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