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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, 28 June 24
INDIAN POWER STATIONS STOCKED WITH BUMPER COAL SUPPLY AS TRANSPORT WOES EASE - BUSINESS STANDARD
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Friday, 28 June 24
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Monday, 24 June 24
PLN'S FINANCIAL SUSTAINABILITY RESTS ON ACCELERATED COAL RETIREMENT AND RENEWABLES DEPLOYMENT - MUTYA YUSTIKA
On 28 May 2024, Indonesia’s national electricity utility, PT Perusahaan Listrik Negara (PLN), released its financial report for 2023. Althoug ...
Monday, 24 June 24
INDIA'S COAL-BASED POWER DEMAND AT ALL-TIME HIGH, GOVERNMENT SAYS - REUTERS
India’s demand for coal-based power has risen by 7.3% this fiscal year to an all-time high, the government said in a statement on Wednesday.
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Monday, 24 June 24
CHINA'S COAL INDUSTRY TURNS GREENER THROUGH INNOVATIVE APPROACHES - PEOPLE'S DAILY
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Showing 11 to 15 news of total 6871 |
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- Vedanta Resources Plc - India
- New Zealand Coal & Carbon
- Rio Tinto Coal - Australia
- Maharashtra Electricity Regulatory Commission - India
- Coal and Oil Company - UAE
- Coalindo Energy - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Mercator Lines Limited - India
- Bhushan Steel Limited - India
- Jindal Steel & Power Ltd - India
- Holcim Trading Pte Ltd - Singapore
- Videocon Industries ltd - India
- India Bulls Power Limited - India
- Price Waterhouse Coopers - Russia
- Chettinad Cement Corporation Ltd - India
- Bukit Baiduri Energy - Indonesia
- Chamber of Mines of South Africa
- Krishnapatnam Port Company Ltd. - India
- Bayan Resources Tbk. - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Goldman Sachs - Singapore
- Global Green Power PLC Corporation, Philippines
- Thiess Contractors Indonesia
- Orica Mining Services - Indonesia
- Semirara Mining and Power Corporation, Philippines
- London Commodity Brokers - England
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Globalindo Alam Lestari - Indonesia
- Riau Bara Harum - Indonesia
- Interocean Group of Companies - India
- Orica Australia Pty. Ltd.
- Kalimantan Lumbung Energi - Indonesia
- Malabar Cements Ltd - India
- Timah Investasi Mineral - Indoneisa
- Global Coal Blending Company Limited - Australia
- Altura Mining Limited, Indonesia
- The University of Queensland
- Meenaskhi Energy Private Limited - India
- MS Steel International - UAE
- Intertek Mineral Services - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Banpu Public Company Limited - Thailand
- Bahari Cakrawala Sebuku - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- GVK Power & Infra Limited - India
- VISA Power Limited - India
- Sakthi Sugars Limited - India
- Port Waratah Coal Services - Australia
- Bangladesh Power Developement Board
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Deloitte Consulting - India
- Maheswari Brothers Coal Limited - India
- Kumho Petrochemical, South Korea
- Borneo Indobara - Indonesia
- Salva Resources Pvt Ltd - India
- PowerSource Philippines DevCo
- Coastal Gujarat Power Limited - India
- Rashtriya Ispat Nigam Limited - India
- Savvy Resources Ltd - HongKong
- Indonesian Coal Mining Association
- Australian Commodity Traders Exchange
- Energy Link Ltd, New Zealand
- Ministry of Mines - Canada
- Mjunction Services Limited - India
- Africa Commodities Group - South Africa
- Indogreen Group - Indonesia
- San Jose City I Power Corp, Philippines
- Independent Power Producers Association of India
- Cigading International Bulk Terminal - Indonesia
- GAC Shipping (India) Pvt Ltd
- Minerals Council of Australia
- Barasentosa Lestari - Indonesia
- Sarangani Energy Corporation, Philippines
- Australian Coal Association
- Sical Logistics Limited - India
- European Bulk Services B.V. - Netherlands
- Simpson Spence & Young - Indonesia
- SMC Global Power, Philippines
- Xindia Steels Limited - India
- Binh Thuan Hamico - Vietnam
- CIMB Investment Bank - Malaysia
- Attock Cement Pakistan Limited
- TNB Fuel Sdn Bhd - Malaysia
- Dalmia Cement Bharat India
- Madhucon Powers Ltd - India
- Tamil Nadu electricity Board
- Central Java Power - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Planning Commission, India
- Aboitiz Power Corporation - Philippines
- Georgia Ports Authority, United States
- Petrochimia International Co. Ltd.- Taiwan
- TeaM Sual Corporation - Philippines
- Kartika Selabumi Mining - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Heidelberg Cement - Germany
- ASAPP Information Group - India
- International Coal Ventures Pvt Ltd - India
- Commonwealth Bank - Australia
- SN Aboitiz Power Inc, Philippines
- Siam City Cement - Thailand
- Antam Resourcindo - Indonesia
- Trasteel International SA, Italy
- The State Trading Corporation of India Ltd
- Miang Besar Coal Terminal - Indonesia
- Parry Sugars Refinery, India
- Formosa Plastics Group - Taiwan
- Cement Manufacturers Association - India
- OPG Power Generation Pvt Ltd - India
- Indo Tambangraya Megah - Indonesia
- Electricity Authority, New Zealand
- Agrawal Coal Company - India
- GN Power Mariveles Coal Plant, Philippines
- Kapuas Tunggal Persada - Indonesia
- Merrill Lynch Commodities Europe
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Samtan Co., Ltd - South Korea
- Therma Luzon, Inc, Philippines
- Renaissance Capital - South Africa
- Ind-Barath Power Infra Limited - India
- Posco Energy - South Korea
- Bulk Trading Sa - Switzerland
- CNBM International Corporation - China
- Wood Mackenzie - Singapore
- Sojitz Corporation - Japan
- Kaltim Prima Coal - Indonesia
- Marubeni Corporation - India
- PTC India Limited - India
- ICICI Bank Limited - India
- Bhatia International Limited - India
- Energy Development Corp, Philippines
- Directorate Of Revenue Intelligence - India
- Petron Corporation, Philippines
- Carbofer General Trading SA - India
- Power Finance Corporation Ltd., India
- White Energy Company Limited
- Grasim Industreis Ltd - India
- Alfred C Toepfer International GmbH - Germany
- Vijayanagar Sugar Pvt Ltd - India
- Uttam Galva Steels Limited - India
- Indian Oil Corporation Limited
- Thai Mozambique Logistica
- LBH Netherlands Bv - Netherlands
- Sinarmas Energy and Mining - Indonesia
- Eastern Coal Council - USA
- Pipit Mutiara Jaya. PT, Indonesia
- Gujarat Sidhee Cement - India
- Kepco SPC Power Corporation, Philippines
- Straits Asia Resources Limited - Singapore
- Manunggal Multi Energi - Indonesia
- Essar Steel Hazira Ltd - India
- Parliament of New Zealand
- Kobexindo Tractors - Indoneisa
- Tata Chemicals Ltd - India
- Standard Chartered Bank - UAE
- Iligan Light & Power Inc, Philippines
- Gujarat Electricity Regulatory Commission - India
- South Luzon Thermal Energy Corporation
- Toyota Tsusho Corporation, Japan
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Mintek Dendrill Indonesia
- Mercuria Energy - Indonesia
- Indika Energy - Indonesia
- SMG Consultants - Indonesia
- Ambuja Cements Ltd - India
- Star Paper Mills Limited - India
- Meralco Power Generation, Philippines
- Bharathi Cement Corporation - India
- Semirara Mining Corp, Philippines
- The Treasury - Australian Government
- Makarim & Taira - Indonesia
- Latin American Coal - Colombia
- Central Electricity Authority - India
- Bhoruka Overseas - Indonesia
- Medco Energi Mining Internasional
- Oldendorff Carriers - Singapore
- Karbindo Abesyapradhi - Indoneisa
- Economic Council, Georgia
- Jaiprakash Power Ventures ltd
- Leighton Contractors Pty Ltd - Australia
- Romanian Commodities Exchange
- Ministry of Transport, Egypt
- McConnell Dowell - Australia
- Billiton Holdings Pty Ltd - Australia
- Larsen & Toubro Limited - India
- Sree Jayajothi Cements Limited - India
- Lanco Infratech Ltd - India
- GMR Energy Limited - India
- Anglo American - United Kingdom
- Vizag Seaport Private Limited - India
- Neyveli Lignite Corporation Ltd, - India
- Bukit Makmur.PT - Indonesia
- Karaikal Port Pvt Ltd - India
- IEA Clean Coal Centre - UK
- Electricity Generating Authority of Thailand
- Kideco Jaya Agung - Indonesia
- Ministry of Finance - Indonesia
- Metalloyd Limited - United Kingdom
- Baramulti Group, Indonesia
- Siam City Cement PLC, Thailand
- Singapore Mercantile Exchange
- Gujarat Mineral Development Corp Ltd - India
- IHS Mccloskey Coal Group - USA
- Bukit Asam (Persero) Tbk - Indonesia
- Pendopo Energi Batubara - Indonesia
- Edison Trading Spa - Italy
- Bank of Tokyo Mitsubishi UFJ Ltd
- Jorong Barutama Greston.PT - Indonesia
- Wilmar Investment Holdings
- Sindya Power Generating Company Private Ltd
- Aditya Birla Group - India
- Ceylon Electricity Board - Sri Lanka
- Indian Energy Exchange, India
- Global Business Power Corporation, Philippines
- Eastern Energy - Thailand
- PNOC Exploration Corporation - Philippines
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