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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, 27 August 20
BANGLADESH POWER MINISTRY SEEKING AUTHORITY TO CANCEL 13,000 MW OF PROPOSED COAL-FIRED CAPACITY - BUSINESS STANDARD
In a bid to move away from dirty energy, the Ministry of Power, Energy and Mineral Resources is seeking the prime minister’s approval to conv ...
Wednesday, 26 August 20
ASIAN COAL PRICES LIKELY TO REMAIN DEPRESSED SAY TRADERS, ANALYSTS - REUTERS
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Wednesday, 26 August 20
WORLD COAL EXPORTS: INDONESIAN THERMAL COAL EXPORTS HAVE COME UNDER PRESSURE AS THERMAL COAL PRICES WEAKEN - REPORT
Indonesia’s exports to decline sharply from record highs
Indonesia is the world’s largest thermal coal exporter, sellin ...
Wednesday, 26 August 20
JAPAN'S COAL IMPORTS ARE BEING AFFECTED BY COMPETING INFLUENCES - REPORT
Japan is the world’s third largest thermal coal importer, importing an estimated 135 million tonnes of thermal coal in 2019. The country&rsqu ...
Wednesday, 26 August 20
PENDING SOUTH KOREA LEGISLATION COULD FORCE HALT TO COUNTRY’S COAL PLANT EXPORT DEALS - KOREA ECONOMIC DAILY
South Korea’s parliament looks set to pass new legislation to ban financing on foreign coal power projects, putting all overseas coal-fired p ...
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Showing 811 to 815 news of total 6871 |
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- Singapore Mercantile Exchange
- Parry Sugars Refinery, India
- Essar Steel Hazira Ltd - India
- Borneo Indobara - Indonesia
- Renaissance Capital - South Africa
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Sindya Power Generating Company Private Ltd
- Economic Council, Georgia
- Ministry of Mines - Canada
- TNB Fuel Sdn Bhd - Malaysia
- Edison Trading Spa - Italy
- Semirara Mining and Power Corporation, Philippines
- Globalindo Alam Lestari - Indonesia
- PNOC Exploration Corporation - Philippines
- Leighton Contractors Pty Ltd - Australia
- Maheswari Brothers Coal Limited - India
- Georgia Ports Authority, United States
- Medco Energi Mining Internasional
- Samtan Co., Ltd - South Korea
- Central Java Power - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Siam City Cement - Thailand
- Standard Chartered Bank - UAE
- Mercuria Energy - Indonesia
- Kideco Jaya Agung - Indonesia
- Eastern Coal Council - USA
- Miang Besar Coal Terminal - Indonesia
- Gujarat Sidhee Cement - India
- Posco Energy - South Korea
- Anglo American - United Kingdom
- Indika Energy - Indonesia
- Banpu Public Company Limited - Thailand
- Lanco Infratech Ltd - India
- McConnell Dowell - Australia
- Rio Tinto Coal - Australia
- Agrawal Coal Company - India
- GAC Shipping (India) Pvt Ltd
- Chettinad Cement Corporation Ltd - India
- San Jose City I Power Corp, Philippines
- Goldman Sachs - Singapore
- Jindal Steel & Power Ltd - India
- CIMB Investment Bank - Malaysia
- Jaiprakash Power Ventures ltd
- Maharashtra Electricity Regulatory Commission - India
- PetroVietnam Power Coal Import and Supply Company
- Aboitiz Power Corporation - Philippines
- Ministry of Transport, Egypt
- Kaltim Prima Coal - Indonesia
- SMG Consultants - Indonesia
- Mintek Dendrill Indonesia
- Energy Development Corp, Philippines
- Baramulti Group, Indonesia
- Billiton Holdings Pty Ltd - Australia
- PTC India Limited - India
- Petron Corporation, Philippines
- GVK Power & Infra Limited - India
- Cement Manufacturers Association - India
- LBH Netherlands Bv - Netherlands
- International Coal Ventures Pvt Ltd - India
- Intertek Mineral Services - Indonesia
- Malabar Cements Ltd - India
- Thai Mozambique Logistica
- Altura Mining Limited, Indonesia
- Savvy Resources Ltd - HongKong
- The Treasury - Australian Government
- Tata Chemicals Ltd - India
- GN Power Mariveles Coal Plant, Philippines
- Bayan Resources Tbk. - Indonesia
- ICICI Bank Limited - India
- Interocean Group of Companies - India
- Thiess Contractors Indonesia
- Ind-Barath Power Infra Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- The State Trading Corporation of India Ltd
- Aditya Birla Group - India
- Central Electricity Authority - India
- Indian Energy Exchange, India
- Barasentosa Lestari - Indonesia
- ASAPP Information Group - India
- Global Business Power Corporation, Philippines
- Karaikal Port Pvt Ltd - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Bulk Trading Sa - Switzerland
- OPG Power Generation Pvt Ltd - India
- Antam Resourcindo - Indonesia
- Energy Link Ltd, New Zealand
- Kapuas Tunggal Persada - Indonesia
- Metalloyd Limited - United Kingdom
- Alfred C Toepfer International GmbH - Germany
- Siam City Cement PLC, Thailand
- Africa Commodities Group - South Africa
- Ambuja Cements Ltd - India
- Grasim Industreis Ltd - India
- Bharathi Cement Corporation - India
- Indonesian Coal Mining Association
- Toyota Tsusho Corporation, Japan
- Vedanta Resources Plc - India
- Ministry of Finance - Indonesia
- Dalmia Cement Bharat India
- Eastern Energy - Thailand
- Indogreen Group - Indonesia
- Simpson Spence & Young - Indonesia
- Manunggal Multi Energi - Indonesia
- Heidelberg Cement - Germany
- Semirara Mining Corp, Philippines
- SN Aboitiz Power Inc, Philippines
- Wood Mackenzie - Singapore
- Vijayanagar Sugar Pvt Ltd - India
- Kalimantan Lumbung Energi - Indonesia
- Sojitz Corporation - Japan
- South Luzon Thermal Energy Corporation
- London Commodity Brokers - England
- European Bulk Services B.V. - Netherlands
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Bukit Asam (Persero) Tbk - Indonesia
- VISA Power Limited - India
- Commonwealth Bank - Australia
- Meenaskhi Energy Private Limited - India
- Wilmar Investment Holdings
- Xindia Steels Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Australian Commodity Traders Exchange
- Videocon Industries ltd - India
- GMR Energy Limited - India
- Karbindo Abesyapradhi - Indoneisa
- Timah Investasi Mineral - Indoneisa
- Port Waratah Coal Services - Australia
- Bukit Baiduri Energy - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Indo Tambangraya Megah - Indonesia
- Electricity Generating Authority of Thailand
- Neyveli Lignite Corporation Ltd, - India
- Bukit Makmur.PT - Indonesia
- Indian Oil Corporation Limited
- Holcim Trading Pte Ltd - Singapore
- Coalindo Energy - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Binh Thuan Hamico - Vietnam
- Asmin Koalindo Tuhup - Indonesia
- Bhoruka Overseas - Indonesia
- Minerals Council of Australia
- Gujarat Mineral Development Corp Ltd - India
- Sinarmas Energy and Mining - Indonesia
- Makarim & Taira - Indonesia
- Global Coal Blending Company Limited - Australia
- MS Steel International - UAE
- Coastal Gujarat Power Limited - India
- New Zealand Coal & Carbon
- Rashtriya Ispat Nigam Limited - India
- Krishnapatnam Port Company Ltd. - India
- Coal and Oil Company - UAE
- Therma Luzon, Inc, Philippines
- Attock Cement Pakistan Limited
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Cigading International Bulk Terminal - Indonesia
- CNBM International Corporation - China
- Kobexindo Tractors - Indoneisa
- Larsen & Toubro Limited - India
- Madhucon Powers Ltd - India
- White Energy Company Limited
- Kumho Petrochemical, South Korea
- Meralco Power Generation, Philippines
- Marubeni Corporation - India
- Sical Logistics Limited - India
- Deloitte Consulting - India
- TeaM Sual Corporation - Philippines
- Kepco SPC Power Corporation, Philippines
- Tamil Nadu electricity Board
- Trasteel International SA, Italy
- PowerSource Philippines DevCo
- Bahari Cakrawala Sebuku - Indonesia
- Sakthi Sugars Limited - India
- Bhatia International Limited - India
- Power Finance Corporation Ltd., India
- Price Waterhouse Coopers - Russia
- Gujarat Electricity Regulatory Commission - India
- Straits Asia Resources Limited - Singapore
- Star Paper Mills Limited - India
- AsiaOL BioFuels Corp., Philippines
- Independent Power Producers Association of India
- Chamber of Mines of South Africa
- Riau Bara Harum - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- IEA Clean Coal Centre - UK
- Mercator Lines Limited - India
- The University of Queensland
- Parliament of New Zealand
- IHS Mccloskey Coal Group - USA
- Iligan Light & Power Inc, Philippines
- Bangladesh Power Developement Board
- Merrill Lynch Commodities Europe
- Latin American Coal - Colombia
- Kartika Selabumi Mining - Indonesia
- Romanian Commodities Exchange
- Uttam Galva Steels Limited - India
- Ceylon Electricity Board - Sri Lanka
- Australian Coal Association
- India Bulls Power Limited - India
- Global Green Power PLC Corporation, Philippines
- Directorate Of Revenue Intelligence - India
- Mjunction Services Limited - India
- SMC Global Power, Philippines
- Kohat Cement Company Ltd. - Pakistan
- Pendopo Energi Batubara - Indonesia
- Sree Jayajothi Cements Limited - India
- Formosa Plastics Group - Taiwan
- Oldendorff Carriers - Singapore
- Bhushan Steel Limited - India
- Sarangani Energy Corporation, Philippines
- Electricity Authority, New Zealand
- Salva Resources Pvt Ltd - India
- Planning Commission, India
- Orica Australia Pty. Ltd.
- Orica Mining Services - Indonesia
- Vizag Seaport Private Limited - India
- Carbofer General Trading SA - India
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