损失固定赔偿－Unaoil Ltd v Leighton Offshore Pte Ltd [2014] 案介绍

了解航运业务的人可能都听说过“滞期费”，滞期费实质上就是一种合同约定的损失固定赔偿(Liquidated Damages)，即就租家违反合同、额外使用的装卸时间，租家给予船东的固定金额的损失赔偿。

损失固定赔偿一方面可以限定违约方的最高责任，另一方面简化了损失计算，从而减少双方因计算损失而产生争议，减少解决争议的成本。

与航运程租合同的滞期费类似，很多其它行业的合同中也有损失固定赔偿的作法。本案涉及的是一个能源工程承包合同，合同约定了一项4,000万美元的损失固定赔偿，即如果被告(LEIGHTON)违约，将赔偿原告(UNAOIL)4,000万美元的损失。

英国法下就合同中有关Liquidated Damages的约定，有一限制原则：合同约定损失固定赔偿金额应合理，不得“extravagant and unconscionable”，不得变向成为一种惩罚(penalty)，不得造成一方因慑于合同中Liquidated Damages的约定，而不敢违约(deterrence of breach)。如果合同厘定的损失固定赔偿条款违反该原则，该条款无效。

本案的争议焦点是，合同开始约定的价款是7500万美元，后双方协商将合同价款降低到5500万美元，但没有相应降低之前所约定的4,000万美元的损失固定赔偿。法院认为4,000万美元的损失固定赔偿，相对于5500万的合同价款而言，是不合理的，故不予支持。

本案给大家的启示是：合同签订后，如合同双方想修改（尤其是降低）合同价款，应注意相应修改合同中有关损失固定赔偿的条款，避免损失固定赔偿被认定是 “penalty”而无效。

LiquidatedDamages – Unaoil Ltd v Leighton Offshore Pte Ltd [2014] EWHC 2965 (Comm)

Often contractsare amended prior to or during performance. If they contain a liquidateddamages clause, this should not be overlooked.

Many industrycontracts contain a liquidated damages clause, a pre-agreed sum payable to oneparty for a specific breach of contract by another party. These commonlyaddress contractor delay and/or defective performance. Key advantages of suchclauses are that they offer both parties certainty over the damages payable fordelay, and provide scope to limit a contractor’s liability.

The recent caseof Unaoil Ltd v Leighton Offshore Pte Ltd [2014] EWHC 2965 (Comm) servesto illustrate that where a contract is amended to reflect a lower price, if theliquidated damages clause remains unchanged, there is a risk of the liquidateddamages provision becoming unenforceable as a penalty.

The facts

The caseconcerned Leighton Offshore Pte Ltd (Leighton) tendering for engineering andconstruction work on an oil pipeline project in Iraq. A memorandum of agreement(MOA) was drawn up under English law between Leighton and Unaoil Ltd (Unaoil)and executed in December 2010, envisaging Unaoil performing work on the project.

The MOA providedfor an agreed price of US$75m and clause 8.1 stated:

“If LEIGHTONOFFSHORE is awarded the contract for the PROJECT by the CLIENT, and LEIGHTONOFFSHORE does not subsequently adhere to the terms of this MOA and isaccordingly in breach hereof, LEIGHTON OFFSHORE shall pay to UNAOIL liquidateddamages in the total amount of US$40 million. After careful consideration bythe Parties, the Parties agree such amount is proportionate in all respects andis a genuine pre-estimate of the loss that UNAOIL would incur as a result ofLEIGHTON OFFSHORE’s failure to honour the terms of the MOA.”

The MOA alsoprovided for a non-refundable advance payment to Unaoil of 15% of the contractprice, as well as a “Non Refundable Pipe Laying Equipment Asset Write Down AndMobilisation Payment of 7.5%” of the contract price.

Amendment to the MOA

The MOA wasamended in March and again in April 2011, with the main difference being areduction in the contract price to US$55m. As part of the amendment, Unaoilwould also be paid a marketing fee of 5% on any amount Leighton received on theproject above US$500m, set at a minimum of US$25m.

The dispute

Leighton’s tenderwas successful, but Leighton then chose not to formally sub-contract withUnaoil. Unaoil continued to prepare for the project and submitted an invoicefor advance payments which Leighton failed to pay.

In CommercialCourt proceedings Unaoil claimed the following: the specified advance paymentsas a simple debt claim; damages for loss of profit resulting from Leighton’srepudiatory breach; and liquidated damages of US$40m.

Judgment

The courtrejected all of Leighton’s defences as to the debt claim and awarded UnaoilUS$12,577,500, as the two advance payments due under the contract. The loss ofprofit claim however failed. Although Leighton had breached the contract bydeciding not to sub-contract with Unaoil, such that Unaoil was entitled todamages, this was only to the extent that the loss of profit exceeded theadvance payment. The court had difficulty in quantifying the precise loss ofprofit, and concluded it to be in the region of US$5.8m, despite Unaoilclaiming US$25m for support services which Leighton had never used. The precisevalue was of less importance however, for because the sum was noticeably lessthan the value of the debt claim, it had already been covered by the advancepayments.

As for theliquidated damages claim, the court ruled that the sum stated in the MOA(US$40m) was an unenforceable penalty, and referred to Talal El Makdessi vCavendish Square Holdings BV and another [2013] EWCA Civ 1539. Theapplicable principles for determining whether a liquidated damages clause willbe unenforceable as a penalty were discussed in El Makdessi and the casedemonstrates a recent shift in the approach of the courts. Traditionally, aprimary consideration was whether the liquidated damages were “extravagant andunconscionable” in comparison with the greatest conceivable loss such that theeffect was one of deterrence of breach (Dunlop Pneumatic Tyre Co Ltd v NewGarage & Motor Co Ltd [1914] UKHL 1). El Makdessi concerned aShare Purchase Agreement which provided for liquidated damages on the seller’sbreach. Whilst the court ruled that the particular provision had been agreed bycommercial equals on a level playing field, and that the damages wereextravagant, unreasonable, lacked commercial justification and fell into thecategory of deterrence, such that they were unenforceable, the court suggestedthat the term “unconscionable” might nowadays be more appropriately applied to aclause which provides for extravagant payment without commercial justification.

Whilst the courtin Unaoil found that the liquidated damages may have represented a genuinepre-estimate of the loss when the MOA was signed, it held that where a contracthas been amended in a material respect, the relevant date was the date at whichthe MOA was amended. This approach appears logical, considering that therecould be numerous potential changes to a contract which could render an earlierliquidated damages sum no longer commercially justified.

The courtconsidered that, following the reduction of the contract price from US$75m toUS$55m, the original liquidated damages amount of US$40m could no longer beseen as commercially justified. In its view and in the absence of clarity as towhy the liquidated damages clause was not considered at the same time as theamendments, it was highly unlikely that both parties would have agreed to theoriginal liquidated damages in the context of the amendments.

What does this mean for contractors?

The situation ofUnaoil is quite different from usual examples of liquidated damages, as theclause in question was intended to compensate the subcontractor for thecontractor’s breach, whereas the more common use is to compensate an employercompany for a contractor’s delay.

This case howeverhighlights the importance of checking whether amendments to a contract impacton other provisions and particularly whether an existing liquidated damages summay fall into the category of a penalty. If the liquidated damages sum isnot amended, and absent commercial justification for the sums identified, acourt may be inclined to hold the provision unenforceable as a penalty. This isespecially relevant in engineering contracts which may undergo significantchanges throughout the duration of the contract, whether increasing ordecreasing the price of the contract and/or the scope of work to beperformed.

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