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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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Wednesday, 12 June 24
CHINA ACCOUNTS FOR 16.3% OF AUSTRALIA'S COAL EXPORTS, FOLLOWED BY INDIA 14.4% - BANCHERO COSTA
Global coal trade has really picked up pace in recent months, and is now fully back to pre-Covid levels says Banchero Costa in its latest report.
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Wednesday, 12 June 24
LNG NEWBUILDING VALUES AT RECORD HIGH: 78 NEWBUILD ORDERS PLACED IN 2024, DOUBLING 2023 - VESON NAUTICAL
The number of LNG newbuilding orders have more than doubled from the same period last year where 34 orders were placed, compared to 78 in the first ...
Monday, 10 June 24
CHINA'S MAY COAL IMPORTS RISE 11% ON LOWER DOMESTIC OUTPUT - REUTERS
China’s imports of coal rose 11% in May from a year earlier, customs data and Reuters records showed on Friday, as lower domestic output this ...
Tuesday, 04 June 24
HOW DO WESTERN SANCTIONS ON RUSSIA IMPACT THE GLOBAL METALS, MINING AND COAL MARKETS - WOOD MACKENZIE
The geopolitical landscape for Russia, as a major supplier of various commodities, has undergone a dramatic transformation since the invasion of Uk ...
Friday, 22 March 24
CASE STUDY: DANGERS OF COAL CARGO - SKULD
Recently, a bulk cargo vessel carrying coal from South Africa to Singapore suffered a fatal accident, resulting in the deaths of three crew members ...
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Showing 21 to 25 news of total 6871 |
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- IEA Clean Coal Centre - UK
- Sical Logistics Limited - India
- Bhatia International Limited - India
- Ministry of Transport, Egypt
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Intertek Mineral Services - Indonesia
- Essar Steel Hazira Ltd - India
- Goldman Sachs - Singapore
- Offshore Bulk Terminal Pte Ltd, Singapore
- Jindal Steel & Power Ltd - India
- The State Trading Corporation of India Ltd
- Therma Luzon, Inc, Philippines
- Australian Commodity Traders Exchange
- Asia Pacific Energy Resources Ventures Inc, Philippines
- IHS Mccloskey Coal Group - USA
- Kapuas Tunggal Persada - Indonesia
- Bangladesh Power Developement Board
- Xindia Steels Limited - India
- San Jose City I Power Corp, Philippines
- Wilmar Investment Holdings
- Eastern Energy - Thailand
- Manunggal Multi Energi - Indonesia
- Global Business Power Corporation, Philippines
- Ambuja Cements Ltd - India
- Petron Corporation, Philippines
- Ceylon Electricity Board - Sri Lanka
- Riau Bara Harum - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- SMG Consultants - Indonesia
- AsiaOL BioFuels Corp., Philippines
- London Commodity Brokers - England
- Deloitte Consulting - India
- Electricity Authority, New Zealand
- Bukit Asam (Persero) Tbk - Indonesia
- Coal and Oil Company - UAE
- Directorate Of Revenue Intelligence - India
- Krishnapatnam Port Company Ltd. - India
- LBH Netherlands Bv - Netherlands
- Petrochimia International Co. Ltd.- Taiwan
- Semirara Mining and Power Corporation, Philippines
- Maheswari Brothers Coal Limited - India
- Larsen & Toubro Limited - India
- PetroVietnam Power Coal Import and Supply Company
- European Bulk Services B.V. - Netherlands
- Asmin Koalindo Tuhup - Indonesia
- Posco Energy - South Korea
- MS Steel International - UAE
- Anglo American - United Kingdom
- PowerSource Philippines DevCo
- Altura Mining Limited, Indonesia
- Dalmia Cement Bharat India
- South Luzon Thermal Energy Corporation
- Indo Tambangraya Megah - Indonesia
- TeaM Sual Corporation - Philippines
- Mercuria Energy - Indonesia
- Bukit Makmur.PT - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Coalindo Energy - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Tamil Nadu electricity Board
- Karbindo Abesyapradhi - Indoneisa
- Sindya Power Generating Company Private Ltd
- Heidelberg Cement - Germany
- Holcim Trading Pte Ltd - Singapore
- VISA Power Limited - India
- Agrawal Coal Company - India
- Romanian Commodities Exchange
- Parry Sugars Refinery, India
- Kartika Selabumi Mining - Indonesia
- Wood Mackenzie - Singapore
- Leighton Contractors Pty Ltd - Australia
- Independent Power Producers Association of India
- Chettinad Cement Corporation Ltd - India
- Meralco Power Generation, Philippines
- SN Aboitiz Power Inc, Philippines
- Attock Cement Pakistan Limited
- Rio Tinto Coal - Australia
- Chamber of Mines of South Africa
- Savvy Resources Ltd - HongKong
- Ministry of Finance - Indonesia
- Malabar Cements Ltd - India
- Singapore Mercantile Exchange
- Vijayanagar Sugar Pvt Ltd - India
- Coastal Gujarat Power Limited - India
- Toyota Tsusho Corporation, Japan
- Aditya Birla Group - India
- TNB Fuel Sdn Bhd - Malaysia
- Bahari Cakrawala Sebuku - Indonesia
- Globalindo Alam Lestari - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Edison Trading Spa - Italy
- Gujarat Mineral Development Corp Ltd - India
- Central Java Power - Indonesia
- Planning Commission, India
- Salva Resources Pvt Ltd - India
- Tata Chemicals Ltd - India
- Metalloyd Limited - United Kingdom
- Power Finance Corporation Ltd., India
- Baramulti Group, Indonesia
- Formosa Plastics Group - Taiwan
- International Coal Ventures Pvt Ltd - India
- Interocean Group of Companies - India
- Straits Asia Resources Limited - Singapore
- Sakthi Sugars Limited - India
- Energy Link Ltd, New Zealand
- Africa Commodities Group - South Africa
- Gujarat Sidhee Cement - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- New Zealand Coal & Carbon
- Grasim Industreis Ltd - India
- The University of Queensland
- CNBM International Corporation - China
- Indogreen Group - Indonesia
- SMC Global Power, Philippines
- Iligan Light & Power Inc, Philippines
- Marubeni Corporation - India
- Mercator Lines Limited - India
- Jaiprakash Power Ventures ltd
- Siam City Cement PLC, Thailand
- Indika Energy - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Madhucon Powers Ltd - India
- Mjunction Services Limited - India
- Indian Energy Exchange, India
- Sarangani Energy Corporation, Philippines
- Mintek Dendrill Indonesia
- Bhoruka Overseas - Indonesia
- ICICI Bank Limited - India
- India Bulls Power Limited - India
- Kaltim Prima Coal - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Carbofer General Trading SA - India
- Sinarmas Energy and Mining - Indonesia
- Economic Council, Georgia
- Thiess Contractors Indonesia
- Banpu Public Company Limited - Thailand
- Energy Development Corp, Philippines
- Simpson Spence & Young - Indonesia
- Ministry of Mines - Canada
- Bank of Tokyo Mitsubishi UFJ Ltd
- Standard Chartered Bank - UAE
- Kideco Jaya Agung - Indonesia
- Miang Besar Coal Terminal - Indonesia
- PNOC Exploration Corporation - Philippines
- GN Power Mariveles Coal Plant, Philippines
- Oldendorff Carriers - Singapore
- Merrill Lynch Commodities Europe
- Bukit Baiduri Energy - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Orica Australia Pty. Ltd.
- Commonwealth Bank - Australia
- Karaikal Port Pvt Ltd - India
- Pendopo Energi Batubara - Indonesia
- Vedanta Resources Plc - India
- Eastern Coal Council - USA
- Kepco SPC Power Corporation, Philippines
- Maharashtra Electricity Regulatory Commission - India
- Kumho Petrochemical, South Korea
- Global Green Power PLC Corporation, Philippines
- Antam Resourcindo - Indonesia
- Parliament of New Zealand
- OPG Power Generation Pvt Ltd - India
- Australian Coal Association
- Kobexindo Tractors - Indoneisa
- Indonesian Coal Mining Association
- Ind-Barath Power Infra Limited - India
- Renaissance Capital - South Africa
- Makarim & Taira - Indonesia
- Trasteel International SA, Italy
- Medco Energi Mining Internasional
- Samtan Co., Ltd - South Korea
- GMR Energy Limited - India
- Siam City Cement - Thailand
- Georgia Ports Authority, United States
- Kohat Cement Company Ltd. - Pakistan
- GVK Power & Infra Limited - India
- Global Coal Blending Company Limited - Australia
- The Treasury - Australian Government
- Sojitz Corporation - Japan
- Thai Mozambique Logistica
- Borneo Indobara - Indonesia
- PTC India Limited - India
- Bharathi Cement Corporation - India
- Bhushan Steel Limited - India
- Electricity Generating Authority of Thailand
- Timah Investasi Mineral - Indoneisa
- Billiton Holdings Pty Ltd - Australia
- Central Electricity Authority - India
- Vizag Seaport Private Limited - India
- Orica Mining Services - Indonesia
- Indian Oil Corporation Limited
- Binh Thuan Hamico - Vietnam
- Videocon Industries ltd - India
- Cement Manufacturers Association - India
- Star Paper Mills Limited - India
- Meenaskhi Energy Private Limited - India
- Uttam Galva Steels Limited - India
- Rashtriya Ispat Nigam Limited - India
- ASAPP Information Group - India
- Bayan Resources Tbk. - Indonesia
- GAC Shipping (India) Pvt Ltd
- CIMB Investment Bank - Malaysia
- Bulk Trading Sa - Switzerland
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Lanco Infratech Ltd - India
- Semirara Mining Corp, Philippines
- Kalimantan Lumbung Energi - Indonesia
- Barasentosa Lestari - Indonesia
- Sree Jayajothi Cements Limited - India
- Aboitiz Power Corporation - Philippines
- Price Waterhouse Coopers - Russia
- White Energy Company Limited
- Minerals Council of Australia
- Latin American Coal - Colombia
- McConnell Dowell - Australia
- Port Waratah Coal Services - Australia
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