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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, 14 December 20
PHILIPPINE BANK RCBC TO STOP LENDING FOR NEW COAL-FIRED POWER PROJECTS - MANILA BULLETIN
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Sunday, 13 December 20
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Sunday, 13 December 20
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Thursday, 10 December 20
MALAYSIA'S CIMB ANNOUNCES COAL FINANCING PHASE-OUT BY 2040 AS ASIA'S FOSSIL FUEL DIVESTMENT DRIVE ACCELERATES - IEEFA
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Wednesday, 09 December 20
MARKET INSIGHT - INTERMODAL
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- Ambuja Cements Ltd - India
- Wilmar Investment Holdings
- Sakthi Sugars Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Bulk Trading Sa - Switzerland
- Intertek Mineral Services - Indonesia
- Oldendorff Carriers - Singapore
- Gujarat Electricity Regulatory Commission - India
- Kumho Petrochemical, South Korea
- Energy Link Ltd, New Zealand
- Power Finance Corporation Ltd., India
- GVK Power & Infra Limited - India
- Planning Commission, India
- Indika Energy - Indonesia
- Carbofer General Trading SA - India
- ASAPP Information Group - India
- Cement Manufacturers Association - India
- Rashtriya Ispat Nigam Limited - India
- Ministry of Finance - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- IEA Clean Coal Centre - UK
- Indogreen Group - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- South Luzon Thermal Energy Corporation
- Kobexindo Tractors - Indoneisa
- Jaiprakash Power Ventures ltd
- Sarangani Energy Corporation, Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Georgia Ports Authority, United States
- Manunggal Multi Energi - Indonesia
- IHS Mccloskey Coal Group - USA
- Medco Energi Mining Internasional
- SN Aboitiz Power Inc, Philippines
- Riau Bara Harum - Indonesia
- Australian Coal Association
- Mintek Dendrill Indonesia
- LBH Netherlands Bv - Netherlands
- Toyota Tsusho Corporation, Japan
- Simpson Spence & Young - Indonesia
- Jindal Steel & Power Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Edison Trading Spa - Italy
- Minerals Council of Australia
- Port Waratah Coal Services - Australia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Chettinad Cement Corporation Ltd - India
- Madhucon Powers Ltd - India
- PetroVietnam Power Coal Import and Supply Company
- The University of Queensland
- Banpu Public Company Limited - Thailand
- Borneo Indobara - Indonesia
- Price Waterhouse Coopers - Russia
- Siam City Cement - Thailand
- Trasteel International SA, Italy
- Coastal Gujarat Power Limited - India
- Marubeni Corporation - India
- Meralco Power Generation, Philippines
- PowerSource Philippines DevCo
- European Bulk Services B.V. - Netherlands
- Agrawal Coal Company - India
- Kalimantan Lumbung Energi - Indonesia
- Indo Tambangraya Megah - Indonesia
- Electricity Authority, New Zealand
- Antam Resourcindo - Indonesia
- Grasim Industreis Ltd - India
- Timah Investasi Mineral - Indoneisa
- Orica Australia Pty. Ltd.
- Iligan Light & Power Inc, Philippines
- Pendopo Energi Batubara - Indonesia
- Cigading International Bulk Terminal - Indonesia
- India Bulls Power Limited - India
- Energy Development Corp, Philippines
- Kideco Jaya Agung - Indonesia
- Indonesian Coal Mining Association
- Parry Sugars Refinery, India
- Bukit Makmur.PT - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Ceylon Electricity Board - Sri Lanka
- Krishnapatnam Port Company Ltd. - India
- Merrill Lynch Commodities Europe
- Ind-Barath Power Infra Limited - India
- Romanian Commodities Exchange
- Dalmia Cement Bharat India
- Savvy Resources Ltd - HongKong
- Directorate Of Revenue Intelligence - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Ministry of Transport, Egypt
- Posco Energy - South Korea
- Global Coal Blending Company Limited - Australia
- New Zealand Coal & Carbon
- Deloitte Consulting - India
- International Coal Ventures Pvt Ltd - India
- Asmin Koalindo Tuhup - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Africa Commodities Group - South Africa
- Lanco Infratech Ltd - India
- Petron Corporation, Philippines
- Central Electricity Authority - India
- Essar Steel Hazira Ltd - India
- Makarim & Taira - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Therma Luzon, Inc, Philippines
- SMC Global Power, Philippines
- Parliament of New Zealand
- Wood Mackenzie - Singapore
- Singapore Mercantile Exchange
- Mercator Lines Limited - India
- Maheswari Brothers Coal Limited - India
- Larsen & Toubro Limited - India
- Karbindo Abesyapradhi - Indoneisa
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Independent Power Producers Association of India
- Australian Commodity Traders Exchange
- Karaikal Port Pvt Ltd - India
- GAC Shipping (India) Pvt Ltd
- PTC India Limited - India
- Kepco SPC Power Corporation, Philippines
- Salva Resources Pvt Ltd - India
- Siam City Cement PLC, Thailand
- White Energy Company Limited
- Thai Mozambique Logistica
- Interocean Group of Companies - India
- Bangladesh Power Developement Board
- Star Paper Mills Limited - India
- Vizag Seaport Private Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- The Treasury - Australian Government
- Binh Thuan Hamico - Vietnam
- Aboitiz Power Corporation - Philippines
- TNB Fuel Sdn Bhd - Malaysia
- TeaM Sual Corporation - Philippines
- Baramulti Group, Indonesia
- SMG Consultants - Indonesia
- Chamber of Mines of South Africa
- Renaissance Capital - South Africa
- Eastern Energy - Thailand
- Bhoruka Overseas - Indonesia
- Mjunction Services Limited - India
- Indian Energy Exchange, India
- Petrochimia International Co. Ltd.- Taiwan
- Indian Oil Corporation Limited
- Kaltim Prima Coal - Indonesia
- Orica Mining Services - Indonesia
- Goldman Sachs - Singapore
- Coal and Oil Company - UAE
- Latin American Coal - Colombia
- Directorate General of MIneral and Coal - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Electricity Generating Authority of Thailand
- Eastern Coal Council - USA
- Maharashtra Electricity Regulatory Commission - India
- London Commodity Brokers - England
- Tamil Nadu electricity Board
- Semirara Mining and Power Corporation, Philippines
- Sojitz Corporation - Japan
- Bahari Cakrawala Sebuku - Indonesia
- Altura Mining Limited, Indonesia
- Standard Chartered Bank - UAE
- Formosa Plastics Group - Taiwan
- Sical Logistics Limited - India
- Global Green Power PLC Corporation, Philippines
- GMR Energy Limited - India
- The State Trading Corporation of India Ltd
- Metalloyd Limited - United Kingdom
- Straits Asia Resources Limited - Singapore
- Global Business Power Corporation, Philippines
- Gujarat Sidhee Cement - India
- Malabar Cements Ltd - India
- McConnell Dowell - Australia
- Economic Council, Georgia
- CIMB Investment Bank - Malaysia
- Bayan Resources Tbk. - Indonesia
- Globalindo Alam Lestari - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Samtan Co., Ltd - South Korea
- Bhatia International Limited - India
- Bharathi Cement Corporation - India
- Tata Chemicals Ltd - India
- Vijayanagar Sugar Pvt Ltd - India
- OPG Power Generation Pvt Ltd - India
- Coalindo Energy - Indonesia
- Commonwealth Bank - Australia
- Uttam Galva Steels Limited - India
- VISA Power Limited - India
- Bhushan Steel Limited - India
- Ministry of Mines - Canada
- ICICI Bank Limited - India
- Miang Besar Coal Terminal - Indonesia
- Rio Tinto Coal - Australia
- Neyveli Lignite Corporation Ltd, - India
- MS Steel International - UAE
- Kohat Cement Company Ltd. - Pakistan
- Vedanta Resources Plc - India
- Alfred C Toepfer International GmbH - Germany
- CNBM International Corporation - China
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Barasentosa Lestari - Indonesia
- Videocon Industries ltd - India
- Holcim Trading Pte Ltd - Singapore
- Thiess Contractors Indonesia
- Kartika Selabumi Mining - Indonesia
- Meenaskhi Energy Private Limited - India
- Heidelberg Cement - Germany
- Sree Jayajothi Cements Limited - India
- Central Java Power - Indonesia
- Semirara Mining Corp, Philippines
- Sindya Power Generating Company Private Ltd
- PNOC Exploration Corporation - Philippines
- Sinarmas Energy and Mining - Indonesia
- Attock Cement Pakistan Limited
- Mercuria Energy - Indonesia
- Anglo American - United Kingdom
- AsiaOL BioFuels Corp., Philippines
- Xindia Steels Limited - India
- Aditya Birla Group - India
- San Jose City I Power Corp, Philippines
- Bukit Baiduri Energy - Indonesia
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