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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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Showing 1426 to 1430 news of total 6871 |
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- Gujarat Mineral Development Corp Ltd - India
- Leighton Contractors Pty Ltd - Australia
- Dalmia Cement Bharat India
- The University of Queensland
- Bhoruka Overseas - Indonesia
- Meenaskhi Energy Private Limited - India
- Oldendorff Carriers - Singapore
- Jaiprakash Power Ventures ltd
- Uttam Galva Steels Limited - India
- Sojitz Corporation - Japan
- Bukit Asam (Persero) Tbk - Indonesia
- Sarangani Energy Corporation, Philippines
- Siam City Cement PLC, Thailand
- European Bulk Services B.V. - Netherlands
- Parry Sugars Refinery, India
- Bahari Cakrawala Sebuku - Indonesia
- Sree Jayajothi Cements Limited - India
- Kohat Cement Company Ltd. - Pakistan
- Petrochimia International Co. Ltd.- Taiwan
- Goldman Sachs - Singapore
- Madhucon Powers Ltd - India
- Formosa Plastics Group - Taiwan
- Port Waratah Coal Services - Australia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Karaikal Port Pvt Ltd - India
- Commonwealth Bank - Australia
- Sical Logistics Limited - India
- Bharathi Cement Corporation - India
- Maharashtra Electricity Regulatory Commission - India
- Borneo Indobara - Indonesia
- OPG Power Generation Pvt Ltd - India
- Mjunction Services Limited - India
- Parliament of New Zealand
- Medco Energi Mining Internasional
- Alfred C Toepfer International GmbH - Germany
- TeaM Sual Corporation - Philippines
- PowerSource Philippines DevCo
- Simpson Spence & Young - Indonesia
- GVK Power & Infra Limited - India
- Pendopo Energi Batubara - Indonesia
- Salva Resources Pvt Ltd - India
- Mintek Dendrill Indonesia
- Bukit Baiduri Energy - Indonesia
- Binh Thuan Hamico - Vietnam
- Semirara Mining Corp, Philippines
- Romanian Commodities Exchange
- The State Trading Corporation of India Ltd
- Electricity Authority, New Zealand
- New Zealand Coal & Carbon
- Larsen & Toubro Limited - India
- Wilmar Investment Holdings
- Therma Luzon, Inc, Philippines
- London Commodity Brokers - England
- Kapuas Tunggal Persada - Indonesia
- IEA Clean Coal Centre - UK
- Kalimantan Lumbung Energi - Indonesia
- Economic Council, Georgia
- Edison Trading Spa - Italy
- McConnell Dowell - Australia
- Mercator Lines Limited - India
- Savvy Resources Ltd - HongKong
- Samtan Co., Ltd - South Korea
- Australian Commodity Traders Exchange
- Bayan Resources Tbk. - Indonesia
- Georgia Ports Authority, United States
- Essar Steel Hazira Ltd - India
- Ministry of Transport, Egypt
- Holcim Trading Pte Ltd - Singapore
- Tata Chemicals Ltd - India
- San Jose City I Power Corp, Philippines
- Australian Coal Association
- Directorate General of MIneral and Coal - Indonesia
- Straits Asia Resources Limited - Singapore
- PTC India Limited - India
- Petron Corporation, Philippines
- SMC Global Power, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Barasentosa Lestari - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Globalindo Alam Lestari - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Sakthi Sugars Limited - India
- VISA Power Limited - India
- Meralco Power Generation, Philippines
- Electricity Generating Authority of Thailand
- Vizag Seaport Private Limited - India
- Anglo American - United Kingdom
- Deloitte Consulting - India
- Kaltim Prima Coal - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- CIMB Investment Bank - Malaysia
- Lanco Infratech Ltd - India
- Bukit Makmur.PT - Indonesia
- Aditya Birla Group - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Rashtriya Ispat Nigam Limited - India
- Timah Investasi Mineral - Indoneisa
- Grasim Industreis Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Cement Manufacturers Association - India
- Maheswari Brothers Coal Limited - India
- Indian Energy Exchange, India
- Chettinad Cement Corporation Ltd - India
- Attock Cement Pakistan Limited
- Tamil Nadu electricity Board
- Bank of Tokyo Mitsubishi UFJ Ltd
- Global Green Power PLC Corporation, Philippines
- Xindia Steels Limited - India
- Bhatia International Limited - India
- Kideco Jaya Agung - Indonesia
- Ind-Barath Power Infra Limited - India
- Kumho Petrochemical, South Korea
- Indo Tambangraya Megah - Indonesia
- Siam City Cement - Thailand
- Star Paper Mills Limited - India
- Coastal Gujarat Power Limited - India
- Videocon Industries ltd - India
- Coalindo Energy - Indonesia
- SMG Consultants - Indonesia
- Banpu Public Company Limited - Thailand
- IHS Mccloskey Coal Group - USA
- Eastern Energy - Thailand
- Ministry of Finance - Indonesia
- PNOC Exploration Corporation - Philippines
- Marubeni Corporation - India
- Gujarat Electricity Regulatory Commission - India
- Energy Link Ltd, New Zealand
- Chamber of Mines of South Africa
- Semirara Mining and Power Corporation, Philippines
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Pipit Mutiara Jaya. PT, Indonesia
- Indogreen Group - Indonesia
- GAC Shipping (India) Pvt Ltd
- Manunggal Multi Energi - Indonesia
- Agrawal Coal Company - India
- Orica Australia Pty. Ltd.
- Thai Mozambique Logistica
- Makarim & Taira - Indonesia
- Independent Power Producers Association of India
- Wood Mackenzie - Singapore
- Rio Tinto Coal - Australia
- Indika Energy - Indonesia
- Sindya Power Generating Company Private Ltd
- Thiess Contractors Indonesia
- International Coal Ventures Pvt Ltd - India
- Interocean Group of Companies - India
- Kartika Selabumi Mining - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Gujarat Sidhee Cement - India
- Jindal Steel & Power Ltd - India
- Metalloyd Limited - United Kingdom
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Indian Oil Corporation Limited
- Merrill Lynch Commodities Europe
- Malabar Cements Ltd - India
- Ambuja Cements Ltd - India
- Posco Energy - South Korea
- Riau Bara Harum - Indonesia
- Toyota Tsusho Corporation, Japan
- Energy Development Corp, Philippines
- Carbofer General Trading SA - India
- Global Business Power Corporation, Philippines
- Standard Chartered Bank - UAE
- Vedanta Resources Plc - India
- MS Steel International - UAE
- Central Java Power - Indonesia
- ASAPP Information Group - India
- Bhushan Steel Limited - India
- Cigading International Bulk Terminal - Indonesia
- Global Coal Blending Company Limited - Australia
- Eastern Coal Council - USA
- Africa Commodities Group - South Africa
- Minerals Council of Australia
- ICICI Bank Limited - India
- Kobexindo Tractors - Indoneisa
- Singapore Mercantile Exchange
- Karbindo Abesyapradhi - Indoneisa
- Neyveli Lignite Corporation Ltd, - India
- Iligan Light & Power Inc, Philippines
- The Treasury - Australian Government
- PetroVietnam Power Coal Import and Supply Company
- AsiaOL BioFuels Corp., Philippines
- Directorate Of Revenue Intelligence - India
- Aboitiz Power Corporation - Philippines
- Ministry of Mines - Canada
- White Energy Company Limited
- SN Aboitiz Power Inc, Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Trasteel International SA, Italy
- Orica Mining Services - Indonesia
- Indonesian Coal Mining Association
- Central Electricity Authority - India
- Bulk Trading Sa - Switzerland
- Antam Resourcindo - Indonesia
- Latin American Coal - Colombia
- CNBM International Corporation - China
- South Luzon Thermal Energy Corporation
- Baramulti Group, Indonesia
- Intertek Mineral Services - Indonesia
- Planning Commission, India
- GMR Energy Limited - India
- India Bulls Power Limited - India
- Mercuria Energy - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Renaissance Capital - South Africa
- Price Waterhouse Coopers - Russia
- Coal and Oil Company - UAE
- Sinarmas Energy and Mining - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- LBH Netherlands Bv - Netherlands
- Heidelberg Cement - Germany
- Kepco SPC Power Corporation, Philippines
- Power Finance Corporation Ltd., India
- Altura Mining Limited, Indonesia
- Bangladesh Power Developement Board
- Vijayanagar Sugar Pvt Ltd - India
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