
- Vijayanagar Sugar Pvt Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Interocean Group of Companies - India
- Videocon Industries ltd - India
- GVK Power & Infra Limited - India
- Jindal Steel & Power Ltd - India
- Minerals Council of Australia
- Maheswari Brothers Coal Limited - India
- Alfred C Toepfer International GmbH - Germany
- Maharashtra Electricity Regulatory Commission - India
- Standard Chartered Bank - UAE
- Jorong Barutama Greston.PT - Indonesia
- Kumho Petrochemical, South Korea
- Sojitz Corporation - Japan
- Cement Manufacturers Association - India
- Antam Resourcindo - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Kapuas Tunggal Persada - Indonesia
- Indika Energy - Indonesia
- Vizag Seaport Private Limited - India
- Thai Mozambique Logistica
- Grasim Industreis Ltd - India
- VISA Power Limited - India
- Siam City Cement - Thailand
- Gujarat Mineral Development Corp Ltd - India
- European Bulk Services B.V. - Netherlands
- Georgia Ports Authority, United States
- Energy Development Corp, Philippines
- Pendopo Energi Batubara - Indonesia
- Wood Mackenzie - Singapore
- White Energy Company Limited
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Vedanta Resources Plc - India
- Merrill Lynch Commodities Europe
- Indonesian Coal Mining Association
- The University of Queensland
- Bulk Trading Sa - Switzerland
- Ceylon Electricity Board - Sri Lanka
- Bahari Cakrawala Sebuku - Indonesia
- Posco Energy - South Korea
- Xindia Steels Limited - India
- GMR Energy Limited - India
- Semirara Mining Corp, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Therma Luzon, Inc, Philippines
- Iligan Light & Power Inc, Philippines
- Tata Chemicals Ltd - India
- Globalindo Alam Lestari - Indonesia
- Australian Commodity Traders Exchange
- TNB Fuel Sdn Bhd - Malaysia
- Intertek Mineral Services - Indonesia
- Romanian Commodities Exchange
- Offshore Bulk Terminal Pte Ltd, Singapore
- Formosa Plastics Group - Taiwan
- Tamil Nadu electricity Board
- Independent Power Producers Association of India
- Savvy Resources Ltd - HongKong
- SMG Consultants - Indonesia
- Chettinad Cement Corporation Ltd - India
- Deloitte Consulting - India
- Siam City Cement PLC, Thailand
- McConnell Dowell - Australia
- Meralco Power Generation, Philippines
- India Bulls Power Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Barasentosa Lestari - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Cigading International Bulk Terminal - Indonesia
- Kepco SPC Power Corporation, Philippines
- International Coal Ventures Pvt Ltd - India
- Neyveli Lignite Corporation Ltd, - India
- Sakthi Sugars Limited - India
- Orica Mining Services - Indonesia
- The Treasury - Australian Government
- Medco Energi Mining Internasional
- Anglo American - United Kingdom
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Agrawal Coal Company - India
- Marubeni Corporation - India
- Latin American Coal - Colombia
- London Commodity Brokers - England
- Eastern Coal Council - USA
- PNOC Exploration Corporation - Philippines
- Sinarmas Energy and Mining - Indonesia
- Metalloyd Limited - United Kingdom
- IHS Mccloskey Coal Group - USA
- Singapore Mercantile Exchange
- Makarim & Taira - Indonesia
- Billiton Holdings Pty Ltd - Australia
- CIMB Investment Bank - Malaysia
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