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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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Monday, 31 October 22
U.S. COAL-FIRED GENERATION DECLINING AFTER BRIEF RISE LAST YEAR - EIA
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Monday, 31 October 22
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Wednesday, 19 October 22
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- Bank of Tokyo Mitsubishi UFJ Ltd
- Semirara Mining and Power Corporation, Philippines
- Electricity Authority, New Zealand
- Parry Sugars Refinery, India
- Power Finance Corporation Ltd., India
- Chamber of Mines of South Africa
- Aboitiz Power Corporation - Philippines
- Goldman Sachs - Singapore
- Ind-Barath Power Infra Limited - India
- Semirara Mining Corp, Philippines
- Billiton Holdings Pty Ltd - Australia
- PTC India Limited - India
- The Treasury - Australian Government
- GN Power Mariveles Coal Plant, Philippines
- Meralco Power Generation, Philippines
- Samtan Co., Ltd - South Korea
- Cement Manufacturers Association - India
- Jaiprakash Power Ventures ltd
- Heidelberg Cement - Germany
- Ministry of Transport, Egypt
- Toyota Tsusho Corporation, Japan
- Maharashtra Electricity Regulatory Commission - India
- Kapuas Tunggal Persada - Indonesia
- Bukit Baiduri Energy - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Mercator Lines Limited - India
- Simpson Spence & Young - Indonesia
- Central Java Power - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Altura Mining Limited, Indonesia
- White Energy Company Limited
- Medco Energi Mining Internasional
- Energy Development Corp, Philippines
- Gujarat Electricity Regulatory Commission - India
- Price Waterhouse Coopers - Russia
- Sarangani Energy Corporation, Philippines
- SMG Consultants - Indonesia
- International Coal Ventures Pvt Ltd - India
- Orica Australia Pty. Ltd.
- Jorong Barutama Greston.PT - Indonesia
- Mercuria Energy - Indonesia
- Vedanta Resources Plc - India
- Coal and Oil Company - UAE
- Globalindo Alam Lestari - Indonesia
- Attock Cement Pakistan Limited
- Sinarmas Energy and Mining - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Indo Tambangraya Megah - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Eastern Energy - Thailand
- The University of Queensland
- Thiess Contractors Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Antam Resourcindo - Indonesia
- Eastern Coal Council - USA
- SMC Global Power, Philippines
- Kumho Petrochemical, South Korea
- Makarim & Taira - Indonesia
- Sree Jayajothi Cements Limited - India
- IHS Mccloskey Coal Group - USA
- Independent Power Producers Association of India
- TeaM Sual Corporation - Philippines
- Anglo American - United Kingdom
- Essar Steel Hazira Ltd - India
- Indian Energy Exchange, India
- Global Business Power Corporation, Philippines
- ICICI Bank Limited - India
- Indogreen Group - Indonesia
- Manunggal Multi Energi - Indonesia
- Parliament of New Zealand
- Baramulti Group, Indonesia
- Pendopo Energi Batubara - Indonesia
- Kartika Selabumi Mining - Indonesia
- Georgia Ports Authority, United States
- Edison Trading Spa - Italy
- Vizag Seaport Private Limited - India
- Ceylon Electricity Board - Sri Lanka
- Kaltim Prima Coal - Indonesia
- Sindya Power Generating Company Private Ltd
- Bulk Trading Sa - Switzerland
- Bukit Asam (Persero) Tbk - Indonesia
- Sakthi Sugars Limited - India
- Malabar Cements Ltd - India
- Karaikal Port Pvt Ltd - India
- Chettinad Cement Corporation Ltd - India
- Meenaskhi Energy Private Limited - India
- Cigading International Bulk Terminal - Indonesia
- Mjunction Services Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Commonwealth Bank - Australia
- Central Electricity Authority - India
- Romanian Commodities Exchange
- San Jose City I Power Corp, Philippines
- Dalmia Cement Bharat India
- VISA Power Limited - India
- Riau Bara Harum - Indonesia
- India Bulls Power Limited - India
- Miang Besar Coal Terminal - Indonesia
- SN Aboitiz Power Inc, Philippines
- Kideco Jaya Agung - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Coalindo Energy - Indonesia
- Grasim Industreis Ltd - India
- Oldendorff Carriers - Singapore
- Wood Mackenzie - Singapore
- Sojitz Corporation - Japan
- Deloitte Consulting - India
- Thai Mozambique Logistica
- Directorate Of Revenue Intelligence - India
- Barasentosa Lestari - Indonesia
- European Bulk Services B.V. - Netherlands
- Vijayanagar Sugar Pvt Ltd - India
- PNOC Exploration Corporation - Philippines
- Sical Logistics Limited - India
- Agrawal Coal Company - India
- GMR Energy Limited - India
- Orica Mining Services - Indonesia
- McConnell Dowell - Australia
- Tata Chemicals Ltd - India
- Binh Thuan Hamico - Vietnam
- Salva Resources Pvt Ltd - India
- Bukit Makmur.PT - Indonesia
- Electricity Generating Authority of Thailand
- Neyveli Lignite Corporation Ltd, - India
- Petrochimia International Co. Ltd.- Taiwan
- Kepco SPC Power Corporation, Philippines
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Larsen & Toubro Limited - India
- GVK Power & Infra Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Minerals Council of Australia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Videocon Industries ltd - India
- Merrill Lynch Commodities Europe
- Banpu Public Company Limited - Thailand
- Marubeni Corporation - India
- Ministry of Finance - Indonesia
- Intertek Mineral Services - Indonesia
- Maheswari Brothers Coal Limited - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Aditya Birla Group - India
- IEA Clean Coal Centre - UK
- Australian Coal Association
- Indika Energy - Indonesia
- Singapore Mercantile Exchange
- Indian Oil Corporation Limited
- Bayan Resources Tbk. - Indonesia
- Kobexindo Tractors - Indoneisa
- Global Green Power PLC Corporation, Philippines
- CNBM International Corporation - China
- Carbofer General Trading SA - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Xindia Steels Limited - India
- Tamil Nadu electricity Board
- Planning Commission, India
- Energy Link Ltd, New Zealand
- LBH Netherlands Bv - Netherlands
- Bhushan Steel Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Gujarat Sidhee Cement - India
- Karbindo Abesyapradhi - Indoneisa
- Timah Investasi Mineral - Indoneisa
- Posco Energy - South Korea
- Lanco Infratech Ltd - India
- Wilmar Investment Holdings
- Indonesian Coal Mining Association
- Renaissance Capital - South Africa
- South Luzon Thermal Energy Corporation
- GAC Shipping (India) Pvt Ltd
- Bangladesh Power Developement Board
- Trasteel International SA, Italy
- Global Coal Blending Company Limited - Australia
- Siam City Cement - Thailand
- Uttam Galva Steels Limited - India
- Interocean Group of Companies - India
- Petron Corporation, Philippines
- Savvy Resources Ltd - HongKong
- The State Trading Corporation of India Ltd
- Iligan Light & Power Inc, Philippines
- Mintek Dendrill Indonesia
- Leighton Contractors Pty Ltd - Australia
- Jindal Steel & Power Ltd - India
- Bharathi Cement Corporation - India
- Therma Luzon, Inc, Philippines
- MS Steel International - UAE
- Latin American Coal - Colombia
- Siam City Cement PLC, Thailand
- Bahari Cakrawala Sebuku - Indonesia
- Bhoruka Overseas - Indonesia
- Standard Chartered Bank - UAE
- Bhatia International Limited - India
- CIMB Investment Bank - Malaysia
- Economic Council, Georgia
- New Zealand Coal & Carbon
- Africa Commodities Group - South Africa
- Straits Asia Resources Limited - Singapore
- Ambuja Cements Ltd - India
- Star Paper Mills Limited - India
- Madhucon Powers Ltd - India
- Australian Commodity Traders Exchange
- Metalloyd Limited - United Kingdom
- Formosa Plastics Group - Taiwan
- Rashtriya Ispat Nigam Limited - India
- OPG Power Generation Pvt Ltd - India
- Port Waratah Coal Services - Australia
- PowerSource Philippines DevCo
- Borneo Indobara - Indonesia
- London Commodity Brokers - England
- TNB Fuel Sdn Bhd - Malaysia
- Rio Tinto Coal - Australia
- Kalimantan Lumbung Energi - Indonesia
- Coastal Gujarat Power Limited - India
- PetroVietnam Power Coal Import and Supply Company
- ASAPP Information Group - India
- Ministry of Mines - Canada
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