Golden Strait Corporation v Nippon Yusen Kubishika Kaisha "The Golden Victory"

This is an appeal by Golden Strait Corporation (GSC) Owners of the “Golden Victory” and the Claimant in an Arbitration to which Nippon Yusen Kubishika Kaisha (NYKK) was the Respondent. The appeal is against an Award dated 27 October 2004 made by Mr Robert Gaisford as sole arbitrator. The arbitration arose out of a Charterparty (and related agreements) dated 17 July 1998. NYKK were the Charterers. The appeal is on a point of law under Section 69 of the Arbitration Act 1996. The parties agreed that an appeal to this court could be brought on any point of law arising out of the Award and therefore GSC did not require permission to appeal: Section 69(2)(a) of the Arbitration Act 1996.

The issue is one of the assessment of damages for repudiation of a long-term charterparty. GSC submits that where there is an available market damages are to be assessed once and for all at the date of breach at the charter rate less the market rate for the balance of the term of the charter. NYKK submits that it is for GSC to prove that the breach has caused that loss and it cannot do so if in the events which occurred after the date of breach the charterer would have been entitled to and would have terminated the charter during the course of its remaining period. To put the matter squarely: if the charterparty has, say, another 4 years to run when the charterer repudiates it and there is then an available market, but the charter contains a “War Clause” which would have entitled the charterer to cancel on the outbreak of war 2 years after the repudiation, does the owner’s claim for charter rate less market rate run for 2 or 4 years?

The Charterparty was for a period of 7 years with 1 month more or less in NYKK’s option. In an Interim Award dated 12 September 2002 the Arbitrator decided that the earliest date on which the vessel could be redelivered was 6 December 2005.

Clause 33 of the Charterparty provided:

The references to the countries of Liberia through to Iraq were added as a typed variation. The Special Clauses included (Clause 69) an option for NYKK to cancel if the vessel was off-hire for 30 days. The charter rate included a profit commission.

The Interim Award also determined that NYKK in repudiatory breach of the Charterparty redelivered the vessel to GSC on 14 December 2001 and that GSC accepted that breach as terminating the charter in a letter dated 17 December 2001.

The relevant preliminary issue on quantum addressed in the Award under appeal was:

Following an oral hearing in September 2004, the Arbitrator found that the second Gulf war did place a temporal limit on the damages recoverable by GSC in that no damages were recoverable after that date. The actual dates (as found) were: the Charterparty came to an end on acceptance by GSC of NYKK’s repudiatory breach on 17 December 2001; it then had a period of just less than 4 years to run; the second Gulf war began in March 2003, some 14 months after the repudiation and some 32 months before the period of the Charterparty would have expired.

The Arbitrator found that:

There was, at the time of repudiation, an available market for the chartering in of vessels such as The Golden Victory whether in terms of a spot market or a market for period chartering;

GSC in fact chose to trade the vessel on the spot market;

The second Gulf war was “a war” within clause 33 of the Charterparty such as to give either party the right to cancel it;

At 17 December 2001, a reasonably well-informed person would have considered war between the United States/United Kingdom and Iraq “merely a possibility” but not “inevitable or even probable”;

NYKK would have cancelled the Charterparty relying on Clause 33 had the vessel remained on charter to the Company at the outbreak of the second Gulf war.

The same counsel who appeared before this Court conducted the Arbitration. The submissions were plainly very similar to those I heard. Mr Hamblen QC, for GSC, says (rightly) that he won the argument but lost the case. The Arbitrator preferred Mr Hamblen’s submissions to the effect that in law the second Gulf war was irrelevant to GSC’s claim which was to be assessed at the difference between the charter rate and the (lower) market rate for the whole of the remaining 4 year period of the Charterparty. But the Arbitrator said he was constrained by the decision of Timothy Walker J in B.S.&N. Ltd v Micado Shipping Ltd (The “Seaflower”) [2000] 2 Lloyd’s Rep 37 to decide otherwise.

Mr Hamblen’s submissions, in my summary, were to the following effect:

The law “prescribes a clear and long-established test” for the assessment of damages in a case of an accepted repudiation of a long-term charterparty where there is (as here there was) an “available market” at the date of repudiation.

The test or “rule” is that damages are to be assessed at the date of repudiation as the difference between the contract rate and the market rate for chartering a substitute ship for the balance of the charter period.

The rule was established by the decision of Goff J in Koch Marine Inc v D’Amica Societa di Navigazone A.R.L. (The ‘Elena d’Amico’) [1980] 1 Lloyd’s Rep 75. The rationale is that the innocent party’s duty of mitigation requires him at the time of breach to go out into the market and obtain a substitute charter for the balance of the charter period.

The only exception or qualification to this “rule” is that where the contractual rights which the innocent party has lost by reason of the repudiation were capable by the terms of the contract of being rendered less valuable or valueless in certain circumstances then the law permits the damages to be diminished or extinguished, but only if it can be proved that “those events were at the date of acceptance of the repudiation predestined to happen”, or inevitably bound to happen or the rights were certain to be diminished or rendered valueless: see per Megaw LJ in Maredelanto Compania Naviera S.A. v Bergbau-Handel G.m.b.H. (“The Mihalis Angelos”) [1971] 1 QB 164.

The justification for the rule is the need for certainty, especially in commercial matters, with the concomitant advantages of finality and encouragement of settlement. Crystallisation of the loss at the date of acceptance of repudiation enables parties to know where they are and disenables them from waiting to see if something helpful turns up.

Mr Young QC’s submissions, again in my summary, were the following:

The “general principle” for the calculation of damages is that the innocent party is to be placed, so far as money can do so, in the same position as if the contract had been performed: Lord Wilberforce in Johnson v Agnew [1980] AC 367 at 400H.

That principle normally leads to the assessment of damages as at the date of the breach but that is not an absolute rule: “if to follow it would give rise to injustice, the court has power to fix such other date as may be appropriate in the circumstances”: Lord Wilberforce at 400H to 401A.

The starting point for an assessment of damages is to determine what has been “lost”. In this case what GSC lost was a charterparty with a four-year period to run but subject to the War Clause and other provisions such as Clause 69. Hence the pleaded case of GSC was, for “… the hire that would have been received under and in accordance with the provisions of the charterparty but for the charterers’ repudiatory breach of contract” less “the market rate”.

The available market (if there is one) provides the test for what is required of the innocent party by way of reasonable mitigation of his loss. It fixes the maximum claim (unless there is a claim to “special” damages). But it remains in principle founded on the requirement to mitigate the loss suffered.

There are countless examples in the law where the assessment of damages does take into account subsequent events and the court is exhorted not to shut its eyes to reality. There is no principled reason why damages for repudiation of a long-term contract should be different. Indeed the longer the term the more it may be appropriate to take account of such events or their probability.

There is no justification on the authorities or in principle for some higher test of “predestiny” or certainty. The issue is one of causation and should be approached on normal principles of proof.

Certainty and crystallisation are desirable in every case not just ones where there is an available market and not at the expense of justice. Indeed such outcomes are rarely achievable short of judgment. Thus there may be real issues even in a case such as the present concerning which party (if any) repudiated the contract, what the charter rate is (profit sharing), whether or not there is an available market and what it is, what the period of the charterparty is, and even on the limited exception acknowledged by Mr Hamblen, as to whether a war is “inevitable or predestined at the time of repudiation” and as to when it would break out and so trigger the right to cancel.

These submissions were well presented and cogent. There is, it is agreed, no authority on the matter binding upon me which determines the outcome. However, and before considering authority, I can see no compelling or persuasive reason why the existence of an available market at the date of the breach, and a principle of mitigation founded upon it, should result in a strict rule applicable to the assessment of damages only in such cases and a rule which ignores normal considerations of actual loss and causation and is subject to a limited exception which itself does not find a parallel in any other field of the law. Certainty in the law is, of course, a real and beneficial target, especially so when major commercial decisions are to be taken on the basis of advice or knowledge of rights. But certainty is not easily achieved. For example, the Charterparty contained within it the commercial uncertainty of the War Clause. Why should that uncertainty be ignored in the assessment of the loss which follows from the wrongful repudiation of that contract?

Although I have been referred to a considerable number of authorities and text books, and an article by Professor Waddams in the 1981 Law Quarterly Review, the key authorities are, I think, The Mihalis Angelos, The Elena d’Amico, North Sea Energy Holdings v PTT [1999] 1 Lloyds Rep 483 and The Seaflower.

Before turning to those authorities, I propose simply to summarise what in my judgment is the relevant effect of the other authorities and sources to which I have been referred:

Mr Young is right in his submission that the general principle is that GSC is entitled to be put in the same position as it would have been in had NYKK not repudiated the Charterparty. This principle has been referred to as the compensatory rule.

Mr Hamblen is right in his submission that the general or normal rule is that damages are to be assessed at the date of breach. But the general rule must give way to the compensatory rule if assessment at a later date more accurately reflects the loss: Lord Wilberforce in Johnson v Agnew (above); Bingham LJ, in County Personnel v Alan R Pulver [1987] 1 WLR 916 at 925-6 and Lord Browne-Wilkinson in Smith New Court v Scrimgeour Vickers [1997] AC 254 at 265H to 266C. The effect, of course, can be to increase the damages as well as to decrease the damages.

Mr Young is right that in the assessment of damages generally the law is not shy of looking at what has in fact happened after the relevant cause of action has arisen. Indeed the authorities are replete with observations to the effect that “facts are to be preferred to prophecies” and the like. But Mr Hamblen is right that in many of those authorities the question the court was required to ask could only be answered by an examination of future events. An example is The Bwllfa and Merthyr Dare Collieries v The Pontypridd Waterworks Companies [1903] AC 426. Another example is, I think, Aitchison v Gordon Durham & Co (unreported) 30 June 1995 (CA). On the other hand, in personal injury cases, unforeseen subsequent events have unquestionably impacted on the damages which would have been awarded had they been assessed at the date of the relevant wrong: see Curwen v James [1963] 1 WLR 748 and Baker v Willoughby [1969] 2 All ER 549

In Melachrino v Nickoll [1919] 1 KB 693 the sellers of a cargo of Egyptian cotton to be shipped from Alexandria to the United Kingdom repudiated the contract before shipment. Bailhache J held (at page 699) that damages were to be assessed by reference to the market price at the time when the cotton ought to have been delivered (which resulted in no loss) not when the “anticipatory breach” occurred and was accepted (which would have resulted in a significant loss) albeit if the sellers could show that the buyer acted unreasonably in not buying in against him between repudiation and delivery date Bailhache J considered that the sellers could also have benefitted from that by way of a reduction in any damages. The significance of the latter point is that it is an example of a case where the duty to mitigate may arise at a time prior to the time of assessment of loss. It was Mr Hamblen’s submission that there should be a coincidence of those dates.

The case concerned a voyage charterparty. The charterer was entitled to cancel should the vessel not be ready to load at Haiphong on or before 20 July 1965. On 17 July the vessel was at Hong Kong. On that day the charterers purported to cancel on the ground of force majeure. The owners accepted this conduct as a repudiation of the charter and claimed damages for loss of profit. The damages issue arose on the charterers’ case (found as a fact by the arbitrators) that had the vessel proceeded from Hong Kong to Haiphong she would not have been ready to load there until after 20 July and the charterers would “beyond doubt” have exercised their option to cancel for that reason. Mocatta J (on a special case stated by the arbitrators) held that the owners were nonetheless entitled to substantial damages and the finding that the charterers would have cancelled the charter was irrelevant. On appeal, the charterers succeeded on the basis that they were entitled to terminate the charter on 17 July but the court also addressed the damages issue on the basis that there was a repudiatory breach. The Court held that because the charterers would have cancelled the charter on arrival of the vessel in Haiphong the owners would have suffered no loss from the repudiation and would only have been entitled to nominal damages. Thus the decision itself is an example of the normal measure of damage being overridden by proof that repudiation of the charter caused no loss.

Each member of the court delivered a short judgment on the issue. The submissions of Robert Goff QC for the Owners are, as Mr Young pointed out, of some significance. The salient points can be found at page 190G to 191B. They were that:

Thus the submission was not that events subsequent to the breach were irrelevant but only that events between anticipated breach and actual breach were irrelevant. The submission failed at the outset because the court decided that an accepted anticipatory repudiation was itself a breach.

Lord Denning MR at page 196G to 197B said:

Edmund Davies LJ at page 202G to 203C, having commented that there must surely be something wrong with Mr Goff’s submission, continued:

Finally, Megaw LJ, having expressed agreement with both the conclusion and reasons of the arbitrators (“the owners are only entitled to be put in the position of having their ship on a charter, which, as soon as she got to Haiphong, could legally have been, and would have been cancelled: and are entitled to nominal damages accordingly and no more”) said at page 209H to 210B:

I have underlined the words in Megaw LJ’s judgment on which Mr Hamblen founds his submission. They establish, he submits, that the only exception to the “rule” that where there is an available market damages must be assessed at the difference between charter rate and market rate at the date of breach is the extreme case where it can be proved “beyond doubt” (Lord Denning) “beyond dispute” (Edmund Davies LJ) or as a matter of “predestiny” (Megaw LJ) at the date of acceptance of the repudiation that the charter rate would not in fact have been earned.

In my judgment, this analysis of The Mihalis Angelos is to be rejected:

I do not think any of the members of the court were seeking to lay down some rule to apply in all cases of repudiation with an available market.

If they were, they expressed themselves in markedly different terms. Reference to “at the date of acceptance of the repudiation” appears only in the judgment of Megaw LJ. Lord Denning’s words are quite general and unqualified. So, too, the words of Edmund Davies LJ.

References to the level to which the charterers had proved that the charterparty would have come to an end at Haiphong simply reflect the finding of the arbitrators and, no doubt, the natural concern that a party in breach who alleges the breach would have caused no loss because of some later event, should establish such a case clearly.

“Predestined” is a word which could apply to subsequent events which were not even anticipated as well as to those which were. In The Mihalis Angelos, in a sense it was “predestined” that there was insufficient time for the vessel to reach Haiphong but it is less obvious that cancellation by the charterers could be so described. In this case in a sense it is now known that the second Gulf war was “predestined” but again less obviously that the charterers would then cancel.

As a matter of principle I can see no reason why in this limited type of claim the law should seek to set some higher or different standard of proof of what is a causation issue. Nor, as I have said, do I see any principle which would justify such a “rule” with an exception limited both by reference to the time at which what has to be proved is to be viewed and by the standard to which it has to be proved. I hope I do no injustice to Mr Hamblen’s skilful and careful submissions if I say that he did not offer any such principle save perhaps the need for certainty. In this case, before the arbitrators, there was a considerable debate, with conflicting expert evidence, about the extent to which the second Gulf war was, at the time of repudiation, possible, probable or inevitable. I suspect such issues are likely to involve just as much, if not more, uncertainty as a straightforward application of the normal principles of causation of loss. More importantly I do not read any of the judgments in the Mihalis Angelos as saying otherwise. Indeed the terms of the judgments of both Lord Denning and Edmund Davies LJ are, I think, inconsistent with Mr Hamblen’s submission.

The Elena d’Amico concerned a three-year charterparty. The vessel was delivered on 10 January 1972 and traded for 14 months. The owners then failed to repair the vessel and (so it was held) thereby repudiated the charterparty. The repudiation was accepted by the charterers on 30 March 1973. The charterers did not charter another vessel. The damages issue was whether or not the charterers were entitled to claim the loss of special charter rates applicable to Italian coastal trade or could only claim the difference between the charter rate and the general market rate (on the evidence, nil). The judge (Robert Goff J) held that there was an available market to charter in a substitute vessel and that was the proper measure of loss.

There is, to my mind, little in this decision which assists the resolution of the present issue. The case is (further) authority for the well established proposition that the “normal” or “usual” measure of damages where there is an available market at the time of termination of a charter is “generally” the difference between the contract rate for the balance of the charter period and the market rate for chartering in a substitute vessel for that period. That is not in issue between the present parties. The effect, in the Elena d’Amico, was to diminish the claim by the innocent party. In that case, as this, the court was addressing circumstances in which a substitute vessel had not been chartered in. Mr Hamblen made a strong submission that it would be unfair if the innocent party did charter in for (say) 4 years and then found (say) two years later that his claim ended then because of a war. He also submitted that the “rule” operated on the basis that there was a deemed charter in. I see the force of that. It is not this case. It is of course at least possible, if not probable, in this case that any charter in would also have had a War Clause applicable in the event of the second Gulf war. It may also be arguable in a case where an actual charter is entered into that the loss is to be founded on that charter as a reasonable act of mitigation regardless of such a subsequent event.

In any event, Goff J, at page 87, acknowledged that the “normal measure” is only “a prima facie rule” and the “governing principle” remains that the measure of damage is the loss directly and naturally resulting, in the ordinary course of events, from the breach of contract. A loss which is not in fact incurred cannot, I think, be so described albeit it may fix the maximum available claim by operation of the principles of mitigation as it did in The Elena d’Amico and in Norden v Andre [2003] EWHC 84 (Comm). A minor illustration of the fact that it is the operation of mitigation principles which gives rise to the “normal” rule is to be found in Woodstock Shipping Co v Kyma Compania Naviera SA (The “Wave”) [1981] 1 Lloyd’s Rep 521 at 532 in which Mustill J expressed “the principle” to be that “the applicable measure of damages is the difference between the hire which would have been payable in accordance with the fixture and the hire which the plaintiffs would have had to pay if they had entered into a kindred fixture on or shortly after the date when the contract was repudiated”. The underlined words were added to reflect the possibility that it might take some time to obtain a replacement vessel even acting reasonably. In this case, it was GSC’s claim that a new fixture would only have commenced earning, following negotiation, on 1 April 2002. It follows, therefore, that even the usual measure of damages may only apply from a date after the date of breach.

The dispute involved a contract for the supply of oil over a five-year period. Both parties alleged the other had repudiated the contract. The claimant sellers (“MSH”) sought damages on the basis that they had a source of oil at a particularly good price alternatively for the loss of profits which would have arisen on a normal market purchase. The judge held that no loss had been proved on either basis. In the course of his judgment, reported at [1997] 2 Lloyd’s Rep 418, Thomas J, at page 432, referred to the well-known principle where a repudiatory breach has occurred that the innocent party was not required to prove that he was then ready and willing to perform his side of the bargain. Mr Hamblen placed some reliance on this in his submissions but, in agreement with Mr Young, and as Mr Hamblen acknowledged, the principle is one which is material to liability not to the measure or amount of loss.

The decision on appeal is relied upon by Mr Hamblen because of the emphasis in Waller LJ’s judgment (with which the other members of the court agreed) upon the judgment of Megaw LJ in The Mihalis Angelos. The decision of the Court was that MSH had indeed failed to establish both that it could supply oil under the contract and that such failure was due to any breach by PTT. That was sufficient to dispose of the appeal. At the end of his judgment, at page 496, Waller LJ characterised the submissions on behalf of MSH as coming close to those “emphatically rejected” in The Mihalis Angelos, referred to the judgments of both Lord Denning and Edmund Davies LJ and then said that Megaw LJ had “put the matter succinctly” quoting the passage from Megaw LJ’s judgment which I have quoted. Waller LJ then concluded his judgment by stating that:

In the context of the issues in the case that was a sufficient approach. The contract between MSH and PTT could not, on those findings, ever have been performed by MSH because MSH could not supply the oil and so MSH had suffered no loss even if PTT had repudiated the contract.

I do not think that Waller LJ was intending to endorse the “rule” for which Mr Hamblen contends or treating Megaw LJ’s dictum as a rule. It should also be noted that the Court approached the question of proof as proof on the balance of probabilities as might be expected: Waller LJ at page 496.

In The Seaflower the defendant owners let the vessel to the claimant charterers for a period of 11 months maximum 12 months at charterers’ option. The charter contained “a major approvals clause” requiring the vessel to be acceptable to a number of major oil companies, including Exxon and Mobil, and that loss of any one approval must be reinstated within 30 days failing which charterers were to be at liberty to cancel.

After some 2 months, on 30 December 1997, the charterers claimed they were entitled to terminate the charter for breach of condition in relation to Exxon approval. Timothy Walker J determined that the charterers did not have an automatic right to terminate on that basis. But the charterers also argued, and Timothy Walker J held, that the charter would in any event have come to an end on 26 February 1998 as the vessel would inevitably have lost and would not within 30 days have regained Mobil approval by that date.

Timothy Walker J decided that on those findings the owners’ claim was limited to the period up to 26 February 1998. Reference was made to each of the judgments in The Mihalis Angelos and in particular to the “broad approach” adopted by both Lord Denning and Edmund Davies LJ. Timothy Walker J continued:

It will be apparent from what I have already said in this judgment that despite the more extensive submissions made to me I agree with Timothy Walker J save that if “inevitability” rather than probability was intended to be a test I would differ.

In my judgment the Arbitrator was right in his conclusion despite his reluctance to reach it. Essentially and in summary I think:

The conclusion accords with the basic compensatory rule for the assessment of damages in that had the Charterparty not been repudiated but been performed it would have come to an end upon the outbreak of the second Gulf War.

I can see no sound reason why the ordinary principles requiring a claimant to prove his loss and that it was caused by the impugned conduct of the defendant should not apply in this case nor why the “normal” approach to assessment of loss derived from the normal approach to mitigation should dictate another result.

I also see no sound reason why there should be an “exception” to the rule for which Mr Hamblen contends limited only to a case where at the time of repudiation the loss is predestined to end at a date earlier than the expiry of the charter period.

The desirability of certainty and crystallisation is accepted but, I think, no more obviously achievable with than without Mr Hamblen’s rule and its supposed exception. The fact is that the Charterparty itself contained the uncertainty of the War Clause. That was what GSC lost. If Mr Hamblen were right GSC would recover more than the Charterparty was worth to it and do so without in fact incurring any greater loss.

I derive at least some comfort for these conclusions from the learned editors of Voyage Charters (2001) 2^nd Edition at paras 21.6 to 21.15. It follows that in my judgment this appeal must be dismissed. I will hear the parties on any consequential matters when this judgment is formally handed down.