根据Classic Maritime Inc (“船东”)和Limbungan Makmur SND BHD(“租船方”)之间的包运合同(“COA”)，租船方同意在2009年至2017年期间从巴西向马来西亚供应和装载59批铁矿石球团。货物约定由两个港口之一供应：(i) Ponta Ubu港，由Samarco Mineracao SA (“Samarco”)作为托运人或(ii) Tubarao港，由Vale SA (“Vale”) 作为托运人。
Under a COA between Classic Maritime Inc. (“Owners”) and Limbungan Makmur SND BHD (“Charterers”), the Charterers agreed to supply and load 59 shipments of ironore pellets from Brazil to Malaysia between 2009 and 2017. The cargo was to be supplied from one of two ports: (i) Ponta Ubu with Samarco Mineracao SA (“Samarco”) as the shipper or (ii) Tubarao with Vale SA (“Vale”) as the shipper.
租船方与以上两个托运人都没有签署具有长期法律约束力的合同。 COA下所有之前的货运均来自Ponta Ubu港，由Samarco作为托运人。
Charterers did not have long term legally binding contracts with either shipper. All previous shipments under the COA had been from Ponta Ubu with Samarco as the shipper.
2015年11月5日，Samarco矿山的一座大坝坍塌，造成了巴西最严重的环境灾难之一。 Samarco的铁矿石生产立即停止，Ponta Ubu港的出货暂停。租船方试图安排Tubarao港的货物供应，出于和大坝完全无关的原因，Vale并没有安排任何运货。因此，租船方无法履行COA下的剩余五批货运。
On 5 November 2015, a dam at Samarco’s mine burst, causing one of Brazil’s worst environmental disasters. Samarco’s iron ore production was immediately stopped and shipments from Ponta Ubu were suspended. Charterers tried to arrange for asupply of cargo from Tubarao, however, Vale did not provide any for reasons unrelated to the dam burst. Charterers were therefore unable to fulfil there maining five shipments under the COA.
船东试图向租船方索赔其损失的运费。租船方根据COA的第32条不可抗力条款，提出了相应抗辩。第32条翻译如下：
Owners sought damages from Charterers for the lost freight. Charterers,in their defence, sought to rely on the force majeure provision, Clause 32, in the COA, which provided for the following:
“船舶，船长或船东，租船方，托运人或收货方均不对以下原因导致的未能供应和未能运货承担责任：天灾、洪水、泥石流、矿井或生产设施事故，或任何其他超出船东，租船方，托运人或收货方控制的原因，前提为以上原因直接影响租约任何一方履行合同”(重要部分加粗)。
“Neither the Vessel, her Master or Owners, nor the Charterers, Shippers or Receivers shall be responsible for…failure to supply, load…cargo resulting from: Act of God…floods…landslips…accidents at mine or production facility…or any other causes beyond the Owners’, Charterers’, Shippers’ or Receivers control; always provided that such event directly affect the performance of either party under this Charter Party.” (Emphasis added).
英国高院需要对以下问题做出判决：
The Court had to decide whether:
船东是否可以根据The Mary Nour[1] and The Kriti Rex[2]的判决，主张当托运人无法提供货物时，租船方不得援引不可抗力条款来避免担责；
Owners were correct on relying on the principle that a Charterer is not protected by a force majeure clause if their shipper fails to supply the cargo as per The Mary Nour[3] and The Kriti Rex[4];其他履行方式原则(alternative modes of performance principle)是否适用于本案，即根据COA，租船方选择使用的履行方式是由Samarco从Punta Ubu港发货，而由于租船方无法通过唯一可行的其他履行方式来履行合约，即通过Vale从Tubarao港发货，因此租船方的不履行并不造成违约，可以援引第32条；
the alternative modes of performance principle applied in this case, in that Charterers had opted for one mode of performance under the COA (cargo from Samarco / Punta Ubu) which had become unavailable. As they were unable to perform via the only other available mode (Tubarao / Vale), Charterers’ non-performance was excusable and they couldrely on Clause 32;
为了能够援引第32条，租船方是否必须证明“若非”(but for)大坝坍塌，他们本来有能力且有意愿履行剩下的货运；
to be able to rely on Clause 32, it was necessary for Charterers to demonstrate “but for” the dam burst, they would have been able and willing to supply the cargo for the remaining shipments;
租船方是否充分证明他们无法通过Vale从Tubarao港发货，并因此可以援引第32条；
Charterers sufficiently demonstrated they were unable to obtain cargo from Tubarao via Vale and therefore could rely on Clause 32;
大坝坍塌是否为托运人可控的事件，进而租船方不得援引第32条；及
the dam burst was within the Shippers’ control and therefore prevented Charterers from relying on Clause 32; and
如果租船方不能援引第32条，船东是否能获得大额赔偿(substantial damages)
Owners were entitled to recover substantial damages if Charterers’ breach fell outside the protection afforded under Clause 32.
英国高院判定，本案适用其他履行方式原则(alternative modes of performance principle)，租船方不必签署有法律效力的合约从Ponta Ubu装货，相应的“安排”就已足够。
Consequently, the Court found that the alternative modes of performance principle applied in this case and Charterers were not required to have legally binding arrangements to perform from Ponta Ubu rather than Tubarao; an “arrangement” was enough.
在大坝坍塌后，租船方有义务证明他们已经采取合理的努力争取从Tubarao港发货，因为他们不再能够从Punta Ubu发货，而英国高院认为租船方证明成功。船东不能依据The Mary Nour或The Kriti Rex，因为这两个判例并没有涉及从不同港口发货的其他履行方式。
Following the dam burst, Charterers were obliged to demonstrate that they had used reasonable efforts to ship from Tubarao when they were no longer able to ship from Punta Ubu, which the Court considered they had. Owners were not correct in seeking to rely on The Mary Nour or The Kriti Rex as these cases did not consider alternative modes of performance from different ports.
自英国上议院(即最高法院)判决的Bremer Handelsgesellschaft v Westzucker[5]以来，这似乎是第一起考虑了必要条件原则(“but for” test)在不可抗力条款(force majeure)或免责条款(exception clauses)中的适用性的案件。在Bremer一案中，英国上议院判决必要条件原则不适用于合同受阻/落空条款(contractual frustration clauses)。
It appears that this is the first case since the House of Lords case Bremer Handelsgesellschaft v Westzucker[6], which has considered the applicability of the “but for” test when a party isseeking to rely on a force majeure or exception clause. In the Bremer case, it was held by the House of Lords that the “but for” test was not applicable to contractual frustration clauses.
在本案中，英国高院认为第32条并不是一项可以免除合同双方履行未来义务的合同受阻/落空条款(contractual frustration clause)，而是一项例外条款(exception clause)，可以在一方被要求支付违约赔偿时用作抗辩。因此，租船方要证明若非大坝坍塌，其将会如约提供货物。英国高院认为，租船方并不能证明他们的违约是大坝坍塌所“导致”的(resulting from)，或受到了大坝坍塌的“直接影响”(directly affected)，因为在大坝炸坍塌前，租船方就未能履行两次货运，因此，在大坝坍塌前，租船方不能证明其有能力或有意愿根据COA提供货物。
In this case, the Court held that on construction, Clause 32 was not a contractual frustration clause that sought to cancel all future obligations under the contract, but was instead an exception clause that provided a defence to a claim of damages for breach of contract. As such, Charterers need to demonstrate that but for the dam burst, the cargo would have been supplied. The Court found that the Charterers were unable to demonstrate that their breach ofthe COA was “resulting from” or “directly affected” by the dam burst, as they had not fulfilled the two shipments prior to the dam bursting and at the time the dam burst, they were not able and willing to supply cargoes for shipment pursuant to the COA.
然而，尽管租船方无法援引第32条，英国高院认为根据补偿原则(compensatory principle)，船东仍不能获得大额赔偿，因为判定大额赔偿给船东将会导致船东获得赔偿之后所处于的经济地位优于假定合同被正常履行之后其所能处于的地位，即假设即便租船方有能力和意愿履行合同，大坝坍塌这一不可抗力仍将使得租船方无法履行合同。因此，判定大额赔偿金将违背补偿性原则，该原则要求法院应将当事人置于合同如期履行后其所在的地位。
However, despite finding that Charterers were unable to reply on Clause 32, the Court did not award substantial damages to Owners as the compensatory principle barred recovery. Had substantial damages been awarded, it would have put the Owners in a better position than if Charterers had been able and willing to perform their obligations, as it is assumed the force majeure event of the dam bursting would have prevented them from doing so. This would have run contrary to the compensatory principle, i.e. putting the parties in the position they would have been had the contract been performed.
最后，英国高院认为，大坝的建造，维护和工程与租船方在COA下的提供及装载货物的义务无关，并拒绝了船东关于这一点的主张。
Lastly, the Court held that the construction, maintenance and engineering of the dam had no relevance on Charterers’ obligations to supply and load cargo under the COA, and rejected Owners’ argument on this point.
毫无疑问，这一判决提出了一些有意义的法律观点，包括在援引不可抗力条款时必要条件原则的适用性。
This judgment has no doubt raised several interesting legal positions, not least the application of the “but for” test in the operation of force majeure clauses.
[1][2008] 2 Lloyd’s Rep
[2][1996] Lloyd’s Rep 171
[3][2008] 2 Lloyd’s Rep
[4][1996] Lloyd’s Rep 171
[5][1981] 2 Lloyd’s Reports 130
[6][1981] 2 Lloyd’s Reports 130
Nicholas Lum (林健良)
合伙人，新加坡
Email: nicholas.lum@incelaw.com
Wai Yue Loh (劳玮裕）
Email: waiyue.loh@incelaw.com
Nicola Tune
律师，香港
Email: nicola.tune@incelaw.com