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中国Y船厂与英国G船舶公司船舶建造合同纠纷

来源:原创 作者:未知 浏览: 时间:2018-09-14

2014年8月,英国G船舶公司与Y船厂签署造船合同,由G公司向Y船厂定制一条67米拖轮,约定交船期为合同生效后18个月。造船合同履行期间,Y船厂出现项目延期超过3个月,G公司依据合同向Y船厂书面提出解除合同,并要求Y船厂返还已经支付的前3期船舶建造款共计1800万美元及利息约70万美元。Y船厂不接受船东的解约,不同意返还已经收到的船舶建造款。G公司通过银行向中国银行正式要求保函索赔,由中国银行根据保函条款支付该等款项。在此背景下,Y船厂为及时防范风险,运用保函中的仲裁止付条款,正式向伦敦海事仲裁委员会提起仲裁,从而中止了中国银行依据保函向G公司的付款。由于本案涉及伦敦仲裁,我们与伦敦的英国大律师开展合作,向Y船厂提出了“仲裁推动谈判”的策略。本案中,Y船厂虽然项目履行延期,出现了交船违约,但并不是没有胜诉的可能。由于在合同履行过程中,G公司出于推动项目进程的需要,与Y船厂先后签署了2份补充协议,另有一份在解约前尚在洽谈过程中。根据该等协议,G公司向Y船厂提前支付设备款供Y船厂购买造船所需关键设备。这三份补充协议对Y船厂而言具有决定性意义。因为在英国合约法中有“禁止反言”(estoppel)原则,即合同一方依赖另一方明示或默示作出的陈述,陈述方不得再否定该承诺。Y船厂基于相信船东一直在与船厂磋商购买设备事宜而不会解约,从而集中船厂资源来建造该船,船东再提出解约,违反了禁止反言原则。在仲裁中,我们据此作出答辩意见,维护了Y船厂的合同利益,最终双方调解结案,Y船厂得以少支付近300万美元的现金赔偿。

Shipbuilding Contract Dispute between Y Shipyard of China and G Shipping Company of England.

In August 2014, the British G Shipping Company and Y Shipyard signed a shipbuilding contract, under which G Company bought one 67-meter tug from Y Shipyard. According to the shipbuilding contract, the tug shall be delivered to the buyer in 18 months after the contract become effective. During the performance of the shipbuilding contract, the building of the tug was postponed for more than 3 months. G Company wanted to cancel the shipbuilding contract and requested Y Shipyard to return the three instalments for a total of 18 million US dollars and interest of 700,000. US dollar. Y Shipyard does not accept the owner’s cancellation and does not agree to return the installment that has been received. G Company formally call for the payment through Bank of China in accordance with the letter of guarantee. The Bank of China shall repay the installment in accordance with the terms of the guarantee if there is no arbitration raised by the parties. In this context, in order to prevent risks in a timely manner, Y Shipyard officially filed an arbitration with the London Maritime Arbitration Commission by using the arbitration payment clause in the letter of guarantee, thereby suspending the Bank of China's payment to Company G under the letter of guarantee. Since the case involved London arbitration, we worked with the British Barristers in London to propose a “arbitration-driven negotiation” strategy to Y Shipyard. In this case, although the Y shipyard had implemented the extension of the project, there was a breach of contract, but it was not possible to win the case. In the process of contract implementation, G Company signed two supplementary agreements with Y Shipyard in order to promote the project process, and another one was still in the process of negotiation before the cancellation. According to the agreements, G Company paid the Y shipyard in advance for procurement of the key equipment for shipbuilding. These three supplemental agreements are decisive for Y Shipyard. In English Contract Law, there is an "estoppel" principle that if a party of the contract relies on the other party's express or implied statement and fulfill the contract accordingly, the statement party may not deny the promise. The performance of Y Shipyard is based on the belief that the shipowner has been negotiating with the shipyard to purchase equipment and will not cancel the contract, thus concentrating the shipyard resources to build the tug. In such circumstance, the owner proposes to cancel the contract is in violation of the estoppel principle. In the arbitration, we made a response based on this principle, and safeguarded the contractual interests of Y Shipyard. Eventually, the two parties settled the case and Y Shipyard was able to save nearly $3 million.

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