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.
|
|
Wednesday, 07 December 22
MARKET INSIGHT - INTERMODAL
China’s coal imports from January to October were 230.1m mt, a decrease of around 10.7% y-o-y (2021 totalled 323.2m mt). The question is if t ...
Wednesday, 07 December 22
INDIA'S STEEL MINISTRY SEEKS IMPORT TAX WAIVER FOR COKING COAL - SOURCES REUTERS REPORTED
India’s steel ministry has asked the finance ministry for a waiver of import tax on coking coal among a slew of raw materials, as it scramble ...
Tuesday, 06 December 22
INDIA'S COAL PRODUCTION RISES 17% IN APR-NOV PERIOD - PTI
The country’s coal production increased 17 per cent to 524.20 million tonnes in the April-November period of the ongoing fiscal.
...
Tuesday, 06 December 22
INDONESIA AIMS TO STARTS COLLECTING COAL LEVY IN Q1 2023 - MINISTER, REUTERS REPORTED
Indonesia aims to establish a coal fund agency and start collecting a coal levy in the first quarter next year, to help ensure supply security for ...
Saturday, 03 December 22
COMPLEX RUSSIAN PRICE CAP MAKES MARITIME VISIBILITY A MUST - WINDWARD
Many commentators and analysts are speculating about the potential impact the Russian seaborne oil price cap will have on organizations and entitie ...
|
|
|
Showing 176 to 180 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Karaikal Port Pvt Ltd - India
- Wood Mackenzie - Singapore
- GN Power Mariveles Coal Plant, Philippines
- Indian Oil Corporation Limited
- CNBM International Corporation - China
- Indogreen Group - Indonesia
- SMC Global Power, Philippines
- Attock Cement Pakistan Limited
- Romanian Commodities Exchange
- South Luzon Thermal Energy Corporation
- Singapore Mercantile Exchange
- Banpu Public Company Limited - Thailand
- Bhoruka Overseas - Indonesia
- Altura Mining Limited, Indonesia
- Ceylon Electricity Board - Sri Lanka
- White Energy Company Limited
- Directorate General of MIneral and Coal - Indonesia
- Timah Investasi Mineral - Indoneisa
- Borneo Indobara - Indonesia
- Planning Commission, India
- Dalmia Cement Bharat India
- Straits Asia Resources Limited - Singapore
- Kapuas Tunggal Persada - Indonesia
- Cement Manufacturers Association - India
- Wilmar Investment Holdings
- Chettinad Cement Corporation Ltd - India
- Intertek Mineral Services - Indonesia
- Petron Corporation, Philippines
- Ministry of Transport, Egypt
- Rio Tinto Coal - Australia
- PNOC Exploration Corporation - Philippines
- McConnell Dowell - Australia
- Makarim & Taira - Indonesia
- Coal and Oil Company - UAE
- Grasim Industreis Ltd - India
- Kohat Cement Company Ltd. - Pakistan
- Jorong Barutama Greston.PT - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- TNB Fuel Sdn Bhd - Malaysia
- Globalindo Alam Lestari - Indonesia
- Savvy Resources Ltd - HongKong
- Ministry of Finance - Indonesia
- Bangladesh Power Developement Board
- Eastern Energy - Thailand
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Electricity Generating Authority of Thailand
- Jindal Steel & Power Ltd - India
- Coalindo Energy - Indonesia
- Sical Logistics Limited - India
- Kaltim Prima Coal - Indonesia
- Indian Energy Exchange, India
- Indo Tambangraya Megah - Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Ministry of Mines - Canada
- Renaissance Capital - South Africa
- GVK Power & Infra Limited - India
- Orica Mining Services - Indonesia
- VISA Power Limited - India
- Parliament of New Zealand
- SMG Consultants - Indonesia
- MS Steel International - UAE
- SN Aboitiz Power Inc, Philippines
- Binh Thuan Hamico - Vietnam
- Indika Energy - Indonesia
- Madhucon Powers Ltd - India
- The State Trading Corporation of India Ltd
- London Commodity Brokers - England
- Formosa Plastics Group - Taiwan
- European Bulk Services B.V. - Netherlands
- Miang Besar Coal Terminal - Indonesia
- Marubeni Corporation - India
- Edison Trading Spa - Italy
- New Zealand Coal & Carbon
- Directorate Of Revenue Intelligence - India
- Aditya Birla Group - India
- Lanco Infratech Ltd - India
- PetroVietnam Power Coal Import and Supply Company
- Coastal Gujarat Power Limited - India
- Mercuria Energy - Indonesia
- OPG Power Generation Pvt Ltd - India
- Larsen & Toubro Limited - India
- Krishnapatnam Port Company Ltd. - India
- Riau Bara Harum - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Kartika Selabumi Mining - Indonesia
- Price Waterhouse Coopers - Russia
- Central Java Power - Indonesia
- Meenaskhi Energy Private Limited - India
- Australian Commodity Traders Exchange
- Mercator Lines Limited - India
- Vizag Seaport Private Limited - India
- Meralco Power Generation, Philippines
- Mintek Dendrill Indonesia
- Chamber of Mines of South Africa
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Uttam Galva Steels Limited - India
- Therma Luzon, Inc, Philippines
- Sindya Power Generating Company Private Ltd
- Maharashtra Electricity Regulatory Commission - India
- Deloitte Consulting - India
- Georgia Ports Authority, United States
- Merrill Lynch Commodities Europe
- Semirara Mining Corp, Philippines
- Thai Mozambique Logistica
- Bhushan Steel Limited - India
- GMR Energy Limited - India
- PowerSource Philippines DevCo
- Bukit Baiduri Energy - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Manunggal Multi Energi - Indonesia
- Pendopo Energi Batubara - Indonesia
- Samtan Co., Ltd - South Korea
- Global Green Power PLC Corporation, Philippines
- Sojitz Corporation - Japan
- Agrawal Coal Company - India
- Rashtriya Ispat Nigam Limited - India
- Commonwealth Bank - Australia
- Semirara Mining and Power Corporation, Philippines
- Antam Resourcindo - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Eastern Coal Council - USA
- Medco Energi Mining Internasional
- Simpson Spence & Young - Indonesia
- Tata Chemicals Ltd - India
- Australian Coal Association
- Vijayanagar Sugar Pvt Ltd - India
- Vedanta Resources Plc - India
- Global Business Power Corporation, Philippines
- Essar Steel Hazira Ltd - India
- Bukit Makmur.PT - Indonesia
- Kumho Petrochemical, South Korea
- Videocon Industries ltd - India
- Ind-Barath Power Infra Limited - India
- Heidelberg Cement - Germany
- Gujarat Sidhee Cement - India
- Gujarat Mineral Development Corp Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Jaiprakash Power Ventures ltd
- Oldendorff Carriers - Singapore
- Mjunction Services Limited - India
- Independent Power Producers Association of India
- Cigading International Bulk Terminal - Indonesia
- Latin American Coal - Colombia
- Aboitiz Power Corporation - Philippines
- GAC Shipping (India) Pvt Ltd
- AsiaOL BioFuels Corp., Philippines
- Karbindo Abesyapradhi - Indoneisa
- PTC India Limited - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Electricity Authority, New Zealand
- Indonesian Coal Mining Association
- Sakthi Sugars Limited - India
- Billiton Holdings Pty Ltd - Australia
- Bayan Resources Tbk. - Indonesia
- Sarangani Energy Corporation, Philippines
- Baramulti Group, Indonesia
- Alfred C Toepfer International GmbH - Germany
- Kideco Jaya Agung - Indonesia
- Energy Link Ltd, New Zealand
- Goldman Sachs - Singapore
- Minerals Council of Australia
- Star Paper Mills Limited - India
- Metalloyd Limited - United Kingdom
- IHS Mccloskey Coal Group - USA
- The Treasury - Australian Government
- Sree Jayajothi Cements Limited - India
- IEA Clean Coal Centre - UK
- Port Waratah Coal Services - Australia
- Thiess Contractors Indonesia
- India Bulls Power Limited - India
- Barasentosa Lestari - Indonesia
- Anglo American - United Kingdom
- Power Finance Corporation Ltd., India
- LBH Netherlands Bv - Netherlands
- San Jose City I Power Corp, Philippines
- Parry Sugars Refinery, India
- Siam City Cement PLC, Thailand
- Siam City Cement - Thailand
- Orica Australia Pty. Ltd.
- The University of Queensland
- ICICI Bank Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- International Coal Ventures Pvt Ltd - India
- TeaM Sual Corporation - Philippines
- CIMB Investment Bank - Malaysia
- Salva Resources Pvt Ltd - India
- Bahari Cakrawala Sebuku - Indonesia
- Tamil Nadu electricity Board
- Standard Chartered Bank - UAE
- Kobexindo Tractors - Indoneisa
- ASAPP Information Group - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Bulk Trading Sa - Switzerland
- Pipit Mutiara Jaya. PT, Indonesia
- Africa Commodities Group - South Africa
- Malabar Cements Ltd - India
- Interocean Group of Companies - India
- Energy Development Corp, Philippines
- Xindia Steels Limited - India
- Kepco SPC Power Corporation, Philippines
- Bharathi Cement Corporation - India
- Iligan Light & Power Inc, Philippines
- Sinarmas Energy and Mining - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Posco Energy - South Korea
- Ambuja Cements Ltd - India
- Global Coal Blending Company Limited - Australia
- Toyota Tsusho Corporation, Japan
- Asmin Koalindo Tuhup - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Maheswari Brothers Coal Limited - India
- Bhatia International Limited - India
- Central Electricity Authority - India
- Carbofer General Trading SA - India
- Trasteel International SA, Italy
- Economic Council, Georgia
|
| |
| |
|
