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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, 16 August 18
COAL PRODUCTION AT 37.11 PERCENT OF FULL-YEAR TARGET - THE JAKARTA POST
Indonesian coal production was recorded at 180 million tons on Wednesday, or 37.11 percent of the government’s 485 million target this year.
...
Thursday, 16 August 18
OIL MARKET HIGHLIGHTS - OPEC
Crude Oil Price Movements
In July, the OPEC Reference Basket increased marginally by 5¢ m-o-m to settle at $73.27/b. Oil futures saw mixed ...
Tuesday, 14 August 18
THE CAPESIZE MARKET HAS SHOWN A TREMENDOUS COURSE DURING THE PAST 12 MONTHS - THOMAS CHASAPIS
The Capesize market has shown a tremendous course during the past 12 months, having quickly climbed out of the “hole that it had found itself ...
Monday, 13 August 18
A 50,200 DWT FIXED DELIVERY SINGAPORE TRIP VIA INDONESIA REDELIVERY CHINA IN THE LOW $10,000S - THE BALTIC BRIEFING
Capesize
Expectations of a further push in the market were largely unfulfilled last week as rates come under pressure in Asia as the North Atla ...
Friday, 10 August 18
U.S. COAL PRODUCTION TO DECLINE BY 1.8% IN 2019 BECAUSE COAL EXPORTS AND COAL CONSUMPTION ARE BOTH FORECAST TO DECREASE - EIA
EIA forecasts U.S. coal production will decline by 1.1% to 766 million short tons (MMst) in 2018 despite a 5.7% (6 MMst) increase in coal exports.
...
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Showing 1646 to 1650 news of total 6871 |
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- IHS Mccloskey Coal Group - USA
- Aboitiz Power Corporation - Philippines
- Lanco Infratech Ltd - India
- SMG Consultants - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Borneo Indobara - Indonesia
- Attock Cement Pakistan Limited
- Price Waterhouse Coopers - Russia
- Trasteel International SA, Italy
- Directorate Of Revenue Intelligence - India
- Cigading International Bulk Terminal - Indonesia
- Globalindo Alam Lestari - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Sarangani Energy Corporation, Philippines
- Global Green Power PLC Corporation, Philippines
- PetroVietnam Power Coal Import and Supply Company
- Jaiprakash Power Ventures ltd
- Binh Thuan Hamico - Vietnam
- Ambuja Cements Ltd - India
- Jindal Steel & Power Ltd - India
- Bhatia International Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Indonesian Coal Mining Association
- IEA Clean Coal Centre - UK
- International Coal Ventures Pvt Ltd - India
- Planning Commission, India
- Mintek Dendrill Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Riau Bara Harum - Indonesia
- Petron Corporation, Philippines
- GMR Energy Limited - India
- Kalimantan Lumbung Energi - Indonesia
- SMC Global Power, Philippines
- Deloitte Consulting - India
- PNOC Exploration Corporation - Philippines
- Baramulti Group, Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Therma Luzon, Inc, Philippines
- Eastern Coal Council - USA
- Bank of Tokyo Mitsubishi UFJ Ltd
- McConnell Dowell - Australia
- Energy Link Ltd, New Zealand
- Larsen & Toubro Limited - India
- Electricity Authority, New Zealand
- Mercuria Energy - Indonesia
- Global Business Power Corporation, Philippines
- VISA Power Limited - India
- Wood Mackenzie - Singapore
- Formosa Plastics Group - Taiwan
- The University of Queensland
- Coalindo Energy - Indonesia
- Savvy Resources Ltd - HongKong
- Bangladesh Power Developement Board
- Jorong Barutama Greston.PT - Indonesia
- Medco Energi Mining Internasional
- SN Aboitiz Power Inc, Philippines
- Orica Australia Pty. Ltd.
- Renaissance Capital - South Africa
- Pendopo Energi Batubara - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Siam City Cement - Thailand
- Dalmia Cement Bharat India
- Coastal Gujarat Power Limited - India
- Indian Oil Corporation Limited
- Kohat Cement Company Ltd. - Pakistan
- Marubeni Corporation - India
- Central Electricity Authority - India
- Meralco Power Generation, Philippines
- Vijayanagar Sugar Pvt Ltd - India
- ICICI Bank Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Power Finance Corporation Ltd., India
- Global Coal Blending Company Limited - Australia
- Sinarmas Energy and Mining - Indonesia
- GVK Power & Infra Limited - India
- Electricity Generating Authority of Thailand
- Australian Coal Association
- Madhucon Powers Ltd - India
- GAC Shipping (India) Pvt Ltd
- Ministry of Mines - Canada
- Africa Commodities Group - South Africa
- New Zealand Coal & Carbon
- Central Java Power - Indonesia
- Commonwealth Bank - Australia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Kideco Jaya Agung - Indonesia
- Romanian Commodities Exchange
- Kaltim Prima Coal - Indonesia
- Karaikal Port Pvt Ltd - India
- Karbindo Abesyapradhi - Indoneisa
- Sakthi Sugars Limited - India
- Mercator Lines Limited - India
- Anglo American - United Kingdom
- Interocean Group of Companies - India
- India Bulls Power Limited - India
- Latin American Coal - Colombia
- TeaM Sual Corporation - Philippines
- Videocon Industries ltd - India
- Banpu Public Company Limited - Thailand
- European Bulk Services B.V. - Netherlands
- Bayan Resources Tbk. - Indonesia
- MS Steel International - UAE
- Kepco SPC Power Corporation, Philippines
- Oldendorff Carriers - Singapore
- Posco Energy - South Korea
- Eastern Energy - Thailand
- Gujarat Mineral Development Corp Ltd - India
- Standard Chartered Bank - UAE
- Kumho Petrochemical, South Korea
- Bukit Baiduri Energy - Indonesia
- Straits Asia Resources Limited - Singapore
- Meenaskhi Energy Private Limited - India
- Chamber of Mines of South Africa
- Port Waratah Coal Services - Australia
- Kapuas Tunggal Persada - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Asmin Koalindo Tuhup - Indonesia
- Sindya Power Generating Company Private Ltd
- Iligan Light & Power Inc, Philippines
- AsiaOL BioFuels Corp., Philippines
- Singapore Mercantile Exchange
- Bhushan Steel Limited - India
- Chettinad Cement Corporation Ltd - India
- Bahari Cakrawala Sebuku - Indonesia
- ASAPP Information Group - India
- Barasentosa Lestari - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Intertek Mineral Services - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Grasim Industreis Ltd - India
- Coal and Oil Company - UAE
- Billiton Holdings Pty Ltd - Australia
- Wilmar Investment Holdings
- Ministry of Transport, Egypt
- Bharathi Cement Corporation - India
- Toyota Tsusho Corporation, Japan
- Miang Besar Coal Terminal - Indonesia
- Star Paper Mills Limited - India
- Parliament of New Zealand
- Thiess Contractors Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Bulk Trading Sa - Switzerland
- Indo Tambangraya Megah - Indonesia
- Carbofer General Trading SA - India
- Vedanta Resources Plc - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- South Luzon Thermal Energy Corporation
- Gujarat Sidhee Cement - India
- Krishnapatnam Port Company Ltd. - India
- Metalloyd Limited - United Kingdom
- Cement Manufacturers Association - India
- Semirara Mining and Power Corporation, Philippines
- Leighton Contractors Pty Ltd - Australia
- Economic Council, Georgia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- TNB Fuel Sdn Bhd - Malaysia
- White Energy Company Limited
- Energy Development Corp, Philippines
- Timah Investasi Mineral - Indoneisa
- Tata Chemicals Ltd - India
- Xindia Steels Limited - India
- Georgia Ports Authority, United States
- CIMB Investment Bank - Malaysia
- San Jose City I Power Corp, Philippines
- Kobexindo Tractors - Indoneisa
- Salva Resources Pvt Ltd - India
- CNBM International Corporation - China
- Australian Commodity Traders Exchange
- Bhoruka Overseas - Indonesia
- Simpson Spence & Young - Indonesia
- Samtan Co., Ltd - South Korea
- Goldman Sachs - Singapore
- The State Trading Corporation of India Ltd
- Kartika Selabumi Mining - Indonesia
- Altura Mining Limited, Indonesia
- PTC India Limited - India
- The Treasury - Australian Government
- Heidelberg Cement - Germany
- Semirara Mining Corp, Philippines
- Indika Energy - Indonesia
- Maheswari Brothers Coal Limited - India
- Edison Trading Spa - Italy
- Independent Power Producers Association of India
- London Commodity Brokers - England
- Bukit Makmur.PT - Indonesia
- Agrawal Coal Company - India
- Orica Mining Services - Indonesia
- Rio Tinto Coal - Australia
- Vizag Seaport Private Limited - India
- Merrill Lynch Commodities Europe
- Siam City Cement PLC, Thailand
- Gujarat Electricity Regulatory Commission - India
- Antam Resourcindo - Indonesia
- LBH Netherlands Bv - Netherlands
- Indogreen Group - Indonesia
- Makarim & Taira - Indonesia
- Manunggal Multi Energi - Indonesia
- Essar Steel Hazira Ltd - India
- Minerals Council of Australia
- Ind-Barath Power Infra Limited - India
- PowerSource Philippines DevCo
- Pipit Mutiara Jaya. PT, Indonesia
- Uttam Galva Steels Limited - India
- Rashtriya Ispat Nigam Limited - India
- Thai Mozambique Logistica
- Indian Energy Exchange, India
- Sojitz Corporation - Japan
- Sical Logistics Limited - India
- OPG Power Generation Pvt Ltd - India
- Sree Jayajothi Cements Limited - India
- Malabar Cements Ltd - India
- Alfred C Toepfer International GmbH - Germany
- Aditya Birla Group - India
- Mjunction Services Limited - India
- Ministry of Finance - Indonesia
- Parry Sugars Refinery, India
- Tamil Nadu electricity Board
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