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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, 18 December 18
TOBA BARA ACQUIRES SHARES OF PT BATU HITAM PERKASA
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Saturday, 15 December 18
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Friday, 14 December 18
KOSPO INVITED BIDS FOR 320,000 MT OF LOW CALORIFIC VALUE COAL
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Showing 1526 to 1530 news of total 6871 |
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- Tata Chemicals Ltd - India
- Timah Investasi Mineral - Indoneisa
- Miang Besar Coal Terminal - Indonesia
- Binh Thuan Hamico - Vietnam
- Sakthi Sugars Limited - India
- Energy Development Corp, Philippines
- Straits Asia Resources Limited - Singapore
- Latin American Coal - Colombia
- IHS Mccloskey Coal Group - USA
- GMR Energy Limited - India
- Ministry of Mines - Canada
- Eastern Energy - Thailand
- Star Paper Mills Limited - India
- The University of Queensland
- Vizag Seaport Private Limited - India
- Formosa Plastics Group - Taiwan
- Petron Corporation, Philippines
- Vijayanagar Sugar Pvt Ltd - India
- Indian Energy Exchange, India
- Kohat Cement Company Ltd. - Pakistan
- Merrill Lynch Commodities Europe
- Cement Manufacturers Association - India
- Iligan Light & Power Inc, Philippines
- Directorate Of Revenue Intelligence - India
- SN Aboitiz Power Inc, Philippines
- Parry Sugars Refinery, India
- GAC Shipping (India) Pvt Ltd
- PetroVietnam Power Coal Import and Supply Company
- Renaissance Capital - South Africa
- Medco Energi Mining Internasional
- Gujarat Electricity Regulatory Commission - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- LBH Netherlands Bv - Netherlands
- Agrawal Coal Company - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- GN Power Mariveles Coal Plant, Philippines
- Aboitiz Power Corporation - Philippines
- Kaltim Prima Coal - Indonesia
- Manunggal Multi Energi - Indonesia
- Australian Coal Association
- Deloitte Consulting - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Georgia Ports Authority, United States
- AsiaOL BioFuels Corp., Philippines
- Bukit Makmur.PT - Indonesia
- McConnell Dowell - Australia
- Rashtriya Ispat Nigam Limited - India
- Barasentosa Lestari - Indonesia
- Kobexindo Tractors - Indoneisa
- Attock Cement Pakistan Limited
- Price Waterhouse Coopers - Russia
- Indian Oil Corporation Limited
- MS Steel International - UAE
- Kapuas Tunggal Persada - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Ministry of Finance - Indonesia
- Bharathi Cement Corporation - India
- Aditya Birla Group - India
- Sojitz Corporation - Japan
- Pendopo Energi Batubara - Indonesia
- Electricity Authority, New Zealand
- CNBM International Corporation - China
- Meralco Power Generation, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Indika Energy - Indonesia
- Global Green Power PLC Corporation, Philippines
- Bukit Baiduri Energy - Indonesia
- Global Coal Blending Company Limited - Australia
- Uttam Galva Steels Limited - India
- Energy Link Ltd, New Zealand
- Dalmia Cement Bharat India
- Ambuja Cements Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Coastal Gujarat Power Limited - India
- VISA Power Limited - India
- Jaiprakash Power Ventures ltd
- Maheswari Brothers Coal Limited - India
- Coal and Oil Company - UAE
- Standard Chartered Bank - UAE
- TeaM Sual Corporation - Philippines
- London Commodity Brokers - England
- Siam City Cement - Thailand
- PTC India Limited - India
- Chamber of Mines of South Africa
- Intertek Mineral Services - Indonesia
- Kartika Selabumi Mining - Indonesia
- Lanco Infratech Ltd - India
- Australian Commodity Traders Exchange
- Kepco SPC Power Corporation, Philippines
- Savvy Resources Ltd - HongKong
- Thiess Contractors Indonesia
- Sree Jayajothi Cements Limited - India
- Indogreen Group - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Banpu Public Company Limited - Thailand
- Planning Commission, India
- Bhoruka Overseas - Indonesia
- Indonesian Coal Mining Association
- Simpson Spence & Young - Indonesia
- Wilmar Investment Holdings
- Mercuria Energy - Indonesia
- Posco Energy - South Korea
- Bhatia International Limited - India
- Ceylon Electricity Board - Sri Lanka
- Essar Steel Hazira Ltd - India
- Trasteel International SA, Italy
- Independent Power Producers Association of India
- Marubeni Corporation - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Economic Council, Georgia
- Oldendorff Carriers - Singapore
- Jindal Steel & Power Ltd - India
- Carbofer General Trading SA - India
- Singapore Mercantile Exchange
- Mjunction Services Limited - India
- ICICI Bank Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Sical Logistics Limited - India
- Madhucon Powers Ltd - India
- Eastern Coal Council - USA
- SMC Global Power, Philippines
- Parliament of New Zealand
- Kalimantan Lumbung Energi - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Krishnapatnam Port Company Ltd. - India
- Sinarmas Energy and Mining - Indonesia
- Sindya Power Generating Company Private Ltd
- Toyota Tsusho Corporation, Japan
- Tamil Nadu electricity Board
- Indo Tambangraya Megah - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Edison Trading Spa - Italy
- Minerals Council of Australia
- White Energy Company Limited
- Orica Mining Services - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Baramulti Group, Indonesia
- The Treasury - Australian Government
- Gujarat Sidhee Cement - India
- Semirara Mining Corp, Philippines
- Bangladesh Power Developement Board
- International Coal Ventures Pvt Ltd - India
- Heidelberg Cement - Germany
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Goldman Sachs - Singapore
- Meenaskhi Energy Private Limited - India
- Larsen & Toubro Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- IEA Clean Coal Centre - UK
- Siam City Cement PLC, Thailand
- GVK Power & Infra Limited - India
- OPG Power Generation Pvt Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- Grasim Industreis Ltd - India
- Anglo American - United Kingdom
- Bulk Trading Sa - Switzerland
- Borneo Indobara - Indonesia
- The State Trading Corporation of India Ltd
- Central Electricity Authority - India
- Coalindo Energy - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Jorong Barutama Greston.PT - Indonesia
- Altura Mining Limited, Indonesia
- SMG Consultants - Indonesia
- Thai Mozambique Logistica
- Chettinad Cement Corporation Ltd - India
- Kumho Petrochemical, South Korea
- Romanian Commodities Exchange
- Samtan Co., Ltd - South Korea
- Commonwealth Bank - Australia
- Mercator Lines Limited - India
- Leighton Contractors Pty Ltd - Australia
- Global Business Power Corporation, Philippines
- Makarim & Taira - Indonesia
- Electricity Generating Authority of Thailand
- ASAPP Information Group - India
- Vedanta Resources Plc - India
- Ministry of Transport, Egypt
- PowerSource Philippines DevCo
- Mintek Dendrill Indonesia
- Salva Resources Pvt Ltd - India
- Xindia Steels Limited - India
- New Zealand Coal & Carbon
- Malabar Cements Ltd - India
- Africa Commodities Group - South Africa
- India Bulls Power Limited - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Riau Bara Harum - Indonesia
- Therma Luzon, Inc, Philippines
- Rio Tinto Coal - Australia
- Antam Resourcindo - Indonesia
- Wood Mackenzie - Singapore
- San Jose City I Power Corp, Philippines
- Globalindo Alam Lestari - Indonesia
- South Luzon Thermal Energy Corporation
- PNOC Exploration Corporation - Philippines
- Bhushan Steel Limited - India
- Karaikal Port Pvt Ltd - India
- European Bulk Services B.V. - Netherlands
- Power Finance Corporation Ltd., India
- Central Java Power - Indonesia
- CIMB Investment Bank - Malaysia
- Interocean Group of Companies - India
- Videocon Industries ltd - India
- Kideco Jaya Agung - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Bayan Resources Tbk. - Indonesia
- Sarangani Energy Corporation, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Ind-Barath Power Infra Limited - India
- Metalloyd Limited - United Kingdom
- Orica Australia Pty. Ltd.
- Port Waratah Coal Services - Australia
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