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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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Friday, 02 February 24
DRY BULK MARKET: THE DOWNWARD REVISION IN THE GROWTH OF CAPESIZE TONNE DAYS IN JANUARY WITH THE BCI DROPPING - MARIA BERTZELETOU
In the last week of January, the dry freight market sustained weakness in the Capesize segment, while the number of ballasters in the Southeast (SE ...
Friday, 02 February 24
COAL INDIA ACHIEVES NEARLY 80% OF ITS FY24 PRODUCTION TARGET IN TEN MONTHS - CNBCTV18
For the month of January, the company’s production grew by 9.1% from the same period last year to 78.4 Million Tonnes (MT), from 71.9 MT last ...
Thursday, 01 February 24
CHINA'S WIND, SOLAR CAPACITY TO OVERTAKE COAL IN 2024 - INDUSTRY BODY, REUTERS REPORTED
China’s installed wind and solar capacity is expected to overtake coal for the first time this year, according to industry forecasts.
&nb ...
Thursday, 01 February 24
ANTI-DEDUCTION CLAUSES: CAN A CHARTERER WITHHOLD HIRE WITHOUT AN OWNER'S CONSENT? - SKULD
KNOWLEDGE TO ELEVATE
Summary
In The Anna Dorothea, the Court found that where a charterparty provides that no deduction from hire may be m ...
Thursday, 01 February 24
INDIA REBUILDS COAL STOCKS TO ENSURE ELECTRIC RELIABILITY - REUTERS
India’s electricity supply is much more comfortable at the start of 2024 than in either 2023 or 2022 as coal production has ramped up and the ...
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Showing 41 to 45 news of total 6871 |
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- Straits Asia Resources Limited - Singapore
- IHS Mccloskey Coal Group - USA
- CNBM International Corporation - China
- Borneo Indobara - Indonesia
- Coastal Gujarat Power Limited - India
- Essar Steel Hazira Ltd - India
- Kepco SPC Power Corporation, Philippines
- Jorong Barutama Greston.PT - Indonesia
- Sojitz Corporation - Japan
- Directorate General of MIneral and Coal - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Karbindo Abesyapradhi - Indoneisa
- Ceylon Electricity Board - Sri Lanka
- Central Electricity Authority - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- GAC Shipping (India) Pvt Ltd
- Tamil Nadu electricity Board
- Baramulti Group, Indonesia
- Simpson Spence & Young - Indonesia
- Heidelberg Cement - Germany
- Petron Corporation, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Ind-Barath Power Infra Limited - India
- Bharathi Cement Corporation - India
- Parry Sugars Refinery, India
- European Bulk Services B.V. - Netherlands
- Pendopo Energi Batubara - Indonesia
- Parliament of New Zealand
- Carbofer General Trading SA - India
- Bukit Asam (Persero) Tbk - Indonesia
- Rio Tinto Coal - Australia
- TeaM Sual Corporation - Philippines
- Bayan Resources Tbk. - Indonesia
- Bhoruka Overseas - Indonesia
- Aditya Birla Group - India
- Planning Commission, India
- Kumho Petrochemical, South Korea
- Australian Coal Association
- Riau Bara Harum - Indonesia
- Attock Cement Pakistan Limited
- Globalindo Alam Lestari - Indonesia
- London Commodity Brokers - England
- Larsen & Toubro Limited - India
- Kalimantan Lumbung Energi - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Indian Oil Corporation Limited
- Electricity Authority, New Zealand
- Vijayanagar Sugar Pvt Ltd - India
- Gujarat Sidhee Cement - India
- Gujarat Mineral Development Corp Ltd - India
- Sical Logistics Limited - India
- Global Green Power PLC Corporation, Philippines
- Edison Trading Spa - Italy
- PNOC Exploration Corporation - Philippines
- Agrawal Coal Company - India
- Petrochimia International Co. Ltd.- Taiwan
- Binh Thuan Hamico - Vietnam
- Sinarmas Energy and Mining - Indonesia
- Renaissance Capital - South Africa
- Mercuria Energy - Indonesia
- Uttam Galva Steels Limited - India
- LBH Netherlands Bv - Netherlands
- Maheswari Brothers Coal Limited - India
- Mintek Dendrill Indonesia
- Karaikal Port Pvt Ltd - India
- SMC Global Power, Philippines
- Meenaskhi Energy Private Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Eastern Energy - Thailand
- Trasteel International SA, Italy
- Maharashtra Electricity Regulatory Commission - India
- Commonwealth Bank - Australia
- Bhatia International Limited - India
- Rashtriya Ispat Nigam Limited - India
- Metalloyd Limited - United Kingdom
- McConnell Dowell - Australia
- Altura Mining Limited, Indonesia
- Posco Energy - South Korea
- Ministry of Mines - Canada
- Bahari Cakrawala Sebuku - Indonesia
- Intertek Mineral Services - Indonesia
- PTC India Limited - India
- The University of Queensland
- Neyveli Lignite Corporation Ltd, - India
- Sree Jayajothi Cements Limited - India
- Madhucon Powers Ltd - India
- Siam City Cement - Thailand
- CIMB Investment Bank - Malaysia
- Alfred C Toepfer International GmbH - Germany
- Medco Energi Mining Internasional
- Kohat Cement Company Ltd. - Pakistan
- Sindya Power Generating Company Private Ltd
- Timah Investasi Mineral - Indoneisa
- Eastern Coal Council - USA
- Chamber of Mines of South Africa
- Wilmar Investment Holdings
- New Zealand Coal & Carbon
- Thiess Contractors Indonesia
- AsiaOL BioFuels Corp., Philippines
- Star Paper Mills Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Directorate Of Revenue Intelligence - India
- ASAPP Information Group - India
- Energy Link Ltd, New Zealand
- Port Waratah Coal Services - Australia
- Savvy Resources Ltd - HongKong
- Bank of Tokyo Mitsubishi UFJ Ltd
- Ministry of Transport, Egypt
- Mercator Lines Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Indogreen Group - Indonesia
- VISA Power Limited - India
- South Luzon Thermal Energy Corporation
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Price Waterhouse Coopers - Russia
- Semirara Mining Corp, Philippines
- Africa Commodities Group - South Africa
- Thai Mozambique Logistica
- Goldman Sachs - Singapore
- Indo Tambangraya Megah - Indonesia
- Bangladesh Power Developement Board
- Lanco Infratech Ltd - India
- Kideco Jaya Agung - Indonesia
- Mjunction Services Limited - India
- Ministry of Finance - Indonesia
- Bukit Makmur.PT - Indonesia
- Interocean Group of Companies - India
- Power Finance Corporation Ltd., India
- Barasentosa Lestari - Indonesia
- Australian Commodity Traders Exchange
- Romanian Commodities Exchange
- Economic Council, Georgia
- The State Trading Corporation of India Ltd
- Coalindo Energy - Indonesia
- Latin American Coal - Colombia
- Ambuja Cements Ltd - India
- Malabar Cements Ltd - India
- Jaiprakash Power Ventures ltd
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- The Treasury - Australian Government
- Siam City Cement PLC, Thailand
- GVK Power & Infra Limited - India
- Kartika Selabumi Mining - Indonesia
- Oldendorff Carriers - Singapore
- Semirara Mining and Power Corporation, Philippines
- Therma Luzon, Inc, Philippines
- Cement Manufacturers Association - India
- Electricity Generating Authority of Thailand
- Formosa Plastics Group - Taiwan
- India Bulls Power Limited - India
- Singapore Mercantile Exchange
- Dalmia Cement Bharat India
- Xindia Steels Limited - India
- Indonesian Coal Mining Association
- Billiton Holdings Pty Ltd - Australia
- Meralco Power Generation, Philippines
- Makarim & Taira - Indonesia
- Independent Power Producers Association of India
- Sakthi Sugars Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Jindal Steel & Power Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- Wood Mackenzie - Singapore
- Minerals Council of Australia
- Standard Chartered Bank - UAE
- Toyota Tsusho Corporation, Japan
- Tata Chemicals Ltd - India
- Georgia Ports Authority, United States
- SN Aboitiz Power Inc, Philippines
- OPG Power Generation Pvt Ltd - India
- Holcim Trading Pte Ltd - Singapore
- Energy Development Corp, Philippines
- Salva Resources Pvt Ltd - India
- Kapuas Tunggal Persada - Indonesia
- San Jose City I Power Corp, Philippines
- Aboitiz Power Corporation - Philippines
- Global Business Power Corporation, Philippines
- Leighton Contractors Pty Ltd - Australia
- Coal and Oil Company - UAE
- Indian Energy Exchange, India
- Cigading International Bulk Terminal - Indonesia
- Gujarat Electricity Regulatory Commission - India
- White Energy Company Limited
- Indika Energy - Indonesia
- Antam Resourcindo - Indonesia
- Samtan Co., Ltd - South Korea
- MS Steel International - UAE
- Orica Australia Pty. Ltd.
- GMR Energy Limited - India
- Central Java Power - Indonesia
- Kobexindo Tractors - Indoneisa
- Videocon Industries ltd - India
- Iligan Light & Power Inc, Philippines
- Sarangani Energy Corporation, Philippines
- IEA Clean Coal Centre - UK
- Kaltim Prima Coal - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Orica Mining Services - Indonesia
- SMG Consultants - Indonesia
- Chettinad Cement Corporation Ltd - India
- Bukit Baiduri Energy - Indonesia
- PowerSource Philippines DevCo
- Global Coal Blending Company Limited - Australia
- Banpu Public Company Limited - Thailand
- Marubeni Corporation - India
- Vedanta Resources Plc - India
- Merrill Lynch Commodities Europe
- Bhushan Steel Limited - India
- International Coal Ventures Pvt Ltd - India
- Vizag Seaport Private Limited - India
- Anglo American - United Kingdom
- ICICI Bank Limited - India
- Krishnapatnam Port Company Ltd. - India
- Bulk Trading Sa - Switzerland
- Deloitte Consulting - India
- Manunggal Multi Energi - Indonesia
- Grasim Industreis Ltd - India
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