SIGNIFICANT DEVELOPMENTS IN SHIPBUILDING DISPUTES WITHIN LONDON ARBITRATION

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1 SIGNIFICANT DEVELOPMENTS IN SHIPBUILDING DISPUTES WITHIN LONDON ARBITRATION Oliver Weiss, Ince & Co London The title of this paper could be amended to advantage to include the words historical perspective as befits the anniversary of the London Maritime Arbitrators Association first 50 years of existence in This year sees, in a somewhat clearer light, the fallout in the shipbuilding industry from the collapse of freight rates which coincided with the financial collapse or credit crunch of The shipbuilding boom that started in the early part of the millennium came to a stop in 2008 when freight rates for all tonnage collapsed. Shipbuilding problems therefore multiplied but interestingly have not resulted in a mass of reported decisions in the English Courts or in London Arbitration. There are indeed very few. This may be due to the excellent legal advice provided by London maritime lawyers as to the current state of English law, and their prediction of any outcome before London arbitrators or more prosaically but no doubt as effective the prospect of liability for legal costs if the outcome of a heavy London arbitration can be reasonably foreseen. The situation we face today is analogous to that of almost a century ago. The silence of World War I in November 1918 saw the world s merchant fleet of which the largest component was then the British Flag in need of renewal. There were a large number of shipbuilding contracts that had been signed during the conflict as well as contracts signed immediately afterwards to replace lost tonnage. This resulted in the all too familiar shipbuilding boom, over capacity, a collapse in freight rates coupled with a downturn in economic activity leading to a substantial number of reported decisions that would be easily recognised by today s practitioners. A few examples:- A shipbuilding contract was signed on 6 March 1913 for a cargo vessel to be completed by 30 January 1915 in the case of New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France [1919] AC1. However the delivery date although delayed was still caught by an unpreventable cause beyond control of builders and furthermore France was engaged in a European war which their Lordships pointed out was still continuing at the time of the hearing. New Zealand Shipping wanted the ship despite the delays. The yard claimed that the contract had become void, and the umpire agreed that the contract was null and void. This case reached the House of Lords through the former Special Case procedure. The House of Lords upheld the umpire. In Adams Bros v Blythswood Shipbuilding Company [1922] 10 LL.Rep. 302 is an example of the buyers of a tanker built in Glasgow no longer needing the ship contracted for. Buyers defaulted on the instalment and Blythwood exercised their right to take the ship and sell it as their own. Buyers, however, assigned the shipbuilding contract to Adam Brothers. Adam Brothers were claiming the return of a 40,000 instalment or an account for the price of the ship. The Judge did not allow the claim for 40,000 but left open the question of an account until further information as to the sale of the ship was produced. 1

2 In Northumberland Shipbuilding v Christensen [1923] 14 LL.Rep. 366 & 378 the shipbuilder was claiming 97,000 as the final instalment on the building of Modum, otherwise known as 242. The dispute is interesting on a number of fronts. Northumberland Shipbuilding Company were builders at Howdon-on-Tyne. Mr Christensen was a Norwegian shipowner from Christiania who contracted for a cargo vessel with a contract dated 8 August By the time the vessel was nearing completion in August 1920 the freight market for cargo vessels was beginning to fall. Mr Christensen decided that the vessel should be converted to a tanker. The conversion involved a longitudinal bulkhead which divided the oil carrying areas into two and with a number of tanks. The problem was that the longitudinal bulkhead was not oil tight and there was therefore a slight risk of contamination between tanks. The conversion from a cargo vessel to a tank vessel was carried out by Smith s Dock, Middlesbrough and once the conversion was completed the vessel would then be taken back to Wallsend to have her engines fitted. The report also specifies at page 337:- In the year 1921 a most sensational slump in shipping values had taken place. The cost of the vessel was about 300,000 when she was ordered to be built, but by the middle of 1921 she would be worth somewhere about 75,000. That was the whole key of this case. The defendant had tried but was not entitled to get out of his contractual liabilities. Per Mr WA Jowitt KC. It looks from the report that the defects were minor but no doubt the absence of a written contract for the conversion of the vessel into a tanker probably hindered the yard in the recovery of their 97,000. The matter was heard over two days in February 1923 and then adjourned. When the matter came back before the Court on 2 March 1923 before Mr Justice Salter the parties had reached a settlement such that the claim for the balance of price of 97,000 and the counterclaim in damages fell away. The settlement mentioned to the Court was that the Modum was to remain the property of the builders, that they would sell her at their discretion at a suitable time, and if able to achieve anything above a certain figure, the proceeds above that figure were to be shared equally between the parties. Leading Counsel then graciously withdrew any imputation that Mr Christensen and Norwegian Bureau Veritas were colluding. He also withdrew any suggestion that Mr Christensen took the course he did in rejecting the ship due to the fact that the market had unfortunately gone against him. Leading Counsel suggested that there had been a perfectly genuine misunderstanding and neither the yard nor the buyer had been influenced by market considerations. The above cases are simply a small sample of the numbers in the law reports from the early 1920s but they sound all too familiar given the situation today. Against that historical background there are some disputes that have not been seen in this downturn. It seems that disputes relating to patents, commissions paid to brokers on newbuildings, and quality of build have not been the burning issues in this crisis. However, disputes arising from yard insolvencies, delays and the poor drafting of the financial models put in place would be familiar to our forefathers in the 1920s and have indeed given rise to significant developments. 2

3 As always the parties are free to negotiate whatever terms they want in their shipbuilding contract. At this stage there are two issues worth highlighting. Firstly where the two parties, builder and buyer, agree that title should pass to the buyer on the completion of certain defined milestones. This is the case where the construction is for a bespoke purpose and is still frequent in both the offshore oil industry or indeed the cruise and ferry business. On the yard s insolvency the vessel under construction will not form part of the liquidator s problems. The second distinction is where the buyer only takes title to the ship on delivery but of course in order to finance the construction instalments will have been made and with no doubt a balloon payment on delivery. In that case the buyer and, more importantly, the buyer s financing bank will want to see a first class bank guarantee put in place by the builder in order to secure the refund of those instalments in the event of the yard s breach of contract which usually means excessive delay or the builder s collapse. Refund guarantees The position is best illustrated by the decision in the Commercial Court in Rainy Sky v Kookmin Bank [2009] All ER (D) 78. This is a decision of Mr Justice Simon on 29 October The dispute is proceeding to arbitration in London but on different issues to those referred to in the judgment. It is illustrative of many cases that have been dealt with in London under shipbuilding contracts where refund guarantees have been invoked. However Mr Justice Simon has given leave to the bank to appeal so we can look forward to a decision from the Court of Appeal. In Rainy Sky the builder under 6 shipbuilding contracts procured guarantees from a first class Korean bank acceptable to the buyer s financier to repay the buyer s instalments to the financiers on certain given events. The builder therefore procured a guarantee headed Advance Payment Bond. Article 12 of the Shipbuilding Contract dealt with the builder s default where the yard became, in effect, insolvent. In late January 2009 the Korean builder became subject to a debt workout procedure under the Korean Corporate Restructuring Promotion Law This triggered a default entitling the buyer to the repayment under the Advance Payment Bond. The Court was asked to decide if the Bond in fact covered the repayment of instalments and whether repayment could take place regardless of any underlying dispute under the shipbuilding contract. Mr Justice Simon made it clear that the Advance Payment Bond or Refund Guarantee was exactly that, a refund. Any other construction would make, absent of course fraud, a nonsense of the concept of a Refund Guarantee. It is clear that any refund claim is treated in a similar way to payment triggered under a letter of credit. The claimant, if he brings himself within the exact words of the guarantee, will then be paid. It is not for the guaranteeing bank to challenge or check any other issues. A recent case along the same lines is that of Gold Coast Ltd v Caja de Ahorros [2002] 2LL. Rep 617. In that case the banks behind the refund guarantees were seeking to avoid payment until such time as the arbitration between the yard and the buyer was resolved. The Court of Appeal held that the refund guarantee had its 3

4 own terms of reference and was not subject to the arbitration clause of the shipbuilding contract. A recent decision of a London arbitration panel has awarded Glenda, a joint venture between D Amico International Shipping SA and the Glencore Group, refunds in respect of the termination of newbuilding contracts relating to three product/chemical tankers contracted with SLS Shipbuilding Co Ltd of Korea. The Tribunal (the same in each dispute) found that the contracts were lawfully cancelled by Glenda and that therefore Glenda was entitled immediately to the repayment of all instalments paid, amounting to US$82,620,000 plus interest at 3% until payment. A payment will be made under the Refund Guarantees which had been provided for these contracts by Kookmin Bank. This is the same bank as in the case referred to above of Rainy Sky. The dispute seems no different from many others whereby Refund Guarantees are triggered by the lawful cancellation of the shipbuilding contract. Refund Guarantee and Damages The judgment of the Court of Appeal in Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] 1LL REP 461 is interesting in that it restores, and therefore agrees, with the arbitrator s award. Arbitrators do not, of course, always get it right. However, when their rulings are endorsed by the Court of Appeal having been overturned by a first instance Judge then it does show that the process works. The facts were that three shipbuilding contacts were breached when the Polish yard failed to deliver on time. The buyers terminated the contracts and claimed under the Refund Guarantees for instalments paid. However, in addition the buyers claimed damages for loss of their bargain. The arbitrator in his first final award held that the yard was both unable and unwilling to perform and was therefore in repudiation of contract. He further held that the buyers were not excluded by the contract from claiming damages. The exclusion provision in the contract (Article 10) provided as follows:- It is however further expressly understood and agreed upon by the Parties hereto that, if the Purchaser terminates this contract under this article, the Purchaser shall not be entitled to any liquidated damages under articles. The arbitrator therefore allowed Gearbulk to claim damages for loss of bargain as well as claiming the refund of instalments paid. The award was appealed and the Judge substituted the following declaration in his judgment:- Gearbulk Holding Ltd is precluded from claiming damages at common law for the repudiation of the three contracts by virtue of it having affirmed them and recovered monies together with interest from the Refund Guarantor in accordance with the provisions of the contracts. It was a troubling concept for the shipping industry as a whole if claiming under Refund Guarantees meant the affirmation of the shipbuilding contract. 4

5 In the Court of Appeal Lord Justice Moore-Bick stated:- Whenever one party to a contract 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. Article 10 did not go to the root of the contract but was limited to damages for delay in delivery, deficiencies, incapacity and performance. Gearbulk were therefore entitled to claim damages for loss of bargain. Resales Throughout most of the first decade of this millennium newbuilding prices rose at an alarming rate. Shipowners that had secured shipbuilding contracts in the earlier part of the decade stood to make handsome profits on the resale of their contracts either ahead of or during construction. The case of Inta Navigation v Ranch Investment [2009] 1 LL Rep 74 where Mr Justice Teare overturned an award by an experienced London Tribunal, is a good example. The case involved the resale of two crude oil tankers to be built by Hyundai, Hull No S271 and Hull No S272. These 159,000 DWT crude oil tankers had been contracted by Geden, the Turkish Group. Hull S271 was contracted for US$48,500,000 on 29 December Geden sold it to Wah Kwong of Hong Kong for US$70,500,000 on 26 November Wah Kwong then sold to Centrofin of Greece on 15 December 2005 for US$80,500,000. These sales of Hull S271 were under Norwegian Sale Form terms. However in each sale there was an option of First Refusal in the event that Geden sold Hull No S272. This was Clause 25 where Geden had to provide evidence of the sale recap or other document constituting the sale. If the option was exercised then Centrofin was to offer an extra US$1 over Geden s sale price. Within a week of the resale to Centrofin Geden advised that Hull No S272 was sold to Marmaras Navigation of Greece on novation terms for US$80,500,000 on 21 December Novation means that buyers step into the sellers shoes and take over the supervision of the construction. The yard must approve the novations. Sale on Norwegian Sale Form terms means that there will be an MOA with delivery concurrent with that from the yard. Naturally the money flow in each case is different and so is the price. It was assessed by expert evidence in this case that the difference in price between novation and Norwegian Sale Form terms was between US$2.5 and US$3 million. This sum representing the costs to buyers of supervising the construction at Hyundai. Novation or Norwegian Sale Form is a matter entirely for the sellers. There were then a number of exchanges in January Centrofin considered that they had a contract for Hull S272 under their Clause 25 option of First Refusal. In other words US$80,500,001 was the price under the option. Centrofin then placed the sellers on notice that sellers were not abiding by the terms of Clause 25 and were therefore in repudiatory breach. In mitigation of their loss Centrofin offered to match Geden s revised best price of US$81 million for Hull S272 by increasing the price by US$1. 5

6 Hyundai consistently refused to approve novation terms for buyers. On 27 January 2006 Geden again advised that it had sold Hull No S272 for US$82,800,000 on Geden usual MOA terms with logical amendments. Centrofin was not going to bid against itself and commenced arbitration. The Tribunal held in its award that there had been a binding contract on 9 January under the option on the basis of the MOA terms of Hull S271. Novation was not part of those terms and so there was no question of the yard approving the novation for Hull S272. The damages awarded were the difference between the Centrofin contract price of US$81,000,001 of January 2006 and the Suezmax market price which the Tribunal found to be US$83,250,000 at that time. Centrofin were therefore awarded the sum of US$2,249,999 up the chain to Geden. It was therefore this award which Mr Justice Teare overturned in his judgment. In brief, he found that any sale by Geden to a third party had to be matched under the First Refusal (Clause 25) on the same contractual basis. The arbitrators had felt constrained, so stated the Court, to give effect to Clause 25 under rules of construction that prevented them giving business efficacy to the clause. Mr Justice Teare has therefore restated the approach which London panels should now take to the interpretation of contracts. These seem to be that the well known phrase of giving business efficacy to a contract must lead to considerations of the commercial reasonableness of the contract. One detects the hand of Lord Hoffman in all this but the effect of the option as per the judgment is that buyers purchase on terms over which they have no say! This led Mr Justice Teare throughout his judgment to stress that the meaning which Clause 25 read as a whole, against the relevant background, would reasonably be understood to have. These words are mentioned on more than one occasion. In the end the wording of Clause 25 is probably the cause of this unfortunate litigation. Another example of the resale of shipbuilding contracts is to be found in the judgment of Mr Justice Burton in CMA-CGM SA v Hyundai Mipo Dockyard [2009] 1 Lloyds s Rep 213. In that case four shipbuilding contracts were entered into between German buyers ER Schiffahrt GmbH and Hyundai Mipo Dockyard (HMD). The contracts were later sold to the claimants CMA-CGM but HMD refused to agree to a novation. CMA-CGM issued proceedings in Marseille against HMD pursuant to Article 1382 of the French Civil Code. The claim was probably akin to the English concept of tortious interference but the allegation was that HMD had been unreasonable in failing to consent to the transfer of ERS rights under the shipbuilding contract to CMA-CGM. The consequence of the proceedings was that the parties then entered into four Novation Agreements but only to take effect after the construction work was completed at a given Transfer Date. This was in effect the delivery date by the yard to the new Buyers, CMA-CGM. However, CMA-CGM did not discontinue the Marseille proceedings and obtained a judgment. HMD paid US$3,682, together with 10, on 2 March 2007 in satisfaction of the judgment. Given that the parties had entered into these four Novation Agreements, HMD commenced London arbitration to recover the sums which it had paid out. The arbitrators in a robust award found in favour of HMD. It was in the appeal from that award that Mr Justice Burton 6

7 had to consider two legal questions which as formulated by CMA-CGM were as follows:- 1. Whether the Arbitration Clause in the novated shipbuilding contracts apply to the pre-existing dispute between CMA-CGM and HMD which has already been referred to the French Court and was pending before it at the time of novation. 2. If so whether the arbitrators were bound by the French Court s determination of the same issues between the same parties in a judgment which the English Courts would be bound to recognise pursuant to the Council Regulation (EC No 44/2001) of jurisdiction and the recognition and the enforcement of judgments in civil and commercial matters. Mr Justice Burton appears to have had little difficulty in answering both questions. CMA-CGM in signing up to the Novation Agreement also took on by virtue of the novation the position of ERS under the shipbuilding contracts. The Arbitration Clause therefore applied to them in respect of the dispute which they (CMA-CGM) had referred to the French Court. CMA-CGM maintained that their claim before the Court in Marseille was not capable of arbitration and they displayed all the panoply of reasoned argument. Unfortunately the arguments did not find favour either with the Arbitration Tribunal or Mr Justice Burton. The Judge stated:- The Novation Agreements are not self standing, they simply re-people the original contracts, leaving their provisions (including their dates) unchanged. Mr Justice Burton also relied on Lord Hoffman s statement in the Fiona Trust v Privalov [2008] 1 LL. Rep 254 indicated at page 257:- In my opinion the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they had entered, or purported to enter, to be decided by the same tribunal. The Arbitration Clause in the shipbuilding contracts applied to all disputes including that which had been referred to the Marseille Court. The judgment then proceeds to answer the question as to whether the arbitrators were bound by the terms of the judgment in Marseille or at least had to recognise that judgment. The judge indicated at para 40:- The arbitrators expressed the concern.. that, if the French judgment were entitled to recognition under the Judgments Regulation, it might be that following the obvious course would be regarded as an unacceptable circumvention of the principles underlying the regulation, which encouraged them not to resolve the point, particularly as they did not need to, and in the absence of argument. I conclude that this is no more of a circumvention of the Judgments Regulation than would be an injunction to restrain the continuation of proceedings in a foreign court by injunction prior to its reaching a judgment. This is not a question of not recognising a judgment, but 7

8 concluding that, as the parties were obliged to go to arbitration, it is only the outcome of arbitration which is of any relevance. And further in his judgment he concludes:- It is plainly right that, if the Judgments Regulation does not apply to an Arbitration Tribunal, then Arbitration Tribunals are not obliged to recognise foreign judgments, even if UK Courts are so obliged, and to that extent the Arbitrators were right not to be persuaded by the beguiling argument that Arbitrators are applying English law, and if English law requires recognition of a foreign judgment then the Arbitrators must recognise the foreign judgment. Mr Justice Burton therefore endorsed what the London arbitration tribunal had found in its award. This was that the dispute was arbitral and the EC Judgments Regulation had no bearing on the dispute. This decade The downturn in shipbuilding activity is forcing rationalisation amongst yards in the Far East. I do not rule out disputes arising from that, although they will probably not involve London. I can envisage situations such as arose with the building of Modum in A hull is completed at one yard, converted at another, and then fitted out at a third, and still the buyer disputes delivery. If different yards are tasked with different stages of construction then quality disputes will no doubt appear. Issues of design will probably concern the usual bug bears of vibrations, consumption and speed. I suspect that issues of quality will also be affected by computer faults as automation increases. These are all likely to be seen within this decade as the market for newbuildings stabilises at a more regular pace. Above all finance will remain the main concern for both owners and yards. Again we are seeing, just as in the Modum where the yard remained the owner of the ship, similar situations. Yards are taking mortgages over vessels where the owner, having paid construction instalments, refuses to pay or is simply unable to obtain finance to pay the balloon payment. The yard, as mortgagee, is likely to be in unfamiliar territory with widely different interest compared to those of a bank mortgagee. In addition, the yard is likely to be forced to take a heavily subordinated position to the bank s mortgage securing the instalments already paid. In these circumstances yards should perhaps be advised to consider negotiating convertibility of their continuing debt into equity. This will compensate them for their extended risk in the event of any subsequent recovery in the market for second hand tonnage. I hope that the matters I have referred to in this paper show that London arbitration is robust and in good health despite the perennial gripe about costs and the slowness of the process. Costs will always be an issue but that might be the subject of another paper. However, the slowness of the process is largely due to the fact that neither party has an interest in speed. Where there is urgency London arbitration can be as fast as the parties require. I would also like to suggest that panels on the whole get it right more often than getting it wrong, such that London lawyers are still able to advise clients with a degree of certainty. 8

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