В статье исследуется дело BP Oil International Ltd v. Target Shipping Ltd (The Target) [2012] EWHC 1590 (Comm), в котором истец пытался взыскать с ответчика сумму якобы уплаченного по ошибке фрахта с учетом превышения массы груза, указанного в расчете базисной ставки фрахта. Английский суд решил, что истец имеет право на возмещение сумм, уплаченных сверх разумной суммы.
BP sought repayment of transatlantic overage freight alleged to have been paid by a mistake of their demurrage department. The dispute was as to the cargo quantities for which overage freight (freight on the cargo loaded in excess of the minimum charter quantity) was payable. The owners contended that they
were entitled to full transatlantic overage freight on all of the cargo carried in excess of the minimum quantity. The charterers contended that, on a proper interpretation of the charterparty terms, they were not liable for any overage freight. The Commercial Court concluded that there was no agreement
between the parties as to the amount of overage freight payable for the voyage and that, in these circumstances, a reasonable amount of overage freight was payable. On the facts, BP was entitled to claim repayment of the sum paid in excess of what was reasonable as the payment was made by mistake and not to close the transaction.
The background facts
The charter recap, which incorporated the BPVoy 4 Form with various additions and amendments, provided for a minimum cargo of 80,000mts of fuel oil. The freight rate was to be a lump sum for Singapore discharge or calculated on various different Worldscale percentages for other discharge ports. There was also a provision that overage freight was “50% applicable for Euromed discharge only”, which had been agreed when the only discharge options were Singapore and the European Mediterranean. Subsequently,BP had requested and the parties agreed additional discharge options in the USG and USAC. The vessel loaded a cargo of fuel oil at Odessa first and then, on the charterers’ instructions, at Marmara. The cargo was discharged at Galveston and Houston. The owners’ invoice of US$3,651,215 was calculated on the basis freight was payable on the total cargo loaded (86,821.957 MT at Odessa and 26,021.543 at Marmara). After requesting that the invoice be revised to reflect a technical error on address commission, BP’s demurrage department had
authorised payment. The owners had calculated freight on the basis that 100% overage freight was payable, save where the Singapore lump sum applied or where discharge was within the Euromed range,where the rate had been agreed at 50%. Subsequently, BP contended that this was incorrect. Their primary case was that freight was payable only on the minimum cargo quantity of 80,000 MT (US$2,635,862), with overage freight (at 50%) being payable only for Euromed discharge and 0% for discharge elsewhere.
The Commercial Court decision
What rate of overage freight was payable? The judge, rejecting both parties’ contentions as to what was agreed to be payable, held that the court was not restricted to choosing between two interpretations both of which it considered wrong. He held that the parties did not make any relevant agreement and, in those circumstances, the owners were entitled to reasonable overage freight. This was on the basis of Section 15 of the Supply of Goods and Services Act
1982, which provides that: “Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract… there is an implied term that the party contracting with the supplier will pay a reasonable charge”. The judge held that this applied not only where no consideration had been agreed but also when one element of consideration contemplated by the parties has been agreed but another has not. Could the charterers recover any excess freight paid by mistake for which they were not liable? There is no general principle of English law that a party is entitled to recover money that he has paid when he was not obliged to do so. He must establish that his case falls within one of the recognised categories of recovery. A payment made by mistake is one such category but can only be relied upon in certain limited circumstances. The owners ran several arguments to counter BP’s claim for repayment on the grounds of mistake:
1. The parties reached a compromise agreement about the amount payable to BP in the course of exchanges about the owners’ invoice. This argument was based on the request by BP that the invoice be revised to account for an additional deduction for address commission and that, in consideration of that deduction, the parties agreed settlement on the basis of the revised invoice. The judge rejected this argument as he concluded that the exchanges about the invoice were no more than administrative procedures to correct a technical invoicing error and did not demonstrate an intention to resolve any dispute.
2. A paying party could not recover a payment made under a mistake if he was uncertain whether or not he was liable to pay but paid anyway. On this issue, it was held that mere passing doubt about whether there is liability in the mind of the payor or his “activatingagent” or “authorised persons” (in this case the demurrage department employees who authorised the payment) when considering what to do does not amount to doubt of the kind that precludes recovery. The situation would be different where the payor has persisting doubt when the decision to pay was taken and acted upon. In this case, however, neither BP’s demurrage negotiator nor senior demurrage negotiator (who cleared the invoice) had doubts of that or any relevant kind.
3. If the individual at BP Shipping, who was responsible for the charterparty (“F”), knew that if he did not object to the payment there was a risk it would be made, then his decision not to object was the cause of the payment, not the mistake. Here, the owners’ argument was essentially that BP “assumed the risk of error” because they did not have procedures to ensure that the demurrage department was aware of the views of BP Shipping’s Chartering Department on matters such as the charterparty provisions with regard to overage freight. The judge considered that, if F knew or suspected that BP would or might pay more to the owners than they would be liable to pay, did not object to it and decided not to prevent it, then it could not be said that BP had made a mistake. The judge accepted on the evidence, however, that it had not occurred to F that those responsible for checking the owners’ invoice might not interpret the recap as he had done or that they might authorise payment. He was confident that no overage freight was payable (wrongly confident as it subsequently transpired), that BP was not liable and would not be paying it.
Comment
On the facts of this case, BP was held to be entitled to recover such element of the overage freight as exceeded what was reasonable. It was crucial, however, both that those responsible for making the payment had not appreciated that there was an issue as to whether BP was liable for the full freight invoiced
and that the individual who was aware of the issue did not appreciate that payment would be made. If it had been otherwise, the outcome would almost certainly have been different and the case is a useful reminder that English law does not generally permit recovery where payment has been made in
the face of uncertainty as to liability.
Авторы: Fionna Gavin, Partner, London
fionna.gavin@incelaw.com
David Goldsmith, Solicitor, London
david.goldsmith@incelaw.com