Английское морское и коммерческое право

Юридические услуги, консультации

ДЕЛО THE UNTA

Уважаемые коллеги,

Прошедший год принес нам много волнений и забот. Ряд вызовов привел к тому, что реально работать с сайтом просто не было времени. Однако, этот год открыл нам новое и необычное в плане юридической работы. Я надеюсь, что в дальнейшем у меня будет возможность рассказать об интересных делах с моим участием в 2015 году. Действительно, два дела, случившиеся с одним моим клиентом одно за другим, надолго останутся в моей памяти из-за их нестандартности и большой роли случая в каждом из них.

Тем не менее, настоящей статьей (я надеюсь) я возобновляю прерванные серии публикаций о некоторых интересных судебных делах, находившихся в производстве английских судов. Сегодня это:

MITSUI OSK LINES LTD
V
SALGAOCAR MINING INDUSTRIES PVT LTD
(THEUNTA”)

В российском праве достаточно заформализировано все, что касается поручительства и гарантии… В приведенном деле гарантия была предусмотрена в тексте договора тайм чартера (на нее указывало одно предложение), но (на сколько понятно из текста протокола суда) никто ее в подписанном виде не видел, и в суд она не представлялась. Тем не менее, судья признал ее существование. Более того, в отсутствии текста гарантии трудно установить вопрос о ее подсудности и применимом праве. Судья, однако, решил что раз чартер партия подчиняется английскому праву, то и гарантия должна также ему подчиняться. В реальности, истцы пошли в ЛМАА арбитраж против фрахтователей, и, в Высокий Суд в Лондоне, против гарантов. Обратите внимание, как суд установил размер убытков судовладельца от досрочного расторжения договора тайм чартера.
Разумеется, рекомендую читателям ознакомиться со всем протоколом этого дела, приведенном внизу.

ОТДЕЛЕНИЕ КОРОЛЕВСКОЙ СКАМЬИ
(КОММЕРЧЕСКИЙ СУД)

[2015] EWHC 565 (Comm)
Судья Justice Eder

Тайм чартер – Гарантия – Судовладельцы требуют возмещения убытков от гаранта в следствие существенного нарушения чартера фрахтователем – Имеет ли гарантия исковую силу – Имели ли право брокеры заключать гарантию – Существует ли гарантия в письменном виде – Подписывалась ли гарантия гарантом – Нарушил ли гарант гарантию – Размер убытков – Закон об обманных действиях 1677, раздел 4

Charterparty (Time) – Guarantee – Owners claiming damages against guarantor following repudiatory breach by charterers – Whether guarantee enforceable – Whether brokers had authority to conclude guarantee – Whether guarantee in writing – Whether guarantee signed by guarantor – Whether guarantor in breach – Quantum of damages – Statute of Frauds 1677, section 4

Истец, судовладелец TX UNITA
, сдал его в долгосрочный тайм чартер компании Trustworth Shipping Pte Ltd. Судно было передано фрахтователю 18 августа 2009 года на срок 10 календарных лет, плюс минус три месяца в опционе фрахтователя. Чартер содержал арбитражную оговорку об английском праве и арбитраже в Лондоне. Истец заявлял что чартер гарантировался ответчиком компанией Salgaocar Mining Industries Pvt Ltd.

Истец утверждает, что Trustworth существенно нарушил чартер и что истец принял такое нарушение (акцептовал его) как противоправный отказ от контракта 23 января 2013 года. Истец требует возмещения убытков начиная с 23 января 2013 года по 19 мая 2019 года, путем вычисления разницы между ставкой чартера и существующей на 23 января 2013 года рыночной ставкой фрахта. Общая сумма убытков, с учетом некоторых уточнений, составила 14 121 341.84 долларов США. Истец требует эту сумму с ответчика на основании якобы существующей гарантии. В суд копия подписанной гарантии не представлена.

Ответчик не признал получение иска и не принимал участия в процессе.

Вопросы для рассмотрения судом:

(1) Договаривался ли ответчик с истцом гарантировать исполнение чартера компанией Trustworth?
(2) Отвечает ли гарантия положениям Закона о мошенничестве?
(3) Нарушил ли ответчик свои обязательства по гарантии?
(4) Каков размер исковых требований истца?
(5) Имел ли право истец заявлять о том, что английский суд обладает юрисдикцией над его иском к ответчику?

_____ Судья Eder J

(1) На основании представленных доказательств, брокеры, действующие от имени ответчика в вопросе гарантии, имели фактические полномочия от ответчика на это. В случае гарантии, гарант (surety) обещает кредитору отвечать перед ним за должное исполнение должником (principal) своих имеющихся обязательств, или обязательств которые возникнут в будущем перед кредитором, если должник не исполнит их…

(2) Гарантия отвечает требованиям раздела 4 Закона о мошенничестве 1677.Электронные сообщения между истцом и брокерами ответчика удовлетворяют требованиям закона о том, что соглашение должно быть в письменном виде. С большой вероятностью гарантия в письменном виде должна быть подписана, хотя ее копия в суд не может быть представлена (На всякий случай даем английский текст: “On balance of probability the written guarantee must have been signed even though a copy could not be produced to the court”) … МДА, ВЫВОД КОТОРЫЙ НИКОГДА НЕ СДЕЛАЛ БЫ РОССИЙСКИЙ СУД…

(3) Ответчик нарушил гарантию. Trustworth неправомерно отказался исполнять чартер партию в январе 2013. Истец имел право требовать возмещения убытков за неправомерный отказ начиная с 23 января 2013 года. Обязанность оплатить по гарантии возникла немедленно после нарушения…

(4) Что касается убытков, то в момент прекращения чартер партии на рынке имелись предложения, и, соответственно, размер убытков должен устанавливаться путем ссылки на то, что истец получил бы, если бы он сразу сдал свое судно в новый чартер по рыночным ставкам на период 75 месяцев, начиная с 23 января 2013 года. Полученная сумма должна быть скорректирована на периоды во времени, когда судно находится вне аренды (off-hire events)…

(5) Суд также признает что английские суды имеют юрисдикцию над этим спором, и что гарантия подчиняется английскому праву.

_____________

В судебном решении были ссылки на следующие дела:

Bank of Scotland n Hussain [2011] EWHC 1934 (QB);

Financial Services Authority v Rourke [2002] CP Rep 14;

Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd (CA) [2012] EWCA Civ 265; [2012] 1 Lloyd’s Rep 542; [2012] 1 WLR 3674;

Hollington v F Hewthorn and Co Ltd (CA) [1943] KB 587;
Koch Marine Inc v D’Amica Societa di Navigazione ARL (The Elena D’Amico) [1980] 1 Lloyd’s Rep 75;

Vossloh AG v Alpha Trains (UK) Ltd [2010] EWHC 2443 (Ch); [2011] 2 All ER (Comm) 307;

Zodiac Maritime Agencies Ltd v Fortescue Metals Group Ltd (The Kildare) [2010] EWHC 903 (Comm); [2011] 2 Lloyd’s Rep 360
__________

Рассматривалась жалоба истца судовладельца Mitsui OSK Lines Ltd против ответчика Salgaocar Mining Industries Pvt Ltd гаранта по обязательствам по тайм чартеру судна Unta, требующая возмещения убытков возникших из-за расторжения истцами чартера, в связи с отказом фрахтователя от его исполнения.

Бен Гарднер проинструктирован юридической компанией Waltons & Morse LLP – от имени истцов. Ответчик не явился и не был представлен никем…

JUDGMENT

Mr Justice EDER

1. This dispute arises in connection with a long-term charter relating to a vessel that was eventually called Unta. The claimant is a Japanese shipping company, Mitsui OSK Lines Ltd.

2. In June 2005 the claimant contracted with Oshima Shipbuilding Co Ltd, a Japanese shipyard, to build the vessel I have referred to which was a 105,900 mt dwt, “baby Cape” bulk carrier with delivery due in August 2009.

3. The claimant’s case before me is that a charterparty was entered into which was, in effect, guaranteed by the defendant, that is Salgaocar Mining Industries Pte Ltd, and its claim in these proceedings is for damages under the guarantee. The guarantee, the claimant says, relates to a charterparty between the claimant and Trustworth Shipping Pte Ltd of its obligations as charterer of the vessel under a time charter dated 6 February 2007.

4. In very brief summary, it is the claimant’s case that Trustworth repudiated the charterparty; that the claimant accepted that wrongful repudiation on 23 January 2013; and that the claimant is, accordingly, entitled to claim damages for wrongful repudiation from that date. The charter was a long-term charter which expired on 19 May 2019. Therefore, the claimant claims damages for wrongful repudiation from 23 January 2013 until 19 May 2019 assessed generally by reference to the difference between the charter rate and the market rate as at 23 January 2013. The total calculated damages claim, after giving credit for certain items that I shall explain in a moment, is US$14,121,341.84. That is the sum that the claimant now seeks against the defendant under its guarantee as I have referred to.

5. The original claim form was issued in July 2013. The defendant has not acknowledged service and has taken no part in these proceedings. The present hearing is, in fact, the trial of the claim. I should mention that it might have been open for the claimant to proceed by way of default judgment or summary judgment. But for reasons which it is unnecessary to explain, the claimant has not proceeded in that way and, therefore, as I say, the matter has proceeded to what is, in effect, a full trial even though the defendant, as I say, has not acknowledged service and has taken no part in these proceedings.

6. Before me, the claimant relies upon the evidence of two witnesses of fact who are based in Japan, Mr Toshiaki Tanaka and Mr Shoko Zaike, as well as the evidence of Mr Tim Johnson of the claimant’s London solicitors. Mr Tanaka and Mr Zaike were not called to give evidence but their witness statements were adduced in evidence before me, in effect, under the Civil Evidence Act. So far as Mr Johnson was concerned, he produced three witness statements. He was called to give evidence and confirmed the truth of what appears in his witness statements.

7. In addition, the claimant served an expert report of Mr Clement Collard with regard to the market hire rate at the time of repudiation. He was not called to give evidence but his report was put in evidence before me. In so far as maybe necessary, I give leave to adduce that evidence in that form.

8. The claimant has amended its claim to seek a declaration as follows:

“The English court has jurisdiction to determine the claimant’s claim against the
[2015] 2 Lloyd’s Rep. 520
defendant under the guarantee because England is an appropriate forum in which to determine the claim because the claim has been properly served on the defendant in India and because each of the following grounds for exercising jurisdiction are satisfied:

(a) the guarantee contains a term conferring jurisdiction on the English court, and

(b) the guarantee is subject to English law, and

© the guarantee was concluded in England and through agents of the defendant operating in England.”

9. For the avoidance of doubt, I should say that the court has the jurisdiction to grant declarations under section 19 of the Senior Courts Act 1981 which is reiterated in CPR 40.20. The leading case as to the exercise of the court’s jurisdiction is Financial Services Authority v Rourke [2002] CP Rep 14. In a sense, the questions that arise as to whether I should or should not grant such declaration depend upon my conclusions with regard to the main arguments that I heard. So, I will revert to the question of whether or not to grant a declaration at the end of this judgment.

10. Mr Gardner, who appears before me on behalf of the claimant, submitted a helpful skeleton argument which exhibited a short chronology and set out the background to the dispute and the issues that arise for my consideration. What follows is based, at least in part, on that skeleton argument and the further oral submissions that he made in the course of the hearing.

11. The background can be summarised as follows. On 26 April 2006 Bernd Hintz, of London shipping brokers Howe Robinson, contacted Mr Tanaka, the claimant’s European general manager of the coal and iron ore division, to express interest on behalf of the defendant in chartering a 105,000 mt dwt bulk carrier from the claimant on a 10-year charter.

12. There followed a period of negotiation which it is unnecessary to set out in detail. For present purposes, it is sufficient to say that the initial negotiations between April and August 2006 are described by Mr Tanaka at paras 4 to 7 of his statement.

13. On 22 August 2006 Mr Guy Hindley, a colleague of Mr Hintz at Howe Robinson, emailed agreed terms of a 10-year charter of the vessel under the title, “MOL Oshima, 105,000 DWT/Salgaocar Recap”. The name of the charterer in Mr Hindley’s message was: “A/C Salgaocar Mining Industries Goa or Nominee Company guaranteed by Salgaocar Mining”.

14. The parties continued to negotiate in the latter half of 2006 and in early 2007. On 13 February 2007 Mr Hindley emailed Mr Tanaka stating that he was, “pleased to confirm that we have fully fixed as follows with C/P dated 6 February 2007”. The charterer was stated to be: “A/C Salgaocar Mining Industries Goa or Nominee Company guaranteed by Salgaocar Mining”. Further minor changes were made before Mr Hindley sent a revised version on 22 February 2007 stating: “pleased to confirm that we have fully fixed as follows with C/P dated 6 February 2007”.

15. As with previous drafts, the charterer was stated to be: “A/C Salgaocar Mining Industries Goa or Nominee Company guaranteed by Salgaocar Mining”. The hire rate was US$17,750 per day and the laycan was 1 June to 30 November 2009. The email ended with, in effect, an electronic signature by Mr Hindley saying: “Best regards, Guy Hindley”.

16. Further negotiations then took place at some point between Mr Hindley’s final draft of 22 February 2007 and 29 April 2009 although there is no evidence before the court as to what those negotiations were. On 29 April 2009 Richard Evans of the claimant provided comments to Mr Hindley on a working copy of the drawn-up charter. By this point it had been established that a nominee of the defendant, ie Trustworth, would act as charterer because the working copy described the charterer as: “Trustworth Shipping Pte Ltd, charterers of the City of Singapore guaranteed by Salgaocar Mining Industries Goa”. From 29 April 2009 onwards, this wording was adopted.

17. On 3 June 2009 Mr Hindley responded to Mr Evans’ email with an amended draft incorporating Mr Evans’ changes for the claimant’s “final approval”. This letter was signed by Mr Hindley and again recorded the charterer as: “Trustworth Shipping Pte Ltd, charterers of the City of Singapore guaranteed by Salgaocar Mining Industries Goa”. Following further minor amendments, Mr Hindley sent the claimant a final draft of the charterparty on 15 June 2009. This final version of the charterparty was signed by Hiroyuki Nikaido on behalf of the claimant. The evidence of Mr Tanaka is that Trustworth also signed the charterparty although no copy signed by Trustworth has been located. This was the final version of the charterparty before the vessel was delivered into Trustworth’s service on 18 August 2009 and represented the final agreed terms of the charterparty.

18. It is unnecessary to set out the details of the terms of the charterparty other than to say, in summary, that it was a time charter for a period of, in effect, 10 calendar years, three months, more or less, in charterer’s option, that the charter
[2015] 2 Lloyd’s Rep. 521
rate was, as I have already stated, US$17,750 per day. It provided that the charterers were “Trustworth Shipping Pte Ltd, charterers of the City of Singapore guaranteed by Salgaocar Mining Industries Goa”. By clause 17, the parties agreed that should any dispute arise between the owners and the charterers the matter in dispute should be referred to three persons at London conversant with shipping matters. The arbitration was expressed to be subject to English law or the law of the country of arbitration. The charter also included a description of the vessel and certain cargo exclusions. The copy of the charter, as signed, included a stamp of Howe Robinson. The vessel was delivered to the claimant by Oshima and delivered into Trustworth service under the charterparty on 18 August 2009. The parties performed the charterparty without incident until early 2013.

19. In the meantime, Mr Hindley contacted Mr Tanaka on 18 November 2009 to request a change of charterer due to internal reorganisation of the Salgaocar Group. The new proposed charterer was Salgaocar Asia Pte Ltd (SAPL), Singapore “obviously with guarantee of charterer’s performance from Salgaocar Mining Industries Goa remaining in place” (emphasis added).

20. Further to this message, Mr Hindley emailed Mr Hikima of the claimant on 22 November 2009 enclosing (unsigned) letters, authorising the proposed change of charterer to SAPL written by Mr P Salgaocar, a director of SAPL, Mr A V Salgaocar, an authorised signatory for the defendant, and Mr Rohit Mathrani, director of Trustworth. The letter from Mr A V Salgaocar, on behalf of the defendant, stated that SAPL was a registered subsidiary of the defendant and:

“Performance of the charterparty shall not be affected in any way as the performance of SAPL will be guaranteed by [the defendant].”

21. In the event, the claimant did not accept the proposed substitution of Trustworth with SAPL and so nothing came of the defendant’s proposal.

22. I can then jump to January 2013 when the claimant received a message from Trustworth with regard to an intended cargo. After certain exchanges, Trustworth responded with a message dated 18 January 2013 stating that the vessel had failed to comply with her contractual description and so: “Trustworth hereby repudiates forthwith the charter”.

23. Trustworth maintained its “repudiation of charter” in a message of 23 January 2013. On the same day, the claimant replied stating, inter alia, in effect that Trustworth’s purported termination was without foundation, wrongful and in clear breach of the charter and, in effect, accepting that wrongful repudiation. The claimant then treated the charterparty as at an end and chartered the vessel to third parties.

24. Against that background, Mr Gardner has identified five principal issues for the court to determine in relation to the claim. Those issues are as follows:

(1) Did the defendant agree with the claimant to guarantee the performance of Trustworth’s obligations under the charterparty?

(2) Does the guarantee satisfy the requirements and the Statute of Frauds?

(3) Is the defendant in breach of the guarantee?

(4) What is the quantum of the claimant’s claim against the defendant?

(5) Is the claimant entitled to a declaration that the English court has jurisdiction over its claim against the defendant?

25. I turn first to deal with the first issue, ie whether the defendant agreed with the claimant to guarantee the performance of Trustworth’s obligations under the charterparty. In essence, Mr Gardner advanced five reasons to support the case advanced by the claimant that such agreement had, indeed, been made between the claimant and the defendant.

26. First, Mr Gardner submitted that Mr Hintz and Mr Hindley of Howe Robinson had actual authority to enter into the contract of guarantee with the claimant on behalf of the defendant. At one stage, Mr Gardner suggested that he might have an alternative case based upon apparent authority. However, before me, he did not pursue that alternative case and advanced his case simply on the basis of actual authority. In support of that case of an actual authority, Mr Gardner submitted that such actual authority is clear from the fact that Howe Robinson is a well-established London broking firm which held itself out as acting on behalf of the defendant. Of itself, such fact would not necessarily prove that Howe Robinson had the necessary actual authority but I agree that there is at least some evidence to that effect.

27. In any event, the claimant’s case that Howe Robinson had actual authority is supported by a number of documents to which I was referred. First, there is a message from Mr Salgaocar of the defendant to Mr Hindley requesting that Mr Hindley aim in negotiations for a 10-year time charter at US$15,000 to US$16,000 per day, “notwithstanding the mini cape 105,000 from 210 at US$18,000”. As submitted by Mr Gardner, it seems to me that this shows plainly that the defendant authorised Howe Robinson to negotiate on their behalf as their agents.

28. Further, there is a message from Mr Hindley to Mr Salgaocar of the defendant dated 17 August 2006 in which Mr Hindley explains that the
[2015] 2 Lloyd’s Rep. 522
claimant would only enter into this negotiation as they are dealing with a major cargo interest and they have “big respect for Salgaocar name. We believe the spirit of this fixture is that the vessel is used by Salgaocar for their own cargo”. Therefore, again, as submitted by Mr Gardner, the defendant knew that the charterparty was being agreed on the basis that the defendant would be involved either as charterer or nominee.

29. Mr Gardner also relied in this context to similar effect to further messages from Mr Hindley to Mr Salgaocar dated 29 August 2006, 8 January 2007 and a further fax and a further message dated 26 March 2007. It is unnecessary to set out the details of those messages but both individually and collectively it seems to me plain that Howe Robinson and, in particular, Mr Hindley, had actual authority to enter into a guarantee on behalf of the defendant.

30. In further support of that submission, Mr Gardner drew my attention to a recent decision in the Court of Appeal, Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd [2012] 1 Lloyd’s Rep 542; [2012] 1 WLR 3674, a case involving the same defendant and on very similar facts. Mr Gardner submitted and relied upon the fact that as recorded in the judgment in the Court of Appeal at para 10, Howe Robinson appears to have fixed about 125 vessels on Mr Salgaocar’s instructions with Trustworth as charterers, with 43 fixtures where Trustworth was guaranteed by the defendant and 36 of those in the form of a single line in the charterparty.

31. On that basis, Mr Gardner submitted that this court is entitled to consider that evidence and, in particular, the evidence of the defendant’s trading history as recorded in that judgment particularly in the absence of any disclosure from the defendant himself in these proceedings. I have some doubt as to whether or not a factual conclusion in another case can properly be relied upon in this court for these purposes. Mr Gardner submitted that, whilst accepting the general position as appears in a long line of authority going back to Hollington v F Hewthorn and Co Ltd [1943] KB 587, consistent with what I have just said, there is here a logical distinction between specific fact findings in another judgment and what may be derived from references to particular documents in another case. I am not sure that that logical distinction is correct. But in the event, it is unnecessary for me to reach any conclusion on that. Here, quite apart from what the Court of Appeal recorded, it is my conclusion that Howe Robinson and, in particular, Mr Hindley had the necessary actual authority to enter into this guarantee. Therefore, it is not necessary for Mr Gardner to rely on the point that I have just referred to.

32. That conclusion is sufficient for the purposes of my conclusion under this first head. I should mention, for the sake of completeness, that Mr Gardner relied upon four other points, viz: (i) there is a consistent thread running through all the negotiations, that Howe Robinson had the necessary actual authority; (ii) that the defendant through messages sent by Mr Hindley and the letter forwarded by him in November 2009 expressly acknowledged that the defendant had guaranteed Trustworth’s performance; (iii) that whilst no formal contract of guarantee was drawn up by the parties, there was no indication that the parties had any intention of memorialising their contract in that way; and (iv) there is judicial authority to the effect that facts such as these give rise to a binding contract of guarantee. In that last context, Mr Gardner referred me again to the decision of the Court of Appeal in Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd at para 49 which it is unnecessary to quote. As I say, for present purposes, I have no doubt that Howe Robinson had the necessary actual authority to enter into the guarantee and it is unnecessary to examine these further points.

33. I should say for the sake of completeness again that Mr Gardner advanced certain further points both with regard to the law of guarantee and various alternative arguments. But it is unnecessary to deal with that in any detail.

34. Mr Gardner submitted that the guarantee in this case should be construed in the sense that it is a contract whereby the surety promised the creditor to be responsible for the due performance by the principal of his existing or future obligations to the creditor if the principal fails to perform them or any of them.

35. In support of that submission, he relied on a passage in Andrews and Millett, Law of Guarantees, 6th Edition, 2012, at para 1-004, and the decision of Sir William Blackburne in Vossloh AG v Alpha Trains (UK) Ltd [2011] 2 All ER (Comm) 307 in particular at para 23. In my view, that submission is well made both as a matter of the language of the wording that I have already referred to above and in the light of the textbook and authority that I have just referred to. I accept that submission.

36. The effect is, therefore, in my view that the defendant promised to be responsible for the due performance by Trustworth of its obligations under the charterparty and that if and to the extent that Trustworth failed to perform its obligations by repudiating the charterparty and not paying damages to the claimant, the claimant is entitled to claim equivalent damages from the defendant. Mr Gardner advanced certain further alternative arguments in
[2015] 2 Lloyd’s Rep. 523
that context but, again, it is unnecessary for me to deal with them in any detail.

37. I should also mention that Mr Gardner rightly addressed me on the question of the proper law of the guarantee. Here there has been no suggestion that any other legal regime applies and so by default the law governing the guarantee is English law. In any event, it is, in my view, plain that the guarantee is subject to English law because it guarantees performance of an English law contract. As I have already stated, the charterparty expressly contained an English law and arbitration clause. It is unnecessary to say any more about that point.

38. The second main issue is whether the guarantee satisfies the Statute of Frauds. Section 4 of the Statute of Frauds 1677 provides:

“[n]o action shall be brought … whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person … unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised.”

39. The effect of section 4 is that contracts of guarantee which are not evidenced by writing, signed by the guarantor (or his authorised agent) or evidenced by subsequent signed memorandum are unenforceable. It follows that the claimant must prove either that the guarantee was evidenced by a signed writing or a signed memorandum recording its existence. In that context, Mr Gardner referred to me to the Law Reform Committee report in 1953 and also other authority. However, it is sufficient for present purposes to refer again to the recent decision of the Court of Appeal in Golden Ocean v Salgaocar. It is unnecessary to go into the full facts in that case.

40. Two main issues arise in this context. First, whether there was a guarantee in writing. Secondly, was it signed? As to the first issue, the decision of the Court of Appeal in this previous case is authority for the general proposition that the requirement that a guarantee be in writing may be satisfied even if the guarantee is not in a single document but is in a series of documents when taken as a whole. Here, I am not going to repeat the references to the documents I have already made but it seems to me consistent with the decision of the Court of Appeal in Golden Ocean v Salgaocar that the emails crossing the line between the claimant and Howe Robinson, acting as agent of the defendant, with actual authority as I have found, when taken as a whole satisfy that requirement.

41. The second requirement under the Statute of Frauds is that the guarantee must be signed. Here there is no actual guarantee in front of me which is signed. However, Mr Gardner has referred me to the leading textbook in this area that I have already referred to, Andrews and Millett, Law of Guarantee, 6th Edition, 2012, at para 3.021 where the editors refer to a recent decision, Bank of Scotland v Hussain [2011] EWHC 1934 (QB), which stands for the proposition that a creditor may prove the existence of the written agreement by other evidence when the original signed guarantee could not be found.

42. I agree with the conclusion in that case. Here, I accept that on a balance of probability the written guarantee must have been signed even though, as I say, a copy cannot be produced before me. That, therefore, satisfies the requirements of the Statute of Frauds and it is unnecessary to go further.

43. I should, however, mention that Mr Gardner raised two further points. First, he said that the signature on the document dated 3 June 2007 signed by Mr Hindley would be sufficient to satisfy the Statute of Frauds. Secondly, the stamp on 15 June 2007 charter would also be sufficient. A further point he raised is that Mr Hindley’s electronically signed emails to Mr Tanaka on 18 November 2009 and 22 November 2009, together with the enclosed draft from Mr Salgaocar on behalf of the defendant which I have already referred to above, also satisfies the requirements of section 4 of the Statute of Frauds or the signed memorandum.

44. If I were wrong on my first conclusion it would be my further conclusion that each of those separate points would be sufficient to satisfy the Statute of Frauds. So, for one or more of those reasons it is my conclusion that the requirements of the Statute of Frauds are here satisfied. In principle, therefore, it is my conclusion that the claimant is entitled to make a claim under the guarantee, as I have found, against the defendant.

45. The third main issue concerns the question as to whether the defendant is in breach of the guarantee. It is unnecessary to go into the detail on that. So far as that is concerned, my conclusion is plainly that Trustworth wrongfully repudiated the charterparty in January 2013. The message from Trustworth purporting to contend that it was entitled to terminate the charter as a result of the claimant’s breach of contract in not providing a vessel capable of loading iron ore in alternate holds up to deadweight is, in my view, wholly misconceived. Clause 84 of the charterparty governs the position. The claimant did not warrant that the vessel was capable of loading iron ore in alternate holds. That being the case, it is plain, in my view, that Trustworth wrongfully repudiated the charterparty.

[2015] 2 Lloyd’s Rep. 524
46. Mr Gardner accepted, as I understood, the general principle of co-extensiveness; that is that the defendant is only liable to the claimant under the guarantee to the extent that Trustworth is liable to the claimant under the charterparty. As I understand it, there are continuing proceedings by the claimant against Trustworth under the charterparty in arbitration. In that arbitration, Trustworth raises various matters. These are set out in summary in para 84 of Mr Gardner’s skeleton. For present purposes, it is sufficient to say that in my view none of those alleged defences have any merit at all.

47. As I say, the defendant is not here attending this hearing and has not itself raised any further defences but I think it is sufficient for me to say that the defences that have been raised are, as I have said, without merit. The result is, in my judgment, that the claimant is entitled to claim damages for wrongful repudiation in effect against the defendant here as of 23 January 2013. As submitted by Mr Gardner, the obligation to pay under the guarantee arises immediately upon breach in the usual way as I have already concluded.

48. Finally, I turn to the question of the quantum of the claimant’s claim. In summary, Mr Gardner submitted that the prima facie measure of damages is as set out in Time Charters, para 4.37. In particular, he submitted that where, as here, there is an available market, the owner’s position after termination would generally be assessed by reference to what the owners would have earned if they had promptly re-chartered in the market. In that context, he submitted that the relevant market rate is the market rate for an equivalent charter of the vessel for the remainder of the charterparty: see Koch Marine Inc v D’Amica Societa di Navigazione ARL (The Elena D’Amico) [1980] 1 Lloyd’s Rep 75. Here, Mr Gardner submitted that the charterparty was terminated on 23 January 2013. The vessel was delivered into the charterer’s service on 18 August 2009 and, therefore, the minimum duration of the charter was nine years and nine months. Therefore, the earliest permissible redelivery date was 18 May 2019 which was 2,306 days thereafter, approximately 76 months.

49. As I have already mentioned, the claimant put in evidence before me an expert report of Mr Collard. I should say that an amended version of his original report was put before me where certain minor corrections were made. In essence, the report states that the gross daily hire rate at which the vessel could realistically have been fixed for a period charter of about 75 months as of 23 January 2013 would have been US$10,924 per day. His conclusion is based upon a careful consideration of the design of this vessel, the speed and consumption of the vessel and the wording of the charter including various trading exclusions. As I say, I have considered that expert report and the attachments carefully. In my view, the figure that he has referred to represents a reasonable assessment of the market for an equivalent charter for this vessel for the remainder of the charter period as at 23 January 2013. That produces a total figure of US$15,740,756.

50. Against that figure, Mr Gardner accepts that credit should be given for a number of items. First, he accepts that a figure should be deducted by way of allowance for periods of off-hire events that the vessel would or, on the balance of probability, would have had to undergo. That is a matter considered by David Steel J in Zodiac Maritime Agencies Ltd v Fortescue Metals Group Ltd (The Kildare) [2011] 2 Lloyd’s Rep 360 at para 54. As he there says:

“The assessment is not one that can be accomplished with great precision. It is difficult enough to allow for heavy weather, dry docking, breakdown and port delays for a period of a year, ahead let alone nearly four and a half years.”

51. In The Kildare, David Steel J allowed a 10-day allowance for possible off-hire events. That, in fact, was based upon, as I understand it, a concession made in the course of closing submissions which David Steel J regarded as a “realistic concession”. Here, Mr Gardner submitted that a period of five days per year should be allowed. That was primarily on the basis that the vessel here was new whereas the vessel in The Kildare was not a new vessel. However, the vessel in that case was not very old and, in my view, a period of 10 days off-hire per year is the appropriate allowance.

52. The result is that a calculation will have to be made to deduct from the total number of days that I have just mentioned a total of 64 days and then a calculation made by reference to the net period of days by multiplying that with the figure of 10,924 that I have just mentioned.

53. David Steel J, in addition, as referred to para 73 in his judgment in The Kildare, allowed a further discount to reflect what he said would be categorised as “more catastrophic contingencies such as total loss, bankruptcy” and so on which he assessed in a figure of 1.5 per cent. I am bound to say I find that assessment particularly difficult. It is no more, as it seems to me, than a stab in the air.

54. Before me, Mr Gardner accepted that in principle such an allowance should be made and he submitted that the appropriate figure was 1.5 per cent. I can do no better than David Steel J in The Kildare and so it is my conclusion that a further allowance of 1.5 per cent should be made against the figure that I have just mentioned.

[2015] 2 Lloyd’s Rep. 525
55. In addition to the foregoing, the claimant also accepts that Trustworth has a set-off in respect of overpaid hire in the sum of US$113,923.81 and bunkers on redelivery in the sum of US$1,054,223.49 which again should be deducted from the figures already referred to. Once that calculation is carried out, it should arrive at a figure which I imagine would be somewhere approximately below US$14 million. That is the figure, Mr Gardner submitted, should be the figure for which I should give judgment.

56. In the course of submissions, there was some debate as to whether it was right in principle that a claimant in a case of this kind should be entitled, in effect, to a capital sum. Mr Gardner accepted that the calculated figure should be further reduced to reflect an appropriate discount for accelerated receipt of income. That is, again, something that David Steel J identified in para 73 of his judgment and the figure that he allowed for that was a further deduction of 1.5 per cent. After hearing further submissions from Mr Gardner, I understood him to accept that the figure that I have just referred to should, therefore, be reduced by a further 1.5 per cent for similar reasons for an appropriate discount for accelerated receipt of income.

57. Even so, there is a further possible debate as to whether it is right, in principle, that a claimant should receive that capital sum even after giving an appropriate discount for accelerated receipt of income. The counter-argument is that an award of damages is compensatory and the court should only give damages which constitute proper compensation. In that context, a possible argument is that under this charterparty with Trustworth, the claimant was not entitled to receive a capital sum; that the entitlement was to receive a stream of income over a period of time; and that to award the claimant here a capital sum would be to give the claimant a financial benefit which he was not entitled to under the charterparty and to do so would be contrary to the compensatory principle that I have already referred to.

58. In the event, however, it seems to me that Mr Gardner is right that both in The Kildare and in The Elena D’Amico the approach of the court is to award a capital sum. That is a rough and ready way of compensating the claimant. In my view, in the light of those early authorities, that is the right conclusion in the present case. It may be that in other cases the court may consider that a different approach is warranted. I say no more about that here in this judgment.

59. Therefore, it is my conclusion that the claimant is entitled to an amount as calculated above together with, I should say, interest on that sum at a rate of 1.5 per cent calculated from 23 January 2013 until 19 May 2019 or earlier payment. Thereafter, the claimant will be entitled to judgment interest on the net sum indicated from 19 May 2019.

60. I turn finally to the claim for declaration by the claimant which I have already quoted above. As I have said, the court has a jurisdiction to grant a declaration. The only question is whether or not I should, as a matter of discretion, grant the declaration, whether the declaration sought is in correct form and whether it is appropriate in all the circumstances to grant the declarations.

61. In support of the claim, Mr Gardner set out his submissions in written form in paras 104 and 105 of his skeleton. In my view, it is unnecessary to set out those arguments in any detail. I am satisfied that the grant of a declaration is certainly highly desirable and that, in those circumstances, in principle, the court should grant a declaration to avoid any possible disputes that may arise hereafter.

62. As to the form of the wording, it seems to me plain that the wording is correct and adequate. England is an appropriate forum in which to determine the claim. In addition, the claim form has been properly served on the defendant in India. The guarantee contains a term conferring jurisdiction on the English court. The guarantee is subject to English law and the guarantee was concluded in England and through agents of the defendant operating in England.

63. For all those reasons, it seems to me entirely appropriate to make a declaration in the form sought. For all those reasons, therefore, I grant the declaration and I award the claimant the sum indicated which will have to be calculated to reflect the judgment that I have just delivered.

Опубликовано: 24.01.2016

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© Адвокат Геннадий Логинов LLM