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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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Monday, 04 January 21
U.S. RENEWABLE ENERGY CONSUMPTION SURPASSES COAL FOR THE FIRST TIME IN OVER 130 YEARS - EIA
In 2019, U.S. annual energy consumption from renewable sources exceeded coal consumption for the first time since before 1885, according to the U.S ...
Monday, 04 January 21
BLISS FOR SHIPOWNERS! DAMAGES MAY BE CLAIMED IN ADDITION TO DEMURRAGE FOR VOYAGE CHARTERPARTY DELAY - WFW
KNOWLEDGE TO ELEVATE
In a significant decision for the maritime sector, The Eternal Bliss[1], the English Commercial Court has resol ...
Sunday, 03 January 21
INDIA: COMMERCE MINISTRY LAUNCHES COAL IMPORT MONITORING SYSTEM - PTI
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Wednesday, 30 December 20
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Tuesday, 29 December 20
CHINA TAIYUAN COAL TRANSACTION PRICE INDEX UP 0.66 PCT - XINHUA
China Taiyuan coal transaction price index stood at 134.78 points Monday, up 0.66 percent week on week.
The index, released by China ...
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- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- White Energy Company Limited
- Ceylon Electricity Board - Sri Lanka
- Orica Mining Services - Indonesia
- Petron Corporation, Philippines
- Offshore Bulk Terminal Pte Ltd, Singapore
- Bahari Cakrawala Sebuku - Indonesia
- Thai Mozambique Logistica
- Mintek Dendrill Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Karbindo Abesyapradhi - Indoneisa
- Kaltim Prima Coal - Indonesia
- Maheswari Brothers Coal Limited - India
- Holcim Trading Pte Ltd - Singapore
- Jindal Steel & Power Ltd - India
- Eastern Coal Council - USA
- Siam City Cement PLC, Thailand
- Posco Energy - South Korea
- Kohat Cement Company Ltd. - Pakistan
- Lanco Infratech Ltd - India
- Riau Bara Harum - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Globalindo Alam Lestari - Indonesia
- South Luzon Thermal Energy Corporation
- Economic Council, Georgia
- Kumho Petrochemical, South Korea
- Eastern Energy - Thailand
- Directorate Of Revenue Intelligence - India
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- Siam City Cement - Thailand
- Indogreen Group - Indonesia
- Billiton Holdings Pty Ltd - Australia
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- European Bulk Services B.V. - Netherlands
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- Mercator Lines Limited - India
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- Meralco Power Generation, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Bharathi Cement Corporation - India
- Bukit Baiduri Energy - Indonesia
- Ministry of Transport, Egypt
- Kepco SPC Power Corporation, Philippines
- Alfred C Toepfer International GmbH - Germany
- VISA Power Limited - India
- Romanian Commodities Exchange
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- Indian Oil Corporation Limited
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- Heidelberg Cement - Germany
- McConnell Dowell - Australia
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- Oldendorff Carriers - Singapore
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- Anglo American - United Kingdom
- ICICI Bank Limited - India
- Bhoruka Overseas - Indonesia
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- Gujarat Sidhee Cement - India
- Makarim & Taira - Indonesia
- Aboitiz Power Corporation - Philippines
- Banpu Public Company Limited - Thailand
- Petrochimia International Co. Ltd.- Taiwan
- Bayan Resources Tbk. - Indonesia
- PNOC Exploration Corporation - Philippines
- PowerSource Philippines DevCo
- Africa Commodities Group - South Africa
- LBH Netherlands Bv - Netherlands
- Bhatia International Limited - India
- TeaM Sual Corporation - Philippines
- Dalmia Cement Bharat India
- Asmin Koalindo Tuhup - Indonesia
- Minerals Council of Australia
- Simpson Spence & Young - Indonesia
- Intertek Mineral Services - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Timah Investasi Mineral - Indoneisa
- Uttam Galva Steels Limited - India
- Kalimantan Lumbung Energi - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Chamber of Mines of South Africa
- Wood Mackenzie - Singapore
- Chettinad Cement Corporation Ltd - India
- Sarangani Energy Corporation, Philippines
- Marubeni Corporation - India
- Australian Coal Association
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- Goldman Sachs - Singapore
- Jorong Barutama Greston.PT - Indonesia
- Kideco Jaya Agung - Indonesia
- The Treasury - Australian Government
- Jaiprakash Power Ventures ltd
- Edison Trading Spa - Italy
- Cigading International Bulk Terminal - Indonesia
- Energy Link Ltd, New Zealand
- Binh Thuan Hamico - Vietnam
- Power Finance Corporation Ltd., India
- Kartika Selabumi Mining - Indonesia
- International Coal Ventures Pvt Ltd - India
- Kobexindo Tractors - Indoneisa
- India Bulls Power Limited - India
- Vedanta Resources Plc - India
- CNBM International Corporation - China
- Madhucon Powers Ltd - India
- Orica Australia Pty. Ltd.
- MS Steel International - UAE
- Deloitte Consulting - India
- PetroVietnam Power Coal Import and Supply Company
- Sree Jayajothi Cements Limited - India
- Karaikal Port Pvt Ltd - India
- Indian Energy Exchange, India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Rio Tinto Coal - Australia
- Australian Commodity Traders Exchange
- Singapore Mercantile Exchange
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- Sindya Power Generating Company Private Ltd
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- The University of Queensland
- Standard Chartered Bank - UAE
- Semirara Mining and Power Corporation, Philippines
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- SMG Consultants - Indonesia
- Renaissance Capital - South Africa
- New Zealand Coal & Carbon
- AsiaOL BioFuels Corp., Philippines
- Ministry of Mines - Canada
- Planning Commission, India
- Altura Mining Limited, Indonesia
- Borneo Indobara - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Samtan Co., Ltd - South Korea
- Wilmar Investment Holdings
- Georgia Ports Authority, United States
- GMR Energy Limited - India
- IEA Clean Coal Centre - UK
- Pendopo Energi Batubara - Indonesia
- Latin American Coal - Colombia
- Metalloyd Limited - United Kingdom
- Malabar Cements Ltd - India
- Mjunction Services Limited - India
- Global Business Power Corporation, Philippines
- Larsen & Toubro Limited - India
- GAC Shipping (India) Pvt Ltd
- Directorate General of MIneral and Coal - Indonesia
- ASAPP Information Group - India
- Thiess Contractors Indonesia
- Rashtriya Ispat Nigam Limited - India
- Medco Energi Mining Internasional
- PTC India Limited - India
- Gujarat Electricity Regulatory Commission - India
- Electricity Authority, New Zealand
- Parliament of New Zealand
- SMC Global Power, Philippines
- Coal and Oil Company - UAE
- Miang Besar Coal Terminal - Indonesia
- Tata Chemicals Ltd - India
- The State Trading Corporation of India Ltd
- Port Waratah Coal Services - Australia
- Iligan Light & Power Inc, Philippines
- Global Coal Blending Company Limited - Australia
- Carbofer General Trading SA - India
- Aditya Birla Group - India
- Indika Energy - Indonesia
- IHS Mccloskey Coal Group - USA
- Meenaskhi Energy Private Limited - India
- Baramulti Group, Indonesia
- Therma Luzon, Inc, Philippines
- Price Waterhouse Coopers - Russia
- Central Electricity Authority - India
- GN Power Mariveles Coal Plant, Philippines
- Global Green Power PLC Corporation, Philippines
- Commonwealth Bank - Australia
- Toyota Tsusho Corporation, Japan
- Trasteel International SA, Italy
- Leighton Contractors Pty Ltd - Australia
- GVK Power & Infra Limited - India
- Sojitz Corporation - Japan
- Sinarmas Energy and Mining - Indonesia
- OPG Power Generation Pvt Ltd - India
- Ambuja Cements Ltd - India
- Merrill Lynch Commodities Europe
- Semirara Mining Corp, Philippines
- Bulk Trading Sa - Switzerland
- Barasentosa Lestari - Indonesia
- Independent Power Producers Association of India
- Mercuria Energy - Indonesia
- Straits Asia Resources Limited - Singapore
- Energy Development Corp, Philippines
- SN Aboitiz Power Inc, Philippines
- TNB Fuel Sdn Bhd - Malaysia
- Kapuas Tunggal Persada - Indonesia
- San Jose City I Power Corp, Philippines
- Antam Resourcindo - Indonesia
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- Parry Sugars Refinery, India
- Electricity Generating Authority of Thailand
- Ministry of Finance - Indonesia
- Attock Cement Pakistan Limited
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