Associated British Ports v Ferryways NV & Anor [2008] EWHC 1265 (Comm) (13 June 2008)

Associated British Ports v Ferryways NV & Anor [2008] EWHC 1265 (Comm) (13 June 2008)

Empty slave trailers, cars, and tractors are not 'Units' for the purposes of clause 4.3 of the Second Agreement. Clause 4.3 is not void as a penalty or for uncertainty. Damages for breach of clause 4.3 are to be calculated by reference to the shortfall in 'Units' (excluding empty slave trailers, cars, and tractors) multiplied by the trailer rate, with credit for expenses saved and substitute business. The letter agreement is a guarantee, not an indemnity, and is discharged by the February 2006 Time to Pay Agreement, but not by the August 2004 Concession Agreement.

Citation
[2008] EWHC 1265 (Comm)
Parties
Claimant: Associated British Ports; First Defendant: Ferryways NV; Second Defendant: MSC Belgium N.V.
Jurisdiction
England and Wales
Judgment Date
13 June 2008
Procedural Posture
Commercial Contract Dispute / High Court Trial Judgment
Outcome
Judgment for the claimant in part; guarantee discharged by time to pay agreement
Legal Topics
Guarantees and Indemnities, Contractual Interpretation, Damages, Variation and Discharge of Guarantees
Contract Law Commercial Law Guarantees and Indemnities Contractual Interpretation Damages Variation and Discharge of Guarantees

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Parties

Associated British Ports

Claimant

Ferryways NV

First Defendant

MSC Belgium N.V.

Second Defendant

Procedural Posture

Commercial Contract Dispute / High Court Trial Judgment

Legal Issues

  1. 1 Whether empty slave trailers, cars, and tractors are 'Units' under clause 4.3 of the Second Agreement for minimum throughput calculation
  2. 2 Whether clause 4.3 is void as a penalty or for uncertainty
  3. 3 How damages for breach of clause 4.3 are to be calculated post-repudiation

Ratio Decidendi

Empty slave trailers, cars, and tractors are not 'Units' for the purposes of clause 4.3 of the Second Agreement. Clause 4.3 is not void as a penalty or for uncertainty. Damages for breach of clause 4.3 are to be calculated by reference to the shortfall in 'Units' (excluding empty slave trailers, cars, and tractors) multiplied by the trailer rate, with credit for expenses saved and substitute business. The letter agreement is a guarantee, not an indemnity, and is discharged by the February 2006 Time to Pay Agreement, but not by the August 2004 Concession Agreement.

Court Disposition

Judgment for the claimant in part; guarantee discharged by time to pay agreement

Orders

  • Declaration that empty slave trailers, cars, and tractors are not 'Units' under clause 4.3
  • Damages to be assessed in accordance with the judgment's principles