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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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Sunday, 30 August 20
PANAMAX - THIS WEEK THE DEMAND HAS PICKED UP, BUT THE TONNAGE LIST IS INCREASING DAY BY DAY - FEARNLEYS
Cape Size
More or less flat from previous week, with cape rates moving from US$ 19,500 to 18,900 on average. West Australia however being more ...
Saturday, 29 August 20
COAL INDIA'S FUEL SUPPLY TO POWER SECTOR DROPS ABOUT 20% IN APR-JUL: PTI
State-owned Coal India”s fuel supply to the power sector registered a decline of 19.5 per cent to 126.30 million tonnes (MT) in the April-Jul ...
Saturday, 29 August 20
SOUTH KOREAN BROKERAGE FIRM KOREA INVESTMENT & SECURITIES TO STOP ALL COAL BUSINESS - KOREA HERALD
South Korean brokerage firm Korea Investment & Securities has decided to stop its investments in coal, in line with the Moon Jae-in administrat ...
Thursday, 27 August 20
KOREAN GENCOS INVITED BIDS FOR TOTAL 985,000 TONS OF BITUMINOUS COAL FOR NOVEMBER 2020 LOADING
COALspot.com: Korea Midland Power Co., Ltd (KOMIPO) on behalf of EWP, KOSPO, KOSEP and KOWEPO has issued an international tender for total 985,000 ...
Thursday, 27 August 20
SOUTHEAST ASIAN NATIONS SET REGION-WIDE RENEWABLE ENERGY GOAL OF 23 PERCENT BY 2025 - ASEAN POST
The Association of Southeast Asian Nations (ASEAN) has set an ambitious target of securing 23 percent of its primary energy from renewable so ...
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- White Energy Company Limited
- McConnell Dowell - Australia
- Pendopo Energi Batubara - Indonesia
- Meralco Power Generation, Philippines
- Ministry of Transport, Egypt
- Planning Commission, India
- Coal and Oil Company - UAE
- Price Waterhouse Coopers - Russia
- Barasentosa Lestari - Indonesia
- Tamil Nadu electricity Board
- Vizag Seaport Private Limited - India
- Merrill Lynch Commodities Europe
- Samtan Co., Ltd - South Korea
- Alfred C Toepfer International GmbH - Germany
- SMC Global Power, Philippines
- Billiton Holdings Pty Ltd - Australia
- Karbindo Abesyapradhi - Indoneisa
- AsiaOL BioFuels Corp., Philippines
- Mintek Dendrill Indonesia
- Sarangani Energy Corporation, Philippines
- Indika Energy - Indonesia
- Sakthi Sugars Limited - India
- LBH Netherlands Bv - Netherlands
- Mercuria Energy - Indonesia
- Altura Mining Limited, Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Petron Corporation, Philippines
- Agrawal Coal Company - India
- Bukit Makmur.PT - Indonesia
- Cement Manufacturers Association - India
- Indogreen Group - Indonesia
- Anglo American - United Kingdom
- Parry Sugars Refinery, India
- Deloitte Consulting - India
- Ambuja Cements Ltd - India
- Mjunction Services Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Economic Council, Georgia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Binh Thuan Hamico - Vietnam
- Kideco Jaya Agung - Indonesia
- Africa Commodities Group - South Africa
- Siam City Cement PLC, Thailand
- Indo Tambangraya Megah - Indonesia
- Videocon Industries ltd - India
- IEA Clean Coal Centre - UK
- Mercator Lines Limited - India
- Electricity Authority, New Zealand
- Attock Cement Pakistan Limited
- Metalloyd Limited - United Kingdom
- Kobexindo Tractors - Indoneisa
- European Bulk Services B.V. - Netherlands
- ASAPP Information Group - India
- Maharashtra Electricity Regulatory Commission - India
- Wilmar Investment Holdings
- Indian Oil Corporation Limited
- Larsen & Toubro Limited - India
- Star Paper Mills Limited - India
- Riau Bara Harum - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Kaltim Prima Coal - Indonesia
- Uttam Galva Steels Limited - India
- Bukit Baiduri Energy - Indonesia
- Kartika Selabumi Mining - Indonesia
- Tata Chemicals Ltd - India
- Baramulti Group, Indonesia
- International Coal Ventures Pvt Ltd - India
- The Treasury - Australian Government
- Energy Link Ltd, New Zealand
- Sindya Power Generating Company Private Ltd
- Semirara Mining Corp, Philippines
- TeaM Sual Corporation - Philippines
- Bharathi Cement Corporation - India
- Grasim Industreis Ltd - India
- Commonwealth Bank - Australia
- Directorate Of Revenue Intelligence - India
- Madhucon Powers Ltd - India
- Neyveli Lignite Corporation Ltd, - India
- Global Business Power Corporation, Philippines
- PowerSource Philippines DevCo
- IHS Mccloskey Coal Group - USA
- Bangladesh Power Developement Board
- Thai Mozambique Logistica
- ICICI Bank Limited - India
- Ind-Barath Power Infra Limited - India
- PNOC Exploration Corporation - Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Aboitiz Power Corporation - Philippines
- Heidelberg Cement - Germany
- Dalmia Cement Bharat India
- Energy Development Corp, Philippines
- Indian Energy Exchange, India
- Independent Power Producers Association of India
- Krishnapatnam Port Company Ltd. - India
- Toyota Tsusho Corporation, Japan
- Sinarmas Energy and Mining - Indonesia
- Coastal Gujarat Power Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Bhoruka Overseas - Indonesia
- Global Coal Blending Company Limited - Australia
- Kapuas Tunggal Persada - Indonesia
- SN Aboitiz Power Inc, Philippines
- Essar Steel Hazira Ltd - India
- Manunggal Multi Energi - Indonesia
- Renaissance Capital - South Africa
- Marubeni Corporation - India
- PetroVietnam Power Coal Import and Supply Company
- Semirara Mining and Power Corporation, Philippines
- Interocean Group of Companies - India
- Orica Australia Pty. Ltd.
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Intertek Mineral Services - Indonesia
- Salva Resources Pvt Ltd - India
- Posco Energy - South Korea
- Borneo Indobara - Indonesia
- Bayan Resources Tbk. - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Timah Investasi Mineral - Indoneisa
- Jindal Steel & Power Ltd - India
- Gujarat Mineral Development Corp Ltd - India
- South Luzon Thermal Energy Corporation
- Kalimantan Lumbung Energi - Indonesia
- Medco Energi Mining Internasional
- Pipit Mutiara Jaya. PT, Indonesia
- Romanian Commodities Exchange
- Cigading International Bulk Terminal - Indonesia
- SMG Consultants - Indonesia
- Makarim & Taira - Indonesia
- Power Finance Corporation Ltd., India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Malabar Cements Ltd - India
- Australian Coal Association
- Global Green Power PLC Corporation, Philippines
- GN Power Mariveles Coal Plant, Philippines
- Central Java Power - Indonesia
- PTC India Limited - India
- Iligan Light & Power Inc, Philippines
- San Jose City I Power Corp, Philippines
- Savvy Resources Ltd - HongKong
- Oldendorff Carriers - Singapore
- Edison Trading Spa - Italy
- MS Steel International - UAE
- CNBM International Corporation - China
- Asmin Koalindo Tuhup - Indonesia
- Eastern Coal Council - USA
- Singapore Mercantile Exchange
- Directorate General of MIneral and Coal - Indonesia
- Siam City Cement - Thailand
- Simpson Spence & Young - Indonesia
- GAC Shipping (India) Pvt Ltd
- Lanco Infratech Ltd - India
- Chamber of Mines of South Africa
- OPG Power Generation Pvt Ltd - India
- Meenaskhi Energy Private Limited - India
- Ceylon Electricity Board - Sri Lanka
- Goldman Sachs - Singapore
- Karaikal Port Pvt Ltd - India
- Chettinad Cement Corporation Ltd - India
- Bhushan Steel Limited - India
- Ministry of Finance - Indonesia
- Rio Tinto Coal - Australia
- Coalindo Energy - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Eastern Energy - Thailand
- Globalindo Alam Lestari - Indonesia
- Latin American Coal - Colombia
- Therma Luzon, Inc, Philippines
- Gujarat Sidhee Cement - India
- Maheswari Brothers Coal Limited - India
- Standard Chartered Bank - UAE
- TNB Fuel Sdn Bhd - Malaysia
- The State Trading Corporation of India Ltd
- Petrochimia International Co. Ltd.- Taiwan
- Electricity Generating Authority of Thailand
- Straits Asia Resources Limited - Singapore
- Bukit Asam (Persero) Tbk - Indonesia
- Sree Jayajothi Cements Limited - India
- Parliament of New Zealand
- CIMB Investment Bank - Malaysia
- Georgia Ports Authority, United States
- Leighton Contractors Pty Ltd - Australia
- The University of Queensland
- Port Waratah Coal Services - Australia
- Holcim Trading Pte Ltd - Singapore
- India Bulls Power Limited - India
- Carbofer General Trading SA - India
- Aditya Birla Group - India
- Minerals Council of Australia
- Banpu Public Company Limited - Thailand
- Xindia Steels Limited - India
- Bhatia International Limited - India
- New Zealand Coal & Carbon
- Ministry of Mines - Canada
- Trasteel International SA, Italy
- VISA Power Limited - India
- Kepco SPC Power Corporation, Philippines
- Sojitz Corporation - Japan
- Wood Mackenzie - Singapore
- GVK Power & Infra Limited - India
- Orica Mining Services - Indonesia
- Kumho Petrochemical, South Korea
- Antam Resourcindo - Indonesia
- London Commodity Brokers - England
- Australian Commodity Traders Exchange
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Sical Logistics Limited - India
- Bulk Trading Sa - Switzerland
- Rashtriya Ispat Nigam Limited - India
- Miang Besar Coal Terminal - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Central Electricity Authority - India
- Jaiprakash Power Ventures ltd
- Formosa Plastics Group - Taiwan
- Vedanta Resources Plc - India
- Thiess Contractors Indonesia
- GMR Energy Limited - India
- Indonesian Coal Mining Association
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