We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
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
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Saturday, 29 December 18
DELIVERY OF CARGO WITHOUT PRODUCTION OF THE ORIGINAL BILL OF LADING - TT CLUB
KNOWLEDGE TO ELEVATE
As the bill of lading is a document of title, a person presenting it to the carrier or its agent is ostensibly entitled t ...
Friday, 28 December 18
BIMCO 2020 SULPHUR CLAUSES: "A FAIR ALLOCATION OF RESPONSIBILITIES AND LIABILITIES'? - INCE & CO.
To assist owners and charterers to address the legal issues arising under any time charterparties, which will span the 1 January 2020 implementatio ...
Thursday, 27 December 18
DRY BULKERS SPOT FREIGHT MARKET W/E 21 DEC - ALLIED SHIPBROKING
Capesize
A negative week for the Capesize sector, as activity remained at low levels, especially in the Pacific, with rumors regarding agreed r ...
Thursday, 27 December 18
SHIPPING IS ENTERING A NEW ERA OF EVER CHALLENGING CONDITIONS - ALLIED
As we move closer to the end of the year and we look forward into New Year, we are still finding ourselves looking deep into a market outlook full ...
Tuesday, 25 December 18
FUEL QUALITY AND SAFETY IN IMO CONVENTIONS: A GROWING CHALLENGE, EVEN PRIOR TO 1 JANUARY 2020 - IUMI
At the 100th session of the International Maritime Organization’s (IMO) Maritime Safety Committee (MSC) meeting discussions on fuel quality a ...
|
|
|
Showing 1511 to 1515 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- PNOC Exploration Corporation - Philippines
- Meralco Power Generation, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Merrill Lynch Commodities Europe
- Alfred C Toepfer International GmbH - Germany
- Formosa Plastics Group - Taiwan
- Star Paper Mills Limited - India
- Petron Corporation, Philippines
- Metalloyd Limited - United Kingdom
- Indonesian Coal Mining Association
- Energy Development Corp, Philippines
- Edison Trading Spa - Italy
- Heidelberg Cement - Germany
- Bukit Asam (Persero) Tbk - Indonesia
- IEA Clean Coal Centre - UK
- Globalindo Alam Lestari - Indonesia
- International Coal Ventures Pvt Ltd - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Gujarat Mineral Development Corp Ltd - India
- Ceylon Electricity Board - Sri Lanka
- Parry Sugars Refinery, India
- Uttam Galva Steels Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Jindal Steel & Power Ltd - India
- Ind-Barath Power Infra Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Electricity Generating Authority of Thailand
- Aditya Birla Group - India
- Price Waterhouse Coopers - Russia
- Meenaskhi Energy Private Limited - India
- Bhatia International Limited - India
- Indika Energy - Indonesia
- Xindia Steels Limited - India
- Goldman Sachs - Singapore
- Rio Tinto Coal - Australia
- PTC India Limited - India
- Altura Mining Limited, Indonesia
- Coal and Oil Company - UAE
- Orica Mining Services - Indonesia
- Energy Link Ltd, New Zealand
- Sarangani Energy Corporation, Philippines
- Baramulti Group, Indonesia
- Samtan Co., Ltd - South Korea
- Mercuria Energy - Indonesia
- Global Business Power Corporation, Philippines
- Coalindo Energy - Indonesia
- Cement Manufacturers Association - India
- GN Power Mariveles Coal Plant, Philippines
- Deloitte Consulting - India
- Indian Energy Exchange, India
- Global Green Power PLC Corporation, Philippines
- Power Finance Corporation Ltd., India
- London Commodity Brokers - England
- Billiton Holdings Pty Ltd - Australia
- Bangladesh Power Developement Board
- Gujarat Sidhee Cement - India
- Sree Jayajothi Cements Limited - India
- VISA Power Limited - India
- Eastern Coal Council - USA
- Agrawal Coal Company - India
- Videocon Industries ltd - India
- SMG Consultants - Indonesia
- PowerSource Philippines DevCo
- Bhushan Steel Limited - India
- Pendopo Energi Batubara - Indonesia
- Karaikal Port Pvt Ltd - India
- Mercator Lines Limited - India
- Indo Tambangraya Megah - Indonesia
- Bukit Makmur.PT - Indonesia
- Bukit Baiduri Energy - Indonesia
- Chamber of Mines of South Africa
- Sindya Power Generating Company Private Ltd
- Salva Resources Pvt Ltd - India
- CNBM International Corporation - China
- Essar Steel Hazira Ltd - India
- PetroVietnam Power Coal Import and Supply Company
- Commonwealth Bank - Australia
- Georgia Ports Authority, United States
- Planning Commission, India
- Maharashtra Electricity Regulatory Commission - India
- Iligan Light & Power Inc, Philippines
- Malabar Cements Ltd - India
- Romanian Commodities Exchange
- Petrochimia International Co. Ltd.- Taiwan
- Wood Mackenzie - Singapore
- Kideco Jaya Agung - Indonesia
- McConnell Dowell - Australia
- India Bulls Power Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Toyota Tsusho Corporation, Japan
- Trasteel International SA, Italy
- Vijayanagar Sugar Pvt Ltd - India
- Economic Council, Georgia
- The University of Queensland
- Miang Besar Coal Terminal - Indonesia
- Parliament of New Zealand
- South Luzon Thermal Energy Corporation
- Vizag Seaport Private Limited - India
- Bulk Trading Sa - Switzerland
- Bank of Tokyo Mitsubishi UFJ Ltd
- Antam Resourcindo - Indonesia
- Makarim & Taira - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Africa Commodities Group - South Africa
- San Jose City I Power Corp, Philippines
- Posco Energy - South Korea
- Thiess Contractors Indonesia
- Carbofer General Trading SA - India
- Manunggal Multi Energi - Indonesia
- Jaiprakash Power Ventures ltd
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Aboitiz Power Corporation - Philippines
- GAC Shipping (India) Pvt Ltd
- Latin American Coal - Colombia
- Minerals Council of Australia
- Ministry of Mines - Canada
- Attock Cement Pakistan Limited
- Bharathi Cement Corporation - India
- Electricity Authority, New Zealand
- GVK Power & Infra Limited - India
- Central Java Power - Indonesia
- Coastal Gujarat Power Limited - India
- Kaltim Prima Coal - Indonesia
- Kartika Selabumi Mining - Indonesia
- Renaissance Capital - South Africa
- Borneo Indobara - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Interocean Group of Companies - India
- GMR Energy Limited - India
- Semirara Mining Corp, Philippines
- The State Trading Corporation of India Ltd
- Mintek Dendrill Indonesia
- SMC Global Power, Philippines
- Independent Power Producers Association of India
- Sakthi Sugars Limited - India
- OPG Power Generation Pvt Ltd - India
- Siam City Cement PLC, Thailand
- Barasentosa Lestari - Indonesia
- New Zealand Coal & Carbon
- Kumho Petrochemical, South Korea
- Wilmar Investment Holdings
- Tata Chemicals Ltd - India
- Holcim Trading Pte Ltd - Singapore
- Therma Luzon, Inc, Philippines
- ASAPP Information Group - India
- Kohat Cement Company Ltd. - Pakistan
- Grasim Industreis Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Karbindo Abesyapradhi - Indoneisa
- IHS Mccloskey Coal Group - USA
- Vedanta Resources Plc - India
- Timah Investasi Mineral - Indoneisa
- Maheswari Brothers Coal Limited - India
- Ministry of Finance - Indonesia
- Binh Thuan Hamico - Vietnam
- Chettinad Cement Corporation Ltd - India
- Lanco Infratech Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Neyveli Lignite Corporation Ltd, - India
- Standard Chartered Bank - UAE
- Madhucon Powers Ltd - India
- Orica Australia Pty. Ltd.
- ICICI Bank Limited - India
- Kalimantan Lumbung Energi - Indonesia
- LBH Netherlands Bv - Netherlands
- CIMB Investment Bank - Malaysia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Riau Bara Harum - Indonesia
- SN Aboitiz Power Inc, Philippines
- Cigading International Bulk Terminal - Indonesia
- Medco Energi Mining Internasional
- Larsen & Toubro Limited - India
- Ambuja Cements Ltd - India
- Banpu Public Company Limited - Thailand
- Port Waratah Coal Services - Australia
- Indogreen Group - Indonesia
- Australian Commodity Traders Exchange
- Simpson Spence & Young - Indonesia
- Ministry of Transport, Egypt
- Anglo American - United Kingdom
- Straits Asia Resources Limited - Singapore
- Oldendorff Carriers - Singapore
- Jorong Barutama Greston.PT - Indonesia
- Directorate Of Revenue Intelligence - India
- White Energy Company Limited
- Singapore Mercantile Exchange
- Kobexindo Tractors - Indoneisa
- TeaM Sual Corporation - Philippines
- Australian Coal Association
- Intertek Mineral Services - Indonesia
- Global Coal Blending Company Limited - Australia
- Savvy Resources Ltd - HongKong
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Central Electricity Authority - India
- Rashtriya Ispat Nigam Limited - India
- Sojitz Corporation - Japan
- MS Steel International - UAE
- Dalmia Cement Bharat India
- Semirara Mining and Power Corporation, Philippines
- Tamil Nadu electricity Board
- Bhoruka Overseas - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Kepco SPC Power Corporation, Philippines
- Thai Mozambique Logistica
- Sical Logistics Limited - India
- Marubeni Corporation - India
- Eastern Energy - Thailand
- Mjunction Services Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- European Bulk Services B.V. - Netherlands
- Indian Oil Corporation Limited
- The Treasury - Australian Government
- Bayan Resources Tbk. - Indonesia
- Siam City Cement - Thailand
|
| |
| |
|
