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, 13 October 21
MARKET INSIGHT - INTERMODAL
Following up on our insight on May 2021, where we discussed about the Capesize market outlook for the second half of the year, we are pleased to se ...
Wednesday, 13 October 21
FBX INDEX: THE IMPOSSIBILITY OF SHORT-TERM FORECASTING - LARS JENSEN
Will freight rates on Asia-Europe or the Transpacific reach 40.000 USD/FFE in the run-up prior to Chinese New Year 2022? Or will they start droppin ...
Wednesday, 13 October 21
CHINA FLOODS: COAL PRICE HITS FRESH HIGH AS MINES SHUT - BBC
The price of coal used in China’s power plants has surged to a new record high as another of the country’s key mining regions is hit by ...
Tuesday, 12 October 21
BUMA SIGNS CONDITIONAL AGREEMENT FOR AUSTRALIAN ASSET ACQUISITION
PT Tbk. announced that its subsidiary, PT Bukit Makmur Mandiri Utama, through its newly incorporated Australian subsidiary, BUMA International Pty ...
Tuesday, 12 October 21
INDONESIA'S COAL-BASED POWER PLANTS ARE SUBJECT TO CARBON TAX NEXT YEAR, ELECTRICITY COSTS COULD RISE! - CNBC
The Indonesian government is planning plans to implement a carbon tax of IDR 30 per kilogram (kg) of carbon dioxide equivalent (CO2e) or equivalent ...
|
|
|
Showing 461 to 465 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- AsiaOL BioFuels Corp., Philippines
- Attock Cement Pakistan Limited
- Heidelberg Cement - Germany
- Neyveli Lignite Corporation Ltd, - India
- LBH Netherlands Bv - Netherlands
- Eastern Coal Council - USA
- Rashtriya Ispat Nigam Limited - India
- Global Green Power PLC Corporation, Philippines
- Ministry of Mines - Canada
- CIMB Investment Bank - Malaysia
- Riau Bara Harum - Indonesia
- McConnell Dowell - Australia
- Vedanta Resources Plc - India
- VISA Power Limited - India
- Indian Energy Exchange, India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Binh Thuan Hamico - Vietnam
- Siam City Cement PLC, Thailand
- Kalimantan Lumbung Energi - Indonesia
- Kideco Jaya Agung - Indonesia
- European Bulk Services B.V. - Netherlands
- Formosa Plastics Group - Taiwan
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Bhoruka Overseas - Indonesia
- Sakthi Sugars Limited - India
- Goldman Sachs - Singapore
- Bharathi Cement Corporation - India
- Trasteel International SA, Italy
- San Jose City I Power Corp, Philippines
- London Commodity Brokers - England
- Meralco Power Generation, Philippines
- Karbindo Abesyapradhi - Indoneisa
- Medco Energi Mining Internasional
- Mercuria Energy - Indonesia
- Toyota Tsusho Corporation, Japan
- Deloitte Consulting - India
- Savvy Resources Ltd - HongKong
- Anglo American - United Kingdom
- Jaiprakash Power Ventures ltd
- Directorate Of Revenue Intelligence - India
- Manunggal Multi Energi - Indonesia
- Kobexindo Tractors - Indoneisa
- TeaM Sual Corporation - Philippines
- Semirara Mining Corp, Philippines
- Larsen & Toubro Limited - India
- Indogreen Group - Indonesia
- Central Electricity Authority - India
- Oldendorff Carriers - Singapore
- GAC Shipping (India) Pvt Ltd
- Meenaskhi Energy Private Limited - India
- Port Waratah Coal Services - Australia
- Sinarmas Energy and Mining - Indonesia
- Kapuas Tunggal Persada - Indonesia
- The Treasury - Australian Government
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Gujarat Mineral Development Corp Ltd - India
- MS Steel International - UAE
- Sree Jayajothi Cements Limited - India
- Tamil Nadu electricity Board
- Wilmar Investment Holdings
- Bahari Cakrawala Sebuku - Indonesia
- Cigading International Bulk Terminal - Indonesia
- PowerSource Philippines DevCo
- Georgia Ports Authority, United States
- Merrill Lynch Commodities Europe
- Price Waterhouse Coopers - Russia
- Bhatia International Limited - India
- Straits Asia Resources Limited - Singapore
- Sojitz Corporation - Japan
- Grasim Industreis Ltd - India
- White Energy Company Limited
- Makarim & Taira - Indonesia
- Parry Sugars Refinery, India
- Alfred C Toepfer International GmbH - Germany
- Globalindo Alam Lestari - Indonesia
- South Luzon Thermal Energy Corporation
- Thiess Contractors Indonesia
- Thai Mozambique Logistica
- Madhucon Powers Ltd - India
- Asmin Koalindo Tuhup - Indonesia
- Lanco Infratech Ltd - India
- ASAPP Information Group - India
- Bukit Asam (Persero) Tbk - Indonesia
- Vizag Seaport Private Limited - India
- Planning Commission, India
- Ministry of Finance - Indonesia
- Coalindo Energy - Indonesia
- Orica Australia Pty. Ltd.
- Economic Council, Georgia
- The State Trading Corporation of India Ltd
- Eastern Energy - Thailand
- Gujarat Sidhee Cement - India
- Iligan Light & Power Inc, Philippines
- Therma Luzon, Inc, Philippines
- Kohat Cement Company Ltd. - Pakistan
- The University of Queensland
- Leighton Contractors Pty Ltd - Australia
- Ambuja Cements Ltd - India
- Ministry of Transport, Egypt
- Antam Resourcindo - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Bulk Trading Sa - Switzerland
- Directorate General of MIneral and Coal - Indonesia
- Salva Resources Pvt Ltd - India
- Global Coal Blending Company Limited - Australia
- Kaltim Prima Coal - Indonesia
- New Zealand Coal & Carbon
- Renaissance Capital - South Africa
- Siam City Cement - Thailand
- Pipit Mutiara Jaya. PT, Indonesia
- Semirara Mining and Power Corporation, Philippines
- Petron Corporation, Philippines
- Mercator Lines Limited - India
- Kartika Selabumi Mining - Indonesia
- Altura Mining Limited, Indonesia
- Kumho Petrochemical, South Korea
- Standard Chartered Bank - UAE
- Indian Oil Corporation Limited
- Asia Pacific Energy Resources Ventures Inc, Philippines
- CNBM International Corporation - China
- Minerals Council of Australia
- Latin American Coal - Colombia
- Singapore Mercantile Exchange
- Sarangani Energy Corporation, Philippines
- Energy Link Ltd, New Zealand
- Timah Investasi Mineral - Indoneisa
- Metalloyd Limited - United Kingdom
- Bangladesh Power Developement Board
- Global Business Power Corporation, Philippines
- Videocon Industries ltd - India
- PNOC Exploration Corporation - Philippines
- Carbofer General Trading SA - India
- GN Power Mariveles Coal Plant, Philippines
- Cement Manufacturers Association - India
- Sical Logistics Limited - India
- Australian Coal Association
- Rio Tinto Coal - Australia
- Kepco SPC Power Corporation, Philippines
- Posco Energy - South Korea
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Africa Commodities Group - South Africa
- Parliament of New Zealand
- SMC Global Power, Philippines
- GMR Energy Limited - India
- Marubeni Corporation - India
- SMG Consultants - Indonesia
- Bhushan Steel Limited - India
- Samtan Co., Ltd - South Korea
- Barasentosa Lestari - Indonesia
- Central Java Power - Indonesia
- Simpson Spence & Young - Indonesia
- ICICI Bank Limited - India
- Indika Energy - Indonesia
- Electricity Authority, New Zealand
- SN Aboitiz Power Inc, Philippines
- Borneo Indobara - Indonesia
- Karaikal Port Pvt Ltd - India
- Commonwealth Bank - Australia
- Xindia Steels Limited - India
- Star Paper Mills Limited - India
- Coastal Gujarat Power Limited - India
- Energy Development Corp, Philippines
- Krishnapatnam Port Company Ltd. - India
- IHS Mccloskey Coal Group - USA
- Chettinad Cement Corporation Ltd - India
- PetroVietnam Power Coal Import and Supply Company
- OPG Power Generation Pvt Ltd - India
- Power Finance Corporation Ltd., India
- Chamber of Mines of South Africa
- Intertek Mineral Services - Indonesia
- PTC India Limited - India
- Bukit Makmur.PT - Indonesia
- Indonesian Coal Mining Association
- Wood Mackenzie - Singapore
- India Bulls Power Limited - India
- Aditya Birla Group - India
- Dalmia Cement Bharat India
- Australian Commodity Traders Exchange
- Ind-Barath Power Infra Limited - India
- Interocean Group of Companies - India
- Bayan Resources Tbk. - Indonesia
- Coal and Oil Company - UAE
- Offshore Bulk Terminal Pte Ltd, Singapore
- Holcim Trading Pte Ltd - Singapore
- Mintek Dendrill Indonesia
- International Coal Ventures Pvt Ltd - India
- Uttam Galva Steels Limited - India
- IEA Clean Coal Centre - UK
- Ceylon Electricity Board - Sri Lanka
- Maharashtra Electricity Regulatory Commission - India
- Malabar Cements Ltd - India
- Aboitiz Power Corporation - Philippines
- Billiton Holdings Pty Ltd - Australia
- Sindya Power Generating Company Private Ltd
- Tata Chemicals Ltd - India
- Baramulti Group, Indonesia
- Agrawal Coal Company - India
- GVK Power & Infra Limited - India
- Electricity Generating Authority of Thailand
- Orica Mining Services - Indonesia
- Indo Tambangraya Megah - Indonesia
- Banpu Public Company Limited - Thailand
- Independent Power Producers Association of India
- Petrochimia International Co. Ltd.- Taiwan
- Bukit Baiduri Energy - Indonesia
- Pendopo Energi Batubara - Indonesia
- Edison Trading Spa - Italy
- Romanian Commodities Exchange
- Essar Steel Hazira Ltd - India
- Maheswari Brothers Coal Limited - India
- Mjunction Services Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Miang Besar Coal Terminal - Indonesia
- Jindal Steel & Power Ltd - India
- Gujarat Electricity Regulatory Commission - India
|
| |
| |
|
