We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
Monday, 25 January 16
SHOULD A DEFAULTING PARTY BE ENTITLED TO AN INNOCENT PARTY'S SAVING, FOLLOWING THEIR BREACH OF CONTRACT? - THE NEW FLAMENCO REVISITED
 KNOWLEDGE TO ELEVATE
This case was addressed by the club in our of January 2015, when the High Court decision became available. The background facts to the case are set out in detail in our earlier article, but to summarise briefly, the New Flamenco was time chartered to the charterer from February 2004 to November 2009. In breach of the charterparty terms, the charterer redelivered the ship two years early, in October 2007. Since there was no available charter market for a substitute fixture, the owner took the commercial decision to sell the ship in 2007. The owner subsequently commenced arbitration proceedings, claiming for the net loss of profit that they would have earned during the remaining two years of the charter. Later it became apparent, however, that due to the global financial crisis in late 2008 there was a significant difference in the value of the ship between late 2007 and late 2009 and the owner may well have benefitted from the early redelivery. Indeed, the sale price achieved by the owner was some $16.8m more than the value of the ship in November 2009. The owner’s claim for damages amounted to €7.6m, so if this benefit were to be taken into account then the owner’s claim would disappear in its entirety.
The London tribunal found that the sale was directly caused by the charterer’s early redelivery and, seeing no reason why capital savings should not be taken into account in considering the owner’s losses, the tribunal held that the charterer was entitled to the benefit. Whilst perhaps viewed as unfair by some, it should be remembered that it is normal practice when there is a breach of charter (voyage or time) for the court to take into account any income made on a mitigation voyage, and deduct this from the claim under the (wrongfully terminated) charter. So, why treat capital savings differently from savings in income?
Nevertheless, the High Court (on appeal from the tribunal) reversed this decision. The High Court held on the one hand that there was no need to treat savings in income differently from capital savings; however, on the other, the High Court held that there was no direct causal link between, here, the breach of time charter and the benefits obtained in the commercial sale of the ship. Instead, the High Court held that whilst the early redelivery may have ‘triggered’ the owner’s sale, the capital savings obtained by the owner arose from its own commercial decision to sell the ship. The charterer appealed this decision to the English Court of Appeal.
Court of Appeal decision
The Court of Appeal has, in its recent decision, unanimously overturned the High Court decision. In so doing, the owner’s claim for damages has failed in its entirety. In giving judgment, the Court of Appeal referred to the leading authority on mitigation British Westinghouse[2], confirming the important principle that where a measure taken by a claimant, in mitigation of loss and arising out of the consequences of a defendant’s breach in the ordinary course of business, results in a benefit to the claimant, that benefit is normally to be brought into account in assessing the claimant’s loss unless the measure is wholly independent of the relationship of the claimant and defendant.
Importantly, the Court of Appeal found that there was no available market for this ship upon its early redelivery and, in these circumstances, it was not easy to see why the benefit (if any) an owner obtained from selling the ship in question should not be brought into the calculation of permitted damages, especially when the benefit obtained from fixing the same ship on the spot market would have been taken into account. The absence of the available market was important as, if there had been an available market to re-fix the ship, then the owner’s decision in this case to instead sell the ship could arguably be said to have been independent of the contractual relationship between the parties and, therefore, should not be taken into account.
Conclusion
The overriding principle under English law, governing damages for breach of contract, is the compensatory principle i.e. the law attempts to put the injured party back in the position they would have been in had the contract been properly performed. Therefore, the usual measure of damages available to an owner when a charterer walks away from a contract is the amount of freight or hire which would have been earned, less running expenses, (the profit) less what the ship actually earned during that same period (the voyage(s) made in mitigation). The New Flamenco is not deviating from the compensatory principle. Indeed in this case the owner was compensated for his actual losses following the contract breach, which just happened to be none on this occasion.
However, each case will, as ever, turn on its particular facts which always need to be carefully considered. In the New Flamenco the important factor was the absence of an available market to re-charter the ship when it was redelivered to the owner early.
Source: The Standard Club
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Wednesday, 13 January 16
SHIPPING MARKET INSIGHT - GEORGE ILIOPOULOS
Going through the second week of 2016 we could easily argue that at this point there are no visible signs of an imminent recovery in the Dry Bulk m ...
Wednesday, 13 January 16
IRON ORE IMPASSE - A FAILED CLAIM FOR CONVERSION - CLYDE & CO
KNOWLEDGE TO ELEVATE
In the recent case of the “Bao Yue”, the English High Court found that the bill of lading holder was liable t ...
Tuesday, 12 January 16
5700 GAR COAL FOR DELIVERY WITHIN Q1 FELL 0.91% WEEK OVER WEEK
COALspot.com: Average 5000 GAR coal index of Indonesian origin moved South direction week over week to averaging $39.96 per ton on last Friday, acc ...
Monday, 11 January 16
PORT OF NEWCASTLE SHIPPED 20% MORE COAL IN DECEMBER 2015; AVERAGE SELLING PRICE DECLINE 3.43%
COALspot.com: The Port of Newcastle, Australia’s major trading ports and the world’s largest coal export port has shipped $1.129 billio ...
Sunday, 10 January 16
LNG BUNKERING IN ASIA: FUELING A PROMISING FUTURE? - REED SMITH
The requirement of a mandatory reduction of sulphur content in bunker fuel proposed by the International Maritime Organisation (IMO) poses a challe ...
|
|
|
Showing 2611 to 2615 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Vedanta Resources Plc - India
- Commonwealth Bank - Australia
- Directorate Of Revenue Intelligence - India
- ASAPP Information Group - India
- Trasteel International SA, Italy
- Wilmar Investment Holdings
- Oldendorff Carriers - Singapore
- GAC Shipping (India) Pvt Ltd
- Semirara Mining and Power Corporation, Philippines
- Gujarat Mineral Development Corp Ltd - India
- Sojitz Corporation - Japan
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Agrawal Coal Company - India
- Kumho Petrochemical, South Korea
- Mercator Lines Limited - India
- Riau Bara Harum - Indonesia
- Parliament of New Zealand
- Marubeni Corporation - India
- Central Java Power - Indonesia
- Siam City Cement - Thailand
- OPG Power Generation Pvt Ltd - India
- Tata Chemicals Ltd - India
- IHS Mccloskey Coal Group - USA
- Bank of Tokyo Mitsubishi UFJ Ltd
- Parry Sugars Refinery, India
- San Jose City I Power Corp, Philippines
- Star Paper Mills Limited - India
- Thai Mozambique Logistica
- Indonesian Coal Mining Association
- Petrochimia International Co. Ltd.- Taiwan
- Alfred C Toepfer International GmbH - Germany
- Global Coal Blending Company Limited - Australia
- Ind-Barath Power Infra Limited - India
- Rashtriya Ispat Nigam Limited - India
- Coalindo Energy - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Lanco Infratech Ltd - India
- Sical Logistics Limited - India
- Xindia Steels Limited - India
- Makarim & Taira - Indonesia
- International Coal Ventures Pvt Ltd - India
- Straits Asia Resources Limited - Singapore
- Sakthi Sugars Limited - India
- Electricity Generating Authority of Thailand
- PowerSource Philippines DevCo
- Siam City Cement PLC, Thailand
- Offshore Bulk Terminal Pte Ltd, Singapore
- Attock Cement Pakistan Limited
- Bharathi Cement Corporation - India
- Manunggal Multi Energi - Indonesia
- Indian Oil Corporation Limited
- Coastal Gujarat Power Limited - India
- Indika Energy - Indonesia
- Timah Investasi Mineral - Indoneisa
- Goldman Sachs - Singapore
- Madhucon Powers Ltd - India
- Pendopo Energi Batubara - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Meenaskhi Energy Private Limited - India
- Kalimantan Lumbung Energi - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Sindya Power Generating Company Private Ltd
- Thiess Contractors Indonesia
- Savvy Resources Ltd - HongKong
- Minerals Council of Australia
- Aboitiz Power Corporation - Philippines
- Coal and Oil Company - UAE
- Karaikal Port Pvt Ltd - India
- Metalloyd Limited - United Kingdom
- Malabar Cements Ltd - India
- Indo Tambangraya Megah - Indonesia
- Eastern Coal Council - USA
- South Luzon Thermal Energy Corporation
- Electricity Authority, New Zealand
- Indian Energy Exchange, India
- Economic Council, Georgia
- Neyveli Lignite Corporation Ltd, - India
- Heidelberg Cement - Germany
- Eastern Energy - Thailand
- Bangladesh Power Developement Board
- Essar Steel Hazira Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- Orica Australia Pty. Ltd.
- Miang Besar Coal Terminal - Indonesia
- Deloitte Consulting - India
- Merrill Lynch Commodities Europe
- The University of Queensland
- The Treasury - Australian Government
- McConnell Dowell - Australia
- GMR Energy Limited - India
- Energy Development Corp, Philippines
- Mintek Dendrill Indonesia
- Salva Resources Pvt Ltd - India
- Energy Link Ltd, New Zealand
- India Bulls Power Limited - India
- Sree Jayajothi Cements Limited - India
- PNOC Exploration Corporation - Philippines
- Standard Chartered Bank - UAE
- Singapore Mercantile Exchange
- London Commodity Brokers - England
- Independent Power Producers Association of India
- Asmin Koalindo Tuhup - Indonesia
- Bhatia International Limited - India
- Cigading International Bulk Terminal - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Orica Mining Services - Indonesia
- Banpu Public Company Limited - Thailand
- ICICI Bank Limited - India
- Formosa Plastics Group - Taiwan
- Billiton Holdings Pty Ltd - Australia
- Bayan Resources Tbk. - Indonesia
- GVK Power & Infra Limited - India
- Baramulti Group, Indonesia
- Ministry of Transport, Egypt
- Globalindo Alam Lestari - Indonesia
- Rio Tinto Coal - Australia
- Mercuria Energy - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Mjunction Services Limited - India
- PTC India Limited - India
- AsiaOL BioFuels Corp., Philippines
- CIMB Investment Bank - Malaysia
- Borneo Indobara - Indonesia
- Interocean Group of Companies - India
- Georgia Ports Authority, United States
- Maharashtra Electricity Regulatory Commission - India
- Wood Mackenzie - Singapore
- Kobexindo Tractors - Indoneisa
- White Energy Company Limited
- European Bulk Services B.V. - Netherlands
- SMG Consultants - Indonesia
- Global Business Power Corporation, Philippines
- Medco Energi Mining Internasional
- Cement Manufacturers Association - India
- Chettinad Cement Corporation Ltd - India
- Renaissance Capital - South Africa
- Binh Thuan Hamico - Vietnam
- Port Waratah Coal Services - Australia
- Kepco SPC Power Corporation, Philippines
- Therma Luzon, Inc, Philippines
- Antam Resourcindo - Indonesia
- Australian Commodity Traders Exchange
- Latin American Coal - Colombia
- Kartika Selabumi Mining - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Intertek Mineral Services - Indonesia
- Simpson Spence & Young - Indonesia
- Petron Corporation, Philippines
- Bhoruka Overseas - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Gujarat Electricity Regulatory Commission - India
- Larsen & Toubro Limited - India
- Tamil Nadu electricity Board
- Planning Commission, India
- Bukit Baiduri Energy - Indonesia
- Price Waterhouse Coopers - Russia
- Vijayanagar Sugar Pvt Ltd - India
- Uttam Galva Steels Limited - India
- Kapuas Tunggal Persada - Indonesia
- IEA Clean Coal Centre - UK
- Central Electricity Authority - India
- Kaltim Prima Coal - Indonesia
- SN Aboitiz Power Inc, Philippines
- MS Steel International - UAE
- Romanian Commodities Exchange
- Samtan Co., Ltd - South Korea
- Jorong Barutama Greston.PT - Indonesia
- Altura Mining Limited, Indonesia
- The State Trading Corporation of India Ltd
- Semirara Mining Corp, Philippines
- Leighton Contractors Pty Ltd - Australia
- LBH Netherlands Bv - Netherlands
- Anglo American - United Kingdom
- Edison Trading Spa - Italy
- Grasim Industreis Ltd - India
- Toyota Tsusho Corporation, Japan
- Asia Pacific Energy Resources Ventures Inc, Philippines
- TeaM Sual Corporation - Philippines
- Australian Coal Association
- Bukit Makmur.PT - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Carbofer General Trading SA - India
- Chamber of Mines of South Africa
- Africa Commodities Group - South Africa
- GN Power Mariveles Coal Plant, Philippines
- Indogreen Group - Indonesia
- Bhushan Steel Limited - India
- Global Green Power PLC Corporation, Philippines
- Krishnapatnam Port Company Ltd. - India
- CNBM International Corporation - China
- SMC Global Power, Philippines
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Sarangani Energy Corporation, Philippines
- Ministry of Finance - Indonesia
- Ambuja Cements Ltd - India
- Maheswari Brothers Coal Limited - India
- Jindal Steel & Power Ltd - India
- Vizag Seaport Private Limited - India
- Power Finance Corporation Ltd., India
- Kideco Jaya Agung - Indonesia
- Posco Energy - South Korea
- Gujarat Sidhee Cement - India
- Kohat Cement Company Ltd. - Pakistan
- Meralco Power Generation, Philippines
- Jaiprakash Power Ventures ltd
- Bulk Trading Sa - Switzerland
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- New Zealand Coal & Carbon
- Iligan Light & Power Inc, Philippines
- Dalmia Cement Bharat India
- Aditya Birla Group - India
- VISA Power Limited - India
- PetroVietnam Power Coal Import and Supply Company
- Barasentosa Lestari - Indonesia
- Ministry of Mines - Canada
- Videocon Industries ltd - India
|
| |
| |
|
