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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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Wednesday, 16 December 20
CHINA TO BOOST DOMESTIC SUPPLY - FITCH
China’s benchmark Qinhuangdao 5,500kcal/kg coal price rose above the government’s upper yellow interval of CNY600/tonne in early Octobe ...
Wednesday, 16 December 20
INDONESIAN COAL RECOVERING - FITCH
Commenting on Indonesian coal, Fitch Ratings, the Indonesian 4,200 kcal index has begun to recover, improving to over USD 29 in November compared t ...
Tuesday, 15 December 20
NEWCASTLE PRICES RECOVER - FITCH
Prices for the benchmark Newcastle 6,000 kcal/kg grade coal have rebounded to over USD 70/tonne since late November as major Asian economies ease l ...
Tuesday, 15 December 20
APAC COAL PRICES REBOUND ON IMPROVED DEMAND AND SUPPLY CUTS - FITCH RATINGS
Prices for the benchmark Newcastle 6,000kcal/kg grade coal have rebounded to over USD70/tonne since late November as major Asian economies ease loc ...
Tuesday, 15 December 20
CHINA EXTENDS FULL OPEN GESTURE TO IMPORTED COAL EXCEPT FOR AUSTRALIA - GLOBAL TIMES
Domestic, overseas suppliers will take up share with easier clearance
China's top economic planner on Saturday gave approval to ...
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Showing 706 to 710 news of total 6871 |
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- Mjunction Services Limited - India
- Neyveli Lignite Corporation Ltd, - India
- Semirara Mining and Power Corporation, Philippines
- Iligan Light & Power Inc, Philippines
- Meralco Power Generation, Philippines
- The University of Queensland
- Sakthi Sugars Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- Baramulti Group, Indonesia
- Globalindo Alam Lestari - Indonesia
- Indian Energy Exchange, India
- Kalimantan Lumbung Energi - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Simpson Spence & Young - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Madhucon Powers Ltd - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Sarangani Energy Corporation, Philippines
- Sical Logistics Limited - India
- SMG Consultants - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Siam City Cement - Thailand
- Thiess Contractors Indonesia
- Bhushan Steel Limited - India
- San Jose City I Power Corp, Philippines
- Bukit Asam (Persero) Tbk - Indonesia
- White Energy Company Limited
- PTC India Limited - India
- SN Aboitiz Power Inc, Philippines
- Sojitz Corporation - Japan
- Global Green Power PLC Corporation, Philippines
- Jindal Steel & Power Ltd - India
- Directorate Of Revenue Intelligence - India
- Cigading International Bulk Terminal - Indonesia
- Bhatia International Limited - India
- Vizag Seaport Private Limited - India
- Thai Mozambique Logistica
- Eastern Energy - Thailand
- Ministry of Mines - Canada
- Uttam Galva Steels Limited - India
- Electricity Authority, New Zealand
- Samtan Co., Ltd - South Korea
- Anglo American - United Kingdom
- Bayan Resources Tbk. - Indonesia
- Dalmia Cement Bharat India
- Semirara Mining Corp, Philippines
- Essar Steel Hazira Ltd - India
- Indian Oil Corporation Limited
- Barasentosa Lestari - Indonesia
- Intertek Mineral Services - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Gujarat Mineral Development Corp Ltd - India
- Kartika Selabumi Mining - Indonesia
- PowerSource Philippines DevCo
- Timah Investasi Mineral - Indoneisa
- Heidelberg Cement - Germany
- Power Finance Corporation Ltd., India
- Kumho Petrochemical, South Korea
- Energy Development Corp, Philippines
- Asia Pacific Energy Resources Ventures Inc, Philippines
- ASAPP Information Group - India
- Metalloyd Limited - United Kingdom
- Renaissance Capital - South Africa
- Salva Resources Pvt Ltd - India
- Aditya Birla Group - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Independent Power Producers Association of India
- Cement Manufacturers Association - India
- Africa Commodities Group - South Africa
- Goldman Sachs - Singapore
- Formosa Plastics Group - Taiwan
- Xindia Steels Limited - India
- VISA Power Limited - India
- Bhoruka Overseas - Indonesia
- Gujarat Electricity Regulatory Commission - India
- European Bulk Services B.V. - Netherlands
- Riau Bara Harum - Indonesia
- Attock Cement Pakistan Limited
- Borneo Indobara - Indonesia
- Jaiprakash Power Ventures ltd
- Kobexindo Tractors - Indoneisa
- ICICI Bank Limited - India
- Chettinad Cement Corporation Ltd - India
- Straits Asia Resources Limited - Singapore
- Carbofer General Trading SA - India
- Sinarmas Energy and Mining - Indonesia
- McConnell Dowell - Australia
- Tata Chemicals Ltd - India
- Karaikal Port Pvt Ltd - India
- Central Electricity Authority - India
- Indogreen Group - Indonesia
- Coastal Gujarat Power Limited - India
- Leighton Contractors Pty Ltd - Australia
- Meenaskhi Energy Private Limited - India
- Maheswari Brothers Coal Limited - India
- Global Coal Blending Company Limited - Australia
- Wilmar Investment Holdings
- Bukit Baiduri Energy - Indonesia
- Central Java Power - Indonesia
- The Treasury - Australian Government
- Petrochimia International Co. Ltd.- Taiwan
- Orica Mining Services - Indonesia
- Standard Chartered Bank - UAE
- Ind-Barath Power Infra Limited - India
- Therma Luzon, Inc, Philippines
- Kepco SPC Power Corporation, Philippines
- Alfred C Toepfer International GmbH - Germany
- Indonesian Coal Mining Association
- Coalindo Energy - Indonesia
- Lanco Infratech Ltd - India
- GMR Energy Limited - India
- India Bulls Power Limited - India
- Siam City Cement PLC, Thailand
- PNOC Exploration Corporation - Philippines
- GAC Shipping (India) Pvt Ltd
- Parliament of New Zealand
- Ministry of Finance - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Directorate General of MIneral and Coal - Indonesia
- Minerals Council of Australia
- Orica Australia Pty. Ltd.
- Krishnapatnam Port Company Ltd. - India
- Interocean Group of Companies - India
- Asmin Koalindo Tuhup - Indonesia
- Aboitiz Power Corporation - Philippines
- CNBM International Corporation - China
- Energy Link Ltd, New Zealand
- IHS Mccloskey Coal Group - USA
- Agrawal Coal Company - India
- Mercator Lines Limited - India
- Parry Sugars Refinery, India
- Indo Tambangraya Megah - Indonesia
- Latin American Coal - Colombia
- Merrill Lynch Commodities Europe
- Electricity Generating Authority of Thailand
- Mintek Dendrill Indonesia
- SMC Global Power, Philippines
- CIMB Investment Bank - Malaysia
- Global Business Power Corporation, Philippines
- Savvy Resources Ltd - HongKong
- Marubeni Corporation - India
- Edison Trading Spa - Italy
- Singapore Mercantile Exchange
- PetroVietnam Power Coal Import and Supply Company
- Toyota Tsusho Corporation, Japan
- Mercuria Energy - Indonesia
- Coal and Oil Company - UAE
- TNB Fuel Sdn Bhd - Malaysia
- Kideco Jaya Agung - Indonesia
- Australian Coal Association
- LBH Netherlands Bv - Netherlands
- Rashtriya Ispat Nigam Limited - India
- Petron Corporation, Philippines
- IEA Clean Coal Centre - UK
- GN Power Mariveles Coal Plant, Philippines
- Bulk Trading Sa - Switzerland
- Pendopo Energi Batubara - Indonesia
- Star Paper Mills Limited - India
- New Zealand Coal & Carbon
- Price Waterhouse Coopers - Russia
- Medco Energi Mining Internasional
- The State Trading Corporation of India Ltd
- Planning Commission, India
- Bahari Cakrawala Sebuku - Indonesia
- Altura Mining Limited, Indonesia
- Chamber of Mines of South Africa
- Malabar Cements Ltd - India
- Videocon Industries ltd - India
- OPG Power Generation Pvt Ltd - India
- Oldendorff Carriers - Singapore
- Ministry of Transport, Egypt
- Bharathi Cement Corporation - India
- Rio Tinto Coal - Australia
- International Coal Ventures Pvt Ltd - India
- AsiaOL BioFuels Corp., Philippines
- GVK Power & Infra Limited - India
- Antam Resourcindo - Indonesia
- Kaltim Prima Coal - Indonesia
- London Commodity Brokers - England
- Posco Energy - South Korea
- Vedanta Resources Plc - India
- Port Waratah Coal Services - Australia
- Gujarat Sidhee Cement - India
- Karbindo Abesyapradhi - Indoneisa
- Binh Thuan Hamico - Vietnam
- Georgia Ports Authority, United States
- Manunggal Multi Energi - Indonesia
- TeaM Sual Corporation - Philippines
- Indika Energy - Indonesia
- Banpu Public Company Limited - Thailand
- Bukit Makmur.PT - Indonesia
- Romanian Commodities Exchange
- Sree Jayajothi Cements Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Deloitte Consulting - India
- Bangladesh Power Developement Board
- Miang Besar Coal Terminal - Indonesia
- Australian Commodity Traders Exchange
- South Luzon Thermal Energy Corporation
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Sindya Power Generating Company Private Ltd
- Holcim Trading Pte Ltd - Singapore
- Tamil Nadu electricity Board
- MS Steel International - UAE
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Kapuas Tunggal Persada - Indonesia
- Trasteel International SA, Italy
- Economic Council, Georgia
- Pipit Mutiara Jaya. PT, Indonesia
- Commonwealth Bank - Australia
- Makarim & Taira - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Ambuja Cements Ltd - India
- Eastern Coal Council - USA
- Wood Mackenzie - Singapore
- Grasim Industreis Ltd - India
- Larsen & Toubro Limited - India
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