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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, 02 June 20
CHINA TAIYUAN COAL TRANSACTION PRICE INDEX DOWN 0.86 PCT - XINHUA
China Taiyuan coal transaction price index stood at 123.95 points Monday, down 0.86 percent week on week.
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Monday, 01 June 20
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Friday, 29 May 20
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The supply of coal to the power sector by state-owned Coal In ...
Friday, 29 May 20
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Friday, 29 May 20
GOVT MAY LAUNCH COAL BLOCKS AUCTION PROCESS UNDER COMMERCIAL MINING ON JUN 11 - PTI
The Centre is likely to launch the process of coal blocks auction under commercial mining on June 11 and around 50 mines are expected to go under t ...
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- Bhatia International Limited - India
- Central Java Power - Indonesia
- India Bulls Power Limited - India
- Savvy Resources Ltd - HongKong
- Vijayanagar Sugar Pvt Ltd - India
- Petron Corporation, Philippines
- Sojitz Corporation - Japan
- Vedanta Resources Plc - India
- Kideco Jaya Agung - Indonesia
- Ind-Barath Power Infra Limited - India
- Wilmar Investment Holdings
- Bank of Tokyo Mitsubishi UFJ Ltd
- Binh Thuan Hamico - Vietnam
- Agrawal Coal Company - India
- Neyveli Lignite Corporation Ltd, - India
- Jaiprakash Power Ventures ltd
- Ceylon Electricity Board - Sri Lanka
- Maheswari Brothers Coal Limited - India
- SMC Global Power, Philippines
- Rashtriya Ispat Nigam Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- Larsen & Toubro Limited - India
- Indian Energy Exchange, India
- TNB Fuel Sdn Bhd - Malaysia
- Georgia Ports Authority, United States
- Aboitiz Power Corporation - Philippines
- Banpu Public Company Limited - Thailand
- Altura Mining Limited, Indonesia
- Global Green Power PLC Corporation, Philippines
- Posco Energy - South Korea
- Coal and Oil Company - UAE
- The State Trading Corporation of India Ltd
- Energy Development Corp, Philippines
- Semirara Mining and Power Corporation, Philippines
- Eastern Coal Council - USA
- Merrill Lynch Commodities Europe
- Intertek Mineral Services - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Semirara Mining Corp, Philippines
- VISA Power Limited - India
- Minerals Council of Australia
- Metalloyd Limited - United Kingdom
- Offshore Bulk Terminal Pte Ltd, Singapore
- Uttam Galva Steels Limited - India
- Indonesian Coal Mining Association
- Electricity Authority, New Zealand
- Wood Mackenzie - Singapore
- Coalindo Energy - Indonesia
- Indogreen Group - Indonesia
- Karaikal Port Pvt Ltd - India
- Mjunction Services Limited - India
- Tamil Nadu electricity Board
- Price Waterhouse Coopers - Russia
- Iligan Light & Power Inc, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Sree Jayajothi Cements Limited - India
- Bukit Baiduri Energy - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Port Waratah Coal Services - Australia
- CIMB Investment Bank - Malaysia
- Thiess Contractors Indonesia
- Billiton Holdings Pty Ltd - Australia
- European Bulk Services B.V. - Netherlands
- Bahari Cakrawala Sebuku - Indonesia
- PowerSource Philippines DevCo
- Formosa Plastics Group - Taiwan
- London Commodity Brokers - England
- Bhoruka Overseas - Indonesia
- OPG Power Generation Pvt Ltd - India
- MS Steel International - UAE
- Globalindo Alam Lestari - Indonesia
- Sarangani Energy Corporation, Philippines
- Parry Sugars Refinery, India
- Singapore Mercantile Exchange
- IEA Clean Coal Centre - UK
- Energy Link Ltd, New Zealand
- CNBM International Corporation - China
- Gujarat Electricity Regulatory Commission - India
- Maharashtra Electricity Regulatory Commission - India
- Cigading International Bulk Terminal - Indonesia
- PTC India Limited - India
- Samtan Co., Ltd - South Korea
- Orica Australia Pty. Ltd.
- Planning Commission, India
- Grasim Industreis Ltd - India
- SMG Consultants - Indonesia
- Oldendorff Carriers - Singapore
- Indo Tambangraya Megah - Indonesia
- Antam Resourcindo - Indonesia
- IHS Mccloskey Coal Group - USA
- Bayan Resources Tbk. - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Leighton Contractors Pty Ltd - Australia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Australian Commodity Traders Exchange
- Cement Manufacturers Association - India
- Xindia Steels Limited - India
- TeaM Sual Corporation - Philippines
- Bukit Makmur.PT - Indonesia
- Anglo American - United Kingdom
- Siam City Cement - Thailand
- Mercator Lines Limited - India
- Medco Energi Mining Internasional
- Mintek Dendrill Indonesia
- Orica Mining Services - Indonesia
- Aditya Birla Group - India
- Romanian Commodities Exchange
- Karbindo Abesyapradhi - Indoneisa
- Kalimantan Lumbung Energi - Indonesia
- Directorate Of Revenue Intelligence - India
- SN Aboitiz Power Inc, Philippines
- Africa Commodities Group - South Africa
- Lanco Infratech Ltd - India
- Madhucon Powers Ltd - India
- Australian Coal Association
- Bukit Asam (Persero) Tbk - Indonesia
- Bhushan Steel Limited - India
- Kapuas Tunggal Persada - Indonesia
- White Energy Company Limited
- Rio Tinto Coal - Australia
- Global Coal Blending Company Limited - Australia
- Meenaskhi Energy Private Limited - India
- Chamber of Mines of South Africa
- Asmin Koalindo Tuhup - Indonesia
- Jindal Steel & Power Ltd - India
- The University of Queensland
- Indika Energy - Indonesia
- The Treasury - Australian Government
- Sical Logistics Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Attock Cement Pakistan Limited
- Pendopo Energi Batubara - Indonesia
- Alfred C Toepfer International GmbH - Germany
- GMR Energy Limited - India
- San Jose City I Power Corp, Philippines
- Kobexindo Tractors - Indoneisa
- Therma Luzon, Inc, Philippines
- Eastern Energy - Thailand
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Simpson Spence & Young - Indonesia
- Bangladesh Power Developement Board
- Thai Mozambique Logistica
- ICICI Bank Limited - India
- Ministry of Mines - Canada
- International Coal Ventures Pvt Ltd - India
- Essar Steel Hazira Ltd - India
- Videocon Industries ltd - India
- Sindya Power Generating Company Private Ltd
- PetroVietnam Power Coal Import and Supply Company
- Coastal Gujarat Power Limited - India
- Independent Power Producers Association of India
- Renaissance Capital - South Africa
- Kohat Cement Company Ltd. - Pakistan
- PNOC Exploration Corporation - Philippines
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Power Finance Corporation Ltd., India
- Interocean Group of Companies - India
- Bulk Trading Sa - Switzerland
- Deloitte Consulting - India
- Holcim Trading Pte Ltd - Singapore
- Gujarat Sidhee Cement - India
- Barasentosa Lestari - Indonesia
- Electricity Generating Authority of Thailand
- Dalmia Cement Bharat India
- Star Paper Mills Limited - India
- ASAPP Information Group - India
- Edison Trading Spa - Italy
- Kumho Petrochemical, South Korea
- AsiaOL BioFuels Corp., Philippines
- Latin American Coal - Colombia
- Kaltim Prima Coal - Indonesia
- Parliament of New Zealand
- Ambuja Cements Ltd - India
- Siam City Cement PLC, Thailand
- Salva Resources Pvt Ltd - India
- Kartika Selabumi Mining - Indonesia
- Makarim & Taira - Indonesia
- Trasteel International SA, Italy
- Global Business Power Corporation, Philippines
- GVK Power & Infra Limited - India
- Vizag Seaport Private Limited - India
- Ministry of Finance - Indonesia
- Chettinad Cement Corporation Ltd - India
- Sakthi Sugars Limited - India
- Central Electricity Authority - India
- Baramulti Group, Indonesia
- South Luzon Thermal Energy Corporation
- Kepco SPC Power Corporation, Philippines
- Malabar Cements Ltd - India
- Heidelberg Cement - Germany
- Meralco Power Generation, Philippines
- McConnell Dowell - Australia
- Bharathi Cement Corporation - India
- Mercuria Energy - Indonesia
- Borneo Indobara - Indonesia
- Riau Bara Harum - Indonesia
- New Zealand Coal & Carbon
- Carbofer General Trading SA - India
- Tata Chemicals Ltd - India
- Manunggal Multi Energi - Indonesia
- GAC Shipping (India) Pvt Ltd
- LBH Netherlands Bv - Netherlands
- Ministry of Transport, Egypt
- Toyota Tsusho Corporation, Japan
- Marubeni Corporation - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Straits Asia Resources Limited - Singapore
- Standard Chartered Bank - UAE
- Indian Oil Corporation Limited
- Goldman Sachs - Singapore
- Miang Besar Coal Terminal - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Timah Investasi Mineral - Indoneisa
- Economic Council, Georgia
- Commonwealth Bank - Australia
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