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, 11 September 21
CIL STEPS UP SUPPLY COAL TO POWER SECTOR; PER-DAY AVERAGE 20 PC HIGHER THAN LAST YEAR - PTI
State-owned CIL on Friday said it has stepped up the supply of coal to the power sector in the first eight days of the current month, with an avera ...
Saturday, 11 September 21
RECORD CHINESE COAL FUTURES SIGNAL NEED TO BOOST OUTPUT - REUTERS
China’s coal prices have climbed to a record high, signaling the need for more production in the short term, even as the government tries to ...
Saturday, 11 September 21
IN 2022, EIA EXPECTS U.S. COAL PRODUCTION TO INCREASE BY 47 MMST TO 648 MMST
U.S. Coal production accordng to EIA's forecast, totals 601 million short tons (MMst) in 2021, 66 MMst more than in 2020, EIA's Short-Term ...
Wednesday, 08 September 21
FITCH RATINGS RAISES THERMAL COAL PRICE ASSUMPTIONS ON TIGHT SUPPLY
Fitch Ratings has increased all its Qinhuangdao 5,500kcal/kg price assumptions and short- and medium-term Newcastle 6,000kcal/kg price assumptions ...
Wednesday, 08 September 21
COAL IS STILL KING; INDONESIAN COAL PRICE REFERENCE ABOVE $150 FOR FIRST TIME IN HISTORY
COALspot.com: The Indonesian Coal Price Reference rose dramatically from US$ 127.05 in February 2011, to a peak of US$ 150.03 in September 2021, be ...
|
|
|
Showing 486 to 490 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- ICICI Bank Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Posco Energy - South Korea
- Medco Energi Mining Internasional
- Global Business Power Corporation, Philippines
- White Energy Company Limited
- Sree Jayajothi Cements Limited - India
- Ministry of Transport, Egypt
- Pendopo Energi Batubara - Indonesia
- European Bulk Services B.V. - Netherlands
- Electricity Generating Authority of Thailand
- GN Power Mariveles Coal Plant, Philippines
- Indika Energy - Indonesia
- SMG Consultants - Indonesia
- Wilmar Investment Holdings
- Africa Commodities Group - South Africa
- San Jose City I Power Corp, Philippines
- Australian Coal Association
- Kapuas Tunggal Persada - Indonesia
- Coalindo Energy - Indonesia
- Barasentosa Lestari - Indonesia
- Georgia Ports Authority, United States
- AsiaOL BioFuels Corp., Philippines
- Central Electricity Authority - India
- International Coal Ventures Pvt Ltd - India
- Gujarat Mineral Development Corp Ltd - India
- Parliament of New Zealand
- CIMB Investment Bank - Malaysia
- Bank of Tokyo Mitsubishi UFJ Ltd
- McConnell Dowell - Australia
- Grasim Industreis Ltd - India
- Tata Chemicals Ltd - India
- Energy Link Ltd, New Zealand
- Gujarat Sidhee Cement - India
- Ambuja Cements Ltd - India
- Savvy Resources Ltd - HongKong
- Trasteel International SA, Italy
- Eastern Coal Council - USA
- Singapore Mercantile Exchange
- The Treasury - Australian Government
- CNBM International Corporation - China
- Power Finance Corporation Ltd., India
- PNOC Exploration Corporation - Philippines
- Commonwealth Bank - Australia
- Indian Oil Corporation Limited
- Directorate Of Revenue Intelligence - India
- TNB Fuel Sdn Bhd - Malaysia
- Eastern Energy - Thailand
- Aditya Birla Group - India
- Neyveli Lignite Corporation Ltd, - India
- Dalmia Cement Bharat India
- Coastal Gujarat Power Limited - India
- Mjunction Services Limited - India
- Banpu Public Company Limited - Thailand
- Oldendorff Carriers - Singapore
- Madhucon Powers Ltd - India
- Rashtriya Ispat Nigam Limited - India
- Holcim Trading Pte Ltd - Singapore
- Attock Cement Pakistan Limited
- Samtan Co., Ltd - South Korea
- Malabar Cements Ltd - India
- Anglo American - United Kingdom
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Rio Tinto Coal - Australia
- Kumho Petrochemical, South Korea
- Price Waterhouse Coopers - Russia
- Pipit Mutiara Jaya. PT, Indonesia
- Xindia Steels Limited - India
- Jaiprakash Power Ventures ltd
- Alfred C Toepfer International GmbH - Germany
- Kideco Jaya Agung - Indonesia
- Chettinad Cement Corporation Ltd - India
- Petron Corporation, Philippines
- Kaltim Prima Coal - Indonesia
- SN Aboitiz Power Inc, Philippines
- Ind-Barath Power Infra Limited - India
- Minerals Council of Australia
- Ceylon Electricity Board - Sri Lanka
- Orica Australia Pty. Ltd.
- Karaikal Port Pvt Ltd - India
- Marubeni Corporation - India
- Baramulti Group, Indonesia
- Bhatia International Limited - India
- Bhoruka Overseas - Indonesia
- Interocean Group of Companies - India
- Siam City Cement PLC, Thailand
- Meenaskhi Energy Private Limited - India
- Global Green Power PLC Corporation, Philippines
- Kohat Cement Company Ltd. - Pakistan
- India Bulls Power Limited - India
- Chamber of Mines of South Africa
- Leighton Contractors Pty Ltd - Australia
- Manunggal Multi Energi - Indonesia
- VISA Power Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- Riau Bara Harum - Indonesia
- Sical Logistics Limited - India
- Tamil Nadu electricity Board
- OPG Power Generation Pvt Ltd - India
- Siam City Cement - Thailand
- Directorate General of MIneral and Coal - Indonesia
- Iligan Light & Power Inc, Philippines
- Miang Besar Coal Terminal - Indonesia
- Star Paper Mills Limited - India
- Thai Mozambique Logistica
- Larsen & Toubro Limited - India
- Carbofer General Trading SA - India
- Independent Power Producers Association of India
- New Zealand Coal & Carbon
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Australian Commodity Traders Exchange
- Heidelberg Cement - Germany
- Vizag Seaport Private Limited - India
- Standard Chartered Bank - UAE
- The University of Queensland
- PowerSource Philippines DevCo
- IEA Clean Coal Centre - UK
- Indo Tambangraya Megah - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Bukit Makmur.PT - Indonesia
- Mercator Lines Limited - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Offshore Bulk Terminal Pte Ltd, Singapore
- Port Waratah Coal Services - Australia
- ASAPP Information Group - India
- Karbindo Abesyapradhi - Indoneisa
- Antam Resourcindo - Indonesia
- TeaM Sual Corporation - Philippines
- Renaissance Capital - South Africa
- Binh Thuan Hamico - Vietnam
- PetroVietnam Power Coal Import and Supply Company
- Bayan Resources Tbk. - Indonesia
- Mintek Dendrill Indonesia
- Global Coal Blending Company Limited - Australia
- Indonesian Coal Mining Association
- Salva Resources Pvt Ltd - India
- Indogreen Group - Indonesia
- Globalindo Alam Lestari - Indonesia
- Agrawal Coal Company - India
- Parry Sugars Refinery, India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Metalloyd Limited - United Kingdom
- Kepco SPC Power Corporation, Philippines
- Intertek Mineral Services - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Edison Trading Spa - Italy
- Borneo Indobara - Indonesia
- Ministry of Finance - Indonesia
- Sarangani Energy Corporation, Philippines
- London Commodity Brokers - England
- Wood Mackenzie - Singapore
- Gujarat Electricity Regulatory Commission - India
- Coal and Oil Company - UAE
- Central Java Power - Indonesia
- Straits Asia Resources Limited - Singapore
- Toyota Tsusho Corporation, Japan
- Sojitz Corporation - Japan
- Deloitte Consulting - India
- Cement Manufacturers Association - India
- Meralco Power Generation, Philippines
- Bahari Cakrawala Sebuku - Indonesia
- LBH Netherlands Bv - Netherlands
- Bulk Trading Sa - Switzerland
- Economic Council, Georgia
- Bhushan Steel Limited - India
- Sakthi Sugars Limited - India
- Ministry of Mines - Canada
- Electricity Authority, New Zealand
- IHS Mccloskey Coal Group - USA
- Timah Investasi Mineral - Indoneisa
- Romanian Commodities Exchange
- Formosa Plastics Group - Taiwan
- Bukit Baiduri Energy - Indonesia
- GMR Energy Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Maheswari Brothers Coal Limited - India
- Krishnapatnam Port Company Ltd. - India
- Cigading International Bulk Terminal - Indonesia
- Kobexindo Tractors - Indoneisa
- PTC India Limited - India
- Jindal Steel & Power Ltd - India
- Merrill Lynch Commodities Europe
- Videocon Industries ltd - India
- Bharathi Cement Corporation - India
- Therma Luzon, Inc, Philippines
- Goldman Sachs - Singapore
- Sindya Power Generating Company Private Ltd
- MS Steel International - UAE
- Semirara Mining Corp, Philippines
- Maharashtra Electricity Regulatory Commission - India
- Simpson Spence & Young - Indonesia
- Energy Development Corp, Philippines
- Essar Steel Hazira Ltd - India
- Bangladesh Power Developement Board
- Lanco Infratech Ltd - India
- Aboitiz Power Corporation - Philippines
- Mercuria Energy - Indonesia
- Indian Energy Exchange, India
- Altura Mining Limited, Indonesia
- SMC Global Power, Philippines
- Kartika Selabumi Mining - Indonesia
- Thiess Contractors Indonesia
- Vedanta Resources Plc - India
- Latin American Coal - Colombia
- Planning Commission, India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- GVK Power & Infra Limited - India
- Orica Mining Services - Indonesia
- The State Trading Corporation of India Ltd
- Uttam Galva Steels Limited - India
- Makarim & Taira - Indonesia
- South Luzon Thermal Energy Corporation
- Semirara Mining and Power Corporation, Philippines
- GAC Shipping (India) Pvt Ltd
|
| |
| |
|
