Bahamas Oil Refining Company International Limited v The Owners of the Cape Bari Tankschiffahrts GMBH & Co KG

On 25 May 2012, during a berthing operation, the respondents’ vessel Cape Bari (“the vessel”) collided with Sea Berth no 10 at Freeport in Grand Bahama. Sea Berth no 10 was the property of the appellant (“BORCO”) and was part of its storage facility. As a result of the damage caused by the collision, BORCO initially claimed damages in the amount of about US$26.8m, plus interest, against the respondents (“the owners”). It later reduced its claim to some US$22m. The owners say that they are entitled to limit their liability (if any) to 11,012,433 Special Drawing Rights (calculated by reference to the vessel’s gross tonnage), being approximately US$16.9m plus interest, under the Merchant Shipping (Maritime Claims Limitation of Liability) Act 1989 of the Bahamas (“the 1989 Act”), which incorporated into Bahamian Law the Convention on Limitation of Liability for Maritime Claims 1976 (“the 1976 Convention”). BORCO denies that the owners are entitled to limit their liability, on the ground that they had waived their right to do so under a contract which it was agreed that the parties had made immediately before the berthing operation. The contract is contained in or evidenced by a document referred to hereafter as “Conditions of Use” which was signed by the master.

On 20 September 2012, upon the owners’ ex parte application, the court made an order for the constitution of a limitation fund in the amount of US$16,995,487.84. By a summons dated 16 October 2012, BORCO applied to the court for an order setting aside that order. At first instance, in a judgment dated 9 August 2013, Senior Justice Hartman Longley (“the judge”) held that the owners were not entitled to limit their liability because, on the true construction of the contract, they had contracted out of their right to limit. It was common ground before the judge that, under both the 1989 Act and the 1976 Convention, it was permissible for the owners to contract out of their right to limit.

On 22 May 2014 the Court of Appeal (Allen P and Blackman and Adderley JJA) reversed the decision of the judge, not on the ground that he erred in his construction of the Conditions of Use, but on the different ground that, under articles 2.1 and/or 2.2 of the 1976 Convention it was not permissible to contract out of the right to limit, even by entering into a contract of indemnity. However it is not in dispute that this issue was not argued before the Court of Appeal because it then remained common ground that it was permissible for parties to contract out of the 1989 Act and the 1976 Convention.

It is submitted on behalf of BORCO that the Court of Appeal was wrong to reverse the decision of the judge because (1) on the true interpretation of the 1989 Act and the 1976 Convention it was permissible for the owners to contract out of the right to limit (as both parties had acknowledged) and (2) on the true construction of the Conditions of Use, the owners had done so. BORCO also complains that the Court of Appeal acted unfairly in disposing of the appeal on a ground which had not been argued by either party and which the court gave neither party an opportunity to address in argument.

So far as relevant to this appeal, the facts are not in dispute. The vessel arrived at Freeport at about 1318 hours on 25 May 2012 with a view to berthing in order to load a cargo of crude oil at BORCO’s terminal. At or soon after 1330 hours, two pilots boarded the vessel. It was a requirement at the terminal that the vessel would berth using tugs and a pilot provided by BORCO, although they were in fact supplied through BORCO’s affiliate company, BORCO Towing Company Ltd (“BORTOW”). At about 1336 hours, the master and the pilots exchanged information and the master, as agent for the owners, signed two agreements as presented to him. The first was a Pilotage/Towage Agreement relating to the provision of pilotage and tug services. The second was an agreement headed “Conditions of Use of Jetties, Sea Berth and Inner Harbour Berth at Freeport, Grand Bahama” relating to the owners’ use of BORCO’s facilities, which the Board will call the “Conditions of Use”. Shortly after the agreements were signed, at about 1348 hours on the same day, 25 May 2012, two tugs arrived and towing lines were secured to the vessel and at or soon after 1350 hours, the vessel proceeded towards Sea Berth no 10. Very shortly thereafter, at about 1401 hours, the vessel collided with Sea Berth no 10, causing substantial damage.

Both of the agreements were expressed to be governed by the law of the Bahamas. Clause 2 of the Pilotage/Towage Agreement provided:

In the agreed statement of facts and issues the parties agreed that the principal issues which arise in this appeal are these. (1) Is it permissible for the owners of a vessel to contract out of or waive their statutory right of limitation under the 1989 Act and the 1976 Convention? (2) On the true construction of the agreement contained in or evidenced by the Conditions of Use, did the owners and BORCO agree to exclude the owners’ right to limit their liability under the 1989 Act and the 1976 Convention? (3) Accordingly, are the owners entitled to a declaration that their liability in respect of damages caused as a result of the Collision shall be no more than $16,995,487.84 plus interest thereon in the amount of $342,695.90? In addition the Board is asked to consider whether the Court of Appeal acted unfairly in holding that it was not permissible for the owners of a vessel to contract out of or waive its statutory right of limitation under the 1989 Act and the 1976 Convention because the Court of Appeal (a) determined the appeal from the decision of the judge on a basis not put forward by either party and not raised by the Court of Appeal during the hearing and (b) failed to give BORCO a reasonable opportunity to argue before the Court of Appeal that any such conclusion was wrong as a matter of law.

The agreed statement of facts and issues also contains a further question which seems to the Board to be encompassed in the issues set out above. It also says that there are in addition consequential issues relating to procedural matters, including BORCO’s application for an order setting aside the order dated 20 September 2012 relating to the constitution of a limitation fund. The Board will return to this, so far as necessary, below. It is convenient first to discuss the first two questions set out in para 7 above in the order set out in the statement of facts and issues. However, before doing so, it is appropriate to refer briefly to the statutory limitation regime set in its international and historical context.

The 1976 Convention superseded the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships of 1957 (“the 1957 Convention”), to which the Bahamas was a party by accession. The earlier UK legislation of particular relevance, prior to international harmonisation, was section 503 of the Merchant Shipping Act 1894, and prior to that section 54 of the Merchant Shipping Act Amendment Act 1862, which was the statutory regime in operation when Clarke v Earl of Dunraven and Mount-Earl (The Satanita) [1897] AC 59 was decided. In order to limit its liability at that time it was necessary for the owner to show that the damage had been caused without its actual fault or privity.

The 1976 Convention radically altered the position. It introduced a harmonised and uniform set of rules in relation to limitation of liability for maritime claims around the world, including the Bahamas. Chapter 1 is entitled “THE RIGHT OF LIMITATION” and contains articles 1 to 4. Article 1.1 provides:

Article 2, which is entitled “Claims subject to limitation” provides, so far as relevant:

Article 2 is expressly subject to articles 3 and 4. Article 3 lists certain claims which are excepted from article 2 and which are not relevant here. Article 4, which is entitled “Conduct barring limitation” and which is the sole provision to that effect, provides:

There are critical differences between the 1976 Convention and its predecessor, the 1957 Convention. In particular, article 1.1 confers on “shipowners” and “salvors” (as defined) a statutory entitlement to limit their liability in respect of claims falling within the categories listed in article 2, which provides by article 2.1 that the claims listed “whatever the basis of liability may be, shall be subject to limitation of liability”, which makes clear that the right to limit now exists whether the claim is brought in contract, tort, or otherwise. The 1957 Convention and preceding regimes contained no equivalent provision. Thus prior to the 1976 Convention, owners were unable to limit their liability where the claim was based on a contractual liability to indemnify (as opposed to a damages claim within a listed category - typically a claim in negligence).

It can thus be seen that the limitation regime in the 1976 Convention is less favourable to owners than it was previously in that the financial limit is significantly higher but, importantly, that a claimant can only break the limit if it proves either intention or recklessness with knowledge that damage will probably result. This is a high hurdle to jump and is very rarely jumped with success. So, for example in Schiffahrtsgesellschaft MS Merkur Sky mbH & Co KG v MS Leerort Nth Schiffahrts GmbH & Co KG (The Leerort) [2001] EWCA Civ 1055; [2001] 2 Lloyd’s Rep 291, Lord Phillips MR (with whom Henry and Brooke LJJ agreed) said in the Court of Appeal at para 9 that he could do no better that adopt some passages from the judgment of Sheen J in The Bowbelle [1990] 1 WLR 1330. They included the following: that the 1976 Convention had brought about “a profound change” (p 1332) or a “dramatic change” (p 1334) in the law of limitation. In para 10 Lord Phillips quoted this passage from the judgment of Sheen J at p 1335:

As stated above, it was common ground before the judge that the answer to that question was yes. The Court of Appeal answered the question no and, moreover, did so without the point being taken and without giving the parties the opportunity to make submissions on it. The Board wishes to make it clear at the outset that the Court of Appeal ought not to have decided the point without giving the parties such an opportunity. In very many cases, such an approach will lead to an appeal against the decision being allowed. However, both parties have now had the opportunity of putting their argument on the substance of the point to the Board. In the course of his oral submissions on behalf of the owners the Board asked Mr Luke Parsons QC whether the owners intended to maintain their stance on the question raised by issue one. He replied that they did, although he said that he did not intend to add oral submissions to those set out in the owners’ written case. In the event the Board is satisfied that it has sufficiently detailed submissions on both sides on this issue and that the ends of justice will served by the Board considering the question on its merits, especially since it raises an issue of some general importance.

The general approach in accordance with which the 1976 Convention should be construed was considered by the Court of Appeal in CMA CGM SA v Classica Shipping Co Ltd [2004] 1 Lloyd’s Rep 460; [2014] EWCA Civ 114, in a judgment given by Longmore LJ, with whom Neuberger and Waller LJJ agreed, at paras 9-11.

First, the interpretation of international conventions must not be controlled by domestic principles but by reference to broad and generally acceptable principles of construction. The task of the court is therefore to construe the 1976 Convention as it stands without any English law preconceptions. Secondly, some particular broad and generally acceptable principles of construction are set out in articles 31-32 of the 1969 Vienna Convention on the Law of Treaties, which provide:

The Board adopts the following conclusions of Longmore LJ in his para 10 based on those provisions:

Applying those principles of construction, the Board is of the clear opinion that it is open to parties, here shipowners, to agree to waive their right to limit their liability under the 1976 Convention or the 1989 Act. Simply as a matter of language, the Board concludes that there is nothing in the language of the Convention or the Act to prohibit them from doing so.

The 1989 Act throws no light on the point distinct from the 1976 Convention. It simply provides in section 3(1) that the provisions of the 1976 Convention “shall have the force of law in The Bahamas”. It follows that all turns on the construction of the Convention. The language of the Convention strongly supports the conclusion that there is nothing to prevent shipowners agreeing to waive their right to limit. Chapter 1 expressly refers to the right of limitation. Article 1.1 provides that they may limit their liability … for claims set out in article 2. The Board emphasises those provisions because they show that the Convention confers rights on shipowners and not duties. There is no linguistic support for the conclusion that shipowners cannot agree to pay more than the limit or, more accurately, cannot agree to pay a particular claimant more than the limit provided for in the Convention. They have a right to limit, which they can choose to exercise, or not, as they please.

Some reliance was placed on behalf of BORCO on the travaux préparatoires. However, the Board does not attach significance to it. There is certainly nothing in the travaux to support the owners’ case that it is impermissible to contract out.

The authorities decided under the previous regime show that nobody suggested that it was not possible to contract out. The whole of the debate in the House of Lords in The Satanita was as to the construction of the relevant contractual arrangement, to which the Board will return when considering issue (2). The Board was also referred to Virginia Carolina Chemical Co v Norfolk and North American Steam Shipping Co [1912] 1 KB 229, where the point was common ground. At first instance, Bray J said (p 236) that it was conceded that it was open to the parties to exclude the section by their contract, adding that The Satanita was sufficient authority on that point. On appeal, Kennedy LJ said (p 246):

The conclusion which the Board has reached is consistent with the general principle that “a man may by his conduct waive a provision of an Act of Parliament intended for his benefit”: Wilson v McIntosh [1894] AC 129, 133-134 (PC).

In this case the Court of Appeal, which (as stated above) was unassisted by argument on the point, reached the opposite conclusion, essentially for the reasons given by Allen P in paras 34-40 of her judgment. She recognised that under the previous regimes in the Merchant Shipping Amendment Act 1862 and the Merchant Shipping Act 1894, the position had been held to be different but she noted that there were no provisions in those statutes which compared with article 2.2 of the 1976 Convention. In para 34 she set out clauses 1 and 4 of the Conditions of Use (quoted in para 6 above) and said that it could not be denied that the contract clearly had as to its intent and purpose to indemnify BORCO against “all and any loss resulting from the collision”. She then said in para 35 (somewhat enigmatically):

The essence of Allen P’s reasoning is in her paras 36-40, where she relies in particular upon the reasoning of Lord Phillips in The Leerort, namely (as she put it in para 36)

As was submitted on behalf of the BORCO, the problem with reliance upon The Leerort is that in that case the Court of Appeal was not considering the question which arises in this appeal, which is whether on the true construction of the 1976 Convention, it is permissible to contract out of the right to limit liability. Moreover there is nothing in the Convention, and in particular in articles 2.1 and 2.2, which prohibits the right to contract out of the right to limit liability by means of contracts of indemnity or otherwise.

For all these reasons the Board answers the question posed by issue (1), namely whether it is permissible for the owners of a vessel to contract out of or waive their statutory right of limitation under the 1989 Act and the 1976 Convention, in the affirmative.

The judge answered this question in the affirmative. In the light of the Board’s view that the first sentence of the quotation from para 35 of Allen P’s judgment is enigmatic, it is not quite clear to the Board what view the Court of Appeal took of the question of construction raised by this issue. On balance it appears to the Board that the Court of Appeal thought that, if the matter had arisen under the old law, the court could have construed the agreement as excluding the owners’ right to limit their liability but that the point did not arise under the new law for the reasons discussed above. The Board will reach its own conclusions without reference to para 35 of the judgment in the Court of Appeal.

BORCO’s case depends primarily on clause 4 of the Conditions of Use which is set out in full in para 6 above. For present purposes the critical part is as follows:

The question is essentially one of construction of that clause. There is no dispute as to the relevant principles. As it is put in BORCO’s case, the object of construing a contract is to identify the parties’ objective intention by reference to the language used, the factual background which was known or ought to have been known to both parties and the commercial purpose of the contract. As submitted on behalf of the owners, the overarching question is what is the meaning that the words of the agreement, especially clause 4, would convey to a reasonable person having the background knowledge which would reasonably have been available to the parties in the position they were in when the contract was made.

The principles which are principally relevant in a case of this kind are those which are applicable where it is alleged that the agreement excludes a legal right, including a legal right under a statute. The Board accepts the submission that, for a party to be held to have abandoned or contracted out of valuable rights arising by operation of law, the provision relied upon must make it clear that that is what was intended.

This principle has been applied in very many contexts. For example, in Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689, where it was said that the parties to a building contract had agreed to exclude, or contracted out of, the contractors’ common law and statutory entitlement, under section 53(1)(a) of the Sale of Goods Act 1893, to set off breach of warranty claims in diminution for the price. Thus the right allegedly excluded was one which would go to diminish the value of the claim otherwise maintainable against the contractor. It was in this respect not unlike a right to limit. Lord Diplock put the principle in this way at pp 717-718:

Reliance was also placed on similar principles in the House of Lords in Trafalgar House Construction (Regions) Ltd v General Survey & Guarantee Co Ltd [1996] 1 AC 199, per Lord Jauncey at 208C (alleged contracting out of incidents of suretyship); in Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574, per Lord Goff at 585C (shipyard’s rights to recover purchase price instalments); and in HIH Casualty & General Insurance Ltd v Chase Manhattan Bank [2003] 2 Lloyd’s Rep 61; [2003] UKHL 6, per Lord Bingham at para 11 (legal remedies for negligent misrepresentation). See also two similar statements by Moore-Bick LJ in the Court of Appeal: in Stocznia Gdynia v Gearbulk Holdings Ltd [2009] 1 Lloyd’s Rep 461; [2009] EWCA Civ 691, para 23 and in Seadrill Management Services Ltd v OAO Gazprom [2010] 1 CLC 934, para 29. In the first of those cases he said:

There is also authority to the same effect in a class of case which is similar to this. Section 502 of the Merchant Shipping Act 1894 provided that “the owner of a British sea-going ship” shall not be liable for “any loss or damage happening without his actual fault or privity” where goods were lost or damaged by reason of fire on board the ship. In Ingram & Royle Ltd v Services Maritimes du Trėport Ltd [1914] 1 KB 541 Vaughan Williams LJ said at p 553:

The decision in Ingram & Royle was upheld by the House of Lords in Louis Dreyfus & Co v Tempus Shipping Co [1931] AC 726 at 733-734 and 741, where Lord Warrington of Clyffe said that the statutory provision was as much written out in the contract as if the parties had written it out in the contract itself.

In Alsey Steam Fishing Co Ltd v Hillman (The Kirknes) [1957] P 51, after reviewing the authorities, including The Satanita, Willmer J said at p 62, that the relevant statute (there section 503 of the 1894 Act) “applies unless quite clearly it is expressly or impliedly excluded by the terms of the contract”. The Board accepts that it might be possible to exclude the right to limit without express reference to the statute, but concludes that the right must be clearly excluded, whether expressly or by necessary implication.

Absent The Satanita, the Board would be in no doubt that the application of the principles identified above leads to the clear conclusion that the effect of clause 4 of the Conditions of Use is not that the parties agreed that the owners could not rely upon their right to rely upon the 1976 Convention. The 1976 Convention is an important part of the factual matrix against which clause 4 must be construed. As Willmer J put it in The Kirknes [1957] P 51, p 62, section 503 of the Merchant Shipping Act 1894 applied unless it was expressly or impliedly excluded by the terms of the contract and that “the parties should be assumed to be contracting in accordance with the known state of the law”. See also, to the same effect, in the context of the 1976 Convention a recent decision of Reyes J in Hong Kong: Sun Wai Wah Transportation Ltd v Cheung Kee Marine Services Co Ltd [2010] 1 HKLRD 833, para 11.

It is noteworthy that, notwithstanding the provision in section 3(1) of the 1989 Act that the provisions of the 1976 Convention “shall have the force of law in The Bahamas”, there is no reference in clause 4 or any other part of the Conditions of Use to any part of those provisions. In particular there is no reference to articles 1, 2.1 or 2.2 of the Convention. In the opinion of the Board, if the parties had intended to agree that the owners should not be entitled to exercise their right to limit their liability in accordance with article 1 they would have so provided. Construed in the way most favourable to BORCO, the property claims (including claims for an indemnity) which were to be “subject to limitation of liability” were those set out in article 2.1(a) and 2.2. Provided the claims were claims so defined, it appears to the Board that the owners were entitled to limit their liability under the Act. There is nothing in clause 4 which contains even a hint that the owners were agreeing to waive their right to limit their liability under the Convention.

On the contrary, clauses 1 to 3 contain provisions entirely for the protection of BORCO and impose liability on the shipowners whether or not BORCO, its servants or agents were responsible. In short, there are three exclusion clauses which expressly identify with precision that which they purport to exclude. It is said on behalf of BORCO that clause 4 has the effect of excluding the owners’ rights to limit under the 1976 Convention and the 1989 Act. Yet it contains no reference to the Convention or the owners’ right to limit. The first sentence of clause 4 purports to impose a form of strict liability on the owners in respect of damage to the terminal facilities. Liability is said to attach irrespective of whether the owners were negligent and even if the relevant loss was caused by the negligence of BORCO or their servants. In addition clause 4 imposes an obligation to indemnify BORCO in connection with damage to the terminal facilities and in respect of third party claims. As the owners observe, it is this liability to hold harmless and indemnify BORCO which triggers the owners’ need to limit their liability.

BORCO’s case depends in large part upon its reliance upon the reasoning and decision of the House of Lords in The Satanita. It appears to the Board that, if the principles identified above are applied, there is nothing in the Conditions of Use which, on its true construction, excludes the owners’ rights under the 1976 Convention. Although (as stated above) the Board accepts that it would not be necessary to provide expressly for such a conclusion, it would have to be clear from the language of the clause construed in its context that the parties intended to exclude the right to limit.

BORCO relies in particular on two aspects of the decision and reasoning of the House of Lords in The Satanita. The facts were simple. Two yachts took part in a regatta. Each owner signed a letter to the secretary of the Mudhook Yacht Club undertaking that while sailing in the regatta he would obey and be bound by the rules of the Yacht Club Association Those rules included rule 18, which corresponded to article 14 of the Regulations for Preventing Collisions at Sea and also included rules 24 and 32, which provided, so far as relevant:

The owner of the Valkyrie brought an action for damages against the owner of the Satanita. The owner of the Satanita paid into court a sum as the amount of damages for which he was answerable under section 54(1) of the Merchant Shipping Act Amendment Act 1862, which was the forerunner of the Merchant Shipping Act 1894. The limitation fund was calculated at the rate of £8 per registered ton. Bruce J held that, even assuming that there was a special contract binding the owners, including the owner of the Satanita, the words “all damages” in the rules were not so express as to override the statutory limitation. The Court of Appeal reversed his decision and an appeal to the House of Lords failed.

All members of the House agreed that there was a binding contract between the parties on the terms of the rules and the case is indeed a case well known to students on that point. The two points relied upon by BORCO in this appeal are however the approach to the construction of the contract and the meaning of “all damages”. It is said that the expression in clause 4 that the owners

On the approach to construction, Lord Halsbury LC said at p 62:

In the opinion of the Board Lord Halsbury treated the position of yachts engaged in a regatta as significantly different from the position of a merchant vessel. He then said that all depended upon the language the parties had used, that the words in the contract were popular words and that the expression “all damages” did not mean damages as limited by the Merchant Shipping Act. He accepted, at p 63, that, as he put it, this was not

Lord Herschell also drew a distinction between the classes of vessel concerned. He said, for example at p 65:

It is clear from the passage quoted above that Lord Herschell attached particular significance to the fact that every competitor accepted full liability for any damage which he might cause to any other yacht in exchange for “the correlative right of being entitled to all damage”. Lord Halsbury made the same or a similar point when he spoke about “competing vessels” and described the case of yachts as different from merchant vessels. The nature of such competitions is that they involve a particular risk of collision if competitors are over aggressive, against which the yacht club rules provided mutual protection. The House was not concerned with the more usual type of exclusion or limitation clause inserted into a contract predominantly for the benefit of one party.

In the opinion of the Board that part of the reasoning of the House is to be distinguished from that applicable in the instant case. The correct analysis of cases of this kind has developed significantly since the decision in The Satanita. The cases cited above show that the words of the particular contract must be construed in the light of the default position, namely that the statutory rights of the owners were known to and understood by the parties to apply (The Kirknes) and were treated as being written into the Conditions of Use (Ingram & Royle). It follows that that remains the position unless there is some provision which clearly and unequivocally excludes the right such that the two provisions cannot be read together and the statutory right must have been excluded.

In short, in the light of the later jurisprudence, in the opinion of the Board The Satanita should not be treated as authority of general application. It was in any event only concerned with the proper construction of a yacht racing contract and, moreover, at a time when the relevant principles of construction were much less developed than they are today.

The Board accepts the owners’ submission that clause 4 of the Conditions of Use and article 2.2 of the 1976 Convention can readily be read together as a coherent scheme. BORCO is entitled to an indemnity in respect of “all and any loss” up to the maximum recoverable pursuant to the Convention. The expression “all and any loss” is simply generic indemnity clause wording which makes no reference to the statutory wording. In short, there is nothing in the language of the agreement which suggests that the owners were agreeing to waive their right to limit. Indeed, viewed objectively, it seems to the Board to be inconceivable that the owners intended to waive their right to limit. Moreover, if BORCO had intended that they should do so, it could reasonably have been expected for BORCO to include such a clause in the Conditions of Use.

Finally, the Board reverts to the reasoning of Reyes J in the Sun Wai Wah Transportation case referred to in para 37 above. It does so because (albeit at first instance) he was considering a very similar case on the facts. The Board agrees with the owners’ submission that his analysis cannot be faulted. He said this at paras 10-12:

For these reasons the Board answers question (2), namely whether on the true construction of the agreement contained in or evidenced by the Conditions of Use, the owners and BORCO agreed to exclude the owners’ right to limit liability under the 1989 Act and the 1976 Convention, in the negative.

For these reasons the Board will humbly advise Her Majesty that the relevant questions should be answered as follows: question (1) by holding that it is permissible for owners of a vessel to contract out of or waive their statutory right of limitation under the 1989 Act and the 1976 Convention and question (2), namely whether on the true construction of the Conditions of Use they agreed to do so, by answering in the negative. So far as the Board is aware the only remaining question is whether the order of 20 September 2012 (referred to in para 2 above) for the constitution of a limitation fund in the sum of US$16,995,487.84 should stand and, if not, what order should be made. The Board naturally hopes that the parties will be able to agree all consequential matters arising out of this judgment.

The owners should serve written submissions on costs and any remaining issues within 21 days of the handing down of this judgment and BORCO should serve submissions on those issues within 14 days thereafter.