Professional Documents
Culture Documents
Chairman:
Ian Gaunt – Hon. Secretary, LMAA
Panellists:
Alun Hatfield - Clarksons Financial Services
Michael Stockwood – Ince & Co
Simon Curtis - Curtis Davis Garrard LLP
PART A
Common Issues in Shipbuilding Contract Arbitrations
Ian Gaunt
PART B
Ship Finance – A changing environment
Alun Hatfield
PART C
Damages and determination of Shipbuilding Contracts
Gearbulk v Stocznia Gdynia Revisited
Michael Stockwood
PART D
Enforcing the refund guarantee -Practical problems
Simon Curtis
PART E
CURRICULA VITAE
PART A
Common Issues in Shipbuilding Contract Arbitrations
Ian Gaunt
London Shipping Law Centre 28 April 2010
Summary:
The boom in shipbuilding orders for all classes of ships in the period 2003-
2008 has been followed by an equally dramatic fall in freight rates in late
2008 and the termination of many shipbuilding contracts. This has inevitably
resulted in a large number of references to arbitration of shipbuilding
disputes, particularly in 2009. Most of the arbitrations in this field involving
international contracts are subject to English law and conducted in London,
many of them under the Terms of the London Maritime Arbitrators
Association.
1. Delay
For orders placed in shipyards in Japan, Korea and China various more or
less standard forms of shipbuilding contracts have developed and it has
been usual for owners to contract on these terms, but with modifications
introduced as a result of individual negotiations. In Japan, the starting point
for most contracts is likely to be the SAJ form which provides for the validity
and interpretation of the contract to be governed by the laws of the
country where the vessel is built and disputes to be subject to the rules of
The Japan Shipping Exchange2. In Korea and China various basic forms
have been used, often subject to a good deal of modification through
negotiation. Many foreign purchasers from Korean, Chinese or Japanese
shipyards will wish to require the contract to be governed by the law of a
“neutral” jurisdiction and for disputes to be resolved in a “neutral” forum.
Many, indeed probably a substantial majority of, international shipbuilding
contracts contain clauses including English law as the express law of the
contract references to English arbitration, whether or not explicitly to the
LMAA Terms. The advantages of arbitration are of course well known, in
particular confidentiality, certainty (particularly where appeals to the courts
are restricted or excluded) and the ability to enforce an award in any of
the 150+ countries which are parties to the 1958 United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards (the New
York Convention).
The point is that it is worth the parties and their lawyers making sure that
their arbitration agreement is really workable, that the seat has been
identified and that a suitable set of arbitral rules has been properly referred
to - whether it be the Terms of the LMAA or other body which is correctly
identified. The parties should also give consideration whether they want to
retain or exclude rights of appeal to the courts and what express language
they need to include to achieve the desired result.
Where the cancellation clause does allow the shipyard to take permissible
delay into account, a dispute over the buyer’s right to cancel is likely to
involve one or both of the following questions:
• Is the delay is really within the strict terms of the permissible delay
definition and has any relevant prescribed notification has been
given by the shipyard?
• Has the delay alleged actually been caused by the permissible delay
or by something else.
A third type of clause dealing with delay is found in many contracts This
seeks to give the buyer greater control over the construction process in the
form of a right of cancellation if the keel has not been laid or another major
milestone reached by a given date or, more generally, if progress on the
construction of the ship is halted for a given period. Failure to meet such
interim dates may give the buyer a warning that the ship will not finally be
tendered by the scheduled delivery date and an opportunity to take
action without having to wait until the scheduled delivery date before
giving notice of cancellation.
The last provision I would draw attention to in connection with delays is the
right contained in some contracts for the shipyard to put the buyer to an
election as to the exercise of its right of cancellation. That is, if the buyer is
entitled to exercise a right of cancellation but simply does not do so,
leaving the shipyard in the dark as to the buyer’s intention, the shipyard can
give notice to the buyer nominating an alternative delivery date and
forcing the buyer either to accept the later date as a substitute contractual
date, or to exercise its right of cancellation.4 In principle, this provision could
provide the shipyard in delay with an opportunity to avoid an uncertain
situation, but it effectively requires the shipyard to admit that the buyer has
an accrued right of cancellation, something which shipyards in this situation
have been understandably reluctant to do.
Where a buyer has been equivocal in its dealings with a shipyard in a case
where a right of cancellation may have arisen, the shipyard may allege
that the buyer’s conduct amounts to a promissory estoppel, namely that
the buyer has made an express or implied representation to the effect that
it will not exercise the right and that the shipyard has acted on such
representation to its detriment. The decision on such arguments will of
course depend on the arbitrators’ evaluation of the facts in each case.
In English law, shipbuilding contracts are “contracts for the sale of goods by
description” within section 13 of the Sale of Goods Act 1979. This imports a
condition that the goods tendered will correspond with the description. The
description is partly contained in the shipbuilding contract (particularly
details as to main dimensions, speed, deadweight, draught, fuel
consumption etc) but most of the description will be in the specification
and plans. The buyer will monitor the progress of construction through its site
supervisors but does not normally take contractual responsibility for the
compliance of the finished product with the contractual description. The
contract will invariably contain provisions for liquidated damages to be
paid (often by way of a reduction of the price on delivery) for deficiencies
in designated aspects of the description - notably speed, deadweight and
fuel consumption – and provision for the buyer to have the right to cancel if
the specified parameters are not met by more than a particular margin. So
much is relatively clear. The question however often arises whether the
buyer may cancel the contract for a failure to comply with section 13 of the
Sale of Goods Act or otherwise if the ship on delivery does not meet other
aspects of the contract description, for example if the ship is subject to
vibration above the specified level.
This question came for decision recently in the widely reported case of
Stocznia Gdynia SA v Gearbulk Holdings Ltd (an appeal which, incidentally,
fully upheld the decision of the sole arbitrator). The case involved identical
shipbuilding contracts for three ships. The contracts included provisions
entitling the buyer to terminate the contracts if the delay in delivery of a
particular ship extended beyond a given cancelling date. In the event of
termination, the buyer had the right to receive repayment of the
instalments of the contract price already paid plus interest, which was
guaranteed by a third party refund guarantee. The contracts also included
a provision that the shipyard should “not be liable for any other
compensation for damages sustained by reason of delay”. The buyer
terminated each of the contracts for delay and claimed payment under
the refund guarantees. The buyer however also claimed damages against
the shipyard for repudiatory breach of contract by reason of the delay.
The arbitrator held that the yard had repudiated the contracts, that the
terms of the contracts did not preclude the buyer from treating the
contracts as discharged for repudiatory breach nor from recovering
damages for loss of bargain and that the termination letters did not have
the effect of affirming the contracts and therefore abandoning common
law rights. The shipyard appealed. The judge at first instance found that
there was a repudiatory breach of contract but that the buyer was
precluded from claiming damages at common law by virtue of it having
effectively affirmed the contract and recovered monies together with
interest from the refund guarantor in accordance with the provisions of the
contracts. The Court of Appeal restored the decision of the arbitrator.
“Whenever one party to a contact is given the right to terminate it in the event of a
breach by the other, it is necessary to examine carefully what the parties were intending to
achieve and in particular what importance they intended to attach to the underlying
obligation and the nature of the breach. The answer will turn on the language of the
clause in question understood in the context of the contract as a whole and its
commercial background……
The primary purpose of [Article 10] in the present case is to provide an agreed measure of
compensation for breaches of contract by way of delay in delivery and deficiencies in
capacity and performance which, although important, do not go to the root of the
contract. For these the parties have agreed the payment of liquidated damages which
are to be deducted from the final instalment of the price and to that extent their
agreement displaces the general law, at least as regards the measure of damages
recoverable for a breach of that kind. However they have also agreed that there comes a
point at which the delay or deficiency is so serious that it should entitle [the buyer] to
terminate the contract. In my view they must be taken to have agreed that at that point
the breach is to be treated as going to the root of the contract. In those circumstances the
right to terminate the contract cannot sensibly be understood as anything other than
embodying the parties’ agreement that [the buyer] has the right to treat the contract as
repudiated with…the usual consequences….In my view it is wrong to treat the right to
terminate in accordance with the terms of the contract as different in substance from the
right to treat the contract as discharged by reason of repudiation at common law. In those
cases where the contract gives a right of termination they are in effect one and the same.”
A final point to note on this case is that the court found that the termination
of the contract under the specific termination provision was capable of
operating as an acceptance of the repudiatory breach, even though it
was not expressed in those terms:
The English Courts have long recognised and assisted foreign receivers or
other duly appointed insolvency officials from other jurisdictions at Common
Law as mentioned in Galbraith v. Grimshaw9; indeed S. 426 of the
Insolvency Act 1986 gave specific recognition in that respect to a number
of former Commonwealth countries. The CBIR however goes much further
and enables the English High Court to assist foreign receivers and other
insolvency officials from any jurisdiction.
Enforcement
• If the bank or other institution issuing the refund guarantee has assets
primarily or exclusively in the same jurisdiction as the shipyard,
enforcement proceedings may need to be taken against the issuer in
that jurisdiction and issues such as exchange controls may need to
be taken into account. Whilst this is not a question of the
enforcement of an award as such, the award against the shipyard
and its recognition will undoubtedly be an issue in obtaining payment
under the refund guarantee.
The position of the shipyard seeking to enforce an award against a buyer
will be different, depending of course on the location of assets of the buyer
or a guarantor against which enforcement may be sought. The easiest
course may be to arrest a ship owned or controlled by the buyer but, unless
the buyer is itself the owner of the relevant ship, it will be necessary to
consider the local laws regarding “sistership” arrests in the jurisdiction where
enforcement is sought. Again too, creditor/debtor protection laws in the
state where the central management of the shipowning group is located
may have an impact on the ability of the shipyard to enforce the award in
its favour.
1
[2009] Lloyd’s Rep 461
2
The Rules of Maritime Arbitration of the Japan Shipping Exchange Inc. These are set out in Curtis
nd
The Law of Shipbuilding Contracts 2 ed. at Appendix E, p327 ff
3
This right is not included in the SAJ form: see Article VIII.
4
SAJ form Article VIII.4.
5
Reardon Smith Line Ltd v. Yngvar Hansen-Tangen, The “Diana Prosperity” [1976] 2 Lloyds’s Rep. 621
6
Moore-Bick LJ at para 44
7
SI 2006/1030
8
Samsun Logix Corporation v DEF [2009] EWCH 576 Ch
9
[1910] 1 KB 339,
PART B
Ship Finance – A changing environment
Alun Hatfield
Ship Finance -
A Changing Environment
Disclaimer
THIS PRESENTATION IS CONFIDENTIAL AND IS SOLELY FOR THE USE OF THE RECEPIENT . NEITHER THE WHOLE NOR ANY PART OF THE
INFORMATION CONTAINED IN THE PRESENTATION MAY BE DISCLOSED TO, OR USED OR RELIED UPON BY, ANY OTHER PERSON OR USED
FOR ANY OTHER PURPOSE WITHOUT THE PRIOR WRITTEN CONSENT OF H. CLARKSON & CO. LTD (CLARKSONS).
THE INFORMATION CONTAINED IN THE PRESENTATION, AND UPON WHICH THE PRESENTATION IS BASED, HAS BEEN DERIVED FROM
PUBLICLY AVAILABLE INFORMATION. NONE OF THE INFORMATION ON WHICH THE PRESENTATION IS BASED HAS BEEN INDEPENDENTLY
VERIFIED BY ANY MEMBER OF CLARKSONS NOR ANY OF ITS CONNECTED PERSONS. ACCORDINGLY, NO MEMBER OF CLARKSONS NOR ANY
OF ITS CONNECTED PERSONS MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OF
THE INFORMATION CONTAINED IN THE PRESENTATION, OR ON WHICH THE PRESENTATION IS BASED, OR THAT THIS INFORMATION
REMAINS UNCHANGED AFTER THE ISSUE OF THE PRESENTATION.
THE PRESENTATION IS NOT TO BE CONSTRUED AS CARRYING THE ENDORSEMENT OF CLARKSONS OR ANY OF ITS CONNECTED PERSONS.
CONSEQUENTLY, NEITHER CLARKSONS NOR ANY OF ITS CONNECTED PERSONS CAN BE HELD LIABLE TO ANY PERSON TO WHOM
INFORMATION DERIVED FROM THE PRESENTATION IS MADE AVAILABLE FOR THE ACCURACY OF THE INFORMATION CONTAINED IN IT.
THE PRESENTATION IS NOT INTENDED TO R ECOMMEND ANY STRATEGIC DECISION BY THE COMPANY AND SHOULD NOT BE CONSIDERED
AS A RECOMMENDATION SUPPORTING ANY OF THE OPTIONS DISCUSSED HEREIN BYANY MEMBER OF CLARKSONS OR ANY OF ITS
CONNECTED PERSONS TO ANY RECIPIENT OF THE INFORMATION. EACH PERSON TO WHOM THE INFORMATION IS MADE AVAILABLE MUST
MAKE THEIR OWN INDEPENDENT ASSESSMENT OF THE OPTIONS AVAILABLE.
NOTHING IN THE PRESENTATION IS, OR SHOULD BE RELIED UPON AS, A PROMISE OR REPRESENTATION AS TO THE FUTURE.
IN THIS NOTICE, ‘CONNECTED PERSONS’ MEANS, IN RELATION TO CLARKSONS, ITS HOLDING COMPANY, THE SHAREHOLDERS,
SUBSIDIARIES AND SUBSIDIARY UNDERTAKINGS OF ITS HOLDING COMPANY AND THE RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS OF EACH OF THEM
1
London Shipping Law Centre - Maritime Business Forum
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Source : Dealogic
28th April 2010
www.clarksons.com
2
London Shipping Law Centre - Maritime Business Forum
Source : Dealogic
28th April 2010
www.clarksons.com
Source : Dealogic
28th April 2010
www.clarksons.com
3
London Shipping Law Centre - Maritime Business Forum
Source : Dealogic
28th April 2010
www.clarksons.com
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28th April 2010
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London Shipping Law Centre - Maritime Business Forum
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Potential Problems
Ahead
Value & Finance Gap
5
London Shipping Law Centre - Maritime Business Forum
Clarksea Index
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a a a a a a a a a a a a a
J J J J J J J J J J J J J
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6
London Shipping Law Centre - Maritime Business Forum
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p
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Total Current
Delivery Total no of contracted Market Contracts Finance
year contracts value Value with FG Gap
2015 1 132 72 1 63
7
London Shipping Law Centre - Maritime Business Forum
No of
Total no Total Current contracts % of
Delivery of contracted Market with Value Value contracts
year contracts value Value Gap Gap with VG
No of
Total no Total Current contracts % of
Delivery of contracted Market with Value Value contracts
year contracts value Value Gap Gap with VG
8
London Shipping Law Centre - Maritime Business Forum
No of
Total no Total Current contracts % of
Delivery of contracted Market with contracts
year contracts value Value Value Gap Value Gap with VG
9
London Shipping Law Centre - Maritime Business Forum
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London Shipping Law Centre - Maritime Business Forum
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Conclusions
.
11