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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 September 18
INDONESIA 2018 COAL OUTPUT TARGET NOW AROUND 507 MLN T - ENERGY MINISTRY : REUTERS
Indonesia has increased its 2018 coal production target to around 507 million tonnes from a previous target of 485 million tonnes, the Energy Minis ...
Friday, 28 September 18
FITCH RATINGS: METALLURGICAL COAL MINERS MAY CURB COSTS AS PRICES SLIP
Strong cost inflation in the global metallurgical coal sector suggests that miners may focus on cost controls as prices decline from their current ...
Wednesday, 26 September 18
IS YOUR CHARTER PARTY READY FOR 2020? - METTE KRONHOLM FRAENDE, BIMCO
As the deadline for the IMO’s global low-sulphur fuel requirements fast approaches, it is necessary to carefully check the bunker clauses in ...
Wednesday, 26 September 18
SHIPPING MARKET INSIGHT - GEORGE ILIOPOULOS
Despite the fact that the dry bulk SnP market saw an admittedly busy summer season, there is a noticeable slowdown in activity during the past thre ...
Tuesday, 25 September 18
THE INCONVENIENT TRUTH OF RISING COAL PRICES - FORBES
Coal prices are not supposed to be rising as governments tighten environmental controls but that’s precisely what is happening at the premium ...
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Showing 1606 to 1610 news of total 6871 |
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- Carbofer General Trading SA - India
- Asmin Koalindo Tuhup - Indonesia
- Altura Mining Limited, Indonesia
- Wilmar Investment Holdings
- Electricity Generating Authority of Thailand
- Oldendorff Carriers - Singapore
- Samtan Co., Ltd - South Korea
- IHS Mccloskey Coal Group - USA
- Karaikal Port Pvt Ltd - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Eastern Coal Council - USA
- Offshore Bulk Terminal Pte Ltd, Singapore
- Simpson Spence & Young - Indonesia
- Commonwealth Bank - Australia
- Gujarat Mineral Development Corp Ltd - India
- Xindia Steels Limited - India
- CIMB Investment Bank - Malaysia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Dalmia Cement Bharat India
- Kepco SPC Power Corporation, Philippines
- Mercuria Energy - Indonesia
- Electricity Authority, New Zealand
- London Commodity Brokers - England
- PTC India Limited - India
- CNBM International Corporation - China
- Salva Resources Pvt Ltd - India
- Price Waterhouse Coopers - Russia
- Leighton Contractors Pty Ltd - Australia
- Jorong Barutama Greston.PT - Indonesia
- Thiess Contractors Indonesia
- Sakthi Sugars Limited - India
- Merrill Lynch Commodities Europe
- Kideco Jaya Agung - Indonesia
- Jaiprakash Power Ventures ltd
- Bukit Asam (Persero) Tbk - Indonesia
- Africa Commodities Group - South Africa
- LBH Netherlands Bv - Netherlands
- Sindya Power Generating Company Private Ltd
- Bangladesh Power Developement Board
- Directorate Of Revenue Intelligence - India
- Neyveli Lignite Corporation Ltd, - India
- Jindal Steel & Power Ltd - India
- Madhucon Powers Ltd - India
- Coastal Gujarat Power Limited - India
- Goldman Sachs - Singapore
- Directorate General of MIneral and Coal - Indonesia
- Eastern Energy - Thailand
- Energy Development Corp, Philippines
- Ambuja Cements Ltd - India
- Interocean Group of Companies - India
- Anglo American - United Kingdom
- Semirara Mining and Power Corporation, Philippines
- Romanian Commodities Exchange
- Makarim & Taira - Indonesia
- Energy Link Ltd, New Zealand
- Malabar Cements Ltd - India
- Krishnapatnam Port Company Ltd. - India
- Standard Chartered Bank - UAE
- Latin American Coal - Colombia
- Indian Energy Exchange, India
- Parry Sugars Refinery, India
- Kumho Petrochemical, South Korea
- Karbindo Abesyapradhi - Indoneisa
- Gujarat Sidhee Cement - India
- Minerals Council of Australia
- Pipit Mutiara Jaya. PT, Indonesia
- Coalindo Energy - Indonesia
- Bhoruka Overseas - Indonesia
- Aditya Birla Group - India
- Barasentosa Lestari - Indonesia
- Kartika Selabumi Mining - Indonesia
- Antam Resourcindo - Indonesia
- Siam City Cement - Thailand
- Maheswari Brothers Coal Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Grasim Industreis Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Iligan Light & Power Inc, Philippines
- Ind-Barath Power Infra Limited - India
- Kaltim Prima Coal - Indonesia
- San Jose City I Power Corp, Philippines
- Chettinad Cement Corporation Ltd - India
- Binh Thuan Hamico - Vietnam
- Meralco Power Generation, Philippines
- Kalimantan Lumbung Energi - Indonesia
- Holcim Trading Pte Ltd - Singapore
- TNB Fuel Sdn Bhd - Malaysia
- GAC Shipping (India) Pvt Ltd
- AsiaOL BioFuels Corp., Philippines
- OPG Power Generation Pvt Ltd - India
- South Luzon Thermal Energy Corporation
- Australian Commodity Traders Exchange
- Uttam Galva Steels Limited - India
- Chamber of Mines of South Africa
- ASAPP Information Group - India
- Tamil Nadu electricity Board
- Mercator Lines Limited - India
- Trasteel International SA, Italy
- GVK Power & Infra Limited - India
- Metalloyd Limited - United Kingdom
- PNOC Exploration Corporation - Philippines
- Siam City Cement PLC, Thailand
- Videocon Industries ltd - India
- TeaM Sual Corporation - Philippines
- VISA Power Limited - India
- Power Finance Corporation Ltd., India
- The Treasury - Australian Government
- Star Paper Mills Limited - India
- Bukit Makmur.PT - Indonesia
- Planning Commission, India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Australian Coal Association
- Port Waratah Coal Services - Australia
- Indonesian Coal Mining Association
- Ministry of Finance - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Economic Council, Georgia
- IEA Clean Coal Centre - UK
- Sarangani Energy Corporation, Philippines
- Miang Besar Coal Terminal - Indonesia
- Globalindo Alam Lestari - Indonesia
- Heidelberg Cement - Germany
- Straits Asia Resources Limited - Singapore
- Riau Bara Harum - Indonesia
- Mintek Dendrill Indonesia
- Bhushan Steel Limited - India
- SN Aboitiz Power Inc, Philippines
- Petron Corporation, Philippines
- Ministry of Transport, Egypt
- Global Coal Blending Company Limited - Australia
- Posco Energy - South Korea
- PowerSource Philippines DevCo
- Larsen & Toubro Limited - India
- Central Electricity Authority - India
- PetroVietnam Power Coal Import and Supply Company
- Pendopo Energi Batubara - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Bayan Resources Tbk. - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Renaissance Capital - South Africa
- Mjunction Services Limited - India
- Baramulti Group, Indonesia
- Toyota Tsusho Corporation, Japan
- India Bulls Power Limited - India
- McConnell Dowell - Australia
- Banpu Public Company Limited - Thailand
- Essar Steel Hazira Ltd - India
- Ministry of Mines - Canada
- European Bulk Services B.V. - Netherlands
- Global Green Power PLC Corporation, Philippines
- Intertek Mineral Services - Indonesia
- Therma Luzon, Inc, Philippines
- Medco Energi Mining Internasional
- Meenaskhi Energy Private Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Attock Cement Pakistan Limited
- Petrochimia International Co. Ltd.- Taiwan
- Alfred C Toepfer International GmbH - Germany
- Formosa Plastics Group - Taiwan
- Parliament of New Zealand
- Sinarmas Energy and Mining - Indonesia
- Indika Energy - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Kobexindo Tractors - Indoneisa
- Georgia Ports Authority, United States
- White Energy Company Limited
- Wood Mackenzie - Singapore
- Sical Logistics Limited - India
- International Coal Ventures Pvt Ltd - India
- Borneo Indobara - Indonesia
- Indian Oil Corporation Limited
- Cement Manufacturers Association - India
- SMG Consultants - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Cigading International Bulk Terminal - Indonesia
- Sree Jayajothi Cements Limited - India
- Savvy Resources Ltd - HongKong
- Manunggal Multi Energi - Indonesia
- Indogreen Group - Indonesia
- Central Java Power - Indonesia
- Thai Mozambique Logistica
- Bukit Baiduri Energy - Indonesia
- Bharathi Cement Corporation - India
- Rio Tinto Coal - Australia
- Edison Trading Spa - Italy
- The State Trading Corporation of India Ltd
- Marubeni Corporation - India
- Independent Power Producers Association of India
- Tata Chemicals Ltd - India
- Lanco Infratech Ltd - India
- Vizag Seaport Private Limited - India
- Indo Tambangraya Megah - Indonesia
- Bulk Trading Sa - Switzerland
- Vedanta Resources Plc - India
- Sojitz Corporation - Japan
- Agrawal Coal Company - India
- Orica Australia Pty. Ltd.
- SMC Global Power, Philippines
- Coal and Oil Company - UAE
- Billiton Holdings Pty Ltd - Australia
- Ceylon Electricity Board - Sri Lanka
- Timah Investasi Mineral - Indoneisa
- Semirara Mining Corp, Philippines
- Gujarat Electricity Regulatory Commission - India
- Aboitiz Power Corporation - Philippines
- GMR Energy Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- The University of Queensland
- MS Steel International - UAE
- Deloitte Consulting - India
- New Zealand Coal & Carbon
- ICICI Bank Limited - India
- Global Business Power Corporation, Philippines
- Orica Mining Services - Indonesia
- Bhatia International Limited - India
- Singapore Mercantile Exchange
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