Parbulk AS v Kristen Marine SA & Anor [2010] EWHC 900 (Comm) (29 April 2010)

Parbulk AS v Kristen Marine SA & Anor [2010] EWHC 900 (Comm) (29 April 2010)

Clause 14 of the MoAs entitles the Claimant to recover swap breakage costs and out-of-pocket expenses as a consequence of cancellation for non-delivery, as such costs are either 'breakage cost with the Buyers' lenders' or 'proven expenses.' The losses were foreseeable and reasonable in the context of the transaction, given the structure and express contractual provisions. The Defendants' arguments on construction, remoteness, and reasonableness have no real prospect of success. However, quantum of certain items remains to be assessed at trial.

Citation
[2010] EWHC 900 (Comm)
Parties
Claimant: Parbulk AS; First Defendant: Kristen Marine SA; Second Defendant: Aurele Trading Inc
Jurisdiction
England and Wales
Judgment Date
29 April 2010
Procedural Posture
Commercial Summary Judgment Application / Summary Judgment Hearing
Outcome
Judgment for the Claimant on liability; quantum to be assessed for certain items.
Legal Topics
Summary Judgment, Damages for Breach of Contract, Interpretation of Indemnity Clauses, Sale and Leaseback Transactions, Remoteness of Damages, Breakage Costs, Interest Rate Swaps
Commercial Law Contract Law Shipping Law Summary Judgment Damages for Breach of Contract Interpretation of Indemnity Clauses Sale and Leaseback Transactions Remoteness of Damages +2 more

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Parties

Parbulk AS

Claimant

Kristen Marine SA

First Defendant

Aurele Trading Inc

Second Defendant

Procedural Posture

Commercial Summary Judgment Application / Summary Judgment Hearing

Legal Issues

  1. 1 Whether Clause 14 of the Memoranda of Agreement entitles the Claimant to recover swap breakage costs and out-of-pocket expenses following cancellation for non-delivery of vessels
  2. 2 Whether swap breakage costs are recoverable as 'breakage cost with the Buyers' lenders' or 'proven expenses' under Clause 14
  3. 3 Whether the claimed losses were too remote or unreasonably incurred to be recoverable

Ratio Decidendi

Clause 14 of the MoAs entitles the Claimant to recover swap breakage costs and out-of-pocket expenses as a consequence of cancellation for non-delivery, as such costs are either 'breakage cost with the Buyers' lenders' or 'proven expenses.' The losses were foreseeable and reasonable in the context of the transaction, given the structure and express contractual provisions. The Defendants' arguments on construction, remoteness, and reasonableness have no real prospect of success. However, quantum of certain items remains to be assessed at trial.

Court Disposition

Judgment for the Claimant on liability; quantum to be assessed for certain items.

Orders

  • Judgment for the Claimant on liability for swap breakage costs and out-of-pocket expenses under Clause 14 of the MoAs.
  • Order for payment to the Claimant of US$ 14,335,647 (swap breakage costs) and US$ 721,312 (out-of-pocket expenses) as interim payment.