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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, 20 March 19
COAL EXPORT FEARS RESURFACE AS RESTRICTIONS HIT MORE CHINESE PORTS AND AUSTRALIAN PRICES COP A 'BELTING' - ABC
Australian thermal coal exports to China are under increasing pressure, with indications import restrictions are spreading to other key ports.
...
Monday, 18 March 19
A 56,000DWT SHIP FIXED DELIVERY FOR A SINGAPORE TRIP VIA INDONESIA, RE-DELIVERY CHINA, AT $10,000 - BALTIC BRIEFING
Capesize
The Baltic Capesize market shrugged off its recent negative sentiment to post daily incremental improvements over the last week. Pacif ...
Saturday, 16 March 19
AUSTRALIAN COAL STILL FACING CHINESE DELAY - AAP
Australian coal exports to China are still facing delays, with protectionism and environmental checks blamed for the slowdown.
Coal ...
Thursday, 14 March 19
SUPRAMAX: INDO COAL CARGOES GETTING FIXED AT AROUND US$ 12000 TO CHINA - FEARNLEYS
Capesize
Average daily earning still well below operating costs, and owners keep bleeding - but nevertheless finally some bright spots for the ...
Monday, 11 March 19
SUPRAMAX: A 61,000 DWT VESSEL WAS BOOKED SINGAPORE FOR A TRIP VIA INDONESIA TO CHINA AT $10,500 - BALTIC BRIEFING
Capesize
A faint glimmer of hope with the suggestion the market may have finally bottomed out, with owners attempting to resist further cuts in ...
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Showing 1446 to 1450 news of total 6871 |
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- Straits Asia Resources Limited - Singapore
- SN Aboitiz Power Inc, Philippines
- GAC Shipping (India) Pvt Ltd
- Energy Link Ltd, New Zealand
- International Coal Ventures Pvt Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Savvy Resources Ltd - HongKong
- Bharathi Cement Corporation - India
- Mercuria Energy - Indonesia
- India Bulls Power Limited - India
- Global Coal Blending Company Limited - Australia
- IEA Clean Coal Centre - UK
- Bhatia International Limited - India
- Coal and Oil Company - UAE
- Maheswari Brothers Coal Limited - India
- Kideco Jaya Agung - Indonesia
- Kumho Petrochemical, South Korea
- Bulk Trading Sa - Switzerland
- Electricity Authority, New Zealand
- Thai Mozambique Logistica
- Heidelberg Cement - Germany
- Gujarat Electricity Regulatory Commission - India
- New Zealand Coal & Carbon
- Intertek Mineral Services - Indonesia
- Kartika Selabumi Mining - Indonesia
- Bhoruka Overseas - Indonesia
- Madhucon Powers Ltd - India
- Gujarat Sidhee Cement - India
- Jorong Barutama Greston.PT - Indonesia
- Kaltim Prima Coal - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Latin American Coal - Colombia
- Binh Thuan Hamico - Vietnam
- Ceylon Electricity Board - Sri Lanka
- Georgia Ports Authority, United States
- Australian Commodity Traders Exchange
- Energy Development Corp, Philippines
- Posco Energy - South Korea
- Bangladesh Power Developement Board
- Ministry of Mines - Canada
- Chettinad Cement Corporation Ltd - India
- Iligan Light & Power Inc, Philippines
- Essar Steel Hazira Ltd - India
- Lanco Infratech Ltd - India
- VISA Power Limited - India
- PNOC Exploration Corporation - Philippines
- Minerals Council of Australia
- Karbindo Abesyapradhi - Indoneisa
- Billiton Holdings Pty Ltd - Australia
- Timah Investasi Mineral - Indoneisa
- Maharashtra Electricity Regulatory Commission - India
- Carbofer General Trading SA - India
- Indonesian Coal Mining Association
- Ambuja Cements Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Eastern Energy - Thailand
- Wilmar Investment Holdings
- Medco Energi Mining Internasional
- Planning Commission, India
- Manunggal Multi Energi - Indonesia
- Cement Manufacturers Association - India
- LBH Netherlands Bv - Netherlands
- Singapore Mercantile Exchange
- Standard Chartered Bank - UAE
- Antam Resourcindo - Indonesia
- Karaikal Port Pvt Ltd - India
- Ministry of Finance - Indonesia
- Rashtriya Ispat Nigam Limited - India
- London Commodity Brokers - England
- PetroVietnam Power Coal Import and Supply Company
- Malabar Cements Ltd - India
- OPG Power Generation Pvt Ltd - India
- Attock Cement Pakistan Limited
- Indian Energy Exchange, India
- The Treasury - Australian Government
- Ministry of Transport, Egypt
- Trasteel International SA, Italy
- Sree Jayajothi Cements Limited - India
- MS Steel International - UAE
- SMC Global Power, Philippines
- AsiaOL BioFuels Corp., Philippines
- Bukit Baiduri Energy - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- South Luzon Thermal Energy Corporation
- Tamil Nadu electricity Board
- Gujarat Mineral Development Corp Ltd - India
- Baramulti Group, Indonesia
- Aditya Birla Group - India
- Global Business Power Corporation, Philippines
- Kepco SPC Power Corporation, Philippines
- Samtan Co., Ltd - South Korea
- Eastern Coal Council - USA
- Leighton Contractors Pty Ltd - Australia
- Bhushan Steel Limited - India
- Wood Mackenzie - Singapore
- Commonwealth Bank - Australia
- Globalindo Alam Lestari - Indonesia
- Altura Mining Limited, Indonesia
- Miang Besar Coal Terminal - Indonesia
- Indogreen Group - Indonesia
- San Jose City I Power Corp, Philippines
- Salva Resources Pvt Ltd - India
- IHS Mccloskey Coal Group - USA
- Romanian Commodities Exchange
- Borneo Indobara - Indonesia
- Therma Luzon, Inc, Philippines
- Formosa Plastics Group - Taiwan
- Agrawal Coal Company - India
- Kohat Cement Company Ltd. - Pakistan
- Bayan Resources Tbk. - Indonesia
- Pendopo Energi Batubara - Indonesia
- Sarangani Energy Corporation, Philippines
- Renaissance Capital - South Africa
- Toyota Tsusho Corporation, Japan
- Sindya Power Generating Company Private Ltd
- CIMB Investment Bank - Malaysia
- Xindia Steels Limited - India
- Oldendorff Carriers - Singapore
- Indo Tambangraya Megah - Indonesia
- Thiess Contractors Indonesia
- CNBM International Corporation - China
- PTC India Limited - India
- European Bulk Services B.V. - Netherlands
- Economic Council, Georgia
- Jindal Steel & Power Ltd - India
- Dalmia Cement Bharat India
- Semirara Mining Corp, Philippines
- Star Paper Mills Limited - India
- Tata Chemicals Ltd - India
- Grasim Industreis Ltd - India
- Bukit Makmur.PT - Indonesia
- Independent Power Producers Association of India
- White Energy Company Limited
- Sakthi Sugars Limited - India
- Indian Oil Corporation Limited
- Bank of Tokyo Mitsubishi UFJ Ltd
- Petrochimia International Co. Ltd.- Taiwan
- Riau Bara Harum - Indonesia
- Central Electricity Authority - India
- Rio Tinto Coal - Australia
- Alfred C Toepfer International GmbH - Germany
- Aboitiz Power Corporation - Philippines
- Port Waratah Coal Services - Australia
- Deloitte Consulting - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Indika Energy - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Ind-Barath Power Infra Limited - India
- Banpu Public Company Limited - Thailand
- The University of Queensland
- Petron Corporation, Philippines
- Makarim & Taira - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Orica Mining Services - Indonesia
- ASAPP Information Group - India
- Price Waterhouse Coopers - Russia
- Coalindo Energy - Indonesia
- Videocon Industries ltd - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Marubeni Corporation - India
- Metalloyd Limited - United Kingdom
- Sical Logistics Limited - India
- Africa Commodities Group - South Africa
- Kapuas Tunggal Persada - Indonesia
- Central Java Power - Indonesia
- Parry Sugars Refinery, India
- Vizag Seaport Private Limited - India
- Mercator Lines Limited - India
- Uttam Galva Steels Limited - India
- SMG Consultants - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Pipit Mutiara Jaya. PT, Indonesia
- Jaiprakash Power Ventures ltd
- Vedanta Resources Plc - India
- Electricity Generating Authority of Thailand
- Cigading International Bulk Terminal - Indonesia
- Anglo American - United Kingdom
- Directorate General of MIneral and Coal - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- GMR Energy Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Goldman Sachs - Singapore
- The State Trading Corporation of India Ltd
- PowerSource Philippines DevCo
- Australian Coal Association
- Siam City Cement PLC, Thailand
- GVK Power & Infra Limited - India
- Semirara Mining and Power Corporation, Philippines
- Siam City Cement - Thailand
- Neyveli Lignite Corporation Ltd, - India
- Mjunction Services Limited - India
- Directorate Of Revenue Intelligence - India
- TeaM Sual Corporation - Philippines
- Edison Trading Spa - Italy
- Power Finance Corporation Ltd., India
- Sinarmas Energy and Mining - Indonesia
- Barasentosa Lestari - Indonesia
- Merrill Lynch Commodities Europe
- Bukit Asam (Persero) Tbk - Indonesia
- Meenaskhi Energy Private Limited - India
- Chamber of Mines of South Africa
- Orica Australia Pty. Ltd.
- McConnell Dowell - Australia
- Sojitz Corporation - Japan
- ICICI Bank Limited - India
- Coastal Gujarat Power Limited - India
- Mintek Dendrill Indonesia
- Holcim Trading Pte Ltd - Singapore
- Interocean Group of Companies - India
- Parliament of New Zealand
- Kalimantan Lumbung Energi - Indonesia
- Larsen & Toubro Limited - India
- Kobexindo Tractors - Indoneisa
- Meralco Power Generation, Philippines
- Simpson Spence & Young - Indonesia
- Global Green Power PLC Corporation, Philippines
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