Geoquip Marine Operations AG v Tower Resources Cameroon SA
| Jurisdiction | England & Wales |
| Judge | Peter MacDonald Eggers |
| Judgment Date | 16 March 2022 |
| Neutral Citation | [2022] EWHC 531 (Comm) |
| Docket Number | Case No: CL-2020-000441 |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 531 (Comm)
Peter MacDonald Eggers QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case No: CL-2020-000441
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Julia Dias QC and Jason Robinson (instructed by Clyde & Co LLP) for the Claimant
SJ Phillips QC and Rebecca Jacobs (instructed by Richard Slade & Company) for the Defendants
Hearing dates: 13th to 16th December 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Peter MacDonald Eggers QC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Peter MacDonald Eggers QC:
Introduction
This action concerns claims made the Claimant (“Geoquip”) under a contract for offshore geotechnical investigation services (“the Contract”) carried out off the coast of Cameroon. The counterparty to the Contract was the First Defendant (“Tower Cameroon”). The Second Defendant (“Tower plc”) guaranteed Tower Cameroon's obligations under the Contract.
The geotechnical investigation services required under the Contract were for the purpose of assessing the ground conditions of a proposed drilling site in Thali, Cameroon with a view to the installation of a Jack-Up Rig. The investigation services and site survey were to be carried out by Geoquip's vessel Investigator (“the Vessel”).
The Vessel arrived in Cameroon in December 2019. The deposit of US$250,000 under the Contract was paid by Tower Cameroon on 29th December 2019. During January 2020, the Vessel was idle. The works under the Contract commenced on 4th February 2020.
The works required to be carried out under the Contract were carried out from 4th to 7th February 2020.
Geoquip commenced this action seeking to recover (1) the balance of the lumpsum said to be payable for the services provided under the Contract in the sum of US$610,091.68 and (2) standby charges in respect of the delays suffered by the Vessel in the sum of US$1,619,541.69. As to the latter, Geoquip contends that it is recoverable pursuant to the terms of the Contract and, failing that, Tower Cameroon is estopped by convention or by contract from denying liability for the same.
The Defendants dispute liability in respect of both heads of claim. As to the claim for the balance of the sum due for the services provided, it is said that the obligation to pay the balance was triggered only upon the provision of a preliminary report containing the specified information within the contractual deadline, and as a compliant preliminary report was not provided until much later, no further sum is due. As to the claim for standby charges, there is no contractual entitlement to such charges and no estoppel by convention or by contract is applicable.
The Contract
On 12th September 2019, Geoquip and Tower Cameroon entered into a Letter of Intent, whereby they agreed to work in good faith to prepare and mutually agree upon and execute a Contract for Services in the NJOM field, Offshore Cameroon, to be commenced upon the Vessel completing its schedule of work in Nigeria (where the Vessel then was) not earlier than 1st October 2019 and not later than 1st January 2020.
On 30th October 2019, Geoquip (described as “ the CONTRACTOR”), Tower Cameroon (described as “ the COMPANY”), and Tower plc (described as “ the GUARANTOR”) entered into the Contract. The Contract was for the provision of geotechnical survey services to be provided by Geoquip. The duration of the Contract was two months.
The Contract was structured into four sections: (I) Form of Agreement and Appendix 1; (II) (a) General Conditions of Contract — LOGIC Edition 2 — October 2003, and (b) Special Conditions of Contract; (III) Remuneration; and (IV) Scope of Work.
The Contract was signed by Mr Stewart Higginson on behalf of Geoquip and by Mr Jeremy Asher on behalf of Tower Cameroon and on behalf of Tower plc. Mr Asher was described in the Contract as the Chairman of both Tower Cameroon and Tower plc.
Section I — Form of Agreement contained the following provisions:
“ WHEREAS:
1) the COMPANY wishes that certain WORK shall be carried out, all as described in the CONTRACT; and
2) the CONTRACTOR wishes to carry out the WORK in accordance with the terms of this CONTRACT; and
3) the GUARANTOR wishes to guarantee the obligations of the COMPANY under the CONTRACT
NOW:
The parties hereby agree as follows:
1) In this CONTRACT all capitalised words and expressions shall have the meanings assigned to them in this FORM OF AGREEMENT or elsewhere in the CONTRACT.
2) The following Sections shall be deemed to form and be read and construed as part of the CONTRACT: [there followed a description of the four sections of the Contract] …
The Sections shall be read as one document, the contents of which, in the event of ambiguity or contradiction between Sections, shall be given precedence in the order listed, with the exception that the Special Conditions of Contract shall take precedence over the General Conditions of Contract.
3) In accordance with the terms and conditions of the CONTRACT, the CONTRACTOR shall perform and complete the WORK and the COMPANY shall pay the CONTRACT PRICE.
4) The terms and conditions of the CONTRACT shall apply from the date specified in Appendix 1 to this Section I — Form of Agreement which date shall be the EFFECTIVE DATE OF COMMENCEMENT OF THE CONTRACT [30th October 2019].
5) The duration of the CONTRACT shall be as set out in Appendix 1 to this Section I — Form of Agreement [two months]
6) The GUARANTOR hereby guarantees the payment obligations of the COMPANY in respect of this CONTRACT…”
Section II of the Contract — the General Conditions as amended by the Special Conditions — contained the following provisions:
“ 1. DEFINITIONS
…
1.4 “CONTRACT” shall have the meaning described in Section I — Form of Agreement.
1.5 “CONTRACT PRICE” shall mean the price for the WORK calculated in accordance with Section III — Remuneration, exclusive of Value Added Tax …
1.13 “WORK” shall mean all the work that the CONTRACTOR is required to carry out in accordance with the provisions of the CONTRACT, including the provision of all materials, services and equipment to be rendered in accordance with the CONTRACT …
4. CONTRACTOR'S GENERAL OBLIGATIONS
4.1 The CONTRACTOR shall provide all management, supervision, personnel, materials and equipment, (except materials and equipment specified to be provided by the COMPANY), plant, consumables, facilities and all other things whether of a temporary or permanent nature, so far as the necessity for providing the same is specified in or reasonably to be inferred from the CONTRACT.
4.2 The CONTRACTOR shall carry out all of its obligations under the CONTRACT and shall execute the WORK with all due care and diligence and with the skill to be expected of a reputable contractor experienced in the types of work to be carried out under the CONTRACT …
4.4 Equipment used to provide the service need not be new, without prejudice to the requirement that it shall be of good quality and fit for purpose.
4.5 In order to ensure that performance and completion of the WORK are not delayed or impeded the CONTRACTOR shall be responsible for the timely provision of all matters referred to in Clauses 4.1 and 4.4 and, where provided for elsewhere in the CONTRACT, for the timely request of COMPANY-provided materials, services and facilities. However, CONTRACTOR cannot be responsible for the timely delivery of Company-provided materials, services and facilities. If such are delivery late and cause delay in the performance and downtime of the CONTRACTOR's equipment, COMPANY shall pay Standby time for such downtime …
5. OFFSHORE TRANSPORTATION
…
5.2 The CONTRACTOR shall provide vessel transportation, vessel accommodation and vessel subsistence for up to 2 COMPANY VESSEL REPRESENTATIVE(S) for the duration of the offshore phase of the WORK at the cost of the CONTRACTOR and all such items shall be deemed to be included in the CONTRACT.
COMPANY VESSEL REPRESENTATIVE(S) shall embark / disembark in the port of mobilisation / demobilisation in accordance with the schedule provided by CONTRACTOR. Delays to schedule due to non-availability of COMPANY VESSEL REPRESENTATIVE(S) that delay sailing shall be deemed Standby events and be charged at the applicable Standby Rates.
If the COMPANY requires more than 2 COMPANY VESSEL REPRESENTATIVE on board, the cost for the additional persons will be agreed between Parties.
6. CONTRACTOR TO INFORM ITSELF
…
6.2 Any failure by the CONTRACTOR to take account of matters which affect the WORK will not relieve the CONTRACTOR from its obligations under the CONTRACT. CONTRACTOR can't be made responsible for extra work or time or damage that occurs solely because of a fault in the data or that of personnel supplied by the COMPANY, including loss of time during mobilisation of the vessel caused by COMPANY. If extra work, loss of time or damage is the consequence of a fault or omission by the COMPANY, CONTRACTOR will be entitled to file a VARIATION for extra work or charge Standby Time …
10. EXAMINATION AND DEFECTS CORRECTION
…
10.2 Defects Correction
…
(b) It is the COMPANY'S duty to accept or reject the quality and...
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