QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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PACIFIC MARITIME (ASIA ) LTD |
Claimant |
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- and - |
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HOLYSTONE OVERSEAS LTD |
Defendant |
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Daniel Jowell (instructed by Ross & Co) for the Defendant
Hearing dates: 18TH September 2007
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Crown Copyright ©
MR JUSTICE CHRISTOPHER CLARKE
"The Buyers have agreed to return to the Sellers at no cost the forward block of accommodation modules on the Vessel as identified by and in accordance with the provisions of an Addendum to this Agreement and which is agreed or to be agreed between the parties as soon after the date of this Agreement as is possible."
"It is hereby agreed that in relation to the accommodation modules referred to in clause 6 of the MOA:
"1. In consideration for the agreed amount of the Purchase Price, the Buyers agree to return to the Sellers at no cost those accommodation modules as are identified on the plan appended hereto (and for the avoidance of doubt illustrated on the plan as being the forward block of 5 x 5 accommodation modules) ("the Accommodation Modules"), or equivalent in accordance with the provisions of this Addendum.
2. On delivery of the Vessel by the Sellers to the Buyers, the Buyers shall take the Vessel to a destination to be determined solely by the Buyers.
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3. If the Vessel is taken by the Buyers to Batan, Indonesia, then the Buyers shall authorise the Sellers at a time convenient to the Buyers to remove the Accommodation Modules from the Vessel at the cost, risk and expense of the Sellers.
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5. If the Vessel is taken by the Buyers to a destination other than Batan, Indonesia, the Buyers hereby agree to construct for and deliver in Batan, Indonesia, to the Sellers at the Buyer's cost an accommodation unit of similar size and volume as the Accommodation Modules."
The freezing injunction
The grounds of challenge to the freezing order
Wrong test?
a. Pursuant to the terms of the MOA, the Defendant had a choice, following delivery of the barge to it, either to take her to Indonesia and deliver the existing unit to the Claimant or, if it chose not to take the barge to Indonesia, to construct and deliver to the Claimant in Indonesia, at the Defendant's expense, a new accommodation block;
b. The Defendant chose not to take the barge to Indonesia;
c. Thus, it was obliged to construct and deliver to the Claimant in Indonesia the new block provided for in the MOA;
d. The Defendant has failed to construct or deliver that new block;
e. The Claimant is entitled to claim damages in respect of the Defendant's failure to construct and deliver the new accommodation block – i.e. the market value of what it ought to have received at the time that it ought to have received it.
"Where a man is bound by covenants to do one of two things, and does neither, then in an action by the covenantee, the measure of damage is in general the loss arising by reason of the covenantor having failed to do that which is least, not that which is most, beneficial to the covenantee."
"where the defendant has the option of performing a contract in alternative ways, damages for breach by him must be assessed on the assumption that he will perform it in the way most beneficial to himself and not in that most beneficial to the claimant".
Is the $ 4.08 million figure too high?
Name of Company |
Approximate Total (US$) | Type |
Consafe Engineering Services Ltd. Aberdeen | 7,500,000 | Modular |
Ferguson Modular Ltd Aberdeen. |
11,420,000 | Modular |
Elliott Modular Staffordshire |
5,558,000 | Modular |
MML Marine Ltd Glasgow |
6,918,000 | Modular |
PT Pan Utd Shipyard Indonesia |
9,360,000 | Modular |
Nanhai Engineering Division. China | 4,766,164 | Single Unit |
Bohai Oil Marine Engineering & Supply China |
12,675,000 | Single Unit |
Discussion
Security for the Cross Undertaking.
Remitting the matter to the Arbitrator
"(5) In any case the court shall act only if or to the extent that the arbitral tribunal, and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively."
"give directions in relation to any property which is the subject of the proceedings or as to which any question arises in the proceedings, and which is owned by or is in the possession of a party to the proceedings (a) for the…detention of the property by the tribunal, an expert or a party".