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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, 16 April 23
CHINA JUGGLES FOUR MAJOR ECONOMIC CHANGES IN 2023 - WOOD MACKENZIE
Change is afoot in China. Economic growth is slowing, while rising political tensions between China and the US, coupled with global supply chain re ...
Sunday, 16 April 23
CHINA'S MARCH COAL IMPORTS JUMP TO 3-YEAR HIGH - REUTERS
China’s coal imports surged in March to their highest in any month over the past three years as utilities increased purchases on expectations ...
Sunday, 16 April 23
OPEC KEEPS WORLD OIL DEMAND GROWTH OUTLOOK UNCHANGED
The OPEC Reference Basket (ORB) declined in March by $3.43, or 4.2%, m-o-m to average $78.45/b. The ICE Brent first-month contract fell by $4.33, o ...
Sunday, 16 April 23
CHEAPER SPOT LNG PRICES TEMPT SOME ASIAN BUYERS AMID SUPPLY GAINS - REUTERS
Cheaper spot prices for liquefied natural gas (LNG) are luring price-sensitive buyers back in Asia, with China and India recording rising imports i ...
Tuesday, 11 April 23
COAL USE CLIMBS WORLDWIDE DESPITE PROMISES TO SLASH IT - AAP
The burning of coal for electricity, cement, steel and other uses went up in 2022 despite global promises to phase down the fuel that is the bigges ...
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Showing 106 to 110 news of total 6871 |
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- Kohat Cement Company Ltd. - Pakistan
- Toyota Tsusho Corporation, Japan
- Formosa Plastics Group - Taiwan
- PTC India Limited - India
- Indogreen Group - Indonesia
- Siam City Cement - Thailand
- PowerSource Philippines DevCo
- The State Trading Corporation of India Ltd
- Gujarat Mineral Development Corp Ltd - India
- Heidelberg Cement - Germany
- Australian Commodity Traders Exchange
- Trasteel International SA, Italy
- OPG Power Generation Pvt Ltd - India
- Ind-Barath Power Infra Limited - India
- Cement Manufacturers Association - India
- Siam City Cement PLC, Thailand
- Power Finance Corporation Ltd., India
- Baramulti Group, Indonesia
- Sinarmas Energy and Mining - Indonesia
- Riau Bara Harum - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- London Commodity Brokers - England
- AsiaOL BioFuels Corp., Philippines
- Kaltim Prima Coal - Indonesia
- Directorate Of Revenue Intelligence - India
- Kapuas Tunggal Persada - Indonesia
- Timah Investasi Mineral - Indoneisa
- Sojitz Corporation - Japan
- Cigading International Bulk Terminal - Indonesia
- Oldendorff Carriers - Singapore
- IHS Mccloskey Coal Group - USA
- Pendopo Energi Batubara - Indonesia
- Mintek Dendrill Indonesia
- Marubeni Corporation - India
- Central Electricity Authority - India
- Ministry of Transport, Egypt
- ICICI Bank Limited - India
- Jaiprakash Power Ventures ltd
- Lanco Infratech Ltd - India
- PNOC Exploration Corporation - Philippines
- Mercator Lines Limited - India
- Kideco Jaya Agung - Indonesia
- Vizag Seaport Private Limited - India
- Xindia Steels Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Miang Besar Coal Terminal - Indonesia
- Vedanta Resources Plc - India
- Singapore Mercantile Exchange
- Kartika Selabumi Mining - Indonesia
- Renaissance Capital - South Africa
- Karaikal Port Pvt Ltd - India
- Tata Chemicals Ltd - India
- Energy Link Ltd, New Zealand
- Parry Sugars Refinery, India
- Global Green Power PLC Corporation, Philippines
- ASAPP Information Group - India
- Samtan Co., Ltd - South Korea
- Ministry of Finance - Indonesia
- Posco Energy - South Korea
- Simpson Spence & Young - Indonesia
- Global Business Power Corporation, Philippines
- Indian Energy Exchange, India
- Orica Mining Services - Indonesia
- Coastal Gujarat Power Limited - India
- Global Coal Blending Company Limited - Australia
- Edison Trading Spa - Italy
- Offshore Bulk Terminal Pte Ltd, Singapore
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Madhucon Powers Ltd - India
- The University of Queensland
- IEA Clean Coal Centre - UK
- CIMB Investment Bank - Malaysia
- Altura Mining Limited, Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Coal and Oil Company - UAE
- Malabar Cements Ltd - India
- Thai Mozambique Logistica
- Parliament of New Zealand
- International Coal Ventures Pvt Ltd - India
- Australian Coal Association
- Petrochimia International Co. Ltd.- Taiwan
- Jindal Steel & Power Ltd - India
- Minerals Council of Australia
- Bahari Cakrawala Sebuku - Indonesia
- Chamber of Mines of South Africa
- Wood Mackenzie - Singapore
- Holcim Trading Pte Ltd - Singapore
- Ambuja Cements Ltd - India
- Bhushan Steel Limited - India
- Independent Power Producers Association of India
- Anglo American - United Kingdom
- PetroVietnam Power Coal Import and Supply Company
- Eastern Coal Council - USA
- Leighton Contractors Pty Ltd - Australia
- Kepco SPC Power Corporation, Philippines
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- MS Steel International - UAE
- Electricity Authority, New Zealand
- GAC Shipping (India) Pvt Ltd
- Indian Oil Corporation Limited
- Salva Resources Pvt Ltd - India
- CNBM International Corporation - China
- Kalimantan Lumbung Energi - Indonesia
- Sindya Power Generating Company Private Ltd
- Electricity Generating Authority of Thailand
- Neyveli Lignite Corporation Ltd, - India
- Directorate General of MIneral and Coal - Indonesia
- Georgia Ports Authority, United States
- Price Waterhouse Coopers - Russia
- McConnell Dowell - Australia
- Semirara Mining Corp, Philippines
- Uttam Galva Steels Limited - India
- Sree Jayajothi Cements Limited - India
- Petron Corporation, Philippines
- Alfred C Toepfer International GmbH - Germany
- Videocon Industries ltd - India
- TeaM Sual Corporation - Philippines
- Mjunction Services Limited - India
- Tamil Nadu electricity Board
- Sarangani Energy Corporation, Philippines
- Straits Asia Resources Limited - Singapore
- Aditya Birla Group - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Latin American Coal - Colombia
- New Zealand Coal & Carbon
- Therma Luzon, Inc, Philippines
- SMG Consultants - Indonesia
- Essar Steel Hazira Ltd - India
- GMR Energy Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Gujarat Electricity Regulatory Commission - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Rashtriya Ispat Nigam Limited - India
- Interocean Group of Companies - India
- Barasentosa Lestari - Indonesia
- Bulk Trading Sa - Switzerland
- Larsen & Toubro Limited - India
- Attock Cement Pakistan Limited
- Maheswari Brothers Coal Limited - India
- Medco Energi Mining Internasional
- Thiess Contractors Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- Bangladesh Power Developement Board
- Binh Thuan Hamico - Vietnam
- Globalindo Alam Lestari - Indonesia
- Makarim & Taira - Indonesia
- Planning Commission, India
- LBH Netherlands Bv - Netherlands
- Indonesian Coal Mining Association
- Ceylon Electricity Board - Sri Lanka
- Kumho Petrochemical, South Korea
- Ministry of Mines - Canada
- Krishnapatnam Port Company Ltd. - India
- Bukit Makmur.PT - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Goldman Sachs - Singapore
- Semirara Mining and Power Corporation, Philippines
- Eastern Energy - Thailand
- Aboitiz Power Corporation - Philippines
- Gujarat Sidhee Cement - India
- Africa Commodities Group - South Africa
- Kobexindo Tractors - Indoneisa
- Chettinad Cement Corporation Ltd - India
- Bhatia International Limited - India
- Romanian Commodities Exchange
- Iligan Light & Power Inc, Philippines
- Merrill Lynch Commodities Europe
- SMC Global Power, Philippines
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Rio Tinto Coal - Australia
- Banpu Public Company Limited - Thailand
- Intertek Mineral Services - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Energy Development Corp, Philippines
- Meenaskhi Energy Private Limited - India
- Bukit Baiduri Energy - Indonesia
- Carbofer General Trading SA - India
- Indo Tambangraya Megah - Indonesia
- Port Waratah Coal Services - Australia
- The Treasury - Australian Government
- GN Power Mariveles Coal Plant, Philippines
- Star Paper Mills Limited - India
- Wilmar Investment Holdings
- Standard Chartered Bank - UAE
- Manunggal Multi Energi - Indonesia
- Dalmia Cement Bharat India
- Grasim Industreis Ltd - India
- San Jose City I Power Corp, Philippines
- Bayan Resources Tbk. - Indonesia
- Central Java Power - Indonesia
- Mercuria Energy - Indonesia
- Sical Logistics Limited - India
- Metalloyd Limited - United Kingdom
- White Energy Company Limited
- Meralco Power Generation, Philippines
- South Luzon Thermal Energy Corporation
- SN Aboitiz Power Inc, Philippines
- Agrawal Coal Company - India
- Coalindo Energy - Indonesia
- Bharathi Cement Corporation - India
- Bhoruka Overseas - Indonesia
- GVK Power & Infra Limited - India
- VISA Power Limited - India
- Deloitte Consulting - India
- India Bulls Power Limited - India
- Orica Australia Pty. Ltd.
- Commonwealth Bank - Australia
- Sakthi Sugars Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- European Bulk Services B.V. - Netherlands
- Economic Council, Georgia
- Borneo Indobara - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Indika Energy - Indonesia
- Antam Resourcindo - Indonesia
- Savvy Resources Ltd - HongKong
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