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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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Wednesday, 10 April 19
KOSPO INVITED BIDS FOR 160K MT OF MIN. 3700 NCV COAL FOR JUNE LOADING
COALspot.com: South Korea state-owned utility Korea Southern Power Co. Ltd (KOSPO) issued a tender for 160,000 MT of min. 3,800 Kcal/kg ~max.4,100 ...
Wednesday, 10 April 19
CHINA'S GROWING THERMAL COAL SUPPLY TO PRESSURE EXPORTERS - FITCH RATINGS
Growing Chinese thermal coal supply is likely to lead to further tightening of import controls by the government, putting pressure on seaborne coal ...
Wednesday, 10 April 19
SHIPPING MARKET INSIGHT - INTERMODAL
The tragedy in Brazil’s Vale Brumadinho where a tailings dam collapsed in January ranks among the world’s worst mining disasters. It co ...
Monday, 08 April 19
5TH INDIA NUCLEAR NEW BUILD CONGRESS 2019
5th India Nuclear New Build Congress 2019
The congress in Mumbai aims to bring together representatives from governments, regulators ...
Monday, 08 April 19
THERMAL COAL PRICES FALL, INDIAN POWER PLANTS TO SEE LIMITED GAINS - BUSINESS STANDARD
Thermal coal prices are on a downward spiral globally. Australian coal prices have fallen nearly 20 per cent in the past week, and 40 per cent from ...
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- Metalloyd Limited - United Kingdom
- Carbofer General Trading SA - India
- Ministry of Finance - Indonesia
- Ministry of Mines - Canada
- Medco Energi Mining Internasional
- Therma Luzon, Inc, Philippines
- Chamber of Mines of South Africa
- SMG Consultants - Indonesia
- Cement Manufacturers Association - India
- Kartika Selabumi Mining - Indonesia
- Manunggal Multi Energi - Indonesia
- Essar Steel Hazira Ltd - India
- Meralco Power Generation, Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Dalmia Cement Bharat India
- Jindal Steel & Power Ltd - India
- India Bulls Power Limited - India
- Jaiprakash Power Ventures ltd
- Standard Chartered Bank - UAE
- IEA Clean Coal Centre - UK
- Electricity Generating Authority of Thailand
- Kalimantan Lumbung Energi - Indonesia
- PowerSource Philippines DevCo
- Iligan Light & Power Inc, Philippines
- Sakthi Sugars Limited - India
- Romanian Commodities Exchange
- Coal and Oil Company - UAE
- Gujarat Sidhee Cement - India
- Indonesian Coal Mining Association
- Wilmar Investment Holdings
- Binh Thuan Hamico - Vietnam
- Goldman Sachs - Singapore
- Orica Mining Services - Indonesia
- CIMB Investment Bank - Malaysia
- Karaikal Port Pvt Ltd - India
- Indian Oil Corporation Limited
- Vijayanagar Sugar Pvt Ltd - India
- Tata Chemicals Ltd - India
- Aboitiz Power Corporation - Philippines
- Siam City Cement PLC, Thailand
- VISA Power Limited - India
- PTC India Limited - India
- Singapore Mercantile Exchange
- Indogreen Group - Indonesia
- Antam Resourcindo - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Marubeni Corporation - India
- Pipit Mutiara Jaya. PT, Indonesia
- Malabar Cements Ltd - India
- Maheswari Brothers Coal Limited - India
- Grasim Industreis Ltd - India
- Directorate Of Revenue Intelligence - India
- Sojitz Corporation - Japan
- Kaltim Prima Coal - Indonesia
- Mercuria Energy - Indonesia
- Independent Power Producers Association of India
- Larsen & Toubro Limited - India
- Bukit Makmur.PT - Indonesia
- Merrill Lynch Commodities Europe
- Power Finance Corporation Ltd., India
- Indika Energy - Indonesia
- GVK Power & Infra Limited - India
- McConnell Dowell - Australia
- Bhatia International Limited - India
- Eastern Coal Council - USA
- San Jose City I Power Corp, Philippines
- Straits Asia Resources Limited - Singapore
- PNOC Exploration Corporation - Philippines
- Xindia Steels Limited - India
- Bukit Baiduri Energy - Indonesia
- Thai Mozambique Logistica
- Bank of Tokyo Mitsubishi UFJ Ltd
- Billiton Holdings Pty Ltd - Australia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Sinarmas Energy and Mining - Indonesia
- Port Waratah Coal Services - Australia
- IHS Mccloskey Coal Group - USA
- SN Aboitiz Power Inc, Philippines
- Renaissance Capital - South Africa
- Posco Energy - South Korea
- Bayan Resources Tbk. - Indonesia
- Anglo American - United Kingdom
- European Bulk Services B.V. - Netherlands
- Coalindo Energy - Indonesia
- The University of Queensland
- International Coal Ventures Pvt Ltd - India
- Indo Tambangraya Megah - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Georgia Ports Authority, United States
- Ind-Barath Power Infra Limited - India
- White Energy Company Limited
- Indian Energy Exchange, India
- Global Coal Blending Company Limited - Australia
- Sical Logistics Limited - India
- Sree Jayajothi Cements Limited - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Interocean Group of Companies - India
- Holcim Trading Pte Ltd - Singapore
- Asia Pacific Energy Resources Ventures Inc, Philippines
- South Luzon Thermal Energy Corporation
- Rashtriya Ispat Nigam Limited - India
- Krishnapatnam Port Company Ltd. - India
- Maharashtra Electricity Regulatory Commission - India
- LBH Netherlands Bv - Netherlands
- Rio Tinto Coal - Australia
- Heidelberg Cement - Germany
- Altura Mining Limited, Indonesia
- Ministry of Transport, Egypt
- Directorate General of MIneral and Coal - Indonesia
- Meenaskhi Energy Private Limited - India
- Global Green Power PLC Corporation, Philippines
- Oldendorff Carriers - Singapore
- Kobexindo Tractors - Indoneisa
- Bhoruka Overseas - Indonesia
- Electricity Authority, New Zealand
- Tamil Nadu electricity Board
- Orica Australia Pty. Ltd.
- Kideco Jaya Agung - Indonesia
- Timah Investasi Mineral - Indoneisa
- Deloitte Consulting - India
- Toyota Tsusho Corporation, Japan
- Madhucon Powers Ltd - India
- Kohat Cement Company Ltd. - Pakistan
- Bangladesh Power Developement Board
- Miang Besar Coal Terminal - Indonesia
- Salva Resources Pvt Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Lanco Infratech Ltd - India
- Edison Trading Spa - Italy
- Leighton Contractors Pty Ltd - Australia
- Wood Mackenzie - Singapore
- PetroVietnam Power Coal Import and Supply Company
- Bharathi Cement Corporation - India
- OPG Power Generation Pvt Ltd - India
- GN Power Mariveles Coal Plant, Philippines
- ASAPP Information Group - India
- TeaM Sual Corporation - Philippines
- London Commodity Brokers - England
- Neyveli Lignite Corporation Ltd, - India
- Petrochimia International Co. Ltd.- Taiwan
- Barasentosa Lestari - Indonesia
- Savvy Resources Ltd - HongKong
- Simpson Spence & Young - Indonesia
- Mercator Lines Limited - India
- Africa Commodities Group - South Africa
- CNBM International Corporation - China
- MS Steel International - UAE
- Minerals Council of Australia
- Petron Corporation, Philippines
- Eastern Energy - Thailand
- Ceylon Electricity Board - Sri Lanka
- Trasteel International SA, Italy
- Gujarat Electricity Regulatory Commission - India
- Star Paper Mills Limited - India
- Vizag Seaport Private Limited - India
- Riau Bara Harum - Indonesia
- Australian Commodity Traders Exchange
- Kepco SPC Power Corporation, Philippines
- Attock Cement Pakistan Limited
- Videocon Industries ltd - India
- Economic Council, Georgia
- GAC Shipping (India) Pvt Ltd
- Coastal Gujarat Power Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Makarim & Taira - Indonesia
- Central Java Power - Indonesia
- Semirara Mining Corp, Philippines
- GMR Energy Limited - India
- Global Business Power Corporation, Philippines
- Latin American Coal - Colombia
- The State Trading Corporation of India Ltd
- Agrawal Coal Company - India
- Cigading International Bulk Terminal - Indonesia
- Globalindo Alam Lestari - Indonesia
- Uttam Galva Steels Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Samtan Co., Ltd - South Korea
- Parry Sugars Refinery, India
- Vedanta Resources Plc - India
- Energy Link Ltd, New Zealand
- Siam City Cement - Thailand
- Mintek Dendrill Indonesia
- Sindya Power Generating Company Private Ltd
- Price Waterhouse Coopers - Russia
- Jorong Barutama Greston.PT - Indonesia
- Alfred C Toepfer International GmbH - Germany
- New Zealand Coal & Carbon
- Formosa Plastics Group - Taiwan
- Semirara Mining and Power Corporation, Philippines
- Borneo Indobara - Indonesia
- ICICI Bank Limited - India
- Mjunction Services Limited - India
- Aditya Birla Group - India
- Kumho Petrochemical, South Korea
- Intertek Mineral Services - Indonesia
- Commonwealth Bank - Australia
- Central Electricity Authority - India
- Sarangani Energy Corporation, Philippines
- Planning Commission, India
- SMC Global Power, Philippines
- Baramulti Group, Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Karbindo Abesyapradhi - Indoneisa
- Parliament of New Zealand
- Bhushan Steel Limited - India
- Australian Coal Association
- Ambuja Cements Ltd - India
- Energy Development Corp, Philippines
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Chettinad Cement Corporation Ltd - India
- Pendopo Energi Batubara - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- The Treasury - Australian Government
- Kapuas Tunggal Persada - Indonesia
- Thiess Contractors Indonesia
- Bulk Trading Sa - Switzerland
- Banpu Public Company Limited - Thailand
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