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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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Thursday, 13 September 18
SHIPPING IS INCREASINGLY CAUGHT IN THE TRADE WAR LINE OF CROSSFIRE - PETER SAND
Once again, the already long list of tariffed goods has been made even longer. Many more commodities were hit on 23 August, but September is likely ...
Wednesday, 12 September 18
THE INTERRELATIONSHIP BETWEEN LETTERS OF INDEMNITY AND CHARTERPARTY "TIME BAR" PROVISIONS - STANDARD CLUB
KNOWLEDGE TO ELEVATE
Introduction
A recent English Court of Appeal decision provides important guidance on the applicability of charterpar ...
Wednesday, 12 September 18
IS LNG POISED FOR A NEW GROWTH CYCLE? - WOOD MACKENZIE
Gas needs to work for its long-term sustainability. But the mood music is upbeat. Just 18 months ago the LNG market was depressed, anticipating an ...
Wednesday, 12 September 18
U.S. TOTAL COAL EXPORTS TO BE 107 MMST IN 2018 AND 101 MMST IN 2019 - EIA
EIA forecasts U.S. coal production will decline by 1% to 768 million short tons (MMst) in 2018, despite a 10% (10 MMst) increase in coal exports.
...
Wednesday, 12 September 18
MARINE BUNKERS: THE END OF THE WORLD AS WE KNOW IT - IBIA
KNOWLEDGE TO ELEVATE
The world of bunkers is heading for rapid and fundamental changes and not just because of the 0.50% sulphur cap in 2020. ...
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Showing 1621 to 1625 news of total 6871 |
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- Jorong Barutama Greston.PT - Indonesia
- Port Waratah Coal Services - Australia
- Kapuas Tunggal Persada - Indonesia
- Orica Australia Pty. Ltd.
- Sinarmas Energy and Mining - Indonesia
- Salva Resources Pvt Ltd - India
- Bulk Trading Sa - Switzerland
- Intertek Mineral Services - Indonesia
- Banpu Public Company Limited - Thailand
- SMC Global Power, Philippines
- Timah Investasi Mineral - Indoneisa
- Kumho Petrochemical, South Korea
- Straits Asia Resources Limited - Singapore
- ASAPP Information Group - India
- Oldendorff Carriers - Singapore
- Heidelberg Cement - Germany
- Baramulti Group, Indonesia
- Bhushan Steel Limited - India
- Agrawal Coal Company - India
- Coastal Gujarat Power Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Global Green Power PLC Corporation, Philippines
- Electricity Generating Authority of Thailand
- CNBM International Corporation - China
- Simpson Spence & Young - Indonesia
- Sindya Power Generating Company Private Ltd
- Kideco Jaya Agung - Indonesia
- Kaltim Prima Coal - Indonesia
- Riau Bara Harum - Indonesia
- Meenaskhi Energy Private Limited - India
- Medco Energi Mining Internasional
- GN Power Mariveles Coal Plant, Philippines
- Renaissance Capital - South Africa
- Formosa Plastics Group - Taiwan
- International Coal Ventures Pvt Ltd - India
- Electricity Authority, New Zealand
- McConnell Dowell - Australia
- Bukit Baiduri Energy - Indonesia
- Uttam Galva Steels Limited - India
- Trasteel International SA, Italy
- Bharathi Cement Corporation - India
- Alfred C Toepfer International GmbH - Germany
- Economic Council, Georgia
- Posco Energy - South Korea
- Thiess Contractors Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Makarim & Taira - Indonesia
- Rio Tinto Coal - Australia
- Kalimantan Lumbung Energi - Indonesia
- Mintek Dendrill Indonesia
- Parliament of New Zealand
- Kepco SPC Power Corporation, Philippines
- Singapore Mercantile Exchange
- Aditya Birla Group - India
- Tata Chemicals Ltd - India
- PNOC Exploration Corporation - Philippines
- Mercuria Energy - Indonesia
- Minerals Council of Australia
- MS Steel International - UAE
- Commonwealth Bank - Australia
- Pendopo Energi Batubara - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Miang Besar Coal Terminal - Indonesia
- The Treasury - Australian Government
- Indogreen Group - Indonesia
- Parry Sugars Refinery, India
- Karbindo Abesyapradhi - Indoneisa
- Savvy Resources Ltd - HongKong
- Indo Tambangraya Megah - Indonesia
- Indonesian Coal Mining Association
- Metalloyd Limited - United Kingdom
- Georgia Ports Authority, United States
- Jindal Steel & Power Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Ministry of Finance - Indonesia
- Standard Chartered Bank - UAE
- The State Trading Corporation of India Ltd
- Price Waterhouse Coopers - Russia
- Therma Luzon, Inc, Philippines
- PetroVietnam Power Coal Import and Supply Company
- Coalindo Energy - Indonesia
- Global Coal Blending Company Limited - Australia
- Malabar Cements Ltd - India
- Wilmar Investment Holdings
- Neyveli Lignite Corporation Ltd, - India
- Thai Mozambique Logistica
- Binh Thuan Hamico - Vietnam
- Pipit Mutiara Jaya. PT, Indonesia
- Independent Power Producers Association of India
- Altura Mining Limited, Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Interocean Group of Companies - India
- PowerSource Philippines DevCo
- Bukit Makmur.PT - Indonesia
- Marubeni Corporation - India
- Tamil Nadu electricity Board
- AsiaOL BioFuels Corp., Philippines
- Cigading International Bulk Terminal - Indonesia
- Wood Mackenzie - Singapore
- Billiton Holdings Pty Ltd - Australia
- Siam City Cement PLC, Thailand
- Eastern Energy - Thailand
- Globalindo Alam Lestari - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Kartika Selabumi Mining - Indonesia
- Vedanta Resources Plc - India
- South Luzon Thermal Energy Corporation
- Kobexindo Tractors - Indoneisa
- Global Business Power Corporation, Philippines
- European Bulk Services B.V. - Netherlands
- TeaM Sual Corporation - Philippines
- Aboitiz Power Corporation - Philippines
- Rashtriya Ispat Nigam Limited - India
- Samtan Co., Ltd - South Korea
- SN Aboitiz Power Inc, Philippines
- Ceylon Electricity Board - Sri Lanka
- Borneo Indobara - Indonesia
- Australian Commodity Traders Exchange
- India Bulls Power Limited - India
- Carbofer General Trading SA - India
- Ind-Barath Power Infra Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Toyota Tsusho Corporation, Japan
- Mercator Lines Limited - India
- Indian Oil Corporation Limited
- New Zealand Coal & Carbon
- Africa Commodities Group - South Africa
- Cement Manufacturers Association - India
- Maheswari Brothers Coal Limited - India
- Bangladesh Power Developement Board
- SMG Consultants - Indonesia
- Dalmia Cement Bharat India
- Bhoruka Overseas - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Jaiprakash Power Ventures ltd
- Merrill Lynch Commodities Europe
- Siam City Cement - Thailand
- Mjunction Services Limited - India
- Romanian Commodities Exchange
- Sojitz Corporation - Japan
- VISA Power Limited - India
- OPG Power Generation Pvt Ltd - India
- San Jose City I Power Corp, Philippines
- Ministry of Transport, Egypt
- Bhatia International Limited - India
- Antam Resourcindo - Indonesia
- PTC India Limited - India
- Directorate Of Revenue Intelligence - India
- Madhucon Powers Ltd - India
- GAC Shipping (India) Pvt Ltd
- Ministry of Mines - Canada
- Indika Energy - Indonesia
- White Energy Company Limited
- Power Finance Corporation Ltd., India
- Karaikal Port Pvt Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- Larsen & Toubro Limited - India
- Goldman Sachs - Singapore
- Sakthi Sugars Limited - India
- Ambuja Cements Ltd - India
- Semirara Mining and Power Corporation, Philippines
- Semirara Mining Corp, Philippines
- Chettinad Cement Corporation Ltd - India
- Central Java Power - Indonesia
- Manunggal Multi Energi - Indonesia
- Central Electricity Authority - India
- Bahari Cakrawala Sebuku - Indonesia
- Vizag Seaport Private Limited - India
- IEA Clean Coal Centre - UK
- Sarangani Energy Corporation, Philippines
- IHS Mccloskey Coal Group - USA
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Coal and Oil Company - UAE
- Latin American Coal - Colombia
- Asmin Koalindo Tuhup - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Australian Coal Association
- Meralco Power Generation, Philippines
- Eastern Coal Council - USA
- Energy Link Ltd, New Zealand
- Indian Energy Exchange, India
- ICICI Bank Limited - India
- Lanco Infratech Ltd - India
- Star Paper Mills Limited - India
- Bayan Resources Tbk. - Indonesia
- Videocon Industries ltd - India
- London Commodity Brokers - England
- Anglo American - United Kingdom
- Grasim Industreis Ltd - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Iligan Light & Power Inc, Philippines
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Deloitte Consulting - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Sree Jayajothi Cements Limited - India
- Planning Commission, India
- GVK Power & Infra Limited - India
- Krishnapatnam Port Company Ltd. - India
- The University of Queensland
- Essar Steel Hazira Ltd - India
- Petron Corporation, Philippines
- Xindia Steels Limited - India
- Chamber of Mines of South Africa
- Edison Trading Spa - Italy
- Attock Cement Pakistan Limited
- Leighton Contractors Pty Ltd - Australia
- Gujarat Sidhee Cement - India
- Orica Mining Services - Indonesia
- CIMB Investment Bank - Malaysia
- Barasentosa Lestari - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Energy Development Corp, Philippines
- GMR Energy Limited - India
- Sical Logistics Limited - India
- Gujarat Electricity Regulatory Commission - India
- LBH Netherlands Bv - Netherlands
- Kohat Cement Company Ltd. - Pakistan
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