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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.
...
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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- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Indian Energy Exchange, India
- Kideco Jaya Agung - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Global Business Power Corporation, Philippines
- Dalmia Cement Bharat India
- CNBM International Corporation - China
- Wood Mackenzie - Singapore
- OPG Power Generation Pvt Ltd - India
- Neyveli Lignite Corporation Ltd, - India
- Barasentosa Lestari - Indonesia
- Directorate Of Revenue Intelligence - India
- Holcim Trading Pte Ltd - Singapore
- India Bulls Power Limited - India
- Iligan Light & Power Inc, Philippines
- Indian Oil Corporation Limited
- Jorong Barutama Greston.PT - Indonesia
- Maheswari Brothers Coal Limited - India
- Australian Commodity Traders Exchange
- MS Steel International - UAE
- Rio Tinto Coal - Australia
- Kalimantan Lumbung Energi - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- International Coal Ventures Pvt Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Tamil Nadu electricity Board
- Renaissance Capital - South Africa
- Jaiprakash Power Ventures ltd
- TeaM Sual Corporation - Philippines
- Bulk Trading Sa - Switzerland
- Formosa Plastics Group - Taiwan
- Attock Cement Pakistan Limited
- PowerSource Philippines DevCo
- Karaikal Port Pvt Ltd - India
- Africa Commodities Group - South Africa
- AsiaOL BioFuels Corp., Philippines
- Timah Investasi Mineral - Indoneisa
- Central Java Power - Indonesia
- Grasim Industreis Ltd - India
- Aboitiz Power Corporation - Philippines
- Salva Resources Pvt Ltd - India
- Parliament of New Zealand
- Makarim & Taira - Indonesia
- Star Paper Mills Limited - India
- New Zealand Coal & Carbon
- Samtan Co., Ltd - South Korea
- Mercuria Energy - Indonesia
- Bhushan Steel Limited - India
- The Treasury - Australian Government
- Siam City Cement PLC, Thailand
- Edison Trading Spa - Italy
- Petrochimia International Co. Ltd.- Taiwan
- Toyota Tsusho Corporation, Japan
- Antam Resourcindo - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Indogreen Group - Indonesia
- Binh Thuan Hamico - Vietnam
- Pipit Mutiara Jaya. PT, Indonesia
- Lanco Infratech Ltd - India
- Ministry of Transport, Egypt
- Energy Development Corp, Philippines
- Simpson Spence & Young - Indonesia
- Globalindo Alam Lestari - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Electricity Authority, New Zealand
- Bhoruka Overseas - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Minerals Council of Australia
- Kartika Selabumi Mining - Indonesia
- Latin American Coal - Colombia
- Orica Australia Pty. Ltd.
- Kaltim Prima Coal - Indonesia
- Power Finance Corporation Ltd., India
- SN Aboitiz Power Inc, Philippines
- Thai Mozambique Logistica
- Sree Jayajothi Cements Limited - India
- Eastern Coal Council - USA
- Medco Energi Mining Internasional
- Orica Mining Services - Indonesia
- Electricity Generating Authority of Thailand
- Coastal Gujarat Power Limited - India
- Tata Chemicals Ltd - India
- Indika Energy - Indonesia
- Standard Chartered Bank - UAE
- Thiess Contractors Indonesia
- PTC India Limited - India
- Jindal Steel & Power Ltd - India
- Sarangani Energy Corporation, Philippines
- Pendopo Energi Batubara - Indonesia
- Bhatia International Limited - India
- Gujarat Electricity Regulatory Commission - India
- Kapuas Tunggal Persada - Indonesia
- Ministry of Finance - Indonesia
- Agrawal Coal Company - India
- GN Power Mariveles Coal Plant, Philippines
- Billiton Holdings Pty Ltd - Australia
- Mjunction Services Limited - India
- Alfred C Toepfer International GmbH - Germany
- Eastern Energy - Thailand
- Semirara Mining and Power Corporation, Philippines
- Parry Sugars Refinery, India
- Therma Luzon, Inc, Philippines
- SMC Global Power, Philippines
- Coalindo Energy - Indonesia
- Aditya Birla Group - India
- ASAPP Information Group - India
- Riau Bara Harum - Indonesia
- Merrill Lynch Commodities Europe
- Kohat Cement Company Ltd. - Pakistan
- Intertek Mineral Services - Indonesia
- ICICI Bank Limited - India
- Sical Logistics Limited - India
- Manunggal Multi Energi - Indonesia
- Cement Manufacturers Association - India
- Baramulti Group, Indonesia
- Bangladesh Power Developement Board
- Coal and Oil Company - UAE
- Madhucon Powers Ltd - India
- PetroVietnam Power Coal Import and Supply Company
- Commonwealth Bank - Australia
- Ministry of Mines - Canada
- Chamber of Mines of South Africa
- Borneo Indobara - Indonesia
- Wilmar Investment Holdings
- Karbindo Abesyapradhi - Indoneisa
- Anglo American - United Kingdom
- Kepco SPC Power Corporation, Philippines
- London Commodity Brokers - England
- Trasteel International SA, Italy
- GMR Energy Limited - India
- Meenaskhi Energy Private Limited - India
- Georgia Ports Authority, United States
- Central Electricity Authority - India
- San Jose City I Power Corp, Philippines
- Sojitz Corporation - Japan
- Uttam Galva Steels Limited - India
- Semirara Mining Corp, Philippines
- GAC Shipping (India) Pvt Ltd
- Bharathi Cement Corporation - India
- Oldendorff Carriers - Singapore
- Sindya Power Generating Company Private Ltd
- Port Waratah Coal Services - Australia
- Deloitte Consulting - India
- Carbofer General Trading SA - India
- Metalloyd Limited - United Kingdom
- Price Waterhouse Coopers - Russia
- Altura Mining Limited, Indonesia
- Sakthi Sugars Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- LBH Netherlands Bv - Netherlands
- Goldman Sachs - Singapore
- McConnell Dowell - Australia
- Interocean Group of Companies - India
- Essar Steel Hazira Ltd - India
- Cigading International Bulk Terminal - Indonesia
- Savvy Resources Ltd - HongKong
- Bukit Baiduri Energy - Indonesia
- Planning Commission, India
- IEA Clean Coal Centre - UK
- Leighton Contractors Pty Ltd - Australia
- Vedanta Resources Plc - India
- Ambuja Cements Ltd - India
- Global Green Power PLC Corporation, Philippines
- Malabar Cements Ltd - India
- IHS Mccloskey Coal Group - USA
- Krishnapatnam Port Company Ltd. - India
- Bukit Asam (Persero) Tbk - Indonesia
- Kumho Petrochemical, South Korea
- Energy Link Ltd, New Zealand
- Siam City Cement - Thailand
- Gujarat Sidhee Cement - India
- Videocon Industries ltd - India
- Banpu Public Company Limited - Thailand
- South Luzon Thermal Energy Corporation
- Indo Tambangraya Megah - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Marubeni Corporation - India
- European Bulk Services B.V. - Netherlands
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Straits Asia Resources Limited - Singapore
- Chettinad Cement Corporation Ltd - India
- Gujarat Mineral Development Corp Ltd - India
- Mercator Lines Limited - India
- Posco Energy - South Korea
- PNOC Exploration Corporation - Philippines
- Ind-Barath Power Infra Limited - India
- VISA Power Limited - India
- The University of Queensland
- Australian Coal Association
- Miang Besar Coal Terminal - Indonesia
- Kobexindo Tractors - Indoneisa
- Bayan Resources Tbk. - Indonesia
- GVK Power & Infra Limited - India
- Meralco Power Generation, Philippines
- Petron Corporation, Philippines
- Xindia Steels Limited - India
- SMG Consultants - Indonesia
- White Energy Company Limited
- Heidelberg Cement - Germany
- Larsen & Toubro Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Romanian Commodities Exchange
- CIMB Investment Bank - Malaysia
- Ceylon Electricity Board - Sri Lanka
- Mintek Dendrill Indonesia
- Vizag Seaport Private Limited - India
- Bukit Makmur.PT - Indonesia
- Indonesian Coal Mining Association
- The State Trading Corporation of India Ltd
- Economic Council, Georgia
- Independent Power Producers Association of India
- Global Coal Blending Company Limited - Australia
- Singapore Mercantile Exchange
- Directorate General of MIneral and Coal - Indonesia
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