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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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Tuesday, 22 January 19
AUSTRALIA'S YANCOAL PRODUCED 50 MMT SALEABLE COAL IN 2018 UP 59 PER CENT ON THE YEAR PRIOR, THE QUARTERLY REPORT SHOWS
According to the report, the miner's quarterly (Q4' 18) saleable coal production of 12.4 Mmt. Includes 10.5 Mmt (85 per cent) from the Comp ...
Monday, 21 January 19
KOSPO INVITING BIDS FOR 320K MT OF LOW CALORIFIC VALUE COAL
COALspot.com: South Korea state-owned utility Korea Southern Power Co. Ltd (KOSPO) issued a tender for 320,000 MT of min 3,800 kcal/kg NCV low calo ...
Monday, 21 January 19
SUPRAMAX: INDONESIAN COAL RUNS, TONNAGE WAS GIVING APS DELIVERIES AND A 57,000DWT SHIP FIXED AT $7,000 FOR A TRIP TO WEST COAST INDIA - BALTIC BRIEFING
Capesize
A positive end to a week that saw rates on the West Australia/China run slip below $6.00, as charterers faced a plentiful supply ...
Monday, 21 January 19
HARD COAL WORLD TRADE IN 2018 RISES BY 3.7 PER CENT; GLOBAL HARD COAL PRODUCTION INCREASES BY 1.7 PER CENT - VDKI
Global Hard Coal Production Increases By 1.7%.
According to provisional calculations by the German Coal Importer Association (VDKi), ...
Sunday, 20 January 19
OIL MARKET REPORT: A MARATHON, NOT A SPRINT - IEA
Last month, we asked if there was a floor under prices following the signing of a new Vienna Agreement that aims to re-balance the oil market. Foll ...
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Showing 1486 to 1490 news of total 6871 |
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- Central Java Power - Indonesia
- Sarangani Energy Corporation, Philippines
- Mercuria Energy - Indonesia
- Coal and Oil Company - UAE
- The University of Queensland
- Thai Mozambique Logistica
- Iligan Light & Power Inc, Philippines
- Wood Mackenzie - Singapore
- The Treasury - Australian Government
- London Commodity Brokers - England
- Maheswari Brothers Coal Limited - India
- Attock Cement Pakistan Limited
- Orica Mining Services - Indonesia
- Eastern Coal Council - USA
- Maharashtra Electricity Regulatory Commission - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Cigading International Bulk Terminal - Indonesia
- Semirara Mining Corp, Philippines
- Ind-Barath Power Infra Limited - India
- Energy Link Ltd, New Zealand
- Kaltim Prima Coal - Indonesia
- Goldman Sachs - Singapore
- Australian Coal Association
- Ceylon Electricity Board - Sri Lanka
- MS Steel International - UAE
- Georgia Ports Authority, United States
- Samtan Co., Ltd - South Korea
- Sakthi Sugars Limited - India
- Thiess Contractors Indonesia
- Kumho Petrochemical, South Korea
- Carbofer General Trading SA - India
- Bahari Cakrawala Sebuku - Indonesia
- The State Trading Corporation of India Ltd
- Mintek Dendrill Indonesia
- Timah Investasi Mineral - Indoneisa
- Agrawal Coal Company - India
- Gujarat Sidhee Cement - India
- Leighton Contractors Pty Ltd - Australia
- Price Waterhouse Coopers - Russia
- Ministry of Finance - Indonesia
- Mercator Lines Limited - India
- PowerSource Philippines DevCo
- Wilmar Investment Holdings
- Larsen & Toubro Limited - India
- Riau Bara Harum - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- ICICI Bank Limited - India
- Kohat Cement Company Ltd. - Pakistan
- Indonesian Coal Mining Association
- Mjunction Services Limited - India
- GMR Energy Limited - India
- Edison Trading Spa - Italy
- ASAPP Information Group - India
- Siam City Cement PLC, Thailand
- Vijayanagar Sugar Pvt Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Manunggal Multi Energi - Indonesia
- CNBM International Corporation - China
- Makarim & Taira - Indonesia
- Standard Chartered Bank - UAE
- OPG Power Generation Pvt Ltd - India
- Ministry of Mines - Canada
- Kideco Jaya Agung - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Economic Council, Georgia
- Gujarat Mineral Development Corp Ltd - India
- Renaissance Capital - South Africa
- Global Coal Blending Company Limited - Australia
- Vedanta Resources Plc - India
- PNOC Exploration Corporation - Philippines
- Sindya Power Generating Company Private Ltd
- Siam City Cement - Thailand
- Jaiprakash Power Ventures ltd
- Formosa Plastics Group - Taiwan
- Orica Australia Pty. Ltd.
- Meenaskhi Energy Private Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- VISA Power Limited - India
- Salva Resources Pvt Ltd - India
- Binh Thuan Hamico - Vietnam
- Semirara Mining and Power Corporation, Philippines
- Oldendorff Carriers - Singapore
- Singapore Mercantile Exchange
- Barasentosa Lestari - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Miang Besar Coal Terminal - Indonesia
- Planning Commission, India
- Heidelberg Cement - Germany
- Petron Corporation, Philippines
- Electricity Authority, New Zealand
- Uttam Galva Steels Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Therma Luzon, Inc, Philippines
- Energy Development Corp, Philippines
- Port Waratah Coal Services - Australia
- Xindia Steels Limited - India
- Indogreen Group - Indonesia
- Minerals Council of Australia
- Merrill Lynch Commodities Europe
- Global Green Power PLC Corporation, Philippines
- Savvy Resources Ltd - HongKong
- Bukit Makmur.PT - Indonesia
- Videocon Industries ltd - India
- Vizag Seaport Private Limited - India
- Aboitiz Power Corporation - Philippines
- Malabar Cements Ltd - India
- Marubeni Corporation - India
- McConnell Dowell - Australia
- Altura Mining Limited, Indonesia
- Bhatia International Limited - India
- Grasim Industreis Ltd - India
- Indian Energy Exchange, India
- Power Finance Corporation Ltd., India
- Asmin Koalindo Tuhup - Indonesia
- Ambuja Cements Ltd - India
- Bukit Baiduri Energy - Indonesia
- Global Business Power Corporation, Philippines
- PTC India Limited - India
- Sojitz Corporation - Japan
- TeaM Sual Corporation - Philippines
- SMC Global Power, Philippines
- Sree Jayajothi Cements Limited - India
- Aditya Birla Group - India
- Intertek Mineral Services - Indonesia
- Parliament of New Zealand
- Holcim Trading Pte Ltd - Singapore
- Bharathi Cement Corporation - India
- White Energy Company Limited
- Directorate General of MIneral and Coal - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- GVK Power & Infra Limited - India
- Antam Resourcindo - Indonesia
- Tamil Nadu electricity Board
- Latin American Coal - Colombia
- Indian Oil Corporation Limited
- India Bulls Power Limited - India
- Pendopo Energi Batubara - Indonesia
- Bhushan Steel Limited - India
- South Luzon Thermal Energy Corporation
- Australian Commodity Traders Exchange
- Bukit Asam (Persero) Tbk - Indonesia
- Jindal Steel & Power Ltd - India
- Madhucon Powers Ltd - India
- Krishnapatnam Port Company Ltd. - India
- Lanco Infratech Ltd - India
- Romanian Commodities Exchange
- Sinarmas Energy and Mining - Indonesia
- Anglo American - United Kingdom
- Metalloyd Limited - United Kingdom
- Cement Manufacturers Association - India
- European Bulk Services B.V. - Netherlands
- New Zealand Coal & Carbon
- Indika Energy - Indonesia
- Tata Chemicals Ltd - India
- GAC Shipping (India) Pvt Ltd
- Bulk Trading Sa - Switzerland
- Gujarat Electricity Regulatory Commission - India
- Borneo Indobara - Indonesia
- Interocean Group of Companies - India
- Deloitte Consulting - India
- Africa Commodities Group - South Africa
- Karaikal Port Pvt Ltd - India
- Chamber of Mines of South Africa
- Central Electricity Authority - India
- Banpu Public Company Limited - Thailand
- Bank of Tokyo Mitsubishi UFJ Ltd
- Essar Steel Hazira Ltd - India
- Toyota Tsusho Corporation, Japan
- Jorong Barutama Greston.PT - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Kepco SPC Power Corporation, Philippines
- Directorate Of Revenue Intelligence - India
- Sical Logistics Limited - India
- Globalindo Alam Lestari - Indonesia
- Kapuas Tunggal Persada - Indonesia
- SMG Consultants - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Bayan Resources Tbk. - Indonesia
- Indo Tambangraya Megah - Indonesia
- Commonwealth Bank - Australia
- IEA Clean Coal Centre - UK
- Trasteel International SA, Italy
- Rashtriya Ispat Nigam Limited - India
- Chettinad Cement Corporation Ltd - India
- Simpson Spence & Young - Indonesia
- San Jose City I Power Corp, Philippines
- SN Aboitiz Power Inc, Philippines
- Ministry of Transport, Egypt
- Bhoruka Overseas - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- GN Power Mariveles Coal Plant, Philippines
- Kartika Selabumi Mining - Indonesia
- Coalindo Energy - Indonesia
- Meralco Power Generation, Philippines
- Posco Energy - South Korea
- International Coal Ventures Pvt Ltd - India
- CIMB Investment Bank - Malaysia
- Petrochimia International Co. Ltd.- Taiwan
- Eastern Energy - Thailand
- Independent Power Producers Association of India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Parry Sugars Refinery, India
- Electricity Generating Authority of Thailand
- IHS Mccloskey Coal Group - USA
- Straits Asia Resources Limited - Singapore
- Neyveli Lignite Corporation Ltd, - India
- Baramulti Group, Indonesia
- Bangladesh Power Developement Board
- Dalmia Cement Bharat India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- LBH Netherlands Bv - Netherlands
- Kobexindo Tractors - Indoneisa
- Coastal Gujarat Power Limited - India
- Medco Energi Mining Internasional
- Star Paper Mills Limited - India
- Rio Tinto Coal - Australia
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