Associated British Ports v Ferryways NV & Anor

Associated British Ports v Ferryways NV & Anor

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 post-repudiation must account for expenses saved and substitute business, not just a discount for early payment. The letter agreement is a guarantee, not an indemnity, and was discharged by the February 2006 Time to Pay Agreement, releasing MSCB from liability.

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 / Judgment After Trial on Liability and Enforceability of Guarantee
Outcome
ABP's claim against MSCB dismissed; liability of Ferryways to ABP for sums due in debt and damages to be determined at a further hearing if not agreed.
Legal Topics
Interpretation of Contract Terms, Guarantee Vs Indemnity, Variation and Discharge of Guarantees, Damages for Breach of Contract, Minimum Throughput Obligations
Contract Law Commercial Law Guarantee Law Interpretation of Contract Terms Guarantee Vs Indemnity Variation and Discharge of Guarantees Damages for Breach of Contract Minimum Throughput Obligations

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Parties

Associated British Ports

Claimant

Ferryways NV

First Defendant

MSC Belgium N.V.

Second Defendant

Procedural Posture

Commercial Contract Dispute / Judgment After Trial on Liability and Enforceability of Guarantee

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 post-repudiation must account for expenses saved and substitute business, not just a discount for early payment. The letter agreement is a guarantee, not an indemnity, and was discharged by the February 2006 Time to Pay Agreement, releasing MSCB from liability.

Court Disposition

ABP's claim against MSCB dismissed; liability of Ferryways to ABP for sums due in debt and damages to be determined at a further hearing if not agreed.

Orders

  • ABP's claim against MSCB is dismissed.
  • If sums owed by Ferryways to ABP cannot be agreed, there will be a further hearing to determine quantum.