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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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Thursday, 10 September 20
U.S. COAL PRODUCTION IN 2020 TO BE 511 MMST, 28 PER CENT LOWER THAN IN 2019 - EIA
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Thursday, 10 September 20
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Thursday, 10 September 20
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Overview
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Thursday, 10 September 20
INDIA'S COAL IMPORTS STUMBLE IN AUGUST, RAISING RISK OF SLOW RECOVERY - REFINITIV | BANCHERO COSTA
After posting a mild recovery in July, India's coal imports have stumbled in August as the South Asian nation battles to restart it ...
Thursday, 10 September 20
THE FIRST 8 MONTHS OF 2020, INDONESIA EXPORTED 217.4 MLN TONNES OF COAL BASED ON REFINITIV - BANCHERO COSTA
The coal market has been hit by a weaker global economy as a result of COVID-19 pandemic and falling industrial electricity demand ...
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- Alfred C Toepfer International GmbH - Germany
- London Commodity Brokers - England
- Standard Chartered Bank - UAE
- India Bulls Power Limited - India
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- Bahari Cakrawala Sebuku - Indonesia
- Jaiprakash Power Ventures ltd
- Commonwealth Bank - Australia
- Bulk Trading Sa - Switzerland
- Jorong Barutama Greston.PT - Indonesia
- Sinarmas Energy and Mining - Indonesia
- MS Steel International - UAE
- Meenaskhi Energy Private Limited - India
- Wilmar Investment Holdings
- Ministry of Mines - Canada
- ASAPP Information Group - India
- Maheswari Brothers Coal Limited - India
- Planning Commission, India
- Intertek Mineral Services - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Directorate Of Revenue Intelligence - India
- Larsen & Toubro Limited - India
- GAC Shipping (India) Pvt Ltd
- Oldendorff Carriers - Singapore
- Ministry of Transport, Egypt
- Kobexindo Tractors - Indoneisa
- Kaltim Prima Coal - Indonesia
- Central Java Power - Indonesia
- European Bulk Services B.V. - Netherlands
- Ministry of Finance - Indonesia
- Africa Commodities Group - South Africa
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- Altura Mining Limited, Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- The State Trading Corporation of India Ltd
- Savvy Resources Ltd - HongKong
- Edison Trading Spa - Italy
- Ceylon Electricity Board - Sri Lanka
- Kideco Jaya Agung - Indonesia
- Metalloyd Limited - United Kingdom
- GMR Energy Limited - India
- Baramulti Group, Indonesia
- Petron Corporation, Philippines
- Indo Tambangraya Megah - Indonesia
- Renaissance Capital - South Africa
- Rio Tinto Coal - Australia
- Trasteel International SA, Italy
- Merrill Lynch Commodities Europe
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- Cement Manufacturers Association - India
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- VISA Power Limited - India
- Medco Energi Mining Internasional
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- Rashtriya Ispat Nigam Limited - India
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- Therma Luzon, Inc, Philippines
- Mercuria Energy - Indonesia
- Sical Logistics Limited - India
- Ind-Barath Power Infra Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Uttam Galva Steels Limited - India
- Kohat Cement Company Ltd. - Pakistan
- LBH Netherlands Bv - Netherlands
- Timah Investasi Mineral - Indoneisa
- Pipit Mutiara Jaya. PT, Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Global Business Power Corporation, Philippines
- Energy Development Corp, Philippines
- Formosa Plastics Group - Taiwan
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- Thiess Contractors Indonesia
- PowerSource Philippines DevCo
- The University of Queensland
- Leighton Contractors Pty Ltd - Australia
- PetroVietnam Power Coal Import and Supply Company
- Singapore Mercantile Exchange
- Indonesian Coal Mining Association
- Mercator Lines Limited - India
- Banpu Public Company Limited - Thailand
- Kapuas Tunggal Persada - Indonesia
- Global Green Power PLC Corporation, Philippines
- Toyota Tsusho Corporation, Japan
- Krishnapatnam Port Company Ltd. - India
- CNBM International Corporation - China
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- Marubeni Corporation - India
- Sojitz Corporation - Japan
- TNB Fuel Sdn Bhd - Malaysia
- Antam Resourcindo - Indonesia
- Star Paper Mills Limited - India
- Karbindo Abesyapradhi - Indoneisa
- Australian Commodity Traders Exchange
- Global Coal Blending Company Limited - Australia
- Manunggal Multi Energi - Indonesia
- IHS Mccloskey Coal Group - USA
- PNOC Exploration Corporation - Philippines
- San Jose City I Power Corp, Philippines
- Kumho Petrochemical, South Korea
- South Luzon Thermal Energy Corporation
- Simpson Spence & Young - Indonesia
- TeaM Sual Corporation - Philippines
- CIMB Investment Bank - Malaysia
- Vizag Seaport Private Limited - India
- Indian Energy Exchange, India
- Madhucon Powers Ltd - India
- Chamber of Mines of South Africa
- Eastern Energy - Thailand
- Bhushan Steel Limited - India
- Electricity Generating Authority of Thailand
- Ambuja Cements Ltd - India
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- Sakthi Sugars Limited - India
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- Dr Ramakrishna Prasad Power Pvt Ltd - India
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- Bharathi Cement Corporation - India
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- Semirara Mining Corp, Philippines
- Anglo American - United Kingdom
- Heidelberg Cement - Germany
- Electricity Authority, New Zealand
- Straits Asia Resources Limited - Singapore
- New Zealand Coal & Carbon
- Interocean Group of Companies - India
- Posco Energy - South Korea
- Bayan Resources Tbk. - Indonesia
- International Coal Ventures Pvt Ltd - India
- Parry Sugars Refinery, India
- Sarangani Energy Corporation, Philippines
- Goldman Sachs - Singapore
- Samtan Co., Ltd - South Korea
- Coal and Oil Company - UAE
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Siam City Cement - Thailand
- Billiton Holdings Pty Ltd - Australia
- Gujarat Sidhee Cement - India
- Borneo Indobara - Indonesia
- Malabar Cements Ltd - India
- Aditya Birla Group - India
- Indogreen Group - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Sindya Power Generating Company Private Ltd
- Parliament of New Zealand
- Lanco Infratech Ltd - India
- PTC India Limited - India
- Port Waratah Coal Services - Australia
- Latin American Coal - Colombia
- Thai Mozambique Logistica
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- Orica Australia Pty. Ltd.
- Bukit Baiduri Energy - Indonesia
- Wood Mackenzie - Singapore
- Bangladesh Power Developement Board
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- Vijayanagar Sugar Pvt Ltd - India
- Globalindo Alam Lestari - Indonesia
- Siam City Cement PLC, Thailand
- Gujarat Mineral Development Corp Ltd - India
- Australian Coal Association
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- Romanian Commodities Exchange
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- Minerals Council of Australia
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- Bukit Makmur.PT - Indonesia
- IEA Clean Coal Centre - UK
- Orica Mining Services - Indonesia
- Bhoruka Overseas - Indonesia
- Eastern Coal Council - USA
- The Treasury - Australian Government
- Attock Cement Pakistan Limited
- Bukit Asam (Persero) Tbk - Indonesia
- Mjunction Services Limited - India
- Coalindo Energy - Indonesia
- Chettinad Cement Corporation Ltd - India
- Meralco Power Generation, Philippines
- Power Finance Corporation Ltd., India
- Independent Power Producers Association of India
- ICICI Bank Limited - India
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- SMC Global Power, Philippines
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- Price Waterhouse Coopers - Russia
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- Directorate General of MIneral and Coal - Indonesia
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