We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
Monday, 25 January 16
SHOULD A DEFAULTING PARTY BE ENTITLED TO AN INNOCENT PARTY'S SAVING, FOLLOWING THEIR BREACH OF CONTRACT? - THE NEW FLAMENCO REVISITED
 KNOWLEDGE TO ELEVATE
This case was addressed by the club in our of January 2015, when the High Court decision became available. The background facts to the case are set out in detail in our earlier article, but to summarise briefly, the New Flamenco was time chartered to the charterer from February 2004 to November 2009. In breach of the charterparty terms, the charterer redelivered the ship two years early, in October 2007. Since there was no available charter market for a substitute fixture, the owner took the commercial decision to sell the ship in 2007. The owner subsequently commenced arbitration proceedings, claiming for the net loss of profit that they would have earned during the remaining two years of the charter. Later it became apparent, however, that due to the global financial crisis in late 2008 there was a significant difference in the value of the ship between late 2007 and late 2009 and the owner may well have benefitted from the early redelivery. Indeed, the sale price achieved by the owner was some $16.8m more than the value of the ship in November 2009. The owner’s claim for damages amounted to €7.6m, so if this benefit were to be taken into account then the owner’s claim would disappear in its entirety.
The London tribunal found that the sale was directly caused by the charterer’s early redelivery and, seeing no reason why capital savings should not be taken into account in considering the owner’s losses, the tribunal held that the charterer was entitled to the benefit. Whilst perhaps viewed as unfair by some, it should be remembered that it is normal practice when there is a breach of charter (voyage or time) for the court to take into account any income made on a mitigation voyage, and deduct this from the claim under the (wrongfully terminated) charter. So, why treat capital savings differently from savings in income?
Nevertheless, the High Court (on appeal from the tribunal) reversed this decision. The High Court held on the one hand that there was no need to treat savings in income differently from capital savings; however, on the other, the High Court held that there was no direct causal link between, here, the breach of time charter and the benefits obtained in the commercial sale of the ship. Instead, the High Court held that whilst the early redelivery may have ‘triggered’ the owner’s sale, the capital savings obtained by the owner arose from its own commercial decision to sell the ship. The charterer appealed this decision to the English Court of Appeal.
Court of Appeal decision
The Court of Appeal has, in its recent decision, unanimously overturned the High Court decision. In so doing, the owner’s claim for damages has failed in its entirety. In giving judgment, the Court of Appeal referred to the leading authority on mitigation British Westinghouse[2], confirming the important principle that where a measure taken by a claimant, in mitigation of loss and arising out of the consequences of a defendant’s breach in the ordinary course of business, results in a benefit to the claimant, that benefit is normally to be brought into account in assessing the claimant’s loss unless the measure is wholly independent of the relationship of the claimant and defendant.
Importantly, the Court of Appeal found that there was no available market for this ship upon its early redelivery and, in these circumstances, it was not easy to see why the benefit (if any) an owner obtained from selling the ship in question should not be brought into the calculation of permitted damages, especially when the benefit obtained from fixing the same ship on the spot market would have been taken into account. The absence of the available market was important as, if there had been an available market to re-fix the ship, then the owner’s decision in this case to instead sell the ship could arguably be said to have been independent of the contractual relationship between the parties and, therefore, should not be taken into account.
Conclusion
The overriding principle under English law, governing damages for breach of contract, is the compensatory principle i.e. the law attempts to put the injured party back in the position they would have been in had the contract been properly performed. Therefore, the usual measure of damages available to an owner when a charterer walks away from a contract is the amount of freight or hire which would have been earned, less running expenses, (the profit) less what the ship actually earned during that same period (the voyage(s) made in mitigation). The New Flamenco is not deviating from the compensatory principle. Indeed in this case the owner was compensated for his actual losses following the contract breach, which just happened to be none on this occasion.
However, each case will, as ever, turn on its particular facts which always need to be carefully considered. In the New Flamenco the important factor was the absence of an available market to re-charter the ship when it was redelivered to the owner early.
Source: The Standard Club
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Tuesday, 26 January 16
Q3'16 CFR SOUTH CHINA COAL SWAP DROPPED BELOW $41 A TON
COALspot.com: API 8 CFR South China Coal swap for Q1’ 2016 delivery rose US$ 0.82 (1.94%) per ton month over month.
A commodity swap is ...
Tuesday, 26 January 16
OUTLOOK FOR GLOBAL OIL MARKETS - OPEC SECRETARY GENERAL
Opening address by HE Abdalla S. El-Badri, OPEC Secretary General, at the Chatham House Conference: Middle East and North Africa Energy 2016, Theme ...
Monday, 25 January 16
5700 GAR COAL INDEX CLOSED $ 50.08 PER TON, $0.20 LOWER FROM LAST WEEK
COALspot.com: Average 5000 GAR coal index of Indonesian origin decline 1.35 percent week over week to averaging $39.39 per ton on this past Friday, ...
Monday, 25 January 16
DRY BULK SHIPPING: A MISERABLE START TO A NEW YEAR, WHERE THE MARKET STRUGGLES TO GROW AT ALL - BIMCO
The global production of steel dropped in 2015 compared to 2014, to a larger extent outside China, as China exported its surplus of steel to destin ...
Sunday, 24 January 16
PANAMAX MARKET WEAKENS ACROSS THE BOARD
COALspot.com: The Baltic Dry Index, which gauges the cost of shipping dry bulk including iron ore, cement, grain, coal and fertiliser, fell ninetee ...
|
|
|
Showing 2591 to 2595 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Directorate General of MIneral and Coal - Indonesia
- SMC Global Power, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Latin American Coal - Colombia
- Aditya Birla Group - India
- Rashtriya Ispat Nigam Limited - India
- Videocon Industries ltd - India
- Independent Power Producers Association of India
- Star Paper Mills Limited - India
- Xindia Steels Limited - India
- MS Steel International - UAE
- Petrochimia International Co. Ltd.- Taiwan
- Bhushan Steel Limited - India
- Tamil Nadu electricity Board
- Posco Energy - South Korea
- Dalmia Cement Bharat India
- Mercuria Energy - Indonesia
- Sakthi Sugars Limited - India
- Essar Steel Hazira Ltd - India
- Globalindo Alam Lestari - Indonesia
- Parliament of New Zealand
- Eastern Coal Council - USA
- Ministry of Mines - Canada
- Australian Coal Association
- Indo Tambangraya Megah - Indonesia
- Kobexindo Tractors - Indoneisa
- Renaissance Capital - South Africa
- Petron Corporation, Philippines
- The State Trading Corporation of India Ltd
- Jorong Barutama Greston.PT - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Indonesian Coal Mining Association
- Alfred C Toepfer International GmbH - Germany
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Electricity Generating Authority of Thailand
- Bharathi Cement Corporation - India
- Economic Council, Georgia
- Coastal Gujarat Power Limited - India
- Georgia Ports Authority, United States
- India Bulls Power Limited - India
- Holcim Trading Pte Ltd - Singapore
- Commonwealth Bank - Australia
- GN Power Mariveles Coal Plant, Philippines
- OPG Power Generation Pvt Ltd - India
- Parry Sugars Refinery, India
- VISA Power Limited - India
- Indogreen Group - Indonesia
- Attock Cement Pakistan Limited
- Electricity Authority, New Zealand
- Tata Chemicals Ltd - India
- Gujarat Sidhee Cement - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Lanco Infratech Ltd - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Directorate Of Revenue Intelligence - India
- Global Green Power PLC Corporation, Philippines
- Port Waratah Coal Services - Australia
- Larsen & Toubro Limited - India
- Billiton Holdings Pty Ltd - Australia
- Miang Besar Coal Terminal - Indonesia
- Agrawal Coal Company - India
- Merrill Lynch Commodities Europe
- TNB Fuel Sdn Bhd - Malaysia
- Leighton Contractors Pty Ltd - Australia
- Anglo American - United Kingdom
- Standard Chartered Bank - UAE
- Straits Asia Resources Limited - Singapore
- Meenaskhi Energy Private Limited - India
- Makarim & Taira - Indonesia
- Siam City Cement PLC, Thailand
- Chamber of Mines of South Africa
- Deloitte Consulting - India
- Indian Energy Exchange, India
- Vijayanagar Sugar Pvt Ltd - India
- International Coal Ventures Pvt Ltd - India
- Bukit Asam (Persero) Tbk - Indonesia
- Eastern Energy - Thailand
- Metalloyd Limited - United Kingdom
- Wilmar Investment Holdings
- Bukit Baiduri Energy - Indonesia
- Orica Mining Services - Indonesia
- Altura Mining Limited, Indonesia
- CIMB Investment Bank - Malaysia
- Semirara Mining Corp, Philippines
- Sindya Power Generating Company Private Ltd
- Uttam Galva Steels Limited - India
- Ambuja Cements Ltd - India
- PowerSource Philippines DevCo
- Timah Investasi Mineral - Indoneisa
- Banpu Public Company Limited - Thailand
- Riau Bara Harum - Indonesia
- Ind-Barath Power Infra Limited - India
- ICICI Bank Limited - India
- Bukit Makmur.PT - Indonesia
- SN Aboitiz Power Inc, Philippines
- Sinarmas Energy and Mining - Indonesia
- Jaiprakash Power Ventures ltd
- Grasim Industreis Ltd - India
- Coal and Oil Company - UAE
- Thai Mozambique Logistica
- Edison Trading Spa - Italy
- Central Java Power - Indonesia
- IEA Clean Coal Centre - UK
- Romanian Commodities Exchange
- CNBM International Corporation - China
- Siam City Cement - Thailand
- Energy Development Corp, Philippines
- TeaM Sual Corporation - Philippines
- Kohat Cement Company Ltd. - Pakistan
- Samtan Co., Ltd - South Korea
- Karaikal Port Pvt Ltd - India
- GAC Shipping (India) Pvt Ltd
- Orica Australia Pty. Ltd.
- PTC India Limited - India
- London Commodity Brokers - England
- Global Business Power Corporation, Philippines
- LBH Netherlands Bv - Netherlands
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Toyota Tsusho Corporation, Japan
- Medco Energi Mining Internasional
- Vedanta Resources Plc - India
- Kalimantan Lumbung Energi - Indonesia
- Power Finance Corporation Ltd., India
- Bhatia International Limited - India
- Aboitiz Power Corporation - Philippines
- Africa Commodities Group - South Africa
- Semirara Mining and Power Corporation, Philippines
- San Jose City I Power Corp, Philippines
- Antam Resourcindo - Indonesia
- The Treasury - Australian Government
- Ministry of Finance - Indonesia
- Bayan Resources Tbk. - Indonesia
- Interocean Group of Companies - India
- IHS Mccloskey Coal Group - USA
- Madhucon Powers Ltd - India
- Singapore Mercantile Exchange
- Central Electricity Authority - India
- Energy Link Ltd, New Zealand
- Ministry of Transport, Egypt
- Cigading International Bulk Terminal - Indonesia
- Bangladesh Power Developement Board
- Iligan Light & Power Inc, Philippines
- Gujarat Mineral Development Corp Ltd - India
- Wood Mackenzie - Singapore
- Heidelberg Cement - Germany
- Pipit Mutiara Jaya. PT, Indonesia
- Chettinad Cement Corporation Ltd - India
- New Zealand Coal & Carbon
- Australian Commodity Traders Exchange
- Ceylon Electricity Board - Sri Lanka
- Indian Oil Corporation Limited
- Savvy Resources Ltd - HongKong
- ASAPP Information Group - India
- Sarangani Energy Corporation, Philippines
- Cement Manufacturers Association - India
- Malabar Cements Ltd - India
- Sree Jayajothi Cements Limited - India
- European Bulk Services B.V. - Netherlands
- Asmin Koalindo Tuhup - Indonesia
- South Luzon Thermal Energy Corporation
- Coalindo Energy - Indonesia
- Global Coal Blending Company Limited - Australia
- Binh Thuan Hamico - Vietnam
- GMR Energy Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Oldendorff Carriers - Singapore
- Salva Resources Pvt Ltd - India
- Kaltim Prima Coal - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- PNOC Exploration Corporation - Philippines
- Bhoruka Overseas - Indonesia
- Bulk Trading Sa - Switzerland
- Barasentosa Lestari - Indonesia
- Sojitz Corporation - Japan
- Mjunction Services Limited - India
- Jindal Steel & Power Ltd - India
- White Energy Company Limited
- Maharashtra Electricity Regulatory Commission - India
- Kumho Petrochemical, South Korea
- Baramulti Group, Indonesia
- Pendopo Energi Batubara - Indonesia
- Marubeni Corporation - India
- Mintek Dendrill Indonesia
- Formosa Plastics Group - Taiwan
- Price Waterhouse Coopers - Russia
- Rio Tinto Coal - Australia
- Goldman Sachs - Singapore
- Indika Energy - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- McConnell Dowell - Australia
- Trasteel International SA, Italy
- Planning Commission, India
- Minerals Council of Australia
- Carbofer General Trading SA - India
- Sical Logistics Limited - India
- Meralco Power Generation, Philippines
- SMG Consultants - Indonesia
- Simpson Spence & Young - Indonesia
- Manunggal Multi Energi - Indonesia
- Therma Luzon, Inc, Philippines
- Kideco Jaya Agung - Indonesia
- The University of Queensland
- Karbindo Abesyapradhi - Indoneisa
- Intertek Mineral Services - Indonesia
- Vizag Seaport Private Limited - India
- Maheswari Brothers Coal Limited - India
- Thiess Contractors Indonesia
- AsiaOL BioFuels Corp., Philippines
- Gujarat Electricity Regulatory Commission - India
- Kepco SPC Power Corporation, Philippines
- Borneo Indobara - Indonesia
- Kartika Selabumi Mining - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Mercator Lines Limited - India
- Krishnapatnam Port Company Ltd. - India
- GVK Power & Infra Limited - India
|
| |
| |
|
