818厦门船厂与希腊船东那一场官司

事情过去好几年了，以前只是从酒桌上听说过这件事。这不哥哥从技术转到商务了，研究造船合同偶然发现了这个案例。于是乎哥哥发挥以前在船院1号楼偷窥的精神，再次将这个案子翻出来炒一炒。内容可能会给某些人带来不好的回忆。不过没事，重要的是在这件事情中学到了东西。让我们后辈知道了帝国主义亡我之心不死，落后就要被挨打的古训

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Covington Marine Corporation and Ors v Xiamen Shipbuilding Industry Co Ltd造船合同争议案

作者： 发布时间：2007-07-06 浏览量：911

Contract - Shipbuilding contracts providing for various conditions to be met before contract effective - Shipbuilder repudiating contract and alleging that conditions not met within prescribed period - Whether contracts automatically rescinded prior to builders' repudiation - Whether builders liable for breach of contract

Covington Marine Corporation and Ors v Xiamen Shipbuilding Industry Co Ltd - QBD (Com Ct) (Langley J) - 16 December 2005

(2006) 683 LMLN 2

On 23 February 2003 the claimant buyers entered into four shipbuilding contracts with the defendant builders, each for one vessel, a 53,800 dwt bulk carrier, at a price of US$17,970,000 per vessel. Article 21 of each contract provided mutatis mutandis:

"21. EFFECTIVENESS OF THIS CONTRACT

This Contract shall become effective from the date of its execution by the parties provided that:

...

(b) if any of the following conditions are not met in the following order (or such other order as the parties may agree) within 20 banking days from the date of this Contract, then this Contract shall be automatically rescinded (unless the party to whom performance is then next owed agrees otherwise):

(i) agreement between the parties as to the supplier of the main engine described under Article 1(c)(ii), which the parties shall use their best endeavours to reach within 10 banking days from the date of this Contract;

(ii) receipt by the Buyer of the Letter of Guarantee issued and registered in accordance with Article 10(h);

(iii) receipt by the Buyer of evidence acceptable to the Buyer and the Guarantor of the validity and binding effect of this Contract ...

(iv) receipt by the Builder of the Performance Guarantee issued in accordance with Article 10(i);

(v)...

Upon such rescission, the parties hereto shall be immediately and completely discharged from their obligations, duties and/or liabilities under this Contract without incurring any liability whatsoever to each other.

Article 1(c)(ii) provided:

"(ii) The main propelling unit will consist of MAN B&W 6S50MC-C" [specifications thereafter set out]

Article 10(h) provided:

"(h) LETTER OF GUARANTEE

As security for the due performance of its obligations under this Article 10, the Builder shall deliver ...to the Buyer ... an irrevocable and freely assignable letter of guarantee ... (the "Letter of Guarantee") ...

...."

The obligations of the Builder under Article 10 were to refund sums paid by the Buyer prior to delivery of the vessel in the event that the Buyer was entitled to rescind the Contract. The guarantee referred to in Article 10(h) was referred to in the judgment as "the refund guarantee".

Article 10(i) provided that the Buyer should deliver a performance guarantee to the Builder within 5 banking days of the receipt of the refund guarantee.

On 18 March 2003 the builders' brokers sent the following letter to the buyers' brokers:

".... after very frank discussion with the yard at length, we think it is necessary to mention the following points

A. Refund Guarantee

[The letter stated that Exim Bank were insisting on certain wording].

B. Main Engine

The Shipyard will agree to import the Main Engine subject to

1. The Buyer shall assist the yard to squeeze the price to the same level as domestic Licence Supplier or

2. The Buyer bears the costs of price difference after the shipyard present the Buyer clear evidence.

Payment [performance] Guarantee

Please find the attached payment guarantee proposed by Shipyard and accepted by some shipowners who ordered the vessel in the yard previously. We much appreciate if you pass the proforma to the Buyer and Buyer's bank for their comments and reference."

On 19 March 2003 the buyers' brokers sent the following letter to the builders' brokers:

"... The position under Article 21 can be summarised as follows:

1. In accordance with its terms, the Shipbuilding Contract is today fully effective and has been since the date of its execution.

2. The continuing effectiveness can now be confirmed as the following conditions have been lifted/extended:

a. Article 21(a) - Options. ... The proposed wording for this option will be sent separately.

b. Article 21(b)(i) - Main Engine. The Buyer will bear the additional costs, if any, arising from the importation of the main engine from Korea.

c. Article 21(b)(ii) - Refund Guarantee. The Buyer ... appreciates that the Builder may require additional time to arrange ... to issue the refund guarantee. Being the party to whom performance is now due, the Buyer agrees to extend the 20 day period provided for under Article 21(b) for a further 10 banking days. Please advise whether the Builder believes this additional period is sufficient.

d. ...

e. Article 21(b)(iv) - Performance Guarantee. The Buyer has instructed its bank to issue the performance guarantee in the form of the attached agreed wording and will provide this document to the Builder in accordance with Article 10(i) notwithstanding the periods provided for in Article 21(b), as amended by this letter.

f. ..."

On 19 March 2003 the builders signed contracts to build essentially three of the same vessels for another buyer, and they refused to continue to perform the present contracts. The buyers accepted the conduct of the builders as a wrongful repudiation of their contracts.

The dispute was referred to arbitration. The builders raised a jurisdiction issue, denying that any binding contracts had been concluded.

The arbitrators held that the binding effect of the contracts was dependent upon the parties being able and willing to reach agreement inter alia on the supplier of the main engine within the prescribed time. The contracts had been automatically rescinded because no agreement had been reached on the supplier of the main engine within Article 21(b)(i) by 21 March 2003. The builders' letter of 18 March 2003 did not constitute a firm offer capable of acceptance.

The buyers appealed to the High Court.

Held, that the 18 March letter was to be construed as making alternative offers open to acceptance in relation to the source and cost of the main engine. The 19 March letter was phrased in terms of acceptance and not further negotiation as regards the main engine. An objective reader would conclude that there was agreement on the main engine and so the need to move on to address the further items required to satisfy Article 21(b).

Accordingly, the arbitrators were wrong in law to conclude that there was no agreement on the main engine.

If there had been no agreement on the main engine the fact that the builders' had decided for commercial reasons not to perform the contracts after 20 March 2003 precluded the builders' from relying upon such absence of agreement so as to invoke Article 21 as rescinding the contracts. Although the buyers could waive compliance with the builders' requirement under Article 21(b)(ii) to provide the refund guarantee within 20 days (ie by 21 March), there would remain the independent obligation on the builders' to provide the refund guarantee under Article 10(h) to which no time limit was applied. The 19 March letter was to be read as a waiver of the 20 day period and seeking to establish a reasonable time to discharge the obligation of the builders'.

Accordingly, by deciding not to perform the contracts after 20 March 2003 the builders' were in repudiatory breach of contract. The appeal would be allowed.

Simon Rainey QC and Simon Picken (Clifford Chance) for the buyers; Timothy Young QC (Lovells) for the builders.

哥顺手度娘了下当时的船价

2003年-2004年新船成交价格变化

________________________________________

http://www.jctrans.com　2004-11-22 8:10:00 　

船型
2003年年初
2004年年初
2004年9月中
2004年内涨幅度（%）

巨型油船(万美元)
6,410
7,700
10,000
29.90

苏伊士型油船(万美元)
4,420
5,150
6,400
24.30

阿芙拉型油船(万美元)
3,510
4,150
5,400
30.10

灵便型成品油船(万美元)
2,730
3,150
3,650
15.90

好望角型散货船(万美元)
3,660
4,800
6,100
27.10

巴拿马型散货船(万美元)
2,170
2,700
3,400
25.90

大灵便型散货船(万美元)
1,920
2,400
2,800
16.70

小灵便型散货船(万美元)
1,520
1,800
2,100
16.70

3500TEU集装箱船(万美元)
3,330
4,250
5,000
17.60

1100TEU集装箱船(万美元)
1,570
1,850
2,200
18.90

13.8立方万米LNG船(万美元)
15,000
15,500
17,700
14.20

7.8立方万米LPG船(万美元)
5,860
6,300
7,600
20.60

克拉克松新船价指数(万美元)
105
119
141
18.50

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披露的船价是1720万美元，考虑到大灵便型都带吊车了，有个200万的差价，这个价格在当时不算低。只是后面船价的涨幅就不可预期了。这也可能是船厂拒绝履行合同的主要原因。

后来双方走上了法律途径，据说还走了外交渠道，闹到铁娘子那里去了。这个案子动静很大，在英国闹得动静更大。法院推翻了仲裁庭的判决，

根据《1996年英国仲裁法》之Section 69将有关法律问题上诉去了法院，并且推翻了仲裁裁决。当时中方指定的仲裁员有大名鼎鼎的-杨良宜先生。

毕竟，中国人内心还是帮助中国人的，同样欧洲人也很难站在中国人这边。

而在2003年3月18与19日，伦敦经纪人（XXX）与中国经纪人（XXX）双方有了重要的两封传真往来。第一封是中国中介给伦敦中介，有关内容如下：

“… after very frank discussion with the yard at length, we think it is necessary to mention the following points:

…

B. Main Engine

The Shipyard will agree to import the main Engine Subject to

1. The Buyer shall assist the yard to squeeze the price to the same level as domestic License Supplier or

2. The Buyer bears the costs of price difference after the shipyard present the Buyer clear evidence.”

第二个传真是希腊船东通过伦敦中介给中国中介的，内容是：

“We refer to out pleasant conversation of earlier today with Mr XXXX[of the builders] with respect to the effectiveness of the Shipbuilding Contract. The position under article 21 can be summarized as follows :

1. In accordance with its terms, the Shipbuilding Contract is today fully effective and has been since the date of its execution.

…

b. Article 21(b)(I) – Main Engine. The Buyer will bear the additional costs, if any, arising from the importation of the main engine from Korea…”。

“166. We begin by pointing out that ASI’s letter if 18 March 2003 was not the kind of letter, which judging from previous exchanges, Xiamen would have been likely to send if it had intended to make a firm offer as to the supplier of the main engine. ASI’s letter is stated to have been the result of an oral discussion with the yard, whereas all previous proposals had been contained in letters or emails sent directly by Xiamen itself. This is not all. When Xiamen had previously made an offer relating to this very topic, it had embodied the offer in a formal document requiring the signature of the buyers; see the draft agreement of 7 March 2003 proposing that the supplier should be a ‘Chinese manufacturer under the license of MAN B & W’. The letter from ASI lacks any formality.

167. Next, the language used by ASI is not entirely consistent with the making of an offer on behalf of Xiamen. As was pointed out, there is no doubt some uncertainty as to what sums are included in the phrase ‘The Buyer bears the (costs) of price difference after the shipyard present the Buyer clear evidence. Does price difference include any sums that might have to be paid to compensate the Chinese licensees for loss of business? The point however goes somewhat further. If it was open to the buyers to ‘accept’ the second alternative set out in ASI’s letter, then logically one would expect that the first alternative solution proposed in the letter would also constitute an offer open for acceptance. But the first alternative (‘The Buyer shall assist the yard to squeeze the price to the same level as domestic License Supplier”) is so uncertain in language and effect that it can hardly constitute more than a proposal open for further discussion and more detailed elaboration….

170. Finally, the buyers’ letter of 19 March 2003 may be significant in assessing whether they (and therefore a reasonable person) would have regarded ASI’s letter as containing an offer open for acceptance. There letter dealt, not just with the supplier of the main engine, but with several outstanding matters and contemplated that Xiamen should accept the package as a whole by signing a copy of each letter. When dealing with the main engine, the letters did not refer to any offer but used different, and slightly more exact language than had been used in ASI’s letter: ‘The Buyer will bear the additional costs, if any arising from the importation of the main engine from Korea.’ (The wording goes beyond ‘price difference’ to embrace additional costs involving yet another area of uncertainty.) Just as Xiamen had proposed a formal variation of the contracts in its draft agreement of 7 March 2003, so also the buyer seem to have had in mind that one document signed by both parties required to be executed; see art 22 para (b). All this is hardly consistent with treating ASI’s letter of 18 March 2003 as containing a firm offer open for acceptance….”