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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
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Friday, 12 April 19
OFFSHORE MENA CONGRESS 2019
Offshore MENA Congress 2019
Event Date : 11-12th Jun. 2019
Location : Cairo, Egypt
Offshore MENA Congress 2019 Offshor ...
Friday, 12 April 19
U.S : MORE THAN 7 GW OF COAL-FIRED GENERATION IS SCHEDULED TO RETIRE BY THE END OF 2020 - EIA
EIA estimates that U.S. coal production decreased by 19 million short tons (MMst) (2%) in 2018, totaling 756 MMst.
EIA also expects ...
Friday, 12 April 19
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Thursday, 11 April 19
AUSTRALIAN COAL IN THE FRONTLINE OF CHINA'S SUPPLY GLUT - AUSTRALIAN FINANCIAL REVIEW
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Wednesday, 10 April 19
COALTRANS ASIA - TAKE PART IN THE LARGEST COAL EVENT IN THE WORLD!
Take part in the largest coal event in the world!
Coaltrans Asia is back this June bringing together the entire international coal s ...
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- Standard Chartered Bank - UAE
- Rashtriya Ispat Nigam Limited - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Pipit Mutiara Jaya. PT, Indonesia
- Xindia Steels Limited - India
- Power Finance Corporation Ltd., India
- Lanco Infratech Ltd - India
- McConnell Dowell - Australia
- Georgia Ports Authority, United States
- Sindya Power Generating Company Private Ltd
- Indian Oil Corporation Limited
- Tamil Nadu electricity Board
- Energy Link Ltd, New Zealand
- Ministry of Transport, Egypt
- Mercuria Energy - Indonesia
- Kaltim Prima Coal - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Rio Tinto Coal - Australia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Neyveli Lignite Corporation Ltd, - India
- Star Paper Mills Limited - India
- Edison Trading Spa - Italy
- Siam City Cement - Thailand
- Independent Power Producers Association of India
- Salva Resources Pvt Ltd - India
- Cement Manufacturers Association - India
- Orica Australia Pty. Ltd.
- Wilmar Investment Holdings
- TeaM Sual Corporation - Philippines
- Electricity Authority, New Zealand
- Port Waratah Coal Services - Australia
- Kumho Petrochemical, South Korea
- Trasteel International SA, Italy
- The Treasury - Australian Government
- Attock Cement Pakistan Limited
- Petron Corporation, Philippines
- AsiaOL BioFuels Corp., Philippines
- Heidelberg Cement - Germany
- Chettinad Cement Corporation Ltd - India
- Eastern Energy - Thailand
- Indian Energy Exchange, India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Bahari Cakrawala Sebuku - Indonesia
- Gujarat Sidhee Cement - India
- Romanian Commodities Exchange
- Cigading International Bulk Terminal - Indonesia
- Timah Investasi Mineral - Indoneisa
- Karbindo Abesyapradhi - Indoneisa
- Grasim Industreis Ltd - India
- Economic Council, Georgia
- SMG Consultants - Indonesia
- GAC Shipping (India) Pvt Ltd
- Samtan Co., Ltd - South Korea
- PetroVietnam Power Coal Import and Supply Company
- Formosa Plastics Group - Taiwan
- Bhoruka Overseas - Indonesia
- Altura Mining Limited, Indonesia
- Wood Mackenzie - Singapore
- Intertek Mineral Services - Indonesia
- The University of Queensland
- Larsen & Toubro Limited - India
- CNBM International Corporation - China
- Latin American Coal - Colombia
- Carbofer General Trading SA - India
- GMR Energy Limited - India
- Chamber of Mines of South Africa
- Thai Mozambique Logistica
- Essar Steel Hazira Ltd - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Oldendorff Carriers - Singapore
- Anglo American - United Kingdom
- Sical Logistics Limited - India
- Meralco Power Generation, Philippines
- Indo Tambangraya Megah - Indonesia
- Uttam Galva Steels Limited - India
- Antam Resourcindo - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Aditya Birla Group - India
- ICICI Bank Limited - India
- Vizag Seaport Private Limited - India
- Baramulti Group, Indonesia
- Therma Luzon, Inc, Philippines
- Barasentosa Lestari - Indonesia
- Banpu Public Company Limited - Thailand
- Posco Energy - South Korea
- Bukit Makmur.PT - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Meenaskhi Energy Private Limited - India
- Sarangani Energy Corporation, Philippines
- Dalmia Cement Bharat India
- Electricity Generating Authority of Thailand
- Sree Jayajothi Cements Limited - India
- Ministry of Finance - Indonesia
- Indonesian Coal Mining Association
- South Luzon Thermal Energy Corporation
- VISA Power Limited - India
- Indika Energy - Indonesia
- Simpson Spence & Young - Indonesia
- PowerSource Philippines DevCo
- Agrawal Coal Company - India
- London Commodity Brokers - England
- Directorate General of MIneral and Coal - Indonesia
- Karaikal Port Pvt Ltd - India
- LBH Netherlands Bv - Netherlands
- Global Coal Blending Company Limited - Australia
- Straits Asia Resources Limited - Singapore
- CIMB Investment Bank - Malaysia
- Singapore Mercantile Exchange
- Ind-Barath Power Infra Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Australian Commodity Traders Exchange
- Metalloyd Limited - United Kingdom
- Deloitte Consulting - India
- Savvy Resources Ltd - HongKong
- Borneo Indobara - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Malabar Cements Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Ceylon Electricity Board - Sri Lanka
- Mjunction Services Limited - India
- Jindal Steel & Power Ltd - India
- Gujarat Electricity Regulatory Commission - India
- Siam City Cement PLC, Thailand
- Mercator Lines Limited - India
- Goldman Sachs - Singapore
- ASAPP Information Group - India
- Kohat Cement Company Ltd. - Pakistan
- Bharathi Cement Corporation - India
- Leighton Contractors Pty Ltd - Australia
- Merrill Lynch Commodities Europe
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Bhatia International Limited - India
- Ambuja Cements Ltd - India
- Eastern Coal Council - USA
- Manunggal Multi Energi - Indonesia
- Aboitiz Power Corporation - Philippines
- Riau Bara Harum - Indonesia
- Indogreen Group - Indonesia
- OPG Power Generation Pvt Ltd - India
- San Jose City I Power Corp, Philippines
- Bhushan Steel Limited - India
- Toyota Tsusho Corporation, Japan
- PNOC Exploration Corporation - Philippines
- SN Aboitiz Power Inc, Philippines
- Coal and Oil Company - UAE
- Global Business Power Corporation, Philippines
- Coalindo Energy - Indonesia
- Parry Sugars Refinery, India
- Minerals Council of Australia
- Mintek Dendrill Indonesia
- PTC India Limited - India
- Kartika Selabumi Mining - Indonesia
- Central Java Power - Indonesia
- Bangladesh Power Developement Board
- Billiton Holdings Pty Ltd - Australia
- Renaissance Capital - South Africa
- MS Steel International - UAE
- Kobexindo Tractors - Indoneisa
- Binh Thuan Hamico - Vietnam
- Tata Chemicals Ltd - India
- Vijayanagar Sugar Pvt Ltd - India
- Thiess Contractors Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Jaiprakash Power Ventures ltd
- SMC Global Power, Philippines
- Kapuas Tunggal Persada - Indonesia
- Marubeni Corporation - India
- Semirara Mining and Power Corporation, Philippines
- Semirara Mining Corp, Philippines
- Madhucon Powers Ltd - India
- Interocean Group of Companies - India
- Asmin Koalindo Tuhup - Indonesia
- Coastal Gujarat Power Limited - India
- Maheswari Brothers Coal Limited - India
- India Bulls Power Limited - India
- Bayan Resources Tbk. - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Planning Commission, India
- IEA Clean Coal Centre - UK
- Sinarmas Energy and Mining - Indonesia
- Vedanta Resources Plc - India
- Bulk Trading Sa - Switzerland
- Price Waterhouse Coopers - Russia
- New Zealand Coal & Carbon
- Energy Development Corp, Philippines
- The State Trading Corporation of India Ltd
- Directorate Of Revenue Intelligence - India
- Pendopo Energi Batubara - Indonesia
- Kideco Jaya Agung - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Kepco SPC Power Corporation, Philippines
- Holcim Trading Pte Ltd - Singapore
- Iligan Light & Power Inc, Philippines
- TNB Fuel Sdn Bhd - Malaysia
- Krishnapatnam Port Company Ltd. - India
- GVK Power & Infra Limited - India
- Globalindo Alam Lestari - Indonesia
- Ministry of Mines - Canada
- Parliament of New Zealand
- Bukit Baiduri Energy - Indonesia
- Africa Commodities Group - South Africa
- European Bulk Services B.V. - Netherlands
- Bukit Asam (Persero) Tbk - Indonesia
- Global Green Power PLC Corporation, Philippines
- Sakthi Sugars Limited - India
- International Coal Ventures Pvt Ltd - India
- IHS Mccloskey Coal Group - USA
- White Energy Company Limited
- Central Electricity Authority - India
- Sojitz Corporation - Japan
- Medco Energi Mining Internasional
- Commonwealth Bank - Australia
- Orica Mining Services - Indonesia
- Videocon Industries ltd - India
- Makarim & Taira - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Australian Coal Association
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