Dalwood Marine Co v Nordana Line A/S

This is an appeal by the Claimant Owners against an award dated 11 June 2009 made by Mr. Marshall and Mr. Baker Harber in which the tribunal decided in favour of the Respondent Charterers’ claim in the sum of US$233,755.10 and dismissed the Owners’ counterclaim. The appeal is brought pursuant to section 69 of the Arbitration Act 1996 with the leave of the High Court.

The sums awarded to the Charterers reflected the amounts due on a final balance of account. The issues for the tribunal related to whether the Charterers had wrongfully terminated the charterparty and if so whether that had caused any loss. The tribunal concluded that the Charterers had wrongfully terminated the charterparty but that the Owners had suffered no loss. On this appeal the Owners contend that the tribunal made an error of law in concluding that no loss had been proved, namely, that it had regard to earnings for the period after the date when the repudiated charter would have ended if there had been no repudiation.

The charterparty was on an amended NYPE 1993 form for a period of 5-7 months with an option (which was exercised) for a further 5-7 months. In late March 2005 when the vessel, ELBRUS, was at Lobito, Angola, the charter was further extended for as long as it would take to proceed to Puerto Acevedo, Argentina and then perform a voyage to Houston via Rio de Janeiro, Vitoria, Port Everglades and New Orleans. On 4 April 2005 the Charterers wrongfully terminated the charterparty. At that time the vessel was still at Lobito, Angola. But for that repudiation the vessel would have been employed under the charterparty for some 39 days until redelivery at Houston on 13 May 2005.

In the event the only part of that 39 days during which the vessel earned hire was 7 days from 6 May 2005 pursuant to a charterparty with Navimed.

It is necessary to note the following matters concerning the Navimed fixture. The Navimed fixture had been fixed for a “good hire rate” with a laycan for 1-20 May 2005. The rate was $18,100 per day as opposed to $10,800 per day under the original charterparty. The fixture contained a term that the vessel had to “freshly drydocked.” Negotiations had taken place with the yard at Setubal in Portugal but no contract or date had been agreed. Had the charterparty not been wrongfully terminated on 4 April 2005 the vessel would, on termination, have been sailed to Setubal for drydocking. There is no doubt that the vessel would have missed the laycan under the Navimed fixture. There was a possibility that Navimed would not have agreed to an extension of the cancelling date because market rates in the Mediterranean had softened.

On 4 April 2005 there was no available market for ELBRUS off the west coast of Africa. The Owners decided to sail the vessel to the drydock in Setubal, dry dock her and deliver her to Navimed.

With regard to the Owners’ decision the tribunal said this, at paragraph 91:

“91.

It seems to us that the Respondents acted reasonably in doing so, faced with a vessel redelivered without notice on 4 April. However, the effect of the decision was that the vessel was in drydock much earlier than she would have been had the charter with the Claimants continued, and the vessel met her laycan, and earned a high rate of hire under the Navimed fixture. In other words, the Respondents decided not to find another cargo or business, either off West Africa where there was none, or in South America which would have involved positioning the vessel, but instead decided to arrange for the drydocking immediately, thereby ensuing that the vessel did not lose her next fixture with Navimed, at a time when the rates seemed to be softening.”

The tribunal then said, at paragraphs 92 and 93:

“92.

The Claimants have, as we have said, produced various permutations and schedules and they all show that the Respondents did not lose as result of the cancellation, but made a gain to a greater or lesser extent.

93.

Accordingly, we find and hold that the Respondents have failed to prove their counterclaim and so have failed to establish a set-off against the sum agreed to be due to the Claimants. ”

The schedules to which the tribunal referred are, it seems, summarised earlier in the award at paragraphs 39-51 of the award. Thus in paragraph 40 reference is made to a calculation that the Owners would have been unable to deliver the vessel to Navimed before 13 June 2005. Had the charterparty not been prematurely terminated, the Owners would have earned US$421,200 (that is $10,800 per day from 4 April to 13 May 2005); see paragraph 41. But as a result of the premature termination the Owners were able to earn the higher rate under the Navimed charter of US$18,100 per day from 6 May to 13 June 2005. This meant that they earned US$226,000 more between 4 April and 13 June than they would have done had the charter been prematurely terminated.

In paragraph 48 reference was made to a later date for delivery to Navimed of 10 July 2005. It is unclear why this differed from the date of 27 May 2005 in paragraph 40. Both are referred to as the Charterers’ calculations. Assuming no premature delivery the Owners would have earned US$1,095,600 from 4 April to 10 July 2005. But in fact the Owners earned US$1,176,500 from 4 April to 10 July 2005.

What is clear from these summaries is that in calculating whether the Owners had suffered a loss by reason of the premature redelivery of ELBRUS the Charterers compared the notional and actual earnings of the vessel during the period from 4 April (when ELBRUS’ original charterparty was prematurely terminated) until the date when ELBRUS was likely to have been delivered to Navimed (had there been a contractual termination). The reason that such calculations suggested that the Owners had in fact benefited from the wrongful termination was that as a result of the premature termination the Owners were able to start earning the higher rate on the Navimed fixture earlier than would have been otherwise the case.

Thus it appears that the tribunal, when concluding in paragraph 92 that the Owners “did not lose as a result of the cancellation of the charterparty but made a gain to a greater or lesser extent” did not compare the notional and actual earnings of the vessel from 4 April until 13 May 2005 (the date on which the original charterparty would have ended) but compared the notional and actual earnings of the vessel from 4 April until the date when the vessel would have been delivered to NAVIMED, either 13 June or 10 July 2005.

In essence Mr. Baker QC, on behalf of the Owners, submitted that the tribunal erred in law in so doing. He said that, as a matter of law, the tribunal ought to have assessed what the Owners lost under the charterparty for the remaining 39 days of that charterparty and deducted what the Owners in fact earned during that period. It is common ground (because ELBRUS in fact earned hire only for the tail end of that period of 39 days) that the Owners would, on such a basis, have incurred a loss at least equal to the sum otherwise due to the Charterers. If that is the correct approach in law then the award in favour of the Charterers ought to be set aside.

Mr. Baker relied particularly on two authorities. The first case was The Concordia C [1985] 2 Lloyd’s Rep. 55. This was a decision of Bingham J. (as he then was). The case concerned a voyage charterparty which was repudiated by the charterers. The owners accepted the repudiation and fixed the vessel on a substitute voyage on 2 February. They claimed damages. Had the original charter been performed it would have ended on 16 February. Loading under the substitute voyage commenced on 13 February and discharge ended on March 10. The arbitrators calculated the daily net revenue which would have been earned under the original voyage charter and the daily ret revenue which was in fact earned under the substitute voyage charter. The difference was multiplied by the number of days that the original voyage charter would have taken (18.33 days). The resulting sum was the Owners’ damages for “freight differential”. The charterers submitted that the arbitrators had erred in law by ignoring the earnings for the period from 16 February until 10 March. Those were earnings “which the Owners could not have enjoyed but for the charterers’ breach.” (There was also a dispute as to the arbitrator’s treatment of demurrage but that is not relevant for present purposes.)

Bingham J. held that the correct measure of loss was the net revenue that the owners would have earned under the original voyage charter less the net earnings under the substitute charter for the period from 13-16 February. This measure of loss put the Owners in the same financial position as if the original charter had been performed. With regard to events after 16 February Bingham J. said as follows, at p.58:

“Had the arbitrators concluded that the Marathon charter, extending after Feb.16 conferred benefits on the owners which they would not have obtained had the Rheinoel charter been performed, that would go to depress the owners’ damages but they did not so conclude and their award contains no material to suggest that they could or should have done so.”

The second case was The Noel Bay [1989] 1 Lloyd’s Rep. 361. That case also concerned a voyage charter which was prematurely terminated by the charterers. A question arose as to the calculation of the credit which was to be given for the daily net profit earned during the “overlap period”, that is, that part of the original voyage charter’s notional charter period during which the vessel was fixed on a substitute charter. Staughton LJ made reference to the general principles for assessing damages in such a case at p.363.

“At first sight the owners' claim for damages fell to be assessed on well-settled principles, albeit with a good deal of tiresome attention to detail. The owners are entitled to be placed in the same position, financially, as they would have enjoyed if the contract had not been broken. That involves a comparison of the money they would have earned, less expenses, on the contract voyage with the money they in fact earned, less expenses, on the substitute voyage. Fixed items, such as insurance, crew wages and repairs, which can more or less accurately be described as overheads for this purpose, may be disregarded since they are the same on both sides of the account. But one problem that almost invariably arises, and does in this case, is that the substitute voyage lasts for longer than the voyage under the original charter-party. The solution commonly adopted is to take a proportion of the profits on the substitute voyage to set off against the profits lost on the original voyage; otherwise one would be involved in calculations to the end of the ship's working life.

Another problem is that the vessel may have been better - or worse - placed for future employment at the end of one voyage than at the end of the other. That is commonly a factor which is said to be relevant. But there is nothing to suggest that it has any importance in this case.”

It is to be noted that Staughton LJ makes reference to an invariable problem, namely, that the substitute voyage lasts longer than the original voyage. He refers to the solution commonly adopted in such a case, namely, to take a proportion of the profits on the substitute voyage to set off against the profits lost on the original voyage. That proportion was not identified but was no doubt the proportion referable to the period of time during which the original voyage would have been performed, as stated by Bingham J. in The Concordia C. He identified another problem, namely, that the vessel may have been better placed for future employment at the end of the substitute voyage than she would have been at the end of the original voyage. He did not say how this problem could be solved but presumably such benefit would go to depress the recoverable damages as suggested by Bingham J. in The Concordia C.

In Scrutton on Charterparties 21^st.ed. at Article 193 the editors stated the following principles as being supported by, amongst other authorities, The Concordia C and The Noel Bay:

“In an action against a charterer for not loading a cargo, the measure of damage is the amount of freight which would have been earned under the charter after deducting the expenses of earning it and any net profit the ship may, or might have earned during the period of the charter on a substituted voyage. ………………Where the substitute voyage is of a longer duration than the charter voyage, no attempt will be normally be made to determine the relative positions of the shipowner in the period after the date on which the charter voyage would have been completed, unless there is clear evidence that the shipowner has obtained a benefit by reason of the longer duration of the substitute voyage.”

Statements of principle to the same effect are to be found in Voyage Charters 3^rd.ed at paragraphs 21.89 and 21.90. I was not referred to any passage in Time Charters 6^th.ed. but it was common ground that the same principles applied to time charters or time charter trips (as the charter in the instant case had in effect become).

It was submitted by Mr. Baker that the tribunal ought to have assessed the Owners’ damages in the manner indicated in those cases and in the textbooks, namely, by assessing the hire which would have been earned from 4 April until 13 May 2005, when the original charter would have ended, and deducting the hire which was in fact earned during that period. Earnings after 13 May 2005 were irrelevant as a matter of law.

For the Charterers Mr. Croall QC did not accept that the tribunal had erred in law. He relied upon two principles which were not in dispute. First, an award of damages was designed to put the innocent party, insofar as it is possible, in the position he would have been in had the contract been performed; see The Golden Victory [2007] 2 AC 353 at paragraph 29 per Lord Scott.

“29 My Lords, the answer to the question at issue must depend on principles of the law of contract. It is true that the context in this case is a charterparty, a commercial contract. But the contractual principles of the common law relating to the assessment of damages are no different for charterparties, or for commercial contracts in general, than for contracts which do not bear that description. The fundamental principle governing the quantum of damages for breach of contract is long established and not in dispute. The damages should compensate the victim of the breach for the loss of his contractual bargain. The principle was succinctly stated by Parke B in Robinson v Harman (1848) 1 Exch 850 , 855 and remains as valid now as it was then: ”

“The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.”

If the contract is a contract for performance over a period, whether for the performance of personal services, or for supply of goods, or, as here, a time charter, the assessment of damages for breach must proceed on the same principle, namely, the victim of the breach should be placed, so far as damages can do it, in the position he would have been in had the contract been performed.”

Second, where the innocent party mitigates his loss credit must be given for the benefit gained from such mitigation; see MacGregor on Damages para.7-006.

However, it was also submitted that where a charterparty is terminated prematurely and there is no available market the “right course is to assess the actual loss” which “involves an assessment of the financial consequences if the charter had been performed and the actual position resulting from breach. However in determining the latter it remains important to give proper credit for the benefit conferred upon the Owners as a result of the vessel being at their disposal much earlier than would have been the case under the charter.” It was further submitted that there is no rule of law which restricts the enquiry to the period up until the end of the duration of the original charter assuming it had been performed. These submissions were in dispute.

On the facts of the present case it was submitted that the fact that the Owners had the vessel available to them from 4 April was of considerable financial advantage to them as it allowed them to reposition the ship, dry dock her and deliver her under the Navimed fixture much earlier than would otherwise have been the case. The actions of the Owners which brought about these benefits arose from the breach of the charter and were designed to reduce the Owners’ losses. Thus in principle the benefits which accrued must be taken into account in assessing the Owners’ losses.

It was accepted that the tribunal made no specific finding as to how much was in fact saved but it was said that the tribunal noted correctly that every permutation led to a net benefit to the Owners. That was because the value of the lost 39 days, when account was taken of the benefits which accrued to the Owners from their actions to mitigate their losses, exceeded the hire which would have been earned under the original charter.

The tribunal noted that the Owners’ case was that at the time of the premature termination of the charterparty there was no market for the vessel and therefore they claimed damages at the charterparty rate for the period from 4 April 2005 until 18 April 2005 when the vessel went into dry dock; see paragraphs 18-20 of the Award. There is no indication in the award as to why the Owners limited their claim to this period. On Mr. Baker’s argument they could have claimed for the period from 4 April to 13 May 2005.

The tribunal noted that the Charterers’ primary submission was that the Owners had suffered no loss and that The Golden Victory was cited in support of their submission that “the whole picture must be examined in order to assess the actual loss suffered;” see paragraph 35 of the Award.

The tribunal found the issue very difficult to decide but concluded that the Charterers were correct and that the Owners, overall, did not suffer a loss as a result of the repudiation of the charterparty by the Charterers; see paragraph 79.

The steps in the tribunal’s reasoning were as follows:

Steps (i)-(iv) of the tribunal’s reasoning disclose no error law. If there is an error or law it must be found in step (v). Whether or not step (v) discloses an error of law depends upon the content of the permutations and schedules provided by the Charterers. Those permutations and schedules were referred to earlier in the award at paragraphs 39-51. I have already commented that they compared the notional and actual earnings of the vessel during the period from 4 April (when the original charterparty was prematurely terminated) until either 13 June or 10 July 2005 (the date when ELBRUS was likely to have been delivered to Navimed had there been a contractual termination).

The essential question therefore is whether the tribunal was wrong in law to take into account the vessel’s notional and actual earnings for that period which extended to a date long after 13 May 2005 when the contractual redelivery would have taken place.

Pursuant to the compensatory principle the claimant is entitled to the benefit, expressed in money, of the contractual rights he has lost; see The Golden Victory [2007] 2 Lloyd’s Rep. 164 at paragraph 30 per Lord Scott. The contractual right lost by the Owners was a right to the payment of hire from 4 April to 13 May 2005 in return for the use of the vessel and crew. Prima facie the measure of damages for the loss of such right is the hire which would have been earned during that period less the hire which was in fact earned during that period from such alternative employment as the Owners were able to secure. That prima facie measure of damage reflects at least two matters. First, it reflects the duty of the owner to mitigate his loss by finding alternative employment for his vessel. Second, by assessing the value of the benefit obtained from mitigation by reference to the hire received during the period ending with the date on which the original charterparty would have ended, it recognises the difficulty of assessing that benefit over any longer period which, if there were to be a complete assessment of that benefit, would entail a calculation over the whole of the vessel’s working life.

In the present case the tribunal has taken into account the actual and notional earnings after 13 May 2005. That departs from the prima facie measure of damages but both The Concordia C and The Noel Bay recognise that where the substitute voyage confers a benefit upon the owner which he would not have had but for the repudiation of the charterparty, account may be taken of that benefit when assessing damages. That is consistent with the principles underlying mitigation to which Mr. Croall referred. Depending upon the nature of such benefits it may be necessary to calculate their financial value by reference to earnings after the notional date on which redelivery would have taken place under the original charterparty. Thus, where the vessel is better placed for future employment at the end of the substitute charter than at the end of the original charter (the example mentioned in The Noel Bay), that benefit may be calculated by reference to earnings at a period later than notional redelivery under the original charter.

It is therefore necessary to consider whether the tribunal found that there was a benefit in the present case in addition to the receipt of hire between 6 and 13 May 2005. Mr. Croall submitted that there was such a benefit. In his Skeleton Argument he identified the benefit as being the ability to earn under the Navimed charter much earlier than would have been the case had the original charterparty been performed. This submission was repeated in his oral submissions but other benefits were also mentioned. They included being able to ensure that the Navimed fixture was not cancelled and reducing the “downtime” which would have been incurred in proceeding from Houston to the drydock in Setubal by proceeding instead from Angola to the drydock in Setubal.

When recounting the arguments of the Charterers the tribunal made reference to the benefit of earning under the Navimed charter earlier than would have been the case (paragraphs 40-42 and 47-49) and to the benefit of having a shorter trip to the dry dock from Angola than from Houston (paragraph 43; which benefit was assessed by the Charterers as saving one day’s hire). The former benefit was expressly acknowledged by the Owners’ broker Mr. Lucas who advised the Owners that if Navimed did not object to early delivery they would have the benefit of earning the much higher rate under the Navimed fixture almost two months earlier than expected (paragraph 90).

I have already quoted the tribunal’s finding in paragraph 91. Mr. Croall submitted that this was a finding that the Owners had benefited from early delivery under the Navimed fixture and that such benefit was a consequence of the action taken by the Owners to mitigate their loss. Mr. Baker submitted that all that the tribunal found in paragraph 91 was that the Owners had acted reasonably in seeking to mitigate their loss.

In deciding what the tribunal has found I have approached the award with the following principles in mind, taken from Pace Shipping v Churchgate Nigeria [2009] EWHC 1975 (Comm) at paragraph 16:

“However, when reviewing the reasons of an arbitral tribunal the court should read the award "as a whole in a fair and reasonable way ….[and] should not engage in minute textual analysis" (see Kershaw Mechanical Services Ltd v Kendrick Construction [2006] EWHC 727 (TCC) [2006] 2 All ER (Comm.) 81 at paragraph 57. The courts do not approach awards "with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards and with the objective of upsetting or frustrating the process of arbitration" (see Zermalt Holdings SA v Nu-Life Upholstery Repairs Ltd [1985] 2 EGLR 14).”

The tribunal has not found in terms that as a result of action taken to mitigate their loss the Owners obtained a benefit (in addition to the higher rate of hire for the period 6-13 May) which was sufficient to cause them to profit, rather then make a loss, from the repudiation of the charterparty. However, the tribunal noted that the Charterers were arguing that such a benefit had been obtained and that the Owners’ broker perceived such a benefit. Further, the language of paragraph 91 (“the effect of the decision”) is suggestive of a finding that the Owners had obtained a benefit. Moreover, the fact that the tribunal’s decision in paragraphs 92 and 93 follows immediately on paragraph 91 strongly suggests that the tribunal sought to give effect to a benefit which the tribunal thought the Owners had secured.

Reading the award in a fair and reasonable way without trying to pick holes, inconsistencies or faults in it, I consider that paragraph 91 should be read in its context as a finding that the Owners had secured a benefit from their action to mitigate their loss in addition to the earning of hire from 6-13 May 2005.

What was that benefit ? The second sentence of paragraph 91 suggests that the benefit was being able to earn under the Navimed fixture earlier than would have been the case. The third sentence suggests the benefit was being able to ensure that the Navimed fixture was not lost (there having been a possibility that Navimed would have cancelled; see paragraph 88). The tribunal considered that these were alternative ways of expressing the same benefit, though I am not sure that they are. However, by referring in paragraph 92 to the “various permutations and schedules” presented by the Charterers it would seem that the tribunal had in mind the benefit of being able to earn under the Navimed fixture earlier than would have been the case. That is what those permutations and schedules illustrate. They do not seek to value the benefit of ensuring that the Navimed fixture was not lost which would have entailed making assumptions about what the vessel would have done had Navimed cancelled on 20 May. On the contrary they assume that the Navimed fixture would not have been lost.

Mr. Baker submitted that it was wrong in law to take into account the earnings of the vessel after the date on which the vessel would have been notionally redelivered under the original charterparty. As I have already observed the Owners are to be compensated for the contractual right they have lost and therefore what has to be valued is the value in monetary terms of the right to earn hire up to and not beyond the notional date of redelivery, less such benefits as have been obtained by action taken to mitigate that loss. There is no reason in principle to limit the type of benefit which may be taken into account. The approach of Bingham J. in The Concordia C shows that when assessing the monetary value of the benefits obtained as a result of action taken to mitigate the Owners’ loss it may be appropriate to reduce the recoverable damages by benefits other than the hire earned on a substitute voyage during the period ending with the notional date of redelivery. That is also shown by the statement of principles by Staughton LJ in The Noel Bay. Where such other benefits have been obtained (eg where the vessel is redelivered after the substitute voyage in a location where she is better placed for future employment) it will be a matter for the fact finding tribunal to assess the monetary value of such benefits. Depending on the nature of the benefit and the approach taken to valuation it may be necessary to take into account earnings after the notional date of redelivery. Thus the mere fact that such earnings have been taken into account does not necessarily mean that the tribunal has erred in law.

The assessment of damages in this context can be difficult. In the present case the tribunal said the issue to be decided was “very difficult”. In The Concordia C Bingham J referred to the arbitrators having “a perplexing task in trying to give appropriate effect to a substitute charter to a different destination, overlapping for only a short period with the time the Rheinoel charter (if not repudiated) would have taken to perform.” Usually, as indicated by Staughton LJ in The Noel Bay, the solution to such difficult problems will be to give credit only for the substitute earnings received during the notional period of the original charter. That also reflects the prima facie measure of damages. For “otherwise one would be involved in calculations to the end of the ship’s working life”. Thus in the present case, it could be said (and was said by Mr. Baker) that assessing the financial benefit of the Navimed charter up until the date when the vessel would have been delivered to Navimed, assuming no repudiation of the original charter, is an incomplete, and therefore arbitrary, exercise because it takes no account of the notional earnings of the vessel after that date. Those earnings may have been greater than those in fact earned by the vessel after performing the Navimed fixture. But a complete assessment would involve calculations to the end of the vessel’s working life which is impractical and therefore one should apply the prima facie measure of damages.

That is, I infer, why the editors of Scrutton on Charterparties say at Article 193 that “Where the substitute voyage is of a longer duration than the charter voyage, no attempt will normally be made to determine the relative positions of the shipowner in the period after the date on which the charter voyage would have been completed, unless there is clear evidence that the shipowner has obtained a benefit by reason of the longer duration of the substitute charter” (emphasis added).

In the present case the tribunal decided that in assessing the Owners’ loss it was appropriate to take into account the benefit obtained by the Owners of earning the high rate on the Navimed fixture earlier than would otherwise have been the case. That was the very benefit which the owners’ broker Mr. Lucas advised the Owners they would obtain and appears to have been the reason why the Owners decided to mitigate their loss by sailing the vessel to drydock and delivering her to Navimed. The tribunal found that the Owners had secured that benefit from their action to mitigate their loss.

Whilst other tribunals of fact might not have been persuaded that being able to earn the high rate on the Navimed fixture earlier than would otherwise have been the case was ultimately more beneficial to the Owners (because a calculation to the end of the vessel’s working life would be required which would be impractical), I do not consider that the tribunal’s decision in this case demonstrates an error of law. The law, in particular the principles relating to mitigation of loss, permits the tribunal to take account of benefits obtained by the Owners as a result of action taken to mitigate their loss. Whether a particular benefit has been established on the evidence is a matter for the tribunal to determine as a fact. This tribunal found that the benefit was established on the evidence before it. Similarly, the assessment of the monetary value of that benefit is a matter for the tribunal to determine as a fact. Some tribunals may not have been persuaded that the value of having the use of money earlier than would otherwise have been the case was as substantial as this tribunal did. But these are questions of fact. On an appeal pursuant to section 69 of the Arbitration Act 1996 the court must accept the facts as found by the tribunal. It cannot substitute findings of fact for those made by the tribunal.

The Owners’ submission on this appeal was that the tribunal erred in law by taking into account the actual and notional earnings of the vessel after 13 May 2005, the notional date of redelivery. For the reasons I have endeavoured to explain no such error of law is demonstrated on the facts as found by the tribunal. The appeal must therefore be dismissed.