We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
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
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Saturday, 18 February 23
PAKISTAN PLANS TO QUADRUPLE DOMESTIC COAL-FIRED POWER, MOVE AWAY FROM GAS - REUTERS
Pakistan plans to quadruple its domestic coal-fired capacity to reduce power generation costs and will not build new gas-fired plants in the coming ...
Saturday, 18 February 23
2023 MARINE FUEL MARKET PREDICTIONS - JOHN BERGMAN, AURAMARINE
The drive for decarbonisation we witnessed in 2022 has continued into 2023, demonstrating the shipping’s industry positive strides in the fas ...
Saturday, 28 January 23
COAL GROWTH BLIP NOT TO BE REPEATED - BALTIC EXCHANGE
As 2022 drew to a close, global coal demand looked set to end the year just 1.2% up on the previous year. But that small increase was enough to pus ...
Thursday, 26 January 23
CHINA'S COAL OUTPUT INCREASES IN DECEMBER 2022 - XINHUA
China’s raw coal output posted stable expansion in December 2022, official data showed.
The country produced 400 million tonne ...
Thursday, 26 January 23
COKING COAL NARROWS THE GAP ON THERMAL AS CHINA REOPENS - REUTERS
The premium of high-grade thermal coal over coking coal in Asia is shrinking as China’s re-opening and ending of a ban on imports from Austra ...
|
|
|
Showing 141 to 145 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Bukit Makmur.PT - Indonesia
- Electricity Authority, New Zealand
- Chamber of Mines of South Africa
- Leighton Contractors Pty Ltd - Australia
- South Luzon Thermal Energy Corporation
- Heidelberg Cement - Germany
- Tata Chemicals Ltd - India
- Goldman Sachs - Singapore
- Manunggal Multi Energi - Indonesia
- SN Aboitiz Power Inc, Philippines
- Port Waratah Coal Services - Australia
- ASAPP Information Group - India
- Sree Jayajothi Cements Limited - India
- Energy Development Corp, Philippines
- Rio Tinto Coal - Australia
- GAC Shipping (India) Pvt Ltd
- Aditya Birla Group - India
- San Jose City I Power Corp, Philippines
- Posco Energy - South Korea
- Singapore Mercantile Exchange
- ICICI Bank Limited - India
- Indian Oil Corporation Limited
- Parliament of New Zealand
- Bulk Trading Sa - Switzerland
- Dalmia Cement Bharat India
- Gujarat Electricity Regulatory Commission - India
- London Commodity Brokers - England
- Medco Energi Mining Internasional
- Standard Chartered Bank - UAE
- Borneo Indobara - Indonesia
- Global Coal Blending Company Limited - Australia
- Ministry of Finance - Indonesia
- Videocon Industries ltd - India
- Kalimantan Lumbung Energi - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Bhatia International Limited - India
- Australian Coal Association
- Meralco Power Generation, Philippines
- Deloitte Consulting - India
- SMC Global Power, Philippines
- GVK Power & Infra Limited - India
- Antam Resourcindo - Indonesia
- Mercator Lines Limited - India
- GMR Energy Limited - India
- Price Waterhouse Coopers - Russia
- OPG Power Generation Pvt Ltd - India
- Commonwealth Bank - Australia
- Billiton Holdings Pty Ltd - Australia
- Wood Mackenzie - Singapore
- Directorate General of MIneral and Coal - Indonesia
- Siam City Cement - Thailand
- IEA Clean Coal Centre - UK
- Coal and Oil Company - UAE
- MS Steel International - UAE
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Binh Thuan Hamico - Vietnam
- Kartika Selabumi Mining - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Altura Mining Limited, Indonesia
- India Bulls Power Limited - India
- Siam City Cement PLC, Thailand
- Merrill Lynch Commodities Europe
- Krishnapatnam Port Company Ltd. - India
- Jindal Steel & Power Ltd - India
- Thiess Contractors Indonesia
- Kapuas Tunggal Persada - Indonesia
- PowerSource Philippines DevCo
- Riau Bara Harum - Indonesia
- Attock Cement Pakistan Limited
- Meenaskhi Energy Private Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Mjunction Services Limited - India
- Power Finance Corporation Ltd., India
- Holcim Trading Pte Ltd - Singapore
- Lanco Infratech Ltd - India
- Kobexindo Tractors - Indoneisa
- LBH Netherlands Bv - Netherlands
- Alfred C Toepfer International GmbH - Germany
- Wilmar Investment Holdings
- Agrawal Coal Company - India
- PNOC Exploration Corporation - Philippines
- SMG Consultants - Indonesia
- Intertek Mineral Services - Indonesia
- CNBM International Corporation - China
- New Zealand Coal & Carbon
- Vijayanagar Sugar Pvt Ltd - India
- Jorong Barutama Greston.PT - Indonesia
- Interocean Group of Companies - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Formosa Plastics Group - Taiwan
- Sarangani Energy Corporation, Philippines
- Vizag Seaport Private Limited - India
- Indian Energy Exchange, India
- Bangladesh Power Developement Board
- Samtan Co., Ltd - South Korea
- Ministry of Transport, Egypt
- Indo Tambangraya Megah - Indonesia
- Therma Luzon, Inc, Philippines
- Carbofer General Trading SA - India
- The University of Queensland
- Kideco Jaya Agung - Indonesia
- Globalindo Alam Lestari - Indonesia
- Essar Steel Hazira Ltd - India
- GN Power Mariveles Coal Plant, Philippines
- Orica Mining Services - Indonesia
- McConnell Dowell - Australia
- Kepco SPC Power Corporation, Philippines
- Malabar Cements Ltd - India
- Eastern Coal Council - USA
- Orica Australia Pty. Ltd.
- Tamil Nadu electricity Board
- AsiaOL BioFuels Corp., Philippines
- Chettinad Cement Corporation Ltd - India
- Coalindo Energy - Indonesia
- Metalloyd Limited - United Kingdom
- Energy Link Ltd, New Zealand
- Ceylon Electricity Board - Sri Lanka
- Global Green Power PLC Corporation, Philippines
- Ambuja Cements Ltd - India
- Petron Corporation, Philippines
- Bhoruka Overseas - Indonesia
- Latin American Coal - Colombia
- Gujarat Sidhee Cement - India
- Romanian Commodities Exchange
- Thai Mozambique Logistica
- Timah Investasi Mineral - Indoneisa
- CIMB Investment Bank - Malaysia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- Karaikal Port Pvt Ltd - India
- Mercuria Energy - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Sindya Power Generating Company Private Ltd
- Semirara Mining Corp, Philippines
- Mintek Dendrill Indonesia
- Georgia Ports Authority, United States
- Toyota Tsusho Corporation, Japan
- Planning Commission, India
- Neyveli Lignite Corporation Ltd, - India
- Sojitz Corporation - Japan
- Straits Asia Resources Limited - Singapore
- Minerals Council of Australia
- Sinarmas Energy and Mining - Indonesia
- Savvy Resources Ltd - HongKong
- Offshore Bulk Terminal Pte Ltd, Singapore
- IHS Mccloskey Coal Group - USA
- Rashtriya Ispat Nigam Limited - India
- Marubeni Corporation - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Anglo American - United Kingdom
- Parry Sugars Refinery, India
- Pendopo Energi Batubara - Indonesia
- Simpson Spence & Young - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Sical Logistics Limited - India
- Indogreen Group - Indonesia
- Australian Commodity Traders Exchange
- Africa Commodities Group - South Africa
- Bayan Resources Tbk. - Indonesia
- Bukit Baiduri Energy - Indonesia
- Central Java Power - Indonesia
- Iligan Light & Power Inc, Philippines
- European Bulk Services B.V. - Netherlands
- Maheswari Brothers Coal Limited - India
- Makarim & Taira - Indonesia
- Banpu Public Company Limited - Thailand
- Indonesian Coal Mining Association
- Petrochimia International Co. Ltd.- Taiwan
- Economic Council, Georgia
- Independent Power Producers Association of India
- VISA Power Limited - India
- Kohat Cement Company Ltd. - Pakistan
- Pipit Mutiara Jaya. PT, Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Bharathi Cement Corporation - India
- Salva Resources Pvt Ltd - India
- Ministry of Mines - Canada
- Indika Energy - Indonesia
- Renaissance Capital - South Africa
- Jaiprakash Power Ventures ltd
- Star Paper Mills Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- TeaM Sual Corporation - Philippines
- Ind-Barath Power Infra Limited - India
- Directorate Of Revenue Intelligence - India
- Eastern Energy - Thailand
- Larsen & Toubro Limited - India
- Oldendorff Carriers - Singapore
- Madhucon Powers Ltd - India
- Electricity Generating Authority of Thailand
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Edison Trading Spa - Italy
- Aboitiz Power Corporation - Philippines
- Coastal Gujarat Power Limited - India
- Kumho Petrochemical, South Korea
- TNB Fuel Sdn Bhd - Malaysia
- PTC India Limited - India
- Sakthi Sugars Limited - India
- Trasteel International SA, Italy
- International Coal Ventures Pvt Ltd - India
- Central Electricity Authority - India
- Cement Manufacturers Association - India
- Global Business Power Corporation, Philippines
- White Energy Company Limited
- The Treasury - Australian Government
- Uttam Galva Steels Limited - India
- Grasim Industreis Ltd - India
- Kaltim Prima Coal - Indonesia
- The State Trading Corporation of India Ltd
- Xindia Steels Limited - India
- Barasentosa Lestari - Indonesia
- Bhushan Steel Limited - India
- Cigading International Bulk Terminal - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Baramulti Group, Indonesia
- Vedanta Resources Plc - India
|
| |
| |
|
