Публикация посвящена определению суммы убытков, которые может потерпеть судовладелец или фрахтователь в результате досрочного прекращения тайм-чартера по причине потери рынка, причем рассматриваются свежие английские прецеденты. В частности, исследуется ситуация восстанавливающегося и долгосрочного рынка в английском праве.
The normal measure of damages that a shipowner or charterer can hope to recover in the event of early repudiation of a time charter, as set out in The Elena D’Amico ([1980] 1 Lloyd’s Rep. 75), is assessed by reference to the difference between the rate agreed in the charter and the market rate for a reasonably similar fixture at the time of the repudiation. Implicit in that assessment is that the wronged party has mitigated its loss and that there is a causative link between the repudiatory breach and the loss suffered. Such an approach draws a line under the matter and promotes certainty of result.
However, if there is no available market at the time of repudiation, another method of assessment is clearly required. Arguably closer to the contractual requirement that damages should compensate the victim of a breach of contract for the loss of his contractual bargain, the compensatory principle seen in The Griparion (No. 2) ([1994] 1 Lloyd’s Rep. 533) fills this gap. Here, the focus is on the actual loss suffered, rather than on the deemed loss by reference to market rates.
Subsequent cases have sought to add nuance to the two contrasting mechanisms for the assessment of damages. For example, in The Golden Victory ([2007] 2 Lloyd’s Rep. 164), in which the relevant charterparty contained a provision permitting the termination of the charter in the event of war breaking out between certain countries, it was held that supervening events such as the commencement of the Second Gulf War subsequent to the termination of the charter, but prior to the end of the contractual charter term, could be taken into account when assessing damages. Thus, on the basis that no performance under the charter would have been required after war broke out (as the charterparty would in all probability have been terminated), the owners were unable to recover damages in respect of the period after that point.
However, the extent to which supervening events can and should be taken into account was called into question in the recent case of The Wren ([2011] EWHC 1819 (Comm)). The vessel was chartered for a minimum of 36 months. As a result of the collapse in the market in the wake of the 2008 financial crisis, the charterparty was terminated in November 2008. At the time of termination, there was no available market for a period charter of a duration that corresponded to the balance of the charterparty. Eight months later, in July 2009, an available long-term charter market for the equivalent of the unexpired period of the charter emerged.
The question therefore arose as to the correct measure of damages to be awarded. In arbitration, the owners claimed damages based on their actual losses up to the date when the available long-term market emerged and, thereafter, by reference to the market rate. The arbitrators agreed with this approach. The charterers appealed the award, objecting to the “windfall” profit that the owners would make as a result and pointing to the lack of any case authority to support such an approach.
Taking into account another recent case, Zodiac Maritime Agencies Ltd v Fortescue Metals Group Ltd ([2010] EWHC 903 (Comm)), the Court inThe Wren reversed the arbitrators’ ruling, holding that it would constitute a departure from the principle that the owners were entitled to damages such as would put them in the same financial position as if the contract had been performed if an assessment of damages was made by reference to a late-emerging market, rather than by reference to the owners’ actual losses. Further, while it was also held that “the revival of the market at a later date may be a factor to take into account in calculating future loss”, that revival is quite unrelated to the position at the time of termination and is thus an arbitrary and potentially unfair point at which to fix the level of remaining damages.
While we understand the judgment to be under appeal, The Wren, even as it currently stands, provides a useful summary of the English law position in relation to the complex issue of the damages awardable for repudiatory breach of charter where there is no available market at the date of termination, but such a market revives at a later date.
Автор: Matthew Davey, Associate, on +44 (0)20 7264 8571 or matthew.davey@hfw.com, or your usual contact at HFW.