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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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Wednesday, 12 June 24
CHINA ACCOUNTS FOR 16.3% OF AUSTRALIA'S COAL EXPORTS, FOLLOWED BY INDIA 14.4% - BANCHERO COSTA
Global coal trade has really picked up pace in recent months, and is now fully back to pre-Covid levels says Banchero Costa in its latest report.
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Wednesday, 12 June 24
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The number of LNG newbuilding orders have more than doubled from the same period last year where 34 orders were placed, compared to 78 in the first ...
Monday, 10 June 24
CHINA'S MAY COAL IMPORTS RISE 11% ON LOWER DOMESTIC OUTPUT - REUTERS
China’s imports of coal rose 11% in May from a year earlier, customs data and Reuters records showed on Friday, as lower domestic output this ...
Tuesday, 04 June 24
HOW DO WESTERN SANCTIONS ON RUSSIA IMPACT THE GLOBAL METALS, MINING AND COAL MARKETS - WOOD MACKENZIE
The geopolitical landscape for Russia, as a major supplier of various commodities, has undergone a dramatic transformation since the invasion of Uk ...
Friday, 22 March 24
CASE STUDY: DANGERS OF COAL CARGO - SKULD
Recently, a bulk cargo vessel carrying coal from South Africa to Singapore suffered a fatal accident, resulting in the deaths of three crew members ...
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Showing 21 to 25 news of total 6871 |
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- Ministry of Transport, Egypt
- Australian Commodity Traders Exchange
- Ind-Barath Power Infra Limited - India
- India Bulls Power Limited - India
- Xindia Steels Limited - India
- GVK Power & Infra Limited - India
- Marubeni Corporation - India
- Singapore Mercantile Exchange
- Australian Coal Association
- Aditya Birla Group - India
- Coal and Oil Company - UAE
- MS Steel International - UAE
- TeaM Sual Corporation - Philippines
- PTC India Limited - India
- Larsen & Toubro Limited - India
- Holcim Trading Pte Ltd - Singapore
- Meralco Power Generation, Philippines
- Bharathi Cement Corporation - India
- Mjunction Services Limited - India
- Manunggal Multi Energi - Indonesia
- Parry Sugars Refinery, India
- Indo Tambangraya Megah - Indonesia
- Romanian Commodities Exchange
- Tata Chemicals Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Star Paper Mills Limited - India
- Sical Logistics Limited - India
- Aboitiz Power Corporation - Philippines
- Rio Tinto Coal - Australia
- Kapuas Tunggal Persada - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- OPG Power Generation Pvt Ltd - India
- Ministry of Finance - Indonesia
- Madhucon Powers Ltd - India
- Economic Council, Georgia
- South Luzon Thermal Energy Corporation
- Maheswari Brothers Coal Limited - India
- SMG Consultants - Indonesia
- Merrill Lynch Commodities Europe
- London Commodity Brokers - England
- Sree Jayajothi Cements Limited - India
- Tamil Nadu electricity Board
- Indika Energy - Indonesia
- Chettinad Cement Corporation Ltd - India
- Videocon Industries ltd - India
- Global Business Power Corporation, Philippines
- Krishnapatnam Port Company Ltd. - India
- Minerals Council of Australia
- Makarim & Taira - Indonesia
- Edison Trading Spa - Italy
- Altura Mining Limited, Indonesia
- Trasteel International SA, Italy
- Electricity Generating Authority of Thailand
- Jorong Barutama Greston.PT - Indonesia
- Global Green Power PLC Corporation, Philippines
- Karaikal Port Pvt Ltd - India
- Kideco Jaya Agung - Indonesia
- GMR Energy Limited - India
- McConnell Dowell - Australia
- Vijayanagar Sugar Pvt Ltd - India
- Commonwealth Bank - Australia
- Global Coal Blending Company Limited - Australia
- Sojitz Corporation - Japan
- Neyveli Lignite Corporation Ltd, - India
- International Coal Ventures Pvt Ltd - India
- Metalloyd Limited - United Kingdom
- Oldendorff Carriers - Singapore
- Miang Besar Coal Terminal - Indonesia
- Energy Link Ltd, New Zealand
- Iligan Light & Power Inc, Philippines
- LBH Netherlands Bv - Netherlands
- Borneo Indobara - Indonesia
- Lanco Infratech Ltd - India
- Grasim Industreis Ltd - India
- Savvy Resources Ltd - HongKong
- Bulk Trading Sa - Switzerland
- TNB Fuel Sdn Bhd - Malaysia
- Kepco SPC Power Corporation, Philippines
- Cement Manufacturers Association - India
- Kobexindo Tractors - Indoneisa
- Thai Mozambique Logistica
- Pendopo Energi Batubara - Indonesia
- Bhushan Steel Limited - India
- Bayan Resources Tbk. - Indonesia
- Orica Mining Services - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Ministry of Mines - Canada
- Port Waratah Coal Services - Australia
- PetroVietnam Power Coal Import and Supply Company
- Medco Energi Mining Internasional
- Billiton Holdings Pty Ltd - Australia
- Sakthi Sugars Limited - India
- Sindya Power Generating Company Private Ltd
- Jindal Steel & Power Ltd - India
- Independent Power Producers Association of India
- CNBM International Corporation - China
- Thiess Contractors Indonesia
- PNOC Exploration Corporation - Philippines
- ASAPP Information Group - India
- Leighton Contractors Pty Ltd - Australia
- Ambuja Cements Ltd - India
- Siam City Cement PLC, Thailand
- Georgia Ports Authority, United States
- Pipit Mutiara Jaya. PT, Indonesia
- Straits Asia Resources Limited - Singapore
- IEA Clean Coal Centre - UK
- Cigading International Bulk Terminal - Indonesia
- Kumho Petrochemical, South Korea
- GN Power Mariveles Coal Plant, Philippines
- Semirara Mining and Power Corporation, Philippines
- Kaltim Prima Coal - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Mintek Dendrill Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- White Energy Company Limited
- Indogreen Group - Indonesia
- Simpson Spence & Young - Indonesia
- Posco Energy - South Korea
- Interocean Group of Companies - India
- Sarangani Energy Corporation, Philippines
- Vizag Seaport Private Limited - India
- ICICI Bank Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Malabar Cements Ltd - India
- Electricity Authority, New Zealand
- Samtan Co., Ltd - South Korea
- Uttam Galva Steels Limited - India
- Renaissance Capital - South Africa
- Wood Mackenzie - Singapore
- Wilmar Investment Holdings
- Kartika Selabumi Mining - Indonesia
- Intertek Mineral Services - Indonesia
- Bhatia International Limited - India
- PowerSource Philippines DevCo
- Latin American Coal - Colombia
- Therma Luzon, Inc, Philippines
- VISA Power Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Coastal Gujarat Power Limited - India
- Baramulti Group, Indonesia
- Goldman Sachs - Singapore
- Price Waterhouse Coopers - Russia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Banpu Public Company Limited - Thailand
- The University of Queensland
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Binh Thuan Hamico - Vietnam
- IHS Mccloskey Coal Group - USA
- Siam City Cement - Thailand
- Planning Commission, India
- Parliament of New Zealand
- The State Trading Corporation of India Ltd
- Bukit Makmur.PT - Indonesia
- Chamber of Mines of South Africa
- Kalimantan Lumbung Energi - Indonesia
- Coalindo Energy - Indonesia
- CIMB Investment Bank - Malaysia
- Sinarmas Energy and Mining - Indonesia
- Energy Development Corp, Philippines
- Essar Steel Hazira Ltd - India
- Ceylon Electricity Board - Sri Lanka
- Agrawal Coal Company - India
- Gujarat Mineral Development Corp Ltd - India
- Riau Bara Harum - Indonesia
- Carbofer General Trading SA - India
- Anglo American - United Kingdom
- Rashtriya Ispat Nigam Limited - India
- Power Finance Corporation Ltd., India
- Africa Commodities Group - South Africa
- Vedanta Resources Plc - India
- Orica Australia Pty. Ltd.
- Indonesian Coal Mining Association
- Gujarat Electricity Regulatory Commission - India
- Gujarat Sidhee Cement - India
- Meenaskhi Energy Private Limited - India
- San Jose City I Power Corp, Philippines
- Toyota Tsusho Corporation, Japan
- Directorate General of MIneral and Coal - Indonesia
- Mercuria Energy - Indonesia
- Formosa Plastics Group - Taiwan
- Petron Corporation, Philippines
- Bhoruka Overseas - Indonesia
- Eastern Coal Council - USA
- Directorate Of Revenue Intelligence - India
- Indian Oil Corporation Limited
- Deloitte Consulting - India
- Bukit Asam (Persero) Tbk - Indonesia
- Antam Resourcindo - Indonesia
- European Bulk Services B.V. - Netherlands
- Barasentosa Lestari - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Jaiprakash Power Ventures ltd
- Heidelberg Cement - Germany
- Bangladesh Power Developement Board
- Central Electricity Authority - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Indian Energy Exchange, India
- Timah Investasi Mineral - Indoneisa
- Dalmia Cement Bharat India
- Semirara Mining Corp, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Eastern Energy - Thailand
- The Treasury - Australian Government
- Attock Cement Pakistan Limited
- Bank of Tokyo Mitsubishi UFJ Ltd
- Central Java Power - Indonesia
- GAC Shipping (India) Pvt Ltd
- Bukit Baiduri Energy - Indonesia
- New Zealand Coal & Carbon
- Kohat Cement Company Ltd. - Pakistan
- SMC Global Power, Philippines
- SN Aboitiz Power Inc, Philippines
- Salva Resources Pvt Ltd - India
- Mercator Lines Limited - India
- Standard Chartered Bank - UAE
- Globalindo Alam Lestari - Indonesia
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