Law of Shipbuilding Contracts
Page 389
Index
Index
- Abatement
- Acceptance of breach
- Acceptance of vessel
- Acts of God
- Additional funding
- Adjustment of contract price
- AFS 2001 see Anti-Fouling Systems on Ships Convention 2001
- Allocation of design risk
- Alternative dispute resolution
-
Ancillary agreements
- completion bonds, 308–309
- contract and refund guarantee assignments, 321–322
- guarantees issued on behalf of builder
- guarantees issued on behalf of buyer
- introduction, 299
- letters of comfort, 320–321
- options, 322–324
- performance guarantees, 307–308
-
Page 390
- specifications, 299–300
- Anti-bribery
-
Anti-Fouling Systems on Ships Convention 2001
- description and class, and, 32
- Appeals
- Applicable law
- Appointment of buyer’s representatives
- Approval of plans and drawings
-
Arbitration
- alteration of delivery date
- text of SAJ Form, 240
- alternative dispute resolution, and, 251–252
- appeals
- Brussels I Regulation, and, 240
- description and class, and, 34
- entry in court
- text of SAJ Form, 240
- expenses
- text of SAJ Form, 240
- Hague Convention, and, 240
- introduction, 241
- judicial proceedings, and
- London, in
- agreements to waive right of appeal, 247–248
- appeals, 246–247
- back-to-back contracts, 248
- constitution of tribunal, 245
- costs, 248
- enforcement of awards, 249
- extension of delivery date of vessel, 248–249
- introduction, 245
- jurisdiction and separability of agreement, 246
- other standard provisions, 248–249
- proceedings, 246
- text of SAJ Form, 248–249
- Lugano Convention, and, 240
- modifications, and, 96–97
- non-technical disputes
- notice of award
- text of SAJ Form, 239
- proceedings
- text of SAJ Form, 239
- standard form provisions, 241
- technical disputes
- text of SAJ Form, 241
- alteration of delivery date
- Assignment
- AWES Form
-
Bank charges
- contract price, and, 46
-
Bill of sale
- delivery documentation, and, 140
-
BIMCO,
see also
NEWBUILDCON
- generally, 14
- Bridging contracts
-
Brussels I Regulation
- dispute resolution, and, 240
- Builder
-
Builder’s bonus
- liquidated damages, and, 73
-
Builder’s certificate
- delivery documentation, and, 140
- Builder’s credits
- Builder’s guarantees
-
Builder’s guarantees enforceability
- other formalities, 311
-
Builder’s liabilities
- text of SAJ Form, 81
-
Builder’s lien
- title to vessel, and, 148
-
Builder’s risks
- insurance, and, 231
-
Builder’s warranty
- circumstances outside builder’s control, 195
- consequential losses, 193–194
- damage caused to vessel, 186–187
- defects identified at delivery, 183
- exclusion of liabilities, 191–196
- express terms, 191–193
- extent of builder’s responsibility, 180
- guarantee, 179
- guarantee engineer
- implied terms, 195–196
- limitations
- loss of use, 185
- nature, 181–182
- notice of defects requirement
- text of SAJ Form, 179
- notice requirement
- generally, 187
- obligation to remedy
- replaced parts, 185
- special losses, 193–194
- subcontractors’ warranties, 185–186
- text of SAJ Form, 179–180
- time limits, 184
- unfair terms, 196–197
- reasonableness, 197–199
-
Bunker Convention Certificate
- description and class, and, 33
- Buyer
- Buyer’s allowances
-
Page 392
- contract price, and, 44
- Buyer’s default
- Buyer’s remedies
- Buyer’s representatives
- Buyer’s supplies
-
Cancellation
- insurance, and, 238
-
Cargo Ship Safety Construction Certificate
- description and class, and, 32
-
Cargo Ship Safety Equipment Certificate
- description and class, and, 32
-
Cargo Ship Safety Radio Telegraphy (or Telephony) Certificate
- description and class, and, 32
- Characteristics of vessel
-
China Maritime Arbitration Commission,
see also
CMAC Form
- generally, 14
- Choice of law
- Classification certificate
- Classification of vessel
-
CMAC Form
- generally, 14
-
COLREG 1972, as amended
- description and class, and, 32
-
Community of European Shipyards’ Association
- generally, 14
-
Completion
- trials, and, 108
- Completion bonds
- Completion of contract works
-
Compliance with plans and drawings
- description and class, and, 27
-
Concurrent delays
- force majeure, and, 159
- Condition of vessel
- Conditions precedent and subsequent
- Conduct of trials
-
Page 393
- Consent
- Consequential losses
-
Consumable stores protocol
- delivery documentation, and, 138
-
Continuous Synopsis Record
- description and class, and, 33
- Contract assignments
-
Contract price
- abatement rights, 52–53
- additional funding, 42–43
- adjustment of see also Adjustment of contract price
- bank charges, 46
- builder’s credits
- buyer’s allowances, 54–57
- buyer’s credits, 43–44
- currency, 46–47
- deduction, 50–52
- design and supply of drawings, 289
- financing for the builder
- financing for the buyer
- financing the newbuild
- instalment payments, 41–42
- introduction, 40–41
- method of payment, 53–54
- prepayment, 50
- renegotiation, 57–58
- security, 49–50
- set-off, 50–52
- subsidies
- terms of payment
- text of SAJ Form, 39–40
- timing of payment, 47–49
- Contractor’s warranty
-
Control of Harmful Anti-Fouling Systems on Ships Convention 2001
- description and class, and, 32
- Copyright
- Corruption
- Crewing
- Currency
- Damage to the vessel
- Damages
- Deadweight
- Deduction
-
“Deemed” delivery
- generally, 150
- Default of buyer
- Defects
-
Delay in delivery
- builder’s breach of contract or negligence, 154–156
- causes
- concurrent delays, 159
- events see also Force majeure
- excessive delay
- extension of time, 153–154
- force majeure see also Force majeure
- insurance, and, 238
- introduction, 152–153
- liquidated damages, and
- negligence, 154–156
- notice, 173–174
- text of SJ Form, 151
- permissible delay
- prior breaches, 158–159
- rescission for excessive delay
- text of SAJ Form, 151–152
-
Deliverability
- application of general principles
- compliance with description, 121–124
- conditions, 112–113
- fitness for purpose, 125–127
- general principles
- introduction, 111–112
- NEWBUILDCON, 119–121
- principles of construction, 113–114
- reasonable fitness for purpose, 125–127
- rejection of goods on quality grounds, 114–115
- SAJ Form, 116–119
- satisfactory quality, 124–125
- statutory implied terms excluded by contract terms, 116–121
- statutory implied terms not excluded by contract terms
- warranties, 112–113
-
Delivery,
see also
Institute Clauses for Builders’ Risks (1/6/88)
- acceptance protocol, 133
- bill of sale, 140
-
Page 395
- builder’s lien, 148
- classification certificate, 138–139
- commercial invoice, 140
- condition of vessel, 135–136
- consumable stores protocol, 138
- “deemed”, 150
- delay, and see Delay in delivery
- deliverability, and see Deliverability
- documentation see Documentation
- documents to buyer
- text of SAJ Form, 132
- drawings, 140
- early delivery, 135
- effect of lex situs, 141–142
- fuel oil protocol, 138
- introduction, 133
- inventory protocol, 138
- invoice, 140
- method
- text of SAJ Form, 132
- non-registration certificate, 140
- place
- plans, 140
- removal from shipyard, 150
- text of SAJ Form, 133
- risk of loss or damage, 149–150
- text of SAJ Form, 133
- tender of vessel
- text of SAJ Form, 132
- time
- title to vessel
- trading certificate, 138–139
- trials protocol, 138
- vessel’s condition, 135–136
- warranty of freedom from encumbrances, 139–140
-
Description and class clause
- characteristics, 27–28
- classification requirements
- compliance with plans and drawings, 27
- dimensions, 27–28
- dispute resolution, 34
- environmental requirements, 33–34
- hull number, 26–27
- introduction, 26
- performance guarantees, 28–29
- quality standards and assurance, 34–36
- registration, 38
- regulatory requirements
- subcontracting, 36–37
- direct payments, 38
- text of SAJ Form, 25–26
- Description of goods
- Design risk allocation
- Dimensions
-
Discharge of obligations
- rescission by buyer, and
- text of SAJ Form, 201
- rescission by buyer, and
- Discrepancies
-
Dispute resolution
- alteration of date
- text of SAJ Form, 240
- alternative dispute resolution, 251–252
- appeals
- arbitration in London
- Brussels I Regulation, and, 240
- description and class, and, 34
-
Page 396
- text of SAJ Form, 240
- expenses
- text of SAJ Form, 240
- Hague Convention, and, 240
- introduction, 240–241
- judicial proceedings
- Lugano Convention, and, 240
- modifications, and, 96–97
- non-technical disputes
- notice of award, 239
- proceedings, 239
- standard form provisions, 241
- technical disputes
- text of SAJ Form, 239–240
- alteration of date
-
Documentation
- delivery, and
- acceptance protocol, 136–137
- bill of sale, 140
- builder’s certificate, 140
- classification certificate, 138–139
- consumables stores protocol, 138
- drawings, 140
- fuel oil protocol, 138
- inventory protocol, 138
- invoice, 140
- lube oils protocol, 138
- non-registration certificate, 140
- plans, 140
- protocol, 136–137
- trading certificate, 138–139
- trials protocol, 138
- warranty of freedom from encumbrances, 139–140
- delivery, and
-
Drawing approvals
- allocation of design risk, and, 24
- Drawings
- Duties
- Early delivery
- Effective date of contract
- Energy Efficiency Design Index (EEDI)
- Entire agreement
- Environmental protection
- Environmental requirements
-
Equipment defects
- force majeure, and, 165
- Equipment shortage
- Excessive delay
- Excessive fuel consumption
- Exclusion of liabilities
- Exclusion of liability
- Expenses
-
Explosions
- force majeure, and, 164
- Express terms
-
“Financial” defaults
- rescission by buyer, and, 203
- Financing
- Fitness for purpose
-
Force majeure
- causation
- delaying events
- accidents beyond control of builder, 166–169
- acts of God, 160–161
- acts of princes or rulers, 161
- caused by other commitments, 165–166
- defects in equipment, 159–160
- defects in machinery, 159–160
- defects in materials, 159–160
- delay in vessel construction, and, 165–166
- delays in delivery, and, 164–165
- equipment shortage, 164–165
- explosions, 164
- hostilities, 161–162
- impact, 172–173
- labour disturbances, 162–163
- labour shortage, 163–164
- lockouts, 162–163
- other delaying events, 169–171
- requirements of government authorities, 161
- SAJ Form, 160
- shortage of equipment, 164–165
- shortage of machinery, 164–165
- shortage of materials, 164–165
- strikes, 162–163
- war, 161–162
- equipment defects, 165
- equipment shortage, 164–165
- excessive delay, 175
- frustration, 177–178
- general principles
- impact of delaying events, 172–173
- introduction, 152–153
- machinery defects, 165
- machinery shortage, 164–165
- materials defects, 165
- materials shortage, 164–165
- notice of delay
- permissible delays
- “prevention principle”, 171–172
- rescission for excessive delay
- ship conversion contracts, 330
- text of SAJ Form, 151–152
- Formation of contracts
- Frustration
- Fuel consumption
-
Fuel oil protocol
- delivery documentation, and, 138
- Future instalments
-
Goal-based Ship Construction Standards
- description and class, and, 33
- Governing law
-
Page 398
- description and class, and, 33
- Guarantee engineer
- Guarantees
- Implied terms
- Inadequate deadweight
- Inception of project
- Innominate terms
- Instalment payments
- Institute Clauses for Builders’ Risks (1/6/88)
- Insufficiency of speed
-
Insurance
- application of recovered amount
- text of SAJ Form, 230
- assignment, 236
- “builders’ risks”, 231
- buyer’s supplies, 230
- cancellation, 238
- delay in delivery, 238
- duty to insure, 231–232
- extent of coverage
- text of SAF Form, 230
- introduction, 231
- Japanese Builder’s Risks Clause
- generally, 232
- latent defects, 234–235
- partial losses, 236–237
- text of SAJ Form, 230
- ship conversion contracts, 330
- termination of builder’s obligation
- text of SAJ Form, 231
- text of SAJ Form, 230–231
- total loss, 237–238
- text of SAJ Form, 230
- application of recovered amount
- Intellectual property rights
-
Interest
- buyer’s default, and, 217
-
International Air Pollution Prevention Certificate
- description and class, and, 33
-
International Anti-fouling System Certificate
- description and class, and, 33
-
International Sewage Pollution Prevention Certificate
- description and class, and, 33
-
International Ship Security Certificate
- description and class, and, 33
- Interpretation clause
-
Inventory protocol
- delivery documentation, and, 138
-
Invitations to tender
- negotiations of contracts, and, 9
-
Invoice
- delivery documentation, and, 140
-
ISM Code
- description and class, and, 33
- ISO 9000
-
Japanese Builder’s Risks Clause
- generally, 232
- Judicial proceedings
- Labour disturbances
- Labour shortage
- Latent defects
- Leasing
- Letters of comfort
- Letters of intent
- Lex situs
- Limitation of liabilities
- Liquidated damages
-
Load Lines Convention 1966
- description and class, and, 32
-
Location
- conduct of trials, and, 105
- Lockouts
-
Loss of use
- quality warranty, and, 185
-
Losses
- rescission by buyer, and, 214
-
Lugano Convention
- dispute resolution, and, 240
-
Machinery defects
- force majeure, and, 165
-
Marine Construction All Risks (01/09/07)
- generally, 233
- Maritime Labour Convention 2006 (ILO),, 32
- MARPOL 73/78
- Materials
-
Milestone events
- timing of payments, and, 47
- Modifications
- Navigation
- Negligence
- Negotiation of contracts
-
NEWBUILDCON
- adjustment of contract price
- allocation of design risk, 24
- anti-bribery, 294
- applicable law, 282
- approval of plans and drawings, 84
- assignment, 261
- background, 14
- builder’s warranty, and, 181–182
- buyer’s default
- buyer’s representatives
- buyer’s supplies, 267–268
- certificate of non-registration, 140
- classification certificate, 138–139
- classification requirements, 31
- condition of vessel, 135–136
- conditions precedent and subsequent, 274
- conduct of trials
- confidentiality, 295
- consequential losses, 194
- contract price
- corruption, 294
- currency, 47
- damage caused to the vessel, 187
- deliverability, 119–121
- delivery of vessel
- discrepancies, 283
- dispute resolution
- duties, 262
- entire agreement
- environmental protection, 293–294
- exclusions of liability, 296–297
- explosions, 164
- force majeure,, 157
- hostilities, 162
- implied terms, 196
- insurance
- intellectual property rights, 264
- interpretation clause
- limitations of liability, 296–297
- liquidated damages, 78
- lock-outs, 163
- loss of use, 181
- modifications
- “non-reliance” provisions, 285–286
- notice, 271
- notification of defects, 87
- passing upon delivery and acceptance, 144
- payment of price
- performance guarantees, 28
- preamble, 20
- property in plans and drawings, 264
- provisioning, 108
- quality standards and assurance, 34–35
- quality warranty, and
- refund guarantees, 306
- registration, 38
- regulatory requirements, 34
- replaced parts, 185
- rescission by buyer
- sale of vessel, 226
- set-off and deduction, 51
- special losses, 194
- strikes, 163
- subcontracting, 37
- suspension of the work, 291–292
- taxes, 262
- text, 335–376
- title to vessel
- passing prior to delivery and acceptance, 145
- trading certificate, 138–139
- trials
- unfair terms, 197
- war, 162
- weather conditions, 106
-
Non-registration certificate
- delivery documentation, and, 140
-
Notice
- address
- text of SAJ Form, 270
- arbitration awards, and, 239
- buyer’s default, and, 219
- delay in delivery, and, 173–174
- force majeure, and, 173–174
- generally, 270–271
- language
- text of SAJ Form, 270
- quality warranty, and
- rescission by buyer, and
- text of SAJ Form, 201
- text of SAJ Form, 270
- trials, and, 102
- address
- Notification of defects
-
Novation
- assignment, and, 261
- OECD framework
- Offshore contracts
- Options
- Partial losses
- Parties
-
Passenger Ship Safety Certificate
- description and class, and, 33
-
Patents
- drawings
-
Page 402
- plans
- specifications, 263
- text of SAJ Form, 263
- Payment
- abatement rights, 52–53
- bank charges, 46
- currency, 46–47
- deduction rights, 50–52
- instalments, 41–42
- text of SAJ Form, 40
- method, 53–54
- text of SAJ Form, 40
- prepayments, 50
- text of SAJ Form, 40
- security, 49–50
- set-off rights, 50–52
- terms
- timing, 47–48
- Performance guarantees
- Permissible delay
- Place of delivery
-
Plan approvals
- allocation of design risk, and, 24
- Plans
- Preamble
-
Prepaid instalments
- rescission by builder, and, 222
- Prepayment
-
Presentation of results
- trials, and, 109
-
Prevention of Collisions at Sea Convention 1972 as amended
- description and class, and, 32
-
Prevention of Pollution from Ships Convention 1973 as amended
- description and class, and, 32
-
Price
- abatement rights, 52–53
- additional financing, 42–43
- adjustment of see also Adjustment of contract price
- bank charges, 46
- builder’s credits
- buyer’s allowances, 54–57
- buyer’s credits, 44
- currency, 46–47
- deduction, 50–52
- design and supply of drawings, and, 289
- financing for the builder
- financing for the buyer
- financing the newbuild
- instalment payments, 41–42
- introduction, 40–41
- method of payment, 53–54
- prepayment, 50
- renegotiation, 57–58
- security, 50
- set-off, 50–52
- ship conversion contracts, 328–329
- subsides
- terms of payment
- text of SAJ Form, 39–40
- timing of payment, 47–48
- Prior breaches
- Provisioning
-
Page 403
- Quality standards
- Quality warranty see Warranty of quality
-
Radio Station Licence
- description and class, and, 33
- Reasonable fitness for purpose
- Refund by builder
- Refund guarantees
-
Registration
- description and class, and, 38
- Regulatory requirements
- Rejection of goods
- Rejection of vessel
- Remedies
- Removal from shipyard
- Renegotiation
-
Replaced parts
- quality warranty, and, 185
- Representatives
- Repudiation
- Rescission by builder see also Buyer’s default
-
Rescission by buyer
- acceptance of builder’s repudiatory breach, 212–215
- buyer’s remedies
- buyer’s right
- buyer’s supplies, 202
- common law remedies
- damages, 212–214
- delay in delivery, and
- discharge of obligations
- text of SAJ Form, 201
- effect
- excessive delay, and
- financial defaults, 203
-
force majeure
- by reference to “drop dead” date, 177
- grounds
- introduction, 201–202
- liquidated damages, and
- loss of rights, 205–206
- losses, 191
- notice
- text of SAJ Form, 201
-
Page 404
- specific performance, 215–216
- technical deficiencies, 203
- text of SAJ Form, 201
- title to vessel, 209
- total loss of vessel, 204
- Risk of loss
- Rome I Regulation
-
Safety of Life at Sea Convention 1974 as amended
see also
SOLAS 1974
- description and class, and, 32
-
Safety Management Certificate
- description and class, and, 33
-
SAJ Form
see also
under individual headings
- allocation of design risk, 23
- approval of plans and drawings, 80–81
- assignment, 253
- background, 14
- buyer’s default, 217–218
- buyer’s supplies, 265
- contract price
- default by buyer, 217–218
- delays, 151–152
- delivery
- description and class, 25–26
- dispute and arbitration
- generally, 241
- effective date of contract, 272
- force majeure,, 151–152
- guarantee, 290
- inspection, 80–81
- insurance
- intellectual property rights, 262
- interpretation, 281
- modifications, 90–91
- notice, 270
- preamble, 19
- quality warranty, 179–181
- rescission by buyer, 201
- sundry provisions, 289
- taxes and duties, 262
- terms of payment, 39–40
- trials, 102–103
- warranty of quality, 179–181
- Sale of goods legislation
- Sale of the vessel
- Satisfactory quality
- Scope of works
- Sea trials see Trials
- Sector Understanding on Export Credits for Ships
- Security
- Set-off
-
Settlement of builder’s liability
- liquidated damages, and, 77
- Ship conversion contracts
-
Ship Energy Efficiency Management Plan
- description and class, and, 33
-
Ship Security Plan
- description and class, and, 33
-
Shipbuilders’ Association of Japan
see also
SAJ Form
- generally, 14
- Shipbuilding contracts
- Shortages
- SOLAS 1974
- Special losses
- Specific performance
- Specifications
- Speed
- Standard forms of contract
- Statutory implied terms
- Steel cutting
- Strikes
- Subcontracting
- Subsidies
- Substitution of materials
- Sundry provisions
-
Surplus consumable stores
- disposition, 103
- Suspension of the work
- Taxes
-
Technical deficiencies
- rescission by buyer, and, 203
- Technical disputes
-
Tender of vessel
- delivery, and
- text of SAJ Form, 132
- delivery, and
- Terms of payment
- Third party rights
- Time of delivery
-
Time limits
- quality warranty, and, 184
- Title to vessel
-
Title to works
- ship conversion contracts, 330
-
Tonnage Measurement Convention 1969
- description and class, and, 32
- Total loss of vessel
- Trademarks
- Trading certificate
-
Trial protocol
- delivery documentation, and, 138
-
Trials
- acceptance of vessel
- completion, 108
- conduct
- crewing, 106–107
- deliverability
- application of general principles, 115–127
- compliance with description, 121–124
- conditions, 112–113
- construction, 113–114
- general principles, 112–115
- innominate terms, 112–113
- introduction, 111–112
- principles of construction, 113–114
- reasonable fitness for purpose, 125–127
- rejection of goods on quality grounds, 114–115
- satisfactory quality, 124–125
- statutory implied terms excluded by contract terms, 116–121
- statutory implied terms not excluded by contract terms, 121–127
- warranties, 112–113
- disposition of surplus consumable goods
- text of SAJ Form, 103
- effect of acceptance
- text of SAJ Form, 103
- introduction, 103–105
- location, 105
- method of acceptance
- navigation, 106–107
- notice, 105
- offshore contracts, 131
- presentation of results, 109
- provisioning, 107–108
- rejection of vessel
- text of SAJ Form, 102–103
- weather conditions
- Unfair contract terms
- Unpaid instalments
- Variation of contract price, see Adjustment of Contract Price
- Variation procedures
- Vessel’s condition
- War
- Warranties
- Warranty of freedom from encumbrances
-
Page 407
- circumstances outside builder’s control, 195
- consequential losses, 193–194
- damage caused to the vessel, 186–187
- defects existing on delivery, 183
- exclusion of liabilities
- express terms, 191–193
- extent of builder’s responsibility, 181
- guarantee, 179
- guarantee engineer
- implied terms, 195–196
- introduction, 180–181
- limitations
- loss of use, 185
- nature, 181–182
- notice of defects requirement
- text of SAJ Form, 179
- notice requirement
- generally, 187
- obligation to remedy
- replaced parts, 193–194
- special losses, 193–194
- subcontractors’ warranty, 185–186
- text of SAJ Form, 179–180
- time limits, 184
- unfair contract terms
- unfair terms
- Weather conditions