We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
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
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Saturday, 08 May 21
LNG-TO-POWER INVESTORS IN THE PHILIPPINES RISK EXPOSURE TO $14 BILLION IN STRANDED ASSETS - IEEFA
High regulatory and financial uncertainty in the Philippines market
The race to develop liquified natural gas (LNG) facilities in th ...
Saturday, 08 May 21
THE COAL-TO-RENEWABLES TRANSITION TAKES OFF - IEEFA
Pre-Biden changes underscore coming 10-year wave of coal plant retirements
The traditional S-curve growth exhibited by disruptive te ...
Friday, 07 May 21
CHINA'S TOTAL COAL IMPORTS FOR 2020 REACHED A VOLUME OF 304 MILLION TONS - ASSOCARBONI
Our benchmarks, manufacturing Countries like China, Germany, Japan, India, South Korea and Taiwan will continue to use a mix of coal and nuclear to ...
Friday, 07 May 21
SEABORNE WORLD COAL TRADE CLOSED 2020 IN NEGATIVE - ASSOCARBONI
Coal confirmed its leadership as leading fuel for electricity generation also in 2020, accounting for 38% of overall production. For the first time ...
Friday, 07 May 21
INDONESIA'S THERMAL COAL EXPORTS IN 2020 DECREASED BY 13%; INDIA REMAINED THE TOP DESTINATION FOR INDONESIAN COAL - ASSOCARBONI
An increase in seaborne trade is forecast for 2022, driven by markets in Southeast Asia, where growing demand for coal from Bangladesh, the Philipp ...
|
|
|
Showing 586 to 590 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Medco Energi Mining Internasional
- Vedanta Resources Plc - India
- Petron Corporation, Philippines
- Madhucon Powers Ltd - India
- Bhushan Steel Limited - India
- LBH Netherlands Bv - Netherlands
- Indogreen Group - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Mercuria Energy - Indonesia
- GMR Energy Limited - India
- Sree Jayajothi Cements Limited - India
- GAC Shipping (India) Pvt Ltd
- Uttam Galva Steels Limited - India
- PetroVietnam Power Coal Import and Supply Company
- Oldendorff Carriers - Singapore
- Asmin Koalindo Tuhup - Indonesia
- The Treasury - Australian Government
- Straits Asia Resources Limited - Singapore
- Simpson Spence & Young - Indonesia
- Meenaskhi Energy Private Limited - India
- Bharathi Cement Corporation - India
- Borneo Indobara - Indonesia
- India Bulls Power Limited - India
- Wilmar Investment Holdings
- Indian Oil Corporation Limited
- Larsen & Toubro Limited - India
- Latin American Coal - Colombia
- Rio Tinto Coal - Australia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Economic Council, Georgia
- Savvy Resources Ltd - HongKong
- Maharashtra Electricity Regulatory Commission - India
- Central Java Power - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Miang Besar Coal Terminal - Indonesia
- Metalloyd Limited - United Kingdom
- MS Steel International - UAE
- Meralco Power Generation, Philippines
- Central Electricity Authority - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Posco Energy - South Korea
- Rashtriya Ispat Nigam Limited - India
- Samtan Co., Ltd - South Korea
- Iligan Light & Power Inc, Philippines
- Bukit Makmur.PT - Indonesia
- Alfred C Toepfer International GmbH - Germany
- New Zealand Coal & Carbon
- Maheswari Brothers Coal Limited - India
- Manunggal Multi Energi - Indonesia
- Lanco Infratech Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- Riau Bara Harum - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- PowerSource Philippines DevCo
- Bukit Baiduri Energy - Indonesia
- Heidelberg Cement - Germany
- Cigading International Bulk Terminal - Indonesia
- Sical Logistics Limited - India
- Ind-Barath Power Infra Limited - India
- Makarim & Taira - Indonesia
- Therma Luzon, Inc, Philippines
- Neyveli Lignite Corporation Ltd, - India
- ASAPP Information Group - India
- Bangladesh Power Developement Board
- Indonesian Coal Mining Association
- Goldman Sachs - Singapore
- Jaiprakash Power Ventures ltd
- Kapuas Tunggal Persada - Indonesia
- Karaikal Port Pvt Ltd - India
- Gujarat Electricity Regulatory Commission - India
- Coalindo Energy - Indonesia
- Electricity Generating Authority of Thailand
- San Jose City I Power Corp, Philippines
- Vijayanagar Sugar Pvt Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Grasim Industreis Ltd - India
- Cement Manufacturers Association - India
- Antam Resourcindo - Indonesia
- SMC Global Power, Philippines
- SN Aboitiz Power Inc, Philippines
- Anglo American - United Kingdom
- IHS Mccloskey Coal Group - USA
- Australian Commodity Traders Exchange
- Jorong Barutama Greston.PT - Indonesia
- IEA Clean Coal Centre - UK
- Semirara Mining Corp, Philippines
- Planning Commission, India
- Kohat Cement Company Ltd. - Pakistan
- Siam City Cement PLC, Thailand
- Salva Resources Pvt Ltd - India
- Xindia Steels Limited - India
- Parliament of New Zealand
- Global Coal Blending Company Limited - Australia
- Romanian Commodities Exchange
- Sindya Power Generating Company Private Ltd
- European Bulk Services B.V. - Netherlands
- Chamber of Mines of South Africa
- Merrill Lynch Commodities Europe
- Agrawal Coal Company - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Thai Mozambique Logistica
- Formosa Plastics Group - Taiwan
- Semirara Mining and Power Corporation, Philippines
- Parry Sugars Refinery, India
- Coal and Oil Company - UAE
- International Coal Ventures Pvt Ltd - India
- Bulk Trading Sa - Switzerland
- Eastern Energy - Thailand
- Electricity Authority, New Zealand
- Holcim Trading Pte Ltd - Singapore
- Standard Chartered Bank - UAE
- TeaM Sual Corporation - Philippines
- Kartika Selabumi Mining - Indonesia
- Bhoruka Overseas - Indonesia
- Ambuja Cements Ltd - India
- Krishnapatnam Port Company Ltd. - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Sojitz Corporation - Japan
- Toyota Tsusho Corporation, Japan
- Essar Steel Hazira Ltd - India
- Bhatia International Limited - India
- Gujarat Sidhee Cement - India
- Edison Trading Spa - Italy
- PNOC Exploration Corporation - Philippines
- Africa Commodities Group - South Africa
- GN Power Mariveles Coal Plant, Philippines
- Mercator Lines Limited - India
- Kobexindo Tractors - Indoneisa
- OPG Power Generation Pvt Ltd - India
- Orica Mining Services - Indonesia
- Aboitiz Power Corporation - Philippines
- Vizag Seaport Private Limited - India
- Interocean Group of Companies - India
- Ministry of Mines - Canada
- AsiaOL BioFuels Corp., Philippines
- Sakthi Sugars Limited - India
- Georgia Ports Authority, United States
- Singapore Mercantile Exchange
- Deloitte Consulting - India
- Eastern Coal Council - USA
- Renaissance Capital - South Africa
- Indika Energy - Indonesia
- The University of Queensland
- Australian Coal Association
- The State Trading Corporation of India Ltd
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Malabar Cements Ltd - India
- Karbindo Abesyapradhi - Indoneisa
- White Energy Company Limited
- Price Waterhouse Coopers - Russia
- London Commodity Brokers - England
- Minerals Council of Australia
- South Luzon Thermal Energy Corporation
- Energy Development Corp, Philippines
- Siam City Cement - Thailand
- Binh Thuan Hamico - Vietnam
- Kaltim Prima Coal - Indonesia
- Sarangani Energy Corporation, Philippines
- Jindal Steel & Power Ltd - India
- Videocon Industries ltd - India
- Mintek Dendrill Indonesia
- Leighton Contractors Pty Ltd - Australia
- CIMB Investment Bank - Malaysia
- Sinarmas Energy and Mining - Indonesia
- Tata Chemicals Ltd - India
- Intertek Mineral Services - Indonesia
- VISA Power Limited - India
- SMG Consultants - Indonesia
- Kepco SPC Power Corporation, Philippines
- Energy Link Ltd, New Zealand
- Thiess Contractors Indonesia
- Trasteel International SA, Italy
- Tamil Nadu electricity Board
- Kalimantan Lumbung Energi - Indonesia
- Altura Mining Limited, Indonesia
- Independent Power Producers Association of India
- Directorate General of MIneral and Coal - Indonesia
- Orica Australia Pty. Ltd.
- Carbofer General Trading SA - India
- Indo Tambangraya Megah - Indonesia
- PTC India Limited - India
- Wood Mackenzie - Singapore
- Marubeni Corporation - India
- Chettinad Cement Corporation Ltd - India
- Aditya Birla Group - India
- Ministry of Finance - Indonesia
- Baramulti Group, Indonesia
- Dalmia Cement Bharat India
- Globalindo Alam Lestari - Indonesia
- McConnell Dowell - Australia
- Mjunction Services Limited - India
- Coastal Gujarat Power Limited - India
- Global Green Power PLC Corporation, Philippines
- Petrochimia International Co. Ltd.- Taiwan
- Global Business Power Corporation, Philippines
- Port Waratah Coal Services - Australia
- Kumho Petrochemical, South Korea
- Indian Energy Exchange, India
- Timah Investasi Mineral - Indoneisa
- Directorate Of Revenue Intelligence - India
- Ministry of Transport, Egypt
- Banpu Public Company Limited - Thailand
- CNBM International Corporation - China
- Gujarat Mineral Development Corp Ltd - India
- Attock Cement Pakistan Limited
- Star Paper Mills Limited - India
- Power Finance Corporation Ltd., India
- ICICI Bank Limited - India
- Barasentosa Lestari - Indonesia
- Kideco Jaya Agung - Indonesia
- Bayan Resources Tbk. - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Pendopo Energi Batubara - Indonesia
- Commonwealth Bank - Australia
- GVK Power & Infra Limited - India
|
| |
| |
|
