We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
Monday, 01 April 19
FORCE MAJEURE SUCCESS NOT A SEA CHANGE - BALTIC EXCHANGE
 KNOWLEDGE TO ELEVATE
It is difficult to successfully argue that contractual performance has been prevented or delayed by force majeure. This is in part because English courts or arbitration tribunals will interpret these clauses strictly and narrowly against the party seeking to rely on them.
Recent decisions, including Triple Point Technology v PTT (2017) and Seadrill Ghana v Tullow Ghana (2018), are evidence of this approach. However, Sucden Middle-East, represented by Nick Fisher of HFW, has recently relied successfully on such a clause in the Commercial Court, on appeal from arbitration.
The case, Sucden Middle-East v Yagci Denizcilik Ve Ticaret Limited Sirketi, “The Mv Muammer Yagci”, involved a shipment of sugar to Algeria on the Sugar Charter Party 1999 form. The facts found by the arbitral tribunal were that when the cargo arrived in Algeria, the cargo-receivers submitted false import documents to local customs authorities. The local customs responded by seizing the cargo, using powers under customs laws and regulations.
A delay to discharging the cargo of four and a half months ensued. Sucden, as charterers, claimed this delay fell within the exceptions to laytime running under clause 28. Owners disagreed. At first instance, the arbitral tribunal agreed with owners.
Charterers appealed to the Commercial Court. Permission to bring the appeal was given on the basis that the question of law was one of general public importance, as it related to a standard form contract in wide commercial usage.
The judgement
The question before the Commercial Court was: “Where a cargo is seized by the local customs authorities at the discharge port causing a delay to discharge, is the time so lost caused by ‘government interferences’ within the meaning of clause 28 of the Sugar Charter Party 1999 form?” Clause 28 reads:
“Strikes and Force Majeure
In the event that whilst at or off the loading place or discharging place the loading and/or discharging of the vessel is prevented or delayed by any of the following occurrences: strikes, riots, civil commotions, lockouts of men, accidents and/or breakdowns on railways, stoppages on railway and/or river and/or canal by ice or frost, mechanical breakdowns at mechanical loading plants, government interferences, vessel being inoperative or rendered inoperative due to terms and conditions of employment of the Officers and Crew, time so lost shall not count as laytime on demurrage or detention…”
In deciding whether a force majeure event had occurred, the Court focused on the construction of “government interferences”. It was fairly straightforward to establish that a government entity acting in a sovereign capacity was involved, but owners argued that the government being involved was not enough and that there had to be “interferences”. In reaching its decision that there had been no interference, the tribunal had considered it a key point that seizure was an “ordinary” action. The Court rejected this conclusion. It held that the seizure of the cargo was not routine and did fall within the meaning of “interferences”. Seizure is a significant exercise of executive power and therefore could not be regarded as “ordinary”. Suspected or predictable consequences are not the same as ordinary actions (such as the inspection of the cargo by a government surveyor): “In the usual course of things, cargo is not seized and property rights are not invaded in that way.” The very fact that false documents were involved showed that the circumstances were not routine.
The Court emphasised that it was of “real importance” that its conclusion on the language was not difficult to apply, nor did it in any way offend commercial common sense.
The owners’ causation argument was also dismissed, as it was held that the seizure caused the delay, even if the submission of false documents caused the seizure.
Further detail
In allowing the appeal, the Court still maintained the strict and narrow approach to force majeure, stressing that “the answer given to the question is only a narrow ‘yes’. It is ‘yes’ where the circumstances are as in the present case. The answer does not address all of the circumstances that may come within or fall outside clause 28. The answer is concerned only with the seizure of a cargo and with that seizure by a customs authority that is a State revenue authority acting in a sovereign capacity”.
This judgment gives some welcome publicly-available guidance on the interpretation of a force majeure clause in a standard form widely used in sugar trading. While the charterers were successfully able to rely on the force majeure clause in this case, it does not signal a change in the strict and narrow approach typically adopted by the English courts.
Source: Baltic Exchange
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Friday, 02 August 24
COAL MARKET DEVELOPMENTS: FALLING PRICES AMID RECORD-HIGH OUTPUT - WORLD BANK
Coal prices inched up in May (m/m) following an 8 percent decline in 2024Q1. The Australian and South African benchmarks have plummeted more ...
Friday, 26 July 24
FUELEU MARITME IS COMING. IS YOUR CHARTERPARTY READY? - GARD
With less than six months to implementation of FuelEU Maritime in EU and EEA trades, there has been little published advice regarding how to alloca ...
Thursday, 04 July 24
INDIA'S COAL PRODUCTION RISES 14% IN JUNE - PTI
The country’s coal production rose by 14.49% to 84.63 million tonne (MT) in June. The country’s coal output was 73.92 MT in June last f ...
Tuesday, 02 July 24
NTPC CAPTIVE COAL OUTPUT GROWS 15% IN Q1; DESPATCH RISES 17%
State-owned NTPC on Monday reported a 15 per cent year-on-year increase in the production of coal from captives mines to 9.862 metric million tonne ...
Friday, 28 June 24
KOSPO INVITED BIDS FOR 400,000 MT OF MINIMUM 4000 NCV COAL FOR FIVE YEARS
Korea Southern Power Co., Ltd. (KOSPO), is inviting bids for total 400,000 MT of Low Calorific Value Coal for 5 years starting from July 2024 until ...
|
|
|
Showing 6 to 10 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Coalindo Energy - Indonesia
- Indogreen Group - Indonesia
- Siam City Cement - Thailand
- Wilmar Investment Holdings
- Kumho Petrochemical, South Korea
- Aditya Birla Group - India
- Sical Logistics Limited - India
- GVK Power & Infra Limited - India
- Kideco Jaya Agung - Indonesia
- CNBM International Corporation - China
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- IHS Mccloskey Coal Group - USA
- Ministry of Mines - Canada
- VISA Power Limited - India
- Marubeni Corporation - India
- ASAPP Information Group - India
- Romanian Commodities Exchange
- Simpson Spence & Young - Indonesia
- Price Waterhouse Coopers - Russia
- PowerSource Philippines DevCo
- Jindal Steel & Power Ltd - India
- Sarangani Energy Corporation, Philippines
- Formosa Plastics Group - Taiwan
- Bukit Baiduri Energy - Indonesia
- The University of Queensland
- Metalloyd Limited - United Kingdom
- Australian Coal Association
- Eastern Energy - Thailand
- Directorate General of MIneral and Coal - Indonesia
- Meenaskhi Energy Private Limited - India
- Krishnapatnam Port Company Ltd. - India
- Xindia Steels Limited - India
- Kapuas Tunggal Persada - Indonesia
- Madhucon Powers Ltd - India
- Malabar Cements Ltd - India
- Indonesian Coal Mining Association
- Ambuja Cements Ltd - India
- Electricity Generating Authority of Thailand
- Bhoruka Overseas - Indonesia
- GMR Energy Limited - India
- Planning Commission, India
- Ministry of Finance - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Thai Mozambique Logistica
- Maheswari Brothers Coal Limited - India
- New Zealand Coal & Carbon
- SN Aboitiz Power Inc, Philippines
- Billiton Holdings Pty Ltd - Australia
- PetroVietnam Power Coal Import and Supply Company
- Bangladesh Power Developement Board
- Sinarmas Energy and Mining - Indonesia
- Ceylon Electricity Board - Sri Lanka
- SMC Global Power, Philippines
- Leighton Contractors Pty Ltd - Australia
- Gujarat Mineral Development Corp Ltd - India
- International Coal Ventures Pvt Ltd - India
- Mercuria Energy - Indonesia
- Chamber of Mines of South Africa
- Therma Luzon, Inc, Philippines
- Semirara Mining and Power Corporation, Philippines
- Baramulti Group, Indonesia
- Chettinad Cement Corporation Ltd - India
- The State Trading Corporation of India Ltd
- Singapore Mercantile Exchange
- Jaiprakash Power Ventures ltd
- Gujarat Sidhee Cement - India
- Cement Manufacturers Association - India
- Manunggal Multi Energi - Indonesia
- Grasim Industreis Ltd - India
- Kobexindo Tractors - Indoneisa
- Commonwealth Bank - Australia
- TNB Fuel Sdn Bhd - Malaysia
- Salva Resources Pvt Ltd - India
- Renaissance Capital - South Africa
- Global Business Power Corporation, Philippines
- GN Power Mariveles Coal Plant, Philippines
- Central Electricity Authority - India
- Energy Development Corp, Philippines
- Kalimantan Lumbung Energi - Indonesia
- Meralco Power Generation, Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Globalindo Alam Lestari - Indonesia
- Port Waratah Coal Services - Australia
- Anglo American - United Kingdom
- White Energy Company Limited
- OPG Power Generation Pvt Ltd - India
- Lanco Infratech Ltd - India
- Ind-Barath Power Infra Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- Medco Energi Mining Internasional
- Rashtriya Ispat Nigam Limited - India
- Bulk Trading Sa - Switzerland
- Asmin Koalindo Tuhup - Indonesia
- Savvy Resources Ltd - HongKong
- Mjunction Services Limited - India
- Kaltim Prima Coal - Indonesia
- Alfred C Toepfer International GmbH - Germany
- PTC India Limited - India
- London Commodity Brokers - England
- SMG Consultants - Indonesia
- Rio Tinto Coal - Australia
- Karaikal Port Pvt Ltd - India
- Sakthi Sugars Limited - India
- Bukit Makmur.PT - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- McConnell Dowell - Australia
- Bhatia International Limited - India
- ICICI Bank Limited - India
- Mercator Lines Limited - India
- Thiess Contractors Indonesia
- Electricity Authority, New Zealand
- Neyveli Lignite Corporation Ltd, - India
- Antam Resourcindo - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Straits Asia Resources Limited - Singapore
- MS Steel International - UAE
- Economic Council, Georgia
- Power Finance Corporation Ltd., India
- Global Green Power PLC Corporation, Philippines
- Bhushan Steel Limited - India
- Videocon Industries ltd - India
- Miang Besar Coal Terminal - Indonesia
- Standard Chartered Bank - UAE
- CIMB Investment Bank - Malaysia
- Timah Investasi Mineral - Indoneisa
- Indian Oil Corporation Limited
- Makarim & Taira - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Heidelberg Cement - Germany
- Uttam Galva Steels Limited - India
- Agrawal Coal Company - India
- Sree Jayajothi Cements Limited - India
- Sindya Power Generating Company Private Ltd
- Orica Mining Services - Indonesia
- Pendopo Energi Batubara - Indonesia
- Georgia Ports Authority, United States
- European Bulk Services B.V. - Netherlands
- Gujarat Electricity Regulatory Commission - India
- Attock Cement Pakistan Limited
- Eastern Coal Council - USA
- Indo Tambangraya Megah - Indonesia
- Interocean Group of Companies - India
- San Jose City I Power Corp, Philippines
- Kohat Cement Company Ltd. - Pakistan
- Central Java Power - Indonesia
- GAC Shipping (India) Pvt Ltd
- TeaM Sual Corporation - Philippines
- Carbofer General Trading SA - India
- Samtan Co., Ltd - South Korea
- Borneo Indobara - Indonesia
- Tata Chemicals Ltd - India
- Aboitiz Power Corporation - Philippines
- The Treasury - Australian Government
- Trasteel International SA, Italy
- Kepco SPC Power Corporation, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Deloitte Consulting - India
- Orica Australia Pty. Ltd.
- Oldendorff Carriers - Singapore
- Altura Mining Limited, Indonesia
- Bharathi Cement Corporation - India
- Parry Sugars Refinery, India
- Edison Trading Spa - Italy
- Essar Steel Hazira Ltd - India
- Dalmia Cement Bharat India
- Vizag Seaport Private Limited - India
- Directorate Of Revenue Intelligence - India
- Bayan Resources Tbk. - Indonesia
- Goldman Sachs - Singapore
- Banpu Public Company Limited - Thailand
- Holcim Trading Pte Ltd - Singapore
- Parliament of New Zealand
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Siam City Cement PLC, Thailand
- India Bulls Power Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Global Coal Blending Company Limited - Australia
- Coal and Oil Company - UAE
- Intertek Mineral Services - Indonesia
- IEA Clean Coal Centre - UK
- Ministry of Transport, Egypt
- AsiaOL BioFuels Corp., Philippines
- Posco Energy - South Korea
- Larsen & Toubro Limited - India
- Petron Corporation, Philippines
- Barasentosa Lestari - Indonesia
- Binh Thuan Hamico - Vietnam
- Star Paper Mills Limited - India
- Wood Mackenzie - Singapore
- Coastal Gujarat Power Limited - India
- Vedanta Resources Plc - India
- Indian Energy Exchange, India
- Merrill Lynch Commodities Europe
- Bank of Tokyo Mitsubishi UFJ Ltd
- Karbindo Abesyapradhi - Indoneisa
- Semirara Mining Corp, Philippines
- Cigading International Bulk Terminal - Indonesia
- Latin American Coal - Colombia
- Riau Bara Harum - Indonesia
- Mintek Dendrill Indonesia
- Indika Energy - Indonesia
- Independent Power Producers Association of India
- PNOC Exploration Corporation - Philippines
- Energy Link Ltd, New Zealand
- Australian Commodity Traders Exchange
- Minerals Council of Australia
- Africa Commodities Group - South Africa
- LBH Netherlands Bv - Netherlands
- Tamil Nadu electricity Board
- Iligan Light & Power Inc, Philippines
- South Luzon Thermal Energy Corporation
- Offshore Bulk Terminal Pte Ltd, Singapore
- Pipit Mutiara Jaya. PT, Indonesia
- Toyota Tsusho Corporation, Japan
- Sojitz Corporation - Japan
- Kartika Selabumi Mining - Indonesia
|
| |
| |
|
