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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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Tuesday, 25 August 20
INDIA'S IMPORTS FALL AS LOCKDOWNS IMPACT THE POWER AND INDUSTRIAL SECTORS - REPORT
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Monday, 24 August 20
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Monday, 24 August 20
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Saturday, 22 August 20
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Friday, 21 August 20
323 MILLION ELECTRIC VEHICLES WILL BE ON THE ROADS BY 2040 - WOOD MACKENZIE
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- Jorong Barutama Greston.PT - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Larsen & Toubro Limited - India
- IHS Mccloskey Coal Group - USA
- Makarim & Taira - Indonesia
- Aditya Birla Group - India
- Power Finance Corporation Ltd., India
- New Zealand Coal & Carbon
- San Jose City I Power Corp, Philippines
- Goldman Sachs - Singapore
- Pipit Mutiara Jaya. PT, Indonesia
- Bhoruka Overseas - Indonesia
- White Energy Company Limited
- Eastern Energy - Thailand
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- CNBM International Corporation - China
- Borneo Indobara - Indonesia
- Mintek Dendrill Indonesia
- Global Green Power PLC Corporation, Philippines
- Aboitiz Power Corporation - Philippines
- Rio Tinto Coal - Australia
- The State Trading Corporation of India Ltd
- Bharathi Cement Corporation - India
- Uttam Galva Steels Limited - India
- Planning Commission, India
- The Treasury - Australian Government
- Petron Corporation, Philippines
- GVK Power & Infra Limited - India
- Ministry of Transport, Egypt
- European Bulk Services B.V. - Netherlands
- Manunggal Multi Energi - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Minerals Council of Australia
- Bukit Baiduri Energy - Indonesia
- Coastal Gujarat Power Limited - India
- Karbindo Abesyapradhi - Indoneisa
- Ind-Barath Power Infra Limited - India
- Pendopo Energi Batubara - Indonesia
- Indian Oil Corporation Limited
- Toyota Tsusho Corporation, Japan
- Sojitz Corporation - Japan
- Africa Commodities Group - South Africa
- Antam Resourcindo - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Sarangani Energy Corporation, Philippines
- Energy Link Ltd, New Zealand
- Gujarat Sidhee Cement - India
- AsiaOL BioFuels Corp., Philippines
- Siam City Cement PLC, Thailand
- Jaiprakash Power Ventures ltd
- Chamber of Mines of South Africa
- Thai Mozambique Logistica
- Anglo American - United Kingdom
- Latin American Coal - Colombia
- Sree Jayajothi Cements Limited - India
- Maheswari Brothers Coal Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Wilmar Investment Holdings
- Leighton Contractors Pty Ltd - Australia
- Tamil Nadu electricity Board
- Siam City Cement - Thailand
- Indo Tambangraya Megah - Indonesia
- Trasteel International SA, Italy
- Bhatia International Limited - India
- Heidelberg Cement - Germany
- Directorate Of Revenue Intelligence - India
- Salva Resources Pvt Ltd - India
- Videocon Industries ltd - India
- Ministry of Mines - Canada
- Tata Chemicals Ltd - India
- Dalmia Cement Bharat India
- GN Power Mariveles Coal Plant, Philippines
- Formosa Plastics Group - Taiwan
- Bukit Makmur.PT - Indonesia
- Vedanta Resources Plc - India
- Meralco Power Generation, Philippines
- Indogreen Group - Indonesia
- Binh Thuan Hamico - Vietnam
- Star Paper Mills Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Bukit Asam (Persero) Tbk - Indonesia
- SMC Global Power, Philippines
- South Luzon Thermal Energy Corporation
- Marubeni Corporation - India
- London Commodity Brokers - England
- Kideco Jaya Agung - Indonesia
- Central Java Power - Indonesia
- Billiton Holdings Pty Ltd - Australia
- MS Steel International - UAE
- Savvy Resources Ltd - HongKong
- Malabar Cements Ltd - India
- Madhucon Powers Ltd - India
- PNOC Exploration Corporation - Philippines
- Economic Council, Georgia
- Sakthi Sugars Limited - India
- Barasentosa Lestari - Indonesia
- PowerSource Philippines DevCo
- Renaissance Capital - South Africa
- Timah Investasi Mineral - Indoneisa
- Attock Cement Pakistan Limited
- Interocean Group of Companies - India
- Lanco Infratech Ltd - India
- Carbofer General Trading SA - India
- Semirara Mining Corp, Philippines
- Bayan Resources Tbk. - Indonesia
- Karaikal Port Pvt Ltd - India
- Commonwealth Bank - Australia
- SMG Consultants - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Riau Bara Harum - Indonesia
- Price Waterhouse Coopers - Russia
- Kartika Selabumi Mining - Indonesia
- Intertek Mineral Services - Indonesia
- Australian Coal Association
- Bangladesh Power Developement Board
- Mercator Lines Limited - India
- Bhushan Steel Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Indian Energy Exchange, India
- Asmin Koalindo Tuhup - Indonesia
- Globalindo Alam Lestari - Indonesia
- IEA Clean Coal Centre - UK
- International Coal Ventures Pvt Ltd - India
- McConnell Dowell - Australia
- Indonesian Coal Mining Association
- Merrill Lynch Commodities Europe
- Kepco SPC Power Corporation, Philippines
- Thiess Contractors Indonesia
- Ministry of Finance - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Global Business Power Corporation, Philippines
- VISA Power Limited - India
- Standard Chartered Bank - UAE
- Directorate General of MIneral and Coal - Indonesia
- SN Aboitiz Power Inc, Philippines
- Coal and Oil Company - UAE
- Cement Manufacturers Association - India
- ICICI Bank Limited - India
- Rashtriya Ispat Nigam Limited - India
- Independent Power Producers Association of India
- Kalimantan Lumbung Energi - Indonesia
- Mercuria Energy - Indonesia
- Mjunction Services Limited - India
- Indika Energy - Indonesia
- Essar Steel Hazira Ltd - India
- LBH Netherlands Bv - Netherlands
- Baramulti Group, Indonesia
- Coalindo Energy - Indonesia
- Australian Commodity Traders Exchange
- Energy Development Corp, Philippines
- Sinarmas Energy and Mining - Indonesia
- OPG Power Generation Pvt Ltd - India
- The University of Queensland
- PTC India Limited - India
- TeaM Sual Corporation - Philippines
- Samtan Co., Ltd - South Korea
- Gujarat Mineral Development Corp Ltd - India
- Sical Logistics Limited - India
- Kaltim Prima Coal - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Simpson Spence & Young - Indonesia
- Electricity Generating Authority of Thailand
- Kapuas Tunggal Persada - Indonesia
- Meenaskhi Energy Private Limited - India
- Posco Energy - South Korea
- Global Coal Blending Company Limited - Australia
- Orica Mining Services - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Wood Mackenzie - Singapore
- Parliament of New Zealand
- Ambuja Cements Ltd - India
- Parry Sugars Refinery, India
- Grasim Industreis Ltd - India
- Jindal Steel & Power Ltd - India
- Bulk Trading Sa - Switzerland
- Sindya Power Generating Company Private Ltd
- CIMB Investment Bank - Malaysia
- Maharashtra Electricity Regulatory Commission - India
- Oldendorff Carriers - Singapore
- ASAPP Information Group - India
- Holcim Trading Pte Ltd - Singapore
- GMR Energy Limited - India
- Deloitte Consulting - India
- GAC Shipping (India) Pvt Ltd
- Vijayanagar Sugar Pvt Ltd - India
- Electricity Authority, New Zealand
- Eastern Coal Council - USA
- Edison Trading Spa - Italy
- Banpu Public Company Limited - Thailand
- India Bulls Power Limited - India
- Agrawal Coal Company - India
- Kumho Petrochemical, South Korea
- Krishnapatnam Port Company Ltd. - India
- Cigading International Bulk Terminal - Indonesia
- Chettinad Cement Corporation Ltd - India
- Therma Luzon, Inc, Philippines
- Iligan Light & Power Inc, Philippines
- Orica Australia Pty. Ltd.
- Vizag Seaport Private Limited - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Georgia Ports Authority, United States
- Miang Besar Coal Terminal - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- PetroVietnam Power Coal Import and Supply Company
- Port Waratah Coal Services - Australia
- Xindia Steels Limited - India
- Kobexindo Tractors - Indoneisa
- Central Electricity Authority - India
- Straits Asia Resources Limited - Singapore
- Singapore Mercantile Exchange
- Bank of Tokyo Mitsubishi UFJ Ltd
- Altura Mining Limited, Indonesia
- Metalloyd Limited - United Kingdom
- Bahari Cakrawala Sebuku - Indonesia
- Medco Energi Mining Internasional
- Romanian Commodities Exchange
- Gujarat Electricity Regulatory Commission - India
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