Orion Shipping and Trading Ltd v Great Asia Maritime Limited
| Court | Queen's Bench Division (Commercial Court) |
| Judge | Mrs Justice Dias |
| Neutral Citation | [2024] EWHC 2075 (Comm) |
| Date | 09 August 2024 |
| Year | 2024 |
| Counsel | Alexander Wright Kc,David Lewis Kc |
Neutral Citation Number: [2024] EWHC 2075 (Comm)
Case No: CL-2023-000675
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 9 th
August 2024
Before :
THE HONOURABLE MRS JUSTICE DIAS
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Between :
ORION SHIPPING AND TRADING LTD Claimant/
Respondent
- and -
GREAT ASIA MARITIME LIMITED Defendant/
Claimant
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Alexander Wright KC (instructed by Preston Turnbull LLP) for the Claimant
David Lewis KC (instructed by MFB Solicitors) for the Defendant
Hearing date: 11 June 2024
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Approved Judgment
This judgment was handed down remotely at 10.30am on 9th August 2024 by circulation to
the parties or their representatives by e-mail and by release to the National Archives.
High Court Approved Judgment:
Dias J
Lila Lisbon
Mrs Justice Dias:
Award dated 7 September 2023 (the “Award”) of a highly experienced arbitration
Tribunal. The underlying dispute concerned the cancellation by the Defendant Buyers
(“Buyers”) of a Memorandum of Agreement dated 4 June 2021 (the “MOA”) for the
sale of a Capesize bulk carrier, the MV “LILA LISBON” (the “Vessel”).
2. Pursuant to the Award, Buyers were awarded, inter alia, the sum of US$1,850,000 by
way of damages pursuant to clause 14 of the MOA following their cancellation of the
contract as a result of the “proven negligence” of the Claimant Sellers (“Sellers”) in
having failed to give notice of readiness by the agreed cancelling date or to be ready
to complete transfer of the Vessel. The damages so awarded reflected the usual
Sale of Goods Act 1979, namely the difference between the market price of the
Vessel and the contract price as at the date of termination of the contract.
3. Permission to appeal was granted on the papers by Bright J on 20 March 2024 in
respect of the following question of law on the basis that the question was one of
general public importance and that the decision of the Tribunal was at least open to
serious doubt:
“If a Memorandum of Agreement on the SALEFORM 2012 form is lawfully cancelled
by a buyer under clause 14 because the vessel is not delivered by the cancelling date
as a result of the seller’s “proven negligence”, is that buyer entitled to recover loss of
bargain damages absent an accepted repudiatory breach of contract?”
The MOA
4. The relevant provisions of the MOA for present purposes are as follows:
“5. Time and place of delivery and notices
(a) The Vessel shall be delivered and taken over safely afloat at a safe and accessible
berth or anchorage at/in mainland China exclude Taiwan, Macao, Hong Kong in the
Sellers’ option.
Notice of Readiness shall not be tendered before: 20th July 2021
Cancelling Date (see Clauses 5(c), 6(a)(i), 6(a)(iii) and 14): 20th August 2021
However, the Vessel shall effect delivery to Buyers immediately after present laden
voyage from South Africa to Qingdao China (ETA Qingdao on around 18th July
2021) and no more laden voyage allowed.
(b) The Sellers shall keep the Buyers well informed of the Vessel’s itinerary and shall
provide the Buyers with twenty (20), ten (10), five (5) and three (3) days’ notice of the
date the Sellers intend to tender Notice of Readiness and of the intended place of
delivery.
(c) If the Sellers anticipate that, notwithstanding the exercise of due diligence by
them, the Vessel will not be ready for delivery by the Cancelling Date they may notify
Page 2
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