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.
|
|
Wednesday, 24 March 21
MARKET INSIGHT - INTERMODAL
Since the start of the pandemic, the shipping industry has efficiently responded to ensure the continuity of operations and hence the security of s ...
Tuesday, 23 March 21
LOWER WHOLESALE PRICES PUT PRESSURE ON AUSTRALIAN ENERGY RETAILERS - FITCH RATINGS
Fitch Ratings expects the low wholesale energy prices in the Australian National Energy Market to persist through to 2022, which will affect electr ...
Tuesday, 23 March 21
SCRUBBER-FITTED SHIPS NEARLY DOUBLE AS FUEL SPREAD SETTLES AT $118 PER MT - PETER SAND
As the lion’s share of the world fleet replaced high-sulphur fuel oil (HSFO) with low-sulphur fuel oil (LFSO) as a mean of propulsion to be c ...
Tuesday, 23 March 21
CHINA'S COAL OUTPUT EDGES UP IN FIRST TWO MONTHS - XINHUA
China’s raw coal output rose 25 percent year on year to 620 million tonnes in the first two months of 2021, official data showed.
...
Wednesday, 17 March 21
MARKET INSIGHT - INTERMODAL
Shipping market players are familiar with the inverse correlation between the freight market and demolition activity i.e. when the market picks up ...
|
|
|
Showing 616 to 620 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Chamber of Mines of South Africa
- Ind-Barath Power Infra Limited - India
- Orica Australia Pty. Ltd.
- Singapore Mercantile Exchange
- Attock Cement Pakistan Limited
- Vizag Seaport Private Limited - India
- Metalloyd Limited - United Kingdom
- Orica Mining Services - Indonesia
- Binh Thuan Hamico - Vietnam
- Trasteel International SA, Italy
- GN Power Mariveles Coal Plant, Philippines
- Independent Power Producers Association of India
- Parliament of New Zealand
- Mercator Lines Limited - India
- Sical Logistics Limited - India
- London Commodity Brokers - England
- Meralco Power Generation, Philippines
- Leighton Contractors Pty Ltd - Australia
- Goldman Sachs - Singapore
- Ceylon Electricity Board - Sri Lanka
- Tamil Nadu electricity Board
- Siam City Cement - Thailand
- Ministry of Transport, Egypt
- Simpson Spence & Young - Indonesia
- Kapuas Tunggal Persada - Indonesia
- OPG Power Generation Pvt Ltd - India
- Savvy Resources Ltd - HongKong
- Wood Mackenzie - Singapore
- Vedanta Resources Plc - India
- Renaissance Capital - South Africa
- Global Business Power Corporation, Philippines
- Georgia Ports Authority, United States
- Kalimantan Lumbung Energi - Indonesia
- IEA Clean Coal Centre - UK
- SMC Global Power, Philippines
- GVK Power & Infra Limited - India
- Indian Energy Exchange, India
- Coalindo Energy - Indonesia
- Merrill Lynch Commodities Europe
- Baramulti Group, Indonesia
- Coastal Gujarat Power Limited - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Alfred C Toepfer International GmbH - Germany
- Malabar Cements Ltd - India
- Siam City Cement PLC, Thailand
- Energy Development Corp, Philippines
- GAC Shipping (India) Pvt Ltd
- Iligan Light & Power Inc, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Bayan Resources Tbk. - Indonesia
- Sakthi Sugars Limited - India
- Dalmia Cement Bharat India
- Economic Council, Georgia
- Ambuja Cements Ltd - India
- Global Green Power PLC Corporation, Philippines
- Mjunction Services Limited - India
- Bhushan Steel Limited - India
- Planning Commission, India
- Australian Coal Association
- Miang Besar Coal Terminal - Indonesia
- Jindal Steel & Power Ltd - India
- European Bulk Services B.V. - Netherlands
- Lanco Infratech Ltd - India
- Jaiprakash Power Ventures ltd
- White Energy Company Limited
- Sojitz Corporation - Japan
- Bukit Asam (Persero) Tbk - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Minerals Council of Australia
- SMG Consultants - Indonesia
- Coal and Oil Company - UAE
- Marubeni Corporation - India
- The State Trading Corporation of India Ltd
- Cement Manufacturers Association - India
- TNB Fuel Sdn Bhd - Malaysia
- Rio Tinto Coal - Australia
- Electricity Authority, New Zealand
- Riau Bara Harum - Indonesia
- Eastern Energy - Thailand
- Global Coal Blending Company Limited - Australia
- PTC India Limited - India
- IHS Mccloskey Coal Group - USA
- Directorate Of Revenue Intelligence - India
- CIMB Investment Bank - Malaysia
- Intertek Mineral Services - Indonesia
- VISA Power Limited - India
- PetroVietnam Power Coal Import and Supply Company
- Maharashtra Electricity Regulatory Commission - India
- Bukit Makmur.PT - Indonesia
- Indogreen Group - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- GMR Energy Limited - India
- Gujarat Electricity Regulatory Commission - India
- Sree Jayajothi Cements Limited - India
- Grasim Industreis Ltd - India
- Star Paper Mills Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Indo Tambangraya Megah - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Manunggal Multi Energi - Indonesia
- Wilmar Investment Holdings
- Parry Sugars Refinery, India
- Chettinad Cement Corporation Ltd - India
- Indian Oil Corporation Limited
- ICICI Bank Limited - India
- Australian Commodity Traders Exchange
- Pendopo Energi Batubara - Indonesia
- Indika Energy - Indonesia
- Semirara Mining Corp, Philippines
- Standard Chartered Bank - UAE
- Bhatia International Limited - India
- Kepco SPC Power Corporation, Philippines
- Maheswari Brothers Coal Limited - India
- Indonesian Coal Mining Association
- Ministry of Mines - Canada
- Samtan Co., Ltd - South Korea
- Borneo Indobara - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Port Waratah Coal Services - Australia
- Kideco Jaya Agung - Indonesia
- Therma Luzon, Inc, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Antam Resourcindo - Indonesia
- International Coal Ventures Pvt Ltd - India
- New Zealand Coal & Carbon
- Krishnapatnam Port Company Ltd. - India
- PNOC Exploration Corporation - Philippines
- Edison Trading Spa - Italy
- Sindya Power Generating Company Private Ltd
- McConnell Dowell - Australia
- Rashtriya Ispat Nigam Limited - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Kumho Petrochemical, South Korea
- Aboitiz Power Corporation - Philippines
- Pipit Mutiara Jaya. PT, Indonesia
- Tata Chemicals Ltd - India
- Central Electricity Authority - India
- Interocean Group of Companies - India
- Ministry of Finance - Indonesia
- MS Steel International - UAE
- Deloitte Consulting - India
- Thai Mozambique Logistica
- San Jose City I Power Corp, Philippines
- Xindia Steels Limited - India
- Kartika Selabumi Mining - Indonesia
- Straits Asia Resources Limited - Singapore
- Banpu Public Company Limited - Thailand
- PowerSource Philippines DevCo
- Aditya Birla Group - India
- Kohat Cement Company Ltd. - Pakistan
- Timah Investasi Mineral - Indoneisa
- Formosa Plastics Group - Taiwan
- Eastern Coal Council - USA
- Carbofer General Trading SA - India
- Romanian Commodities Exchange
- Electricity Generating Authority of Thailand
- Thiess Contractors Indonesia
- The University of Queensland
- Madhucon Powers Ltd - India
- Meenaskhi Energy Private Limited - India
- LBH Netherlands Bv - Netherlands
- The Treasury - Australian Government
- Price Waterhouse Coopers - Russia
- Globalindo Alam Lestari - Indonesia
- Bharathi Cement Corporation - India
- Sinarmas Energy and Mining - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Posco Energy - South Korea
- Essar Steel Hazira Ltd - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Africa Commodities Group - South Africa
- Medco Energi Mining Internasional
- Latin American Coal - Colombia
- Jorong Barutama Greston.PT - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Power Finance Corporation Ltd., India
- Karaikal Port Pvt Ltd - India
- Karbindo Abesyapradhi - Indoneisa
- Oldendorff Carriers - Singapore
- South Luzon Thermal Energy Corporation
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Salva Resources Pvt Ltd - India
- Altura Mining Limited, Indonesia
- Barasentosa Lestari - Indonesia
- Mintek Dendrill Indonesia
- Mercuria Energy - Indonesia
- Sarangani Energy Corporation, Philippines
- Holcim Trading Pte Ltd - Singapore
- Gujarat Sidhee Cement - India
- Heidelberg Cement - Germany
- Uttam Galva Steels Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Central Java Power - Indonesia
- Kaltim Prima Coal - Indonesia
- Larsen & Toubro Limited - India
- Bulk Trading Sa - Switzerland
- Makarim & Taira - Indonesia
- Petron Corporation, Philippines
- Semirara Mining and Power Corporation, Philippines
- Bhoruka Overseas - Indonesia
- Toyota Tsusho Corporation, Japan
- Energy Link Ltd, New Zealand
- Agrawal Coal Company - India
- India Bulls Power Limited - India
- Anglo American - United Kingdom
- Commonwealth Bank - Australia
- AsiaOL BioFuels Corp., Philippines
- Videocon Industries ltd - India
- Bukit Baiduri Energy - Indonesia
- Bangladesh Power Developement Board
- Kobexindo Tractors - Indoneisa
- TeaM Sual Corporation - Philippines
- ASAPP Information Group - India
- CNBM International Corporation - China
- SN Aboitiz Power Inc, Philippines
|
| |
| |
|
