Fri, 30 June, 2017
An owner of an elderly cruise ship lets her on time charter, extended by two years. The charterer redelivers in 2007 the vessel two years early, in repudiatory breach of the charter. The owner accepts the breach and terminates the charter. The time charter market for an old lady like the ‘New Flamenco’ is non-existent. The owner decides to sell the vessel rather than to continue to trade her. The arbitrator finds variously “it would not have been possible for the Owners to conclude an alternative substitute two year time charterparty. The need to sell the vessel was clearly caused by the breach” and “in this case it was clear that the necessity for the sale had been brought about by the refusal to perform the two year extension”.
When the owner sells the vessel he (perhaps surprisingly) finds a buyer for her willing to pay US$23.7 million. Had the charterer performed the charterparty, the vessel would have been worth much less at the end of the two years in 2009: had the owner wanted to sell her then, it would have received only in the region of US$ 7 million.
Should the owner have to give credit to the charterer for the difference in value (23.7 – 7) against its claim for damages for loss of profit over the two years (based on the difference between the charter rate and spot and other employment)?
The dance (a minuet, rather than a flamenco perhaps) then began. The arbitrator held that the owner did have to give credit, in the light of his findings of fact. Popplewell J held that it did not. A strong Court of Appeal was of the same view as the arbitrator. A strong Supreme Court this week unanimously rejected that view and restored Popplewell J’s approach, holding that to oblige the owner to give credit was wrong in principle and wrong on the facts as found by the arbitrator.
The short answer of the Supreme Court (expressed succinctly in six paragraphs) was that while the breach and early redelivery was the occasion or ‘trigger’ for the owner’s sale of the vessel, it was not the legal cause of the sale taking place nor could the sale sensibly be described as a step taken by the owner in mitigating the loss of charter earnings over the two years.
The decision is important in focussing on what needs to be shown in terms of legal causation in the breach and mitigation contexts, rather than pointing simply at acts which are factually connected. It is also noteworthy in the way it demonstrates the tension on a section 69 Arbitration Act 1996 appeal between “findings of fact” and findings, which while expressed as ones of fact, are on proper analysis ones of law.
At first instance, Popplewell J had distilled no fewer than eleven principles after an extensive review of the cases: see  EWHC 1547 (Comm) at . Of these perhaps the most important are the first four, which stressed that for a benefit to be taken into account, the critical test was one of legal causation linking the reception or creation of the benefit with the breach, so that the breach is the actual legal cause of the benefit being conferred. The Judge regarded mitigation as governed by the same principles. As his fifth to eighth principles, he therefore analysed how the requirement of legal causation applies to mitigation, pointing out “The fact that a mitigating step, by way of action or inaction, may be a reasonable and sensible business decision with a view to reducing the impact of the breach, does not of itself render it one which is sufficiently caused by the breach. A step taken by the innocent party which is a reasonable response to the breach and designed to reduce losses caused thereby may be triggered by a breach but not legally caused by the breach” (citing The Elena d’Amico  1 Ll. Rep 75.)
The Judge disposed of the case on the basis that the difference in value of the vessel between the date of the sale and the date of the expiry of the two years had nothing to do with the breach: it was simply caused by the drop in the market which would have occurred anyway. Similarly, the effect of fluctuating market values for the capital value of the vessel was only produced by a decision to sell the vessel, which decision the owner could take and could have taken at any time, irrespective of the breach. If the owner could not be criticised if it had decided not to sell the vessel but chose to sit tight for two years, on the basis of a failure to mitigate, how could the sale which it chose to make be treated as “mitigation” caused by the breach? If it could not, then the benefit was not a benefit accruing from mitigation but was entirely collateral.
The Court of Appeal (Longmore, Christopher Clarke, Sales LJJ) approached the matter from a different standpoint. Its starting point was that “It is notoriously difficult to lay down principles of law in the realm of mitigation of loss particularly when it is said that a benefit received by a claimant is to be brought into account as avoiding the loss. The judge is to be commended for having tried to do so but his use of the word “indicative” is itself indicative that hard and fast principles are difficult to enunciate. In appeals from an arbitrator's award a court has to be particularly respectful of the boundaries between fact and law which the parties, by their choice of tribunal, have created.” 
Thereafter, the Court of Appeal based itself on the arbitrator’s decision of the factual connection between the owner’s decision to sell the vessel as being a sufficient legal connection: “Viscount Haldane's formulation in British Westinghouse that the benefit must ‘arise from the consequences of the breach’ remains, in my view, entirely apposite. The issue of mitigation arises when the breach has had harmful consequences which the injured party has taken steps to ameliorate … the finding of fact made by the arbitrator was in effect that the benefit did arise from the consequences of the breach” (Christopher Clarke LJ at [47-48].
In the Supreme Court, Lord Clarke (with whom Lords Neuberger, Mance, Sumption and Hodge agreed) preferred the reasoning of Popplewell J. While, perhaps unhelpfully, the Court did not comment expressly on the ‘eleven point’ guide set out by the Judge, the Court’s adoption of the reasoning and result arrived at by him is likely to mean that parties are likely to go back to them as a stepped approach to similar post-breach benefit problems.
The Court stressed, as had the Judge, that the question was simply one of legal causation: was the post-breach benefit in law to be regarded as having been caused by the breach or by mitigation of the loss caused by the breach? It rejected the argument that to be legally relevant the benefit had to be ‘of the same kind’ as the loss. This was too vague and arbitrary a test. Causation alone is key.
Lord Clarke dealt first with the argument that the difference in value (23.7 – 7) was to be treated as a benefit to the owner because it was “the benefit of having avoided a loss” by the owner selling the vessel in 2007 rather than on redelivery in 2009.
The obvious fallacy in this way of putting the argument might be thought to be that the owner did not need to sell the vessel at any time, including at the end of the charter term. It was simply a matter of the owner’s commercial decision-making as to how and when it ran its capital book. As Lord Clarke explained, the owner could not have claimed from the charterer as damages for its breach if the vessel would have been worth more in 2009 than in 2007. Further, why take 2009 as the date of comparison simply because it represented the end of the charter period when the owner could have continued to trade? The owner might not have sold then. While a premature termination might lead an owner to sell earlier than it would otherwise have done, that had nothing to do with the charterer: it was “the disposal of an interest in the vessel which no part of the subject matter of the charterparty and had nothing to do with the owners” .
Lord Clarke dealt next with the mitigation argument based on the sale being an act taken by the owner to mitigate the loss of hire resulting from the breach.
Here, rather than analyse the matter as the Judge did, from the starting point that the owner could not be faulted for not mitigating if he had chosen not to sell the vessel, therefore any sale he chose to do was not ‘mitigation’ properly understood, Lord Clarke focussed on the precise nature of the loss. The loss was the loss of an income stream under the charter. Realising the capital value of the vessel did not and could not mitigate the loss of that income stream which, irrespective of the sale, remained lost . While it might be thought that the Court here looked at the nature of the benefit and the nature of the loss (having deprecated just such a test), the nature of the loss and the benefit may be relevant in a causation enquiry. As Popplewell J, who had similarly rejected the ‘of the same kind’ argument, pointed out: “There is no requirement that the benefit must be of the same kind as the loss being claimed or mitigated … but such a difference in kind may be indicative that the benefit is not legally caused by the breach” [64(8)] (emphasis added; this proposition was expressly approved by the Supreme Court at ).
The Court pointed out that a sale of the vessel might be relevant to the compensatory principle if it could be shown, for example, that the owner would have sold the vessel during the two years had the charterer performed, because then that would on Golden Victory principles cut down the period of loss. But that had nothing to do with a collateral decision by an owner, post breach, to sell his vessel on a poor trading market.
The decision, and the procedural history, shows the difficulty that may lie in distinguishing between an act taken post-breach from which the claimant benefits and an act which is legally to be viewed as caused by that breach.
Where mitigation is concerned, if the claimant was not obliged to take such a post-breach step at all, then it seems clear that if he does take it, the defendant cannot seek to bring the benefits of so doing into account.
It was strongly argued that, as causation was a question of fact, to be approached in a commonsense way, the decision of the arbitrator (extracts from which as reported are cited above) was one which was not open to challenge. Popplewell J. accepted that “whether a benefit is caused by a breach is a question of fact and degree which must be answered by considering all the relevant circumstances in order to form a commonsense overall judgment on the sufficiency of the causal nexus between breach and benefit” [64(9)] but considered that the arbitrator had simply gone wrong in treating things as sufficiently ‘caused’ when in law they could not be so regarded. Lord Clarke endorsed this approach at .
This gives rise to the apparent oddity of an arbitrator finding that the sale of the vessel was in consequence of and resulted from the breach and was a step taken by the owner to prevent loss from not being able to trade the vessel but this “not [being] legally sufficient to establish the necessary causative link between breach and benefit”.
Simon Rainey QC is one of the best-known practitioners at the Commercial Bar with a broad commercial advisory and advocacy practice spanning substantial commercial contractual disputes, international trade and commodities, shipping and maritime law in all its aspects, energy and natural resources and insurance and reinsurance and has extensive experience of international arbitration.
Simon regularly acts in ground-breaking cases including NYK Bulkship (Atlantic) NV v Cargill International SA (The Global Santosh)  UKSC 20 where Simon was brought in to argue the case in the Supreme Court and represented the successful appellants, Cargill. The decision is a landmark one in relation to a contracting party’s responsibility for the vicarious or delegated performance by a third party of its contractual obligations, both in the common charterparty and international sale of goods contexts and more generally. In Bunge SA v Nidera SA  UKSC 43 Simon successfully represented Bunge in a landmark decision by the Supreme Court on GAFTA Default Clause and sale of goods damages after The Golden Victory on points which had been lost at every stage below.
Ranked as the “Star Individual” for shipping by Chambers UK in 2015, 2016 and 2017, Simon: ‘impresses with his mastery of the brief...exceptionally gifted, he has the strong confidence of his clients, and is an excellent presenter of complex material....’ and ‘….is one of those super silk guys who has judges eating out of his hands." "He has the gift of going straight to the problem.’ He was ranked as Shipping Silk of the year 2017 by Chambers and Partners UK and Legal 500 UK Awards and one of the Top Ten Maritime Lawyers 2017 by Lloyd’s List.