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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, 04 September 18
SUPRAMAX: THE ASIAN SECTOR REMAINED ACTIVE WITH RATES STILL FIRM ESPECIALLY IN SE ASIA - BALTIC BRIEFING
Capesize
A turnaround in fortunes for the big ships, with a few slower days in the market. A build-up of tonnage and a lack of Brazil cargoes r ...
Thursday, 30 August 18
SUPRAMAX: CIS COAL TO FAR EAST WENT AT MID TENS AND TO SE ASIA AT CA USD 8000 - FEARNLEYS
Capesize
There was a slow start this week with holiday in UK on Monday. The index has been slowly coming off since then; The C5 route has seen ...
Wednesday, 29 August 18
MID-YEAR FY19 POWER OUTLOOK: IMPORTED COAL REQUIREMENT TO INCREASE DURING REMAINING FY19: IND-RA
India Ratings and Research (Ind-Ra) has maintained a stable-to-negative outlook on the Indian power sector for the remaining FY19, despite a rise i ...
Wednesday, 29 August 18
IMPACT ON CHARTERPARTIES - TIME TO ACT NOW : NORTH P&I CLUB
KNOWLEDGE TO ELEVATE
The challenges introduced by the global sulphur cap are not exclusively technical. The new limits are likely to impact co ...
Tuesday, 28 August 18
COURT CONCLUDES DELIVERY MADE IN ACCORDANCE WITH TERMS OF LOIS - INCE&CO
Glencore Agriculture BV v Navig8 Chemicals Pool Inc (Songa Winds) [2018] EWCA 1901 (Civ)
In this case, the Commercial Court fo ...
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Showing 1631 to 1635 news of total 6871 |
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- Attock Cement Pakistan Limited
- Jorong Barutama Greston.PT - Indonesia
- Kobexindo Tractors - Indoneisa
- Orica Mining Services - Indonesia
- San Jose City I Power Corp, Philippines
- Sakthi Sugars Limited - India
- Economic Council, Georgia
- Mintek Dendrill Indonesia
- Salva Resources Pvt Ltd - India
- CIMB Investment Bank - Malaysia
- ICICI Bank Limited - India
- Bukit Baiduri Energy - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Africa Commodities Group - South Africa
- Vizag Seaport Private Limited - India
- Edison Trading Spa - Italy
- Antam Resourcindo - Indonesia
- Posco Energy - South Korea
- Goldman Sachs - Singapore
- Renaissance Capital - South Africa
- Siam City Cement - Thailand
- Vedanta Resources Plc - India
- Kaltim Prima Coal - Indonesia
- Borneo Indobara - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Indonesian Coal Mining Association
- Riau Bara Harum - Indonesia
- Sree Jayajothi Cements Limited - India
- Ministry of Mines - Canada
- Georgia Ports Authority, United States
- Merrill Lynch Commodities Europe
- McConnell Dowell - Australia
- Ministry of Finance - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Larsen & Toubro Limited - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Australian Coal Association
- Parry Sugars Refinery, India
- Karbindo Abesyapradhi - Indoneisa
- Baramulti Group, Indonesia
- SN Aboitiz Power Inc, Philippines
- Bhoruka Overseas - Indonesia
- PTC India Limited - India
- Grasim Industreis Ltd - India
- Medco Energi Mining Internasional
- Interocean Group of Companies - India
- GVK Power & Infra Limited - India
- Kumho Petrochemical, South Korea
- Wood Mackenzie - Singapore
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Deloitte Consulting - India
- Rio Tinto Coal - Australia
- Standard Chartered Bank - UAE
- Uttam Galva Steels Limited - India
- PowerSource Philippines DevCo
- Bangladesh Power Developement Board
- Wilmar Investment Holdings
- Aditya Birla Group - India
- Bukit Makmur.PT - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Meenaskhi Energy Private Limited - India
- Cigading International Bulk Terminal - Indonesia
- Billiton Holdings Pty Ltd - Australia
- SMG Consultants - Indonesia
- Formosa Plastics Group - Taiwan
- Bukit Asam (Persero) Tbk - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Central Electricity Authority - India
- Mercator Lines Limited - India
- International Coal Ventures Pvt Ltd - India
- Lanco Infratech Ltd - India
- Global Business Power Corporation, Philippines
- Kepco SPC Power Corporation, Philippines
- Ceylon Electricity Board - Sri Lanka
- Vijayanagar Sugar Pvt Ltd - India
- Romanian Commodities Exchange
- Globalindo Alam Lestari - Indonesia
- Maheswari Brothers Coal Limited - India
- Oldendorff Carriers - Singapore
- Siam City Cement PLC, Thailand
- Chamber of Mines of South Africa
- Indo Tambangraya Megah - Indonesia
- Malabar Cements Ltd - India
- Heidelberg Cement - Germany
- PetroVietnam Power Coal Import and Supply Company
- Tata Chemicals Ltd - India
- Sarangani Energy Corporation, Philippines
- Petrochimia International Co. Ltd.- Taiwan
- Essar Steel Hazira Ltd - India
- India Bulls Power Limited - India
- Bhushan Steel Limited - India
- Planning Commission, India
- Bulk Trading Sa - Switzerland
- Bayan Resources Tbk. - Indonesia
- SMC Global Power, Philippines
- Directorate Of Revenue Intelligence - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Eastern Coal Council - USA
- Ambuja Cements Ltd - India
- Chettinad Cement Corporation Ltd - India
- Energy Development Corp, Philippines
- Coal and Oil Company - UAE
- Toyota Tsusho Corporation, Japan
- Ind-Barath Power Infra Limited - India
- Sindya Power Generating Company Private Ltd
- Meralco Power Generation, Philippines
- VISA Power Limited - India
- Gujarat Mineral Development Corp Ltd - India
- Asmin Koalindo Tuhup - Indonesia
- Minerals Council of Australia
- ASAPP Information Group - India
- Thiess Contractors Indonesia
- Independent Power Producers Association of India
- Anglo American - United Kingdom
- Simpson Spence & Young - Indonesia
- Jindal Steel & Power Ltd - India
- Thai Mozambique Logistica
- Agrawal Coal Company - India
- Pipit Mutiara Jaya. PT, Indonesia
- TeaM Sual Corporation - Philippines
- Price Waterhouse Coopers - Russia
- Iligan Light & Power Inc, Philippines
- IEA Clean Coal Centre - UK
- Indika Energy - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- PNOC Exploration Corporation - Philippines
- Alfred C Toepfer International GmbH - Germany
- South Luzon Thermal Energy Corporation
- GMR Energy Limited - India
- Bharathi Cement Corporation - India
- Global Green Power PLC Corporation, Philippines
- Cement Manufacturers Association - India
- Electricity Generating Authority of Thailand
- Krishnapatnam Port Company Ltd. - India
- Straits Asia Resources Limited - Singapore
- Offshore Bulk Terminal Pte Ltd, Singapore
- Madhucon Powers Ltd - India
- Australian Commodity Traders Exchange
- Xindia Steels Limited - India
- Binh Thuan Hamico - Vietnam
- Trasteel International SA, Italy
- TNB Fuel Sdn Bhd - Malaysia
- The State Trading Corporation of India Ltd
- Timah Investasi Mineral - Indoneisa
- IHS Mccloskey Coal Group - USA
- LBH Netherlands Bv - Netherlands
- Mjunction Services Limited - India
- Star Paper Mills Limited - India
- Manunggal Multi Energi - Indonesia
- Eastern Energy - Thailand
- Maharashtra Electricity Regulatory Commission - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Therma Luzon, Inc, Philippines
- Makarim & Taira - Indonesia
- Kartika Selabumi Mining - Indonesia
- AsiaOL BioFuels Corp., Philippines
- The University of Queensland
- Semirara Mining Corp, Philippines
- Intertek Mineral Services - Indonesia
- New Zealand Coal & Carbon
- Coastal Gujarat Power Limited - India
- CNBM International Corporation - China
- Energy Link Ltd, New Zealand
- Ministry of Transport, Egypt
- MS Steel International - UAE
- Carbofer General Trading SA - India
- Kalimantan Lumbung Energi - Indonesia
- Global Coal Blending Company Limited - Australia
- Kideco Jaya Agung - Indonesia
- Videocon Industries ltd - India
- Tamil Nadu electricity Board
- Sical Logistics Limited - India
- Rashtriya Ispat Nigam Limited - India
- Pendopo Energi Batubara - Indonesia
- Bhatia International Limited - India
- Leighton Contractors Pty Ltd - Australia
- Indian Oil Corporation Limited
- Altura Mining Limited, Indonesia
- Sojitz Corporation - Japan
- Singapore Mercantile Exchange
- Port Waratah Coal Services - Australia
- White Energy Company Limited
- Barasentosa Lestari - Indonesia
- Orica Australia Pty. Ltd.
- Samtan Co., Ltd - South Korea
- Commonwealth Bank - Australia
- Gujarat Sidhee Cement - India
- Semirara Mining and Power Corporation, Philippines
- Indian Energy Exchange, India
- Central Java Power - Indonesia
- Electricity Authority, New Zealand
- Indogreen Group - Indonesia
- Parliament of New Zealand
- Petron Corporation, Philippines
- Gujarat Electricity Regulatory Commission - India
- European Bulk Services B.V. - Netherlands
- Latin American Coal - Colombia
- Savvy Resources Ltd - HongKong
- Coalindo Energy - Indonesia
- Banpu Public Company Limited - Thailand
- Bahari Cakrawala Sebuku - Indonesia
- Jaiprakash Power Ventures ltd
- Marubeni Corporation - India
- Holcim Trading Pte Ltd - Singapore
- GAC Shipping (India) Pvt Ltd
- OPG Power Generation Pvt Ltd - India
- Karaikal Port Pvt Ltd - India
- Sinarmas Energy and Mining - Indonesia
- Power Finance Corporation Ltd., India
- The Treasury - Australian Government
- Metalloyd Limited - United Kingdom
- Dalmia Cement Bharat India
- London Commodity Brokers - England
- Mercuria Energy - Indonesia
- Aboitiz Power Corporation - Philippines
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