UK: Liquidated Damages Under Shipbuilding Contracts

Last Updated: 27 October 2010
Article by Michael Stockwood and David Richards

Azimut – Benetti SpA v. Healey [2010] EWHC 2234

The High Court has recently looked at issues arising where one party seeks to enforce a liquidated damages clause incorporated into a shipbuilding contract, and the defaulting party contends that liquidated damages are not payable because they constitute a "penalty".

Facts

The claimant was a luxury yacht builder which agreed to construct and sell a super yacht to a special purpose company incorporated in the Isle of Man. The buyer's liabilities were guaranteed by the defendant.

Under the termination clause within the contract it was agreed that, in the event of a default by the buyer, the builder was entitled to recover an amount equal to 20% of the contract price by way of liquidated damages and, subject to that retention, would then promptly return the balance of any sums paid by the buyer up to the date of termination.

The price for the super yacht was €38 million and, following the buyer's default, the builder claimed liquidated damages of €7.6 million from the defendant under the guarantee. The defendant resisted this claim on the basis that the liquidated damages provision constituted an unenforceable penalty clause.

The builder denied that the liquidated damages clause constituted a penalty but also raised another argument. That, even if the liquidated damages did amount to an unenforceable penalty, the defendant was nonetheless liable under the guarantee on the basis of a provision stating that the guarantee would not be rendered unenforceable by reason of any "irregularity, illegality, unenforceability or invalidity" in the underlying construction contract.

Was the liquidated damages provision a penalty?

Mr Justice Blair reviewed the line of authorities discussing penalty clauses.

  • The essence of a liquidated damages clause is that it should represent a genuine pre-estimate of the loss that the innocent party will suffer upon the termination of the contract.
  • By contrast a penalty clause is one which provides for the payment of money from the defaulting party, the predominant contractual function of which is to deter a party from breaking the contract rather than to compensate the innocent party for any breach. The hallmark of a penalty clause is that it is designed to function as a deterrent rather than to provide compensation for a loss.
  • The question of whether an agreement to pay a specified sum is a penalty or an agreement to pay liquidated damages is a question of construction to be decided on the terms and the inherent circumstances of each particular contract judged at the time the contract was made and not at the time of the breach.
  • A court must be careful not to set too stringent a standard when determining whether a liquidated sum constitutes a penalty and should bear in mind the principle that, where commercial parties enter into a contract with equal bargaining power, the parties' agreement should normally be upheld and great caution should be exercised before striking down a clause as penal.

Having considered the legal principles involved, Blair J looked at the pre-contractual negotiations between the parties and at the termination clause as a whole. He was influenced by the fact that the termination clause did not only provide for the payment of liquidated damages but also that, once the builder had retained 20% of the contract price, it was then obliged to immediately return any balance to the buyer.

In the absence of such a provision, the builder would be likely to retain all sums paid until its unliquidated damages claim had been resolved. This would lead to a potential delay before the buyer could receive repayment of any surplus between the recoverable losses due to the builder and the total sums paid under the shipbuilding contract.

For this reason, Blair J viewed the clause as seeking to strike a balance between the commercial interests of the parties in the event that the builder lawfully terminated the contract due to the buyer's breach. He concluded that this commercial rationale for the liquidated damages provision was evidenced by the parties' pre-contractual negotiations, which showed that the buyer wished to avoid the possibility of a considerable delay in reimbursement.

Blair J rejected the defendant's submissions that the court must form a view as to whether the penalty clause was a genuine pre-estimate of loss by assessing the maximum possible loss that the parties could have expected to flow from any termination of the contract and the extent to which the liquidated damages figure exceeded that maximum possible loss. In rejecting that argument, Blair J was influenced by the fact that both parties had the benefit of legal representation during the contract negotiations and that the liquidated damages clause was freely entered into.

Comment

Blair J's decision is particularly interesting in showing that the courts will uphold a clause of this nature without necessarily forming a view as to whether it represents a genuine pre-estimate of loss in order to decide whether the clause is a penalty. It is potentially of equal or greater weight, particularly if the parties are of equal bargaining power, to assess whether the primary purpose of the clause is to act as a deterrent.

If the liquidated damages provision was not enforceable, was the defendant still liable under the guarantee?

Although this issue did not need to be decided, given that Blair J concluded that the liquidated damages provision was enforceable, Blair J's obiter view was that the guarantee would not respond to require the guarantor to pay the liquidated damages where the provision in the underlying contract was found to be unenforceable, notwithstanding the term that the guarantee would be enforceable regardless of any "irregularity, illegality, unenforceability or invalidity" in the underlying construction contract.

Blair J reached this conclusion on two bases. First, because a court strikes out a liquidated damages clause as a penalty as a matter of public policy. Second, that where a liquidated damages clause is struck out there is simply no obligation to pay any monetary sum which the guarantee can relate to. While this reasoning can be clearly understood where a specific clause is struck out, it is less clear, on Blair J's analysis, what happens where the entire underlying contract is struck down.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.