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Wednesday, 05 February 14
MARKET INSIGHT - TASOS PAPADOPOULOS
 KNOWLEDGE TO ELEVATE
COALspot.com: Let's take a break from market prospects, numbers, order book etc. and shed some light on the conclusions of the Tribunals in two recently decided cases, namely "The Union Power" and "The Griffon", which any prudent Seller/Buyer should be aware of before entering into an MOA for a secondhand tonnage. In "the Griffon" case an MoA based upon NSF 93 had been signed on 1st May 2010 for the purchase of m/v Griffon. A deposit of 10pct (i.e USD 2,156,000) was payable within 3 banking days of signature; that is by 5th May, 2010. The deposit was not paid by that date and Sellers, on 6th May, 2010 cancelled the MOA as per their express contractual right and claimed the deposit. Buyers had accepted that their failure to pay the deposit was in breach of contract but argued that Sellers should only be entitled to claim "compensation for losses" (as per clause 13 ) and not the whole deposit.
The Court of Appeal confirmed that Buyers are liable for the amount of the (unpaid) whole deposit, if the MOA is terminated as a result of Buyers’ breach. This heralds a departure from the previously held view that under clause 13 of NSF 93, where a Buyer fails to pay the deposit under clause 2, Sellers "shall have the right to cancel this Agreement, and they shall be entitled to claim compensation for their losses and for all expenses incurred together with interest" (which might be less than the amount of the deposit). During the arbitration it was argued that the damages recoverable by Sellers should be the difference between contract and market price which were said to be US$275,000; that is, substantially less than the deposit (i.e. USD 2,156,000). The Court however, concluded that Sellers are in fact entitled to claim the whole deposit in such circumstances.
Anyway, it would not make sense for Buyers to be able to put themselves in a better position than the one they would have been had they not paid the deposit. This case is a reminder to Buyers of secondhand tonnage that if they agree to pay a deposit, under standard NSF terms, they will lose the deposit if they fail to perform, even if Sellers suffer no loss. The case of "The Union Power" in turn, has caused us to re-assess the Sellers' obligation under clause 11 of NSF 93 (Condition on Delivery) and a different understanding of the terms "As is where is " and "As she was at the time of inspection". The MOA in this case, included clause 11 that stipulated that the vessel was to be “delivered and taken over as she was at the time of inspection, fair wear and tear excepted”. When the dispute arose, the buyers argued that a term as to satisfactory quality was to be implied into the MOA by way of s.14(2) of the Sale of Goods Act 1979 (SOGA). Sellers argued that the provision of clause 11, that the vessel was to be sold “as she was”, was inconsistent with implying such a term. The Commercial Court decided in favor of the Buyers, concluding that "class does not tell you the quality of the vessel, which is why the independent implied term as to satisfactory quality is required".
As a result, the effects of the expressions "As is" or "As is where is" no longer exclude the right of Buyers to claim for damages for breach of implied “quality” but only to exclude their right to reject the vessel and not take delivery of her as per the terms and provisions of the MOA. In my view, the above decision is contrary to the commercial common sense and market understanding that has been the basis for thousands of deals over the years.
However, it is worth mentioning that the new NSF 2012 includes wording under Clause 18 which excludes the SOGA regime. Ultimately, what matters is whether the parties have used express and clear wording, such as that of NSF2012, to exclude the SOGA regime if they wish to exclude the satisfactory quality rule.
Compiled by:
Intermodal Research & Valuations | research@intermodal.gr
Analysts:
Mr. George Lazaridis | g.lazaridis@intermodal.gr
Ms. Eva Tzima | e.tzima@intermodal.gr
Disclaimer and legal disclosure: For any further queries please do not hesitate to contact our Research & Valuations Department. The information contained in this report has been obtained from various sources, as reported in the market. Intermodal Shipbrokers Co. believes such information to be factual and reliable without making guarantees regarding its accuracy or completeness. Whilst every care has been taken in the production of the above review, no liability can be accepted for any loss or damage incurred in any way whatsoever by any person who may seek to rely on the information and views contained in this material. This report is being produced for the internal use of the intended recipients only and no re-producing is allowed, without the prior written authorization of Intermodal Shipbrokers Co.
Information contained within the website of COALspot.com is intended for informational purposes only and is not intended as professional counsel and should not be used as such.
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Tuesday, 25 February 14
SGX'S MONTHLY VOLUMES DRASTICALLY INCREASED AND REACHED A RECORD OF 810K TONNES YEAR-ON-YEAR
COALspot.com: SGX Thermal Coal derivatives started the new year with record volumes in January on the back of higher volatility, says SGX.
Accord ...
Monday, 24 February 14
DRY BULK MARKET TO IMPROVE OVER THE COURSE OF 2014, BUT OVERSUPPLY STILL AN ISSUE SAYS BIMCO'S CHIEF SHIPPING ANALYST
As a gruelling first quarter edges closer to the end, dry bulk ship owners are looking at an improved second quarter demand, which, coupled with slo ...
Monday, 24 February 14
INDONESIAN SUB-BITUMINOUS COAL SWAP FOR DELIVERY APRIL - JUNE 2014 SLIDES TO $ 58.60 PMT
COALspot.com – Indonesia, the world’s the largest exporter of the thermal coal's swaps for delivery April - June 2014 slide week ended ...
Monday, 24 February 14
Q1 2015 DELIVERY COAL SWAP CLOSED AT 2.62% HIGHER THAN Q2 2014 CLOSING SWAPS
COALspot.com: API 8 CFR South China Coal swaps for average Q2 14 deliveries lost 2.68 percent month on month and closed at US$ 76.20 per mt as on Fr ...
Saturday, 22 February 14
SHIPPING POISED TO RALLY AFTER SEVERAL WEEKS OF DROP
COALspot.com: The freight market was steady to firm with the dry bulk index up by 6.24 pct closing at 1,175 points week on week and the cape index w ...
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- Anglo American - United Kingdom
- Orica Mining Services - Indonesia
- Meenaskhi Energy Private Limited - India
- Sinarmas Energy and Mining - Indonesia
- Merrill Lynch Commodities Europe
- Energy Development Corp, Philippines
- Kohat Cement Company Ltd. - Pakistan
- GMR Energy Limited - India
- Attock Cement Pakistan Limited
- Kideco Jaya Agung - Indonesia
- Renaissance Capital - South Africa
- Kumho Petrochemical, South Korea
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Standard Chartered Bank - UAE
- Oldendorff Carriers - Singapore
- Sree Jayajothi Cements Limited - India
- GVK Power & Infra Limited - India
- Sical Logistics Limited - India
- Kartika Selabumi Mining - Indonesia
- New Zealand Coal & Carbon
- Deloitte Consulting - India
- Georgia Ports Authority, United States
- Leighton Contractors Pty Ltd - Australia
- Antam Resourcindo - Indonesia
- Parry Sugars Refinery, India
- Orica Australia Pty. Ltd.
- Gujarat Sidhee Cement - India
- Gujarat Electricity Regulatory Commission - India
- Samtan Co., Ltd - South Korea
- Maheswari Brothers Coal Limited - India
- Toyota Tsusho Corporation, Japan
- Electricity Generating Authority of Thailand
- Larsen & Toubro Limited - India
- International Coal Ventures Pvt Ltd - India
- Latin American Coal - Colombia
- Bukit Makmur.PT - Indonesia
- Altura Mining Limited, Indonesia
- Australian Coal Association
- Karaikal Port Pvt Ltd - India
- Jaiprakash Power Ventures ltd
- Iligan Light & Power Inc, Philippines
- Indika Energy - Indonesia
- Sojitz Corporation - Japan
- MS Steel International - UAE
- Kapuas Tunggal Persada - Indonesia
- Africa Commodities Group - South Africa
- GN Power Mariveles Coal Plant, Philippines
- Jorong Barutama Greston.PT - Indonesia
- Coal and Oil Company - UAE
- TeaM Sual Corporation - Philippines
- Agrawal Coal Company - India
- CIMB Investment Bank - Malaysia
- Ministry of Finance - Indonesia
- Singapore Mercantile Exchange
- Chamber of Mines of South Africa
- PTC India Limited - India
- Marubeni Corporation - India
- Global Green Power PLC Corporation, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Trasteel International SA, Italy
- Semirara Mining and Power Corporation, Philippines
- Grasim Industreis Ltd - India
- GAC Shipping (India) Pvt Ltd
- San Jose City I Power Corp, Philippines
- Aditya Birla Group - India
- Borneo Indobara - Indonesia
- Carbofer General Trading SA - India
- Mjunction Services Limited - India
- Energy Link Ltd, New Zealand
- Karbindo Abesyapradhi - Indoneisa
- Salva Resources Pvt Ltd - India
- Barasentosa Lestari - Indonesia
- Minerals Council of Australia
- Eastern Coal Council - USA
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- The Treasury - Australian Government
- Banpu Public Company Limited - Thailand
- Coalindo Energy - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Power Finance Corporation Ltd., India
- Semirara Mining Corp, Philippines
- Bhushan Steel Limited - India
- Simpson Spence & Young - Indonesia
- Heidelberg Cement - Germany
- AsiaOL BioFuels Corp., Philippines
- Medco Energi Mining Internasional
- Miang Besar Coal Terminal - Indonesia
- Bulk Trading Sa - Switzerland
- Bank of Tokyo Mitsubishi UFJ Ltd
- Price Waterhouse Coopers - Russia
- Alfred C Toepfer International GmbH - Germany
- Krishnapatnam Port Company Ltd. - India
- Maharashtra Electricity Regulatory Commission - India
- Interocean Group of Companies - India
- Sindya Power Generating Company Private Ltd
- Economic Council, Georgia
- Rio Tinto Coal - Australia
- TNB Fuel Sdn Bhd - Malaysia
- Ceylon Electricity Board - Sri Lanka
- South Luzon Thermal Energy Corporation
- Therma Luzon, Inc, Philippines
- Bhatia International Limited - India
- Kobexindo Tractors - Indoneisa
- OPG Power Generation Pvt Ltd - India
- Vijayanagar Sugar Pvt Ltd - India
- Jindal Steel & Power Ltd - India
- PetroVietnam Power Coal Import and Supply Company
- Bukit Asam (Persero) Tbk - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Central Java Power - Indonesia
- Siam City Cement PLC, Thailand
- Electricity Authority, New Zealand
- Tata Chemicals Ltd - India
- Videocon Industries ltd - India
- Ambuja Cements Ltd - India
- Manunggal Multi Energi - Indonesia
- CNBM International Corporation - China
- Ministry of Transport, Egypt
- Vizag Seaport Private Limited - India
- Rashtriya Ispat Nigam Limited - India
- SN Aboitiz Power Inc, Philippines
- The University of Queensland
- Directorate Of Revenue Intelligence - India
- Eastern Energy - Thailand
- Indonesian Coal Mining Association
- Meralco Power Generation, Philippines
- ICICI Bank Limited - India
- Bukit Baiduri Energy - Indonesia
- Globalindo Alam Lestari - Indonesia
- Australian Commodity Traders Exchange
- Pendopo Energi Batubara - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Star Paper Mills Limited - India
- Parliament of New Zealand
- SMC Global Power, Philippines
- Intertek Mineral Services - Indonesia
- PowerSource Philippines DevCo
- Makarim & Taira - Indonesia
- McConnell Dowell - Australia
- Bayan Resources Tbk. - Indonesia
- IHS Mccloskey Coal Group - USA
- Planning Commission, India
- Cement Manufacturers Association - India
- European Bulk Services B.V. - Netherlands
- ASAPP Information Group - India
- Indian Energy Exchange, India
- Thiess Contractors Indonesia
- Uttam Galva Steels Limited - India
- Posco Energy - South Korea
- IEA Clean Coal Centre - UK
- SMG Consultants - Indonesia
- Malabar Cements Ltd - India
- Mintek Dendrill Indonesia
- Siam City Cement - Thailand
- Timah Investasi Mineral - Indoneisa
- Savvy Resources Ltd - HongKong
- Riau Bara Harum - Indonesia
- Ministry of Mines - Canada
- PNOC Exploration Corporation - Philippines
- Edison Trading Spa - Italy
- Xindia Steels Limited - India
- Billiton Holdings Pty Ltd - Australia
- Bharathi Cement Corporation - India
- Commonwealth Bank - Australia
- Indo Tambangraya Megah - Indonesia
- Baramulti Group, Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Metalloyd Limited - United Kingdom
- Gujarat Mineral Development Corp Ltd - India
- VISA Power Limited - India
- Sakthi Sugars Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- London Commodity Brokers - England
- Mercator Lines Limited - India
- Central Electricity Authority - India
- Global Business Power Corporation, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Wilmar Investment Holdings
- Dalmia Cement Bharat India
- Asmin Koalindo Tuhup - Indonesia
- White Energy Company Limited
- The State Trading Corporation of India Ltd
- Thai Mozambique Logistica
- Kalimantan Lumbung Energi - Indonesia
- Aboitiz Power Corporation - Philippines
- Independent Power Producers Association of India
- Mercuria Energy - Indonesia
- Goldman Sachs - Singapore
- Vedanta Resources Plc - India
- Coastal Gujarat Power Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- Neyveli Lignite Corporation Ltd, - India
- Tamil Nadu electricity Board
- Port Waratah Coal Services - Australia
- Chettinad Cement Corporation Ltd - India
- LBH Netherlands Bv - Netherlands
- Straits Asia Resources Limited - Singapore
- Petron Corporation, Philippines
- Indian Oil Corporation Limited
- Indogreen Group - Indonesia
- Wood Mackenzie - Singapore
- Bhoruka Overseas - Indonesia
- Essar Steel Hazira Ltd - India
- Bangladesh Power Developement Board
- Global Coal Blending Company Limited - Australia
- Formosa Plastics Group - Taiwan
- Kaltim Prima Coal - Indonesia
- India Bulls Power Limited - India
- Ind-Barath Power Infra Limited - India
- Romanian Commodities Exchange
- Lanco Infratech Ltd - India
- Kepco SPC Power Corporation, Philippines
- Madhucon Powers Ltd - India
- Binh Thuan Hamico - Vietnam
- Sarangani Energy Corporation, Philippines
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